STATE OF NEW JERSEY v. ARTURO VALDEZ

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1116-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARTURO VALDEZ,

Defendant-Appellant.

________________________________________________________________

October 18, 2010

 

Argued September 21, 2010 - Decided

 

Before Judges Payne and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 31-07.

 

Douglas L. Cody argued the cause for appellant (Cody, Cody & Harward, LLC, attorneys; Mr. Cody, on the brief).

 

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his motion to suppress evidence of a motor vehicle stop and subsequent plea of guilty to driving after underage consumption of alcohol. N.J.S.A. 39:4-50.14. As part of his plea agreement the court dismissed the other charges against him, driving while intoxicated, N.J.S.A. 39:4-50, and failure to maintain his lane, N.J.S.A. 39:4-88(b). After reviewing his contentions on appeal in light of the record and applicable law, we affirm.

The Pine Hill municipal court denied defendant s motion to suppress without allowing an evidentiary hearing. Defendant entered a conditional plea of guilty to driving after underage consumption of alcohol, preserving his right to appeal the denial of his suppression motion pursuant to R. 7:6-2(c). The municipal court sentenced defendant to $106 in fines, $33 in court costs, and a thirty-day driving license suspension. The sentence was stayed pending appeal.

On his appeal de novo, the Law Division judge conducted an evidentiary motion to suppress hearing.1 It disclosed that on June 26, 2007, at 2:00 a.m., nineteen-year-old defendant was arrested. An experienced Pine Hill police officer testified that he observed defendant s car cross two feet over the center double yellow line and proceed to drive ten miles below the posted speed limit of 35 miles per hour.2 The officer said he could not see defendant s face. The officer stopped defendant for failure to maintain his car in the proper lane of traffic. After administering three standard field sobriety tests, defendant was arrested. He subsequently told the officer he had "[a] couple sips of wine coolers." His blood alcohol content was .04%. Defendant testified that he did not drive over the center lines. His attorney argued that the officer stopped defendant because he was Mexican, making up evidence of the swerve outside the lane as a pretext.

The court found the testimony of the officer to be credible, concluding that the officer's observation that defendant crossed two feet over the double yellow center lines gave him a reasonable and articulable suspicion that a violation of the traffic laws had occurred, which justified the stop. The motion to suppress was denied.

On September 24, 2009, defendant entered a conditional guilty plea to the charge of driving after underage consumption of alcohol. The Law Division judge sentenced defendant to pay $33 in court costs, perform fifteen days of community service, complete and pay for a twelve-hour Intoxicated Driver Resource Center Program (IDRC), and undergo a thirty-day driving license suspension. The execution of the sentence was stayed pending the outcome of this appeal.

On appeal defendant raises the following issues:

I. THIS COURT MUST VACATE THE DEFENDANT'S CONVICTION AND SENTENCE AND ENTER A FINDING OF NOT GUILTY BECAUSE THE RECORD BELOW FAILS TO ESTABLISH THAT THE MOTOR VEHICLE STOP CONSTITUTED A REASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.

 

A. THE DECISION OF THE LAW DIVISION JUDGE TO HOLD A NEW PLENARY HEARING UPON THE DEFENDANT'S MOTION TO SUPPRESS WAS REVERSIBLE ERROR.

 

1. ON DE NOVO REVIEW ON THE RECORD, WHEN CONSIDERING THE REASONABLENESS OF A WARRANTLESS SEARCH AND SEIZURE, THE LAW DIVISION JUDGE IS GENERALLY BOUND BY THE EVIDENTIARY RECORD MADE IN THE MUNICIPAL COURT IN DETERMINING WHETHER THE STATE HAS JUSTIFIED ITS WARRANTLESS CONDUCT.

2. THE DECISION OF THE LAW DIVISION JUDGE TO HOLD A NEW PLENARY HEARING WAS IMPROPER BEC[A]USE THE "SUBSTANTIAL PREJUDICE TO THE RIGHTS OF THE DEFENDANT" GROUND ARTICULATED IN RULE 3:23-8(a) FOR REMAND OR NEW PLENARY TRIAL IS AVAILABLE ONLY TO THE DEFENDANT, OR FOR HIS BENEFIT.

3. PURSUANT TO STATE v. MCLENDON, 331 N.J.SUPER. 104 (APP. DIV. 2000), THE STATE MAY NOT BE PROVIDED WITH A SECOND OPPORTUNITY TO BOLSTER OR CORRECT ITS PRESENTATION UPON A MOTION TO SUPPRESS A WARRANTLESS SEARCH AND SEIZURE, WHERE THE MOTION WAS PROPERLY RAISED BY THE DEFENDANT IN THE MUNICIPAL PROCEEDINGS BELOW.

4. THE DEFENDANT CHALLENGED THE CONSTITUTIONALITY OF THE MOTOR VEHICLE STOP IN THE MUNICIPAL COURT PROCEEDINGS BELOW AND PROVIDED SUFFICIENT NOTICE OF THAT CHALLENGE TO THE STATE AND THE MUNICIPAL COURT JUDGE.

