STATE OF NEW JERSEY v. DONALD L. HENRY, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2700-06T42700-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD L. HENRY, JR.,

Defendant-Appellant.

________________________________________________

 

Submitted March 5, 2008 - Decided -

Before Judges Lisa and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4637.

O'Mara Law Firm, attorney for appellant (Peter M. O'Mara, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a trial de novo in the Law Division, defendant, Donald L. Henry, Jr., appeals from his conviction for driving while on the revoked list, contrary to N.J.S.A. 39:3-40f(2). On appeal, defendant presents the following argument:

POINT I

THE CHARGES AGAINST THE DEFENDANT MUST BE DISMISSED BECAUSE THE POLICE LACKED PROBABLE CAUSE TO STOP MR. HENRY.

Based upon our review of the record and applicable law, in light of defendant's contentions, we affirm.

Defendant filed a pre-trial motion to dismiss for lack of probable cause. At a hearing before Clifton Municipal Court Judge Scott Bennion on June 12, 2006, Passaic County Sheriff's Department Corporal Thomas DeLorenzo testified that on November 3, 2005, he was on a special detail involving commercial enforcement. The officer was in a marked patrol car located in a driveway approximately five feet from the roadway when he saw defendant, not wearing a seatbelt, driving a white Ford pick-up truck. The officer also saw magnetic signs with the name of a business on the vehicle, but the vehicle did not have commercial license plates, as required by law. As a result of these observations, the officer stopped defendant. Defendant testified he was wearing a seatbelt.

Judge Bennion assessed the witnesses' demeanor and found the officer's testimony credible and defendant's testimony not credible. The judge also found probable cause for the stop. Defendant then entered a conditional guilty plea. Because defendant had four prior DWI convictions, and one prior driving while suspended conviction, the judge imposed a fifty-day jail sentence and a two-year loss of license. The judge also imposed the appropriate fines and costs. The sentence was stayed pending appeal.

Defendant appealed to the Law Division. Judge Caposela conducted a trial de novo on the record. In a written opinion, the judge made independent findings of fact and conclusions of law, and gave deference to Judge Bennion's credibility determination. Judge Caposela concluded the officer had articulable and reasonable suspicion to stop defendant for not wearing a seatbelt in violation of N.J.S.A. 39:3-76.2.

On appeal from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). Although the Law Division judge must make independent findings of fact and conclusions of law, it is bound by the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964) (citing State v. Ronnie, 41 N.J. Super. 339, 343 (Cty. Ct. 1956)); State v. Loce, 267 N.J. Super. 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993), cert. denied, 510 U.S. 1165, 114 S. Ct. 1192, 127 L. Ed. 2d 542 (1994).

The scope of appellate review of municipal court convictions is exceedingly narrow. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). On appeal from a Law Division's de novo decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 162. However, as with the Law Division, we are not in as good of a position as the municipal court judge to determine credibility, and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71 (citing Johnson, supra, 42 N.J. at 161-62). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We should give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Based upon these standards and our review of the record and Judge Caposela's opinion, we are satisfied there is sufficient credible evidence present in the record to sustain defendant's conviction. Law enforcement officers "may stop motor vehicles where they have reasonable or articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990).

The judgment of conviction is affirmed and the stay of sentence is vacated.

Affirmed.

 

The officer subsequently determined the truck was not a commercial vehicle.

(continued)

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A-2700-06T4

March 20, 2008