STATE OF NEW JERSEY v. JON P. DEMAREST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4448-07T44448-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JON P. DEMAREST,

Defendant-Appellant.

________________________________________________________________

 

Argued February 24, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal Docket No. 010-04-08.

Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel; Jane M. Personette, on the brief).

Charles Cho, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Cho, of counsel and on the brief).

PER CURIAM

Defendant Jon P. Demarest appeals from an order entered on May 8, 2008 finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, after de novo review. Defendant entered a guilty plea in the municipal court after his motion to suppress was denied. Because it was his third DWI conviction, defendant was sentenced to a term of 180 days in the county jail, a ten-year suspension of his driver's license, a $1,000 fine and mandatory penalties.

The facts adduced from the suppression hearing are as follows. On January 30, 2006, Oakland Police Officer Paul O'Keefe stopped at a Krauszer's Food Store on Route 202 for coffee. While he was in the store, he saw a man, later identified as defendant, stumble while talking on a cell phone. O'Keefe overheard defendant asking if someone was coming to pick him up. O'Keefe detected an odor of alcohol coming from defendant, which led him to leave the store intending to observe defendant to make sure he did not drive away.

O'Keefe pulled out of Krauszer's parking lot and into the firehouse parking lot across the street so he could have an unobstructed view of the Krauszer's lot. After two to three minutes, O'Keefe drove around the store to see if defendant was still inside. He did not see defendant inside the store but as he made a left-hand turn onto Route 202 south, he saw defendant walking on the sidewalk. As O'Keefe was watching, defendant turned onto Maple Avenue and continued walking onto Raritan Road back toward Krauszer's.

After defendant walked all the way around the block and back to the Krauszer's parking lot, O'Keefe got out of his patrol car and walked across an adjacent parking lot to observe defendant through a fence. O'Keefe testified that it was a stockade fence with "quite a few gaps in" it. As he watched, defendant got into a silver pickup truck, which was not running at the time, and continued talking on the cell phone.

O'Keefe continued to observe defendant for ten to fifteen minutes, when "[a]ll of a sudden . . . the truck started up and [defendant] backed out of the parking lot." Defendant was alone in the vehicle.

O'Keefe ran to his patrol car and pulled behind defendant at a stop sign where defendant made a right-hand turn onto Route 202 north. O'Keefe followed him "to observe his driving" and saw defendant come "extremely close" to a vehicle and "almost [strike] the parked car, . . . then veer[] back to the left, over the double yellow lines." At that point, O'Keefe activated his overhead lights and pulled defendant over.

O'Keefe testified that as he waited for defendant to give him his license, registration and insurance card, defendant "dropped some of the paperwork he was fumbling for . . . by the center console. And . . . picked it up shortly thereafter. He produced all the proper paperwork." O'Keefe asked defendant if he had been drinking and defendant said he drank a bottle of wine earlier.

O'Keefe then asked defendant to get out of the car and administered field sobriety tests. Defendant was unable to recite the alphabet beyond the letter "P" on several tries, but he completed the "Romberg test" - standing with his head tilted back and his eyes closed - and the "torso bend test." O'Keefe testified that defendant was swaying on the torso bend test, however. At that point, O'Keefe placed defendant under arrest, handcuffed him and placed him in the police car for transport to police headquarters.

In a written decision dated July 3, 2007, the municipal court made extensive findings of fact and denied defendant's motion to suppress. Defendant then entered a guilty plea and appealed to the Law Division. On May 1, 2008, after de novo review, the Law Division made its findings of fact, affirmed the municipal court's denial of the motion to suppress and affirmed the conviction.

In this appeal, defendant argues:

POINT ONE

THE COURT BELOW ERRED IN CONCLUDING THAT DEFENDANT HAD NOT BEEN "OBJECTIVELY ENTRAPPED" IN VIOLATION OF HIS CONSTITUTIONALLY-PROTECTED DUE PROCESS RIGHTS

