STATE OF NEW JERSEY v. STEVE PONTI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2185-07T42185-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVE PONTI,

Defendant-Appellant.

__________________________

 

Submitted December 1, 2008 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-47-07.

Carmen A. Malignaggi, attorney for appellant.

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Steve Ponti appeals from the denial of his motion to suppress arising from a motor vehicle stop, and from his subsequent guilty plea to refusal to provide breath samples, N.J.S.A. 39:4-50.2. Defendant was sentenced on the refusal to a fine of $1006, a driving while intoxicated surcharge of $100, court costs of $33, a ten-year loss of driving privileges, and forty-eight hours in the Intoxicated Driver Resource Center. N.J.S.A. 39:4-50.4a. We affirm.

On June 10, 2007, in the town of National Park, at approximately 2:40 a.m., Officer Patrick Charles observed defendant's vehicle being operated "at a somewhat of a good speed" while on Grove Avenue. The officer followed defendant's car for approximately fifteen to twenty seconds. Defendant then made a right-hand turn onto Columbia Boulevard. While the officer was following the vehicle, it swayed from side to side on three occasions, despite the fact that it was a clear night and the road surface was flat blacktop. There were two bends in the road, but the officer did not testify that the side-to-side movements occurred in reaction to them.

As a result of these observations, the officer stopped defendant's car. Defendant was eventually charged as a result of the stop with driving while intoxicated, N.J.S.A. 39:4-50, as well as refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.2, failure to maintain one's lane of travel, N.J.S.A. 39:4-88, and reckless driving, N.J.S.A. 39:4-96.

Defendant's motion to suppress was denied in the Municipal Court on September 24, 2007. Defendant's contention was that the stop was unlawful because the officer did not have reasonable and articulable suspicion. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). After the motion was denied, defendant entered a guilty plea to refusal, and the charge of driving while intoxicated was dismissed. The other two offenses were "dismissed by way of merger." On de novo review, see Rule 3:23, a Law Division judge again denied defendant's suppression motion and found him guilty on December 21, 2007.

Defendant challenges the lawfulness of the stop on this appeal. We find that his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We state the following by way of brief comment.

As the Law Division judge reiterated, the stop of defendant was properly grounded in the officer's community caretaking function. State v. Washington, 296 N.J. Super. 569 (App. Div. 1997), is precisely on point. That defendant was operating his motor vehicle at a speed of thirty-six miles per hour in a forty-five mile per hour business zone at 12:20 a.m. Id. at 571. He was observed weaving within his lane of travel for approximately one-half mile. Ibid. Washington's right tires briefly crossed over from the travel portion of the roadway onto the shoulder portion by about a tire's width. Ibid. As we said in Washington, a police officer's community caretaking function requires motor vehicle stops to be conducted whenever abnormal operations are observed. Id. at 572. Reasonably objective grounds for a stop are "measured by the dynamics or totality of the circumstances from the perspective of the officer on duty at the time and not from the esoteric perspective of the courtroom." Ibid.

In this instance, a police officer observed a vehicle moving at a relatively brisk pace, albeit within the speed limit, in the very early hours of the morning. He observed the car weaving within its lane on three separate occasions, despite good driving conditions. The question is not "whether or not the driver stays in his or her lane of travel." Ibid. The question is whether as a result of that weaving, the officer had "reasonable grounds to conclude that the vehicle is a potential safety hazard to other vehicles and that there is either something wrong with the driver, with the car, or both." Ibid. The officer's observations, given the hour, constituted a reasonably objective basis for a stop to determine if something was wrong with the driver, the car, or both. There is no need for law enforcement to wait until some dangerous encounter occurs between the motorist and the public.

Affirmed.

The statute provides that for a third or greater conviction of refusal, license revocation shall be for ten years. This was at least defendant's third conviction.

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A-2185-07T4

January 29, 2009