STATE OF NEW JERSEY v. CHARLES S. WILSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5940-07T45940-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES S. WILSON,

Defendant-Appellant.

_________________________________

 

Submitted April 27, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 07-08.

James R. Swift, attorney for appellant.

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following trial before the Maurice River municipal judge, defendant was convicted of driving while under the influence (DWI), N.J.S.A. 39:4-50, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2. On appeal de novo to the Law Division, defendant argued, as he did before the municipal judge, that police lacked reasonable and articulable suspicion to stop his vehicle. The Law Division judge found that under the three-prong test articulated in State v. Golotta, 178 N.J. 205 (2003), police had reasonable and articulable suspicion sufficient to justify the stop of defendant's vehicle and, therefore, found defendant guilty of the charges. On appeal, defendant contends the Law Division judge "erred in determining that Golotta provided sufficient legal justification for the motor vehicle stop" of defendant's vehicle. We disagree and affirm substantially for the reasons set forth in Judge Richard J. Geiger's June 23, 2008 well-reasoned written opinion.

In State v. Golotta, the Court held there is no constitutional impediment to police conducting an investigatory stop based upon information provided by an anonymous 9-1-1 caller without having the level of corroboration that traditionally would be necessary to uphold such action. Id. at 228. The Court articulated a three-prong test that police must satisfy to justify a motor vehicle stop under such circumstances. First, "[t]he information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large." Id. at 221-22. Second, "[t]he caller also must place the call close in time to his first-hand observations." Id. at 222. Third, "the 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.'" Id. at 222 (citing United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S. Ct. 194, 154 L. Ed. 2d 81 (2002)).

Here, the arresting officer, Trooper Ricardo Delgado, testified that "we received the call over our dispatch in reference to the - - an erratic driver." He indicated that the dispatcher described the vehicle as "a gray Chevy pick-up" with "like detail on the side of the pick-up . . . ." The dispatcher also provided a vehicle registration number, "UFM-72M." Trooper Delgado testified further that he:

actually noticed the vehicle leaving the Dorchester Wawa. I followed it after . . . I noticed it leaving the Wawa heading towards the Maurice River - - heading towards the bridge. I started noticing the vehicle swerve to the right - - to the left, I mean, over the center line. Then it went over to the fog line, which is the white line. And that's when I . . . initiated a motor vehicle stop, sir.

Trooper Charles Vicente testified that he was working as a general road trooper in Port Norris on the night of defendant's arrest when he was advised by dispatch to be on the lookout for a grey vehicle being occupied by a white male and that the vehicle was not maintaining its lanes of travel. He saw the vehicle and stopped it.

Defendant argues that whether the Golotta factors were satisfied must be measured by the testimony of Trooper Vicente, not the testimony of Trooper Delgado, who, despite his testimony otherwise, was not the officer who made the stop of defendant's vehicle. Trooper Delgado, who was the State's first witness, testified that when he first observed defendant's vehicle, it was travelling in the opposite direction. He indicated that he then made a U-turn, activated his overhead lights and video camera, and then stopped the vehicle approximately four-tenths of a mile later. He also testified that he observed defendant's vehicle cross over the center line by five feet and cross over the shoulder line by approximately two feet. When the videotape of Trooper Delgado's pursuit and stop of defendant's vehicle was played, however, it did not show defendant's vehicle weaving.

The municipal court judge found that Trooper Delgado's testimony, "while not precise," was "credible and accurate."

I will find that the defendant, even though the tape doesn't show the weaving over the center line, I will find that that is what the first attention to weaving was, and that Trooper Delgado's testimony is accurate and credible as to that. I happen to agree with the Prosecutor that my observation of what showed on the tape shows weaving over the fog line before the defendant pulled over. I do not find the defendant traveled within the lane of travel during the part of the time it was on tape. And I find that probably, again you can't tell how far it was, but it certainly wasn't a very long distance on that tape. I will find that the testimony of Trooper Delgado as far as the weaving over the center line occurred probably in the first part of what I believed to be approximately four tenths of a mile of observation.

The Law Division judge accepted the municipal judge's credibility determination on this issue but also concluded that the police had independent grounds under Golotta for effectuating the motor vehicle stop. We agree.

Defendant's argument that "it is of no moment what Trooper Delgado believed in regards to the anonymous tip" because Trooper Delgado did not make the stop, ignores the Court's point articulated in State v. Nishina that the test for a reasonable suspicion necessary to justify an investigatory stop is "highly fact sensitive and, therefore, 'not readily, or even usefully, reduced to a neat set of legal rules.'" 175 N.J. 502, 511 (2003) (citations omitted); see also Golotta, supra, 178 N.J. at 213. Thus, the determination of reasonable suspicion involves a consideration of all of the facts and surrounding circumstances. State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).

Here, those circumstances include the testimony of Troopers Delgado and Vicente, both of whom testified they were alerted by dispatch. While Vicente did not provide as much of the details of the dispatched information in his testimony, as did Delgado in his testimony, he testified that he "received the call as well, just as the other [t]rooper[]s working, for a grey vehicle occupied by a white male. The registration went out." Hence, it is reasonable to infer that the information Delgado testified he received was the same information dispatched to Vicente. It is also reasonable to infer that the information conveyed by dispatch originated from a citizen caller rather than an informant and that the information was received in close proximity to the stop. Based upon the information the troopers received, they were under a duty to conduct an investigation. See State v. Davis, 104 N.J. 490, 505 (1986) (noting that an officer is obliged to protect the public and would be derelict in the performance of that duty if he or she failed to investigate information regarding the possibility of an offense). This is especially true in the case of those persons who operate motor vehicles under the influence. They have been described as "one of the chief instrumentalities of human catastrophe." State v. Grant, 196 N.J. Super. 470, 476 (App. Div. 1984).

"[T]he degree of corroboration necessary to uphold a stop of a motorist suspected of erratic driving" is reduced when the initial tip is provided by an anonymous 9-1-1 caller who provides an adequate description of the vehicle, the location and the purportedly "erratic driving." Golotta, supra, 178 N.J. at 218, 222. Those factors were established here and the Law Division judge properly concluded that under Golotta, the stop of defendant's vehicle was wholly justified.

In a trial de novo, the Law Division is obliged to determine the case completely anew from the record made in the Municipal Court and accord "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted). In the context of a trial de novo, the Law Division:

does not affirm or reverse what occurred in the municipal court. Rather, the . . . judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments that the municipal court judge may have made. . . . A trial de novo by definition requires the trier to make his own findings of fact.

[State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004) (citations omitted).]

Moreover, the Law Division proceeding is not an appellate one. The judge "does not affirm or reverse what occurred in the municipal court," but instead determines anew, based on the municipal court record, whether the State proved the defendant guilty beyond a reasonable doubt. Ibid.

Our own standard of review on appeal from a trial de novo in the Law Division is a markedly different standard from that applied by the Law Division judge. Unlike the Law Division, we do not make our own findings of fact, and our standard of review is a deferential one. State v. Locurto, 157 N.J. 463, 474 (1999). As the Court observed, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

When we review the findings of the Law Division, our task is to determine "'whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1998) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). With these principles, in mind we are satisfied there is substantial credible evidence in the record to support the Law Division judge's factual findings and legal determinations under the Golotta test. We find no basis to intervene to correct any error.

The remaining arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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9

A-5940-07T4

July 9, 2009