STATE OF NEW JERSEY v. WILLIAM WRIGHT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2057-06T52057-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM WRIGHT,

Defendant-Appellant.

_____________________________

 

Submitted July 3, 2007 - Decided

Before Judges Parker and Seltzer.

On appeal from the Superior Court

of New Jersey, Law Division, Ocean

County, AP-21-06.

M. Joseph Kurzrok, attorney for appellant.

Thomas F. Kelaher, Ocean County Prosecutor

(Thomas Cannavo, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction, after trial de novo in the Law Division, of driving while intoxicated, N.J.S.A. 39:4-50. He does not appeal from the mandatory sentence imposed. We affirm.

The evidence produced before both the Municipal Court and the Law Division was the product of a hearing on defendant's motion to suppress evidence. After the motion to suppress was denied, defendant affirmatively agreed that there was no "point in bringing the witness back to repeat his testimony." He, therefore, indicated that he had no "problem incorporating all of that [into the trial]." The same representation was made to the Law Division judge.

At the suppression hearing, the State produced evidence that at approximately 7:12 p.m. on December 25, 2005, Franz Isaryk witnessed a blue Dodge utility truck run into a parked vehicle and drive away. Isaryk followed in his vehicle for about two-and-one-half miles until the truck stopped at 47 West Susquehanna Drive where the driver left the vehicle and entered the home. Isaryk had called 911 during the pursuit and was met by the police within several minutes.

Officer Michael Hart testified that he arrived at the scene, spoke with Isaryk, and saw that the Dodge truck exhibited damage consistent with an accident. Hart then knocked at the door of the home into which Isaryk reported the driver had gone. The door was opened by defendant and Hart testified:

My intention was I needed to conduct an investigation on the accident that just occurred. I either needed him to step outside to talk to me or talk to me in the doorway there. When he opened the door and I asked that, he turned his back, walked away. As he was walking away, he said, "Come on in."

Once inside, Hart noted signs of intoxication and asked defendant if there was anyone else home which defendant denied.

At the suppression hearing, defendant denied inviting the officer into his home. The municipal court judge, however, found Hart to be more credible, as did the Law Division judge who accorded appropriate deference to the credibility findings of the municipal court judge. See State v. Locurto, 157 N.J. 463, 472-74 (1999). On that evidence, the Law Division judge denied the motion to suppress, finding "that the officers were outside the house under a reasonable right of investigation and caretaking." He found "that they had the right to go to the house and make the approach to the defendant."

The judge considered the evidence adduced at the suppression hearing and concluded that the State had proven beyond a reasonable doubt that defendant had operated the vehicle while intoxicated. On appeal, defendant asserts

POINT ONE

THE EVIDENCE OF THE DEFENDANT-APPELLANT'S INTOXICATION WAS OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND SHOULD HAVE BEEN SUPPRESSED.

POINT TWO

THE CROSS EXAMINATION OF THE DEFENDANT-APPELLANT DURING THE SUPPRESSION HEARING WENT BEYOND THE SCOPE OF THAT HEARING AND THE SUBSEQUENT USE OF CREDIBILITY FINDING DURING THE TRIAL CONSTITUTED A VIOLATION OF THE DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHTS.

POINT THREE

THERE WAS INSUFFICIENT PROOF OF THE DEFENDANT-APPELLANT'S OPERATION ON THE NIGHT OF THE ARREST AND THEREFORE THE FINDING OF GUILT MUST BE OVERTURNED.

None of those arguments have sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following brief comments.

Defendant's claim that the motion to suppress should have been granted is predicated on a belief that the police presence inside defendant's home was unauthorized. Hart's movement to the porch was constitutionally permissible. State v. Nikola, 359 N.J. Super. 573, 581-82 (App. Div.), certif. denied, 178 N.J. 30 (2003). We perceive Hart's knock on the door to be nothing more than an inquiry that need not have been answered. We find no constitutional infirmity in that action.

Even after the door was opened, Hart saw no evidence of a statutory violation. Once Hart had been invited into the home, defendant's intoxicated condition was in "plain sight" and its "seizure" was constitutionally unexceptionable. The trial court accepted Hart's recitation of how he entered defendant's home and we have no basis to disturb that finding. State v. Castaing, 321 N.J. Super. 292, 295 (App. Div. 1999).

Defendant asserts that Hart was required to advise him that he did not have to admit the officer. The evidence indicated that Hart was admitted voluntarily. Had the conversation continued at the door, it would have been no more than a field inquiry which may be conducted "without grounds for suspicion." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). Under those circumstances, Hart was under no obligation to provide any warnings.
Given defendant's admission that he alone was in the house and the testimony of Isaryk that the operator of the vehicle had entered the home, operation was clearly proven. Defendant's consent to using the suppression testimony at trial renders his belated objection to that use unavailing. See State v. Jenkins, 178 N.J. 347, 358 (2004) (defendant may not object to a course of action requested by him). In any event, even absent defendant's testimony, there was more than sufficient evidence to justify the rulings concerning the suppression application and the finding of guilt.

 
Affirmed.

Defendant does not advance any separate grounds for objection to the inquiry as to whether anyone else was in the home. We do note that under these circumstances the warnings required by Miranda were not necessary. Those warnings must be given only before a "custodial interrogation," that is one in which a persons freedom of action is curtailed in some meaningful way. See State v. O'Neal, ____ N.J. ____ (2007) (slip op. at 14-15). We do not view the setting in which defendant was asked about other people in the home as custodial.

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A-2057-06T5

July 23, 2007