POINT TWO

THE POLICE LACKED A REASONABLE AND ARTICULABLE REASON TO STOP MR. DEMAREST AND FURTHER LAC[K]ED PROBABLE CAUSE TO ARREST HIM

a. The police officer lacked a reasonable and articulable suspicion to stop Mr. Demarest

b. The police officer lacked probable cause to arrest Mr. Demarest

POINT THREE

THE COURT BELOW ERRED IN HOLDING THAT THE CONSTITUTIONAL GUARANTEES PURSUANT TO MIRANDA WERE INAPPLICABLE TO THIS MATTER

We have carefully considered the record in this matter in light of defendant's arguments and the applicable law and we are satisfied that his arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant first argues that his constitutional rights were violated because he was "objectively entrapped" by O'Keefe. Defendant bears the burden of establishing an entrapment defense by a preponderance of the evidence. N.J.S.A. 2C:2-12(b). In order to prevail on a claim of statutory entrapment, defendant must show "that the police conduct constituted entrapment by both objective and subjective standards." State v. Rockholt, 96 N.J. 570, 581 (1984). In other words, defendant must establish "that the police conduct . . . by its nature created a 'substantial risk' that the crime would be committed by an average person who was not otherwise ready to commit it" - the objective standard - and "that the police conduct in fact caused him to commit the crime" - the subjective standard. Ibid.

Here, defendant has not met either the objective or subjective standard for statutory entrapment. Defendant acknowledged that he had drunk a bottle of wine the first time O'Keefe spoke to him. O'Keefe's observation of defendant cannot be said to have "created a substantial risk" that an ordinary person would drive drunk. Nor can O'Keefe's observation have caused defendant to drive while intoxicated. Defendant acted of his own volition irrespective of O'Keefe's observations. O'Keefe's surveillance had no causal connection to defendant's violation of N.J.S.A. 39:4-50.

Defendant further argues that he is entitled to a defense of due process entrapment. Unlike statutory entrapment, due process entrapment is a matter of law to be decided by the court. State v. Grubb, 319 N.J. Super. 407, 415 (App. Div.), certif. denied, 161 N.J. 333 (1999). Due process entrapment may occur even where the standard for statutory entrapment has not been met. Id. at 414. "Because in the context of due process entrapment the prosecution has created the situation that is under scrutiny and because the State has far more control over the evidence relevant to proving or disproving due process entrapment, . . . the burden of proof must lie with the State." State v. Florez, 134 N.J. 570, 590 (1994). A defendant still bears the initial burden of providing evidence sufficient to support the affirmative defense, but once this is met, the State has the burden of disproving entrapment by clear and convincing evidence. Ibid.

Due process entrapment focuses not merely on inducement but on government involvement in the commission of the crime. State v. Johnson, 127 N.J. 458, 470 (1992). "The essence of due process entrapment inheres in the egregious or blatant wrongfulness of the government conduct." Ibid. In determining whether the government conduct was egregious, the court must weigh the following factors:

(1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or the defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime.

[Id. at 474.]

Here, O'Keefe's conduct in observing defendant was totally unrelated to defendant's turning the truck's ignition key and driving away. O'Keefe had no control whatsoever over defendant, nor did he in any way induce defendant to drive. Indeed, defendant was completely unaware of O'Keefe's observations.

At oral argument before us, defendant's counsel maintained that O'Keefe should have warned defendant when he first noticed that defendant could have driven away while intoxicated. Indeed, counsel argued that it was O'Keefe's duty to warn defendant lest defendant drive away and injure some innocent party. He characterized this as the "God forbid" argument. We disagree.

Before defendant actually turned the key and drove away, he had not violated the law. If O'Keefe had stopped him at any point before he turned the key, defendant may have had a legitimate constitutional argument. See State v. O'Neal, 190 N.J. 601, 612 (2007). In short, O'Keefe had no duty to intercept defendant before he drove the truck out of the parking lot nor did his observation of defendant in any way direct, coerce or induce defendant to drive while intoxicated.

We further reject defendant's argument that O'Keefe lacked a reasonable suspicion to place him under observation or subsequently to stop his vehicle when he drove out of the parking lot. O'Keefe's initial observation of defendant's stumbling and the odor of alcohol emanating from him gave rise to a reasonable and articulable suspicion that defendant may have been under the influence. See State v. Ravotto, 169 N.J. 227, 242 (2001). O'Keefe's observations of defendant's driving after he left the parking lot provided further grounds for the stop. See State v. Chapman, 332 N.J. Super. 452, 463 (App. Div. 2000).

Affirmed.

 

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A-4448-07T4

 

July 1, 2009