5. THE STATE DID NOT MEET ITS EVIDENTIARY BURDEN IN THIS MATTER BECAUSE DE NOVO REVIEW OF THE RECORD MADE IN THE MUNICIPAL COURT REVEALS THAT THE STATE FAILED TO PRESENT ANY EVIDENCE THAT WOULD TEND TO SHOW THE REASONABLENESS AND VALIDITY OF THE WARRANTLESS SEARCH AND SEIZURE.

B. THE FINDING OF THE LAW DIVISION JUDGE THAT THE ARRESTING OFFICER HAD A REASONABLE AND ARTICULABLE SUSPICION THAT THE DEFENDANT HAD VIOLATED THE TRAFFIC LAWS AT THE TIME OF THE MOTOR VEHICLE STOP IS CLEARLY MISTAKEN AND SO PLAINLY UNWARRANTED THAT THE INTERESTS OF JUSTICE DEMAND THE INTERVENTION AND CORRECTION OF THIS COURT.

1. WHERE AN APPELLATE TRIBUNAL IS THOROUGHLY SATISFIED THAT THE FINDING BELOW IS CLEARLY A MISTAKEN ONE AND SO PLAINLY UNWARRANTED THAT THE INTERESTS OF JUSTICE DEMAND ITS INTERVENTION AND CORRECTION, THEN IT MAY APPRAISE THE RECORD AS IF IT WERE DECIDING THE MATTER AT INCEPTION AND MAKE ITS OWN FINDINGS AND CONCLUSIONS.

2. THE LAW DIVISION JUDGE CLEARLY ERRED BY THIS OBVIOUS OVERLOOKING OR UNDEREVALUATION OF EVIDENCE TENDING TO SHOW THAT THE MOTOR VEHICLE STOP WAS A PRETEXT TO CONDUCT AN UNLAWFUL SEARCH OF THE DEFENDANT'S VEHICLE.

C. THE FINDING OF THE LAW DIVISION JUDGE THAT THE MOTOR VEHICLE STOP WAS JUSTIFIED IS IMPROPER BECAUSE, EVEN IF ONE ACCEPTS THE TESTIMONY OF THE ARRESTING OFFICER, UNDER THE TOTALITY OF CIRCUMSTANCES, THE ALLEGED DRIVING CONDUCT CANNOT PROVIDE A REASONABLE AND ARTICULABLE SUSPICION THAT THE DEFENDANT VIOLATED N.J.S.A. 39:4-88(b).

 

II. THE SENTENCE IMPOSED BY THE LAW DIVISION JUDGE IS UNLAWFUL BECAUSE IT VIOLATES THE JUDICIAL POLICY AGAINST IMPOSITION OF A GREATER SENTENCE ON MUNICIPAL APPEAL.

 

III. THIS COURT SHOULD DISMISS THE COMPLAINT AGAINST THE DEFENDANT BECAUSE THE FAILURE TO PROSECUTE THIS MATTER IN A TIMELY FASHION AND THE FAILURE TO COMPLY WITH COURT RULES HAS UNFAIRLY PREJUDICED THE DEFENDANT.

 

I.

Defendant first argues that the trial court erred in conducting an evidentiary hearing pursuant to our order. Defendant contested the material fact that his car had crossed the double yellow center line. Thus, he was entitled to an evidentiary hearing. R. 3:5-7(c). Defendant argues that once the municipal court denied the hearing and he entered a guilty plea, the denial of the hearing violated his constitutional rights and should result in a dismissal of all charges. R. 3:23-8(a), however, applies in just such a situation, allowing a hearing in the Law Division when the rights of defendant were prejudiced below. Defendant claims that the State should not be given an opportunity for an evidentiary hearing after arguing that one was not necessary. He relies on State v. McLendon, 331 N.J. Super. 104 (App. Div. 2000), for that proposition. In McLendon, however, we remanded sua sponte, for the benefit of the defendant, to allow a hearing to determine the constitutionality of a DWI check point, rejecting defendant s argument, which was similar to the argument raised here.

Both R. 3:5-7, applicable to the Law Division in indictable matters, and R. 7:5-2(d), applicable to the municipal courts in non-indictable matters, contemplate pre-trial hearings on Fourth Amendment issues which are collateral to guilt or innocence. In addition, evidence relating to the propriety of a stop or seizure is generally separate from issues of guilt or innocence. Usually, judicial economy is best served by resolving these issues pre-trial. We reject defendant's contention that the remand gives the State the opportunity to correct or bolster its case in chief. Rather, the remand permits defendant to raise a constitutional issue belatedly asserted, rather than deem it waived because not properly raised.

 

[Id. at 109.]

 

II.

Defendant also asks us to overturn the credibility determination of the trial judge, who believed the officer's testimony that defendant s car had gone two feet over the center double lines. When an error in fact-finding such as this is alleged, the scope of appellate review is limited. The court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. The court gives "due regard" to the ability of the fact-finder to judge credibility. In re Taylor, 158 N.J. 644, 656 (1999); State v. Locurto, 157 N.J. 463, 470-71 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); State v. Johnson, 42 N.J. 146, 162 (1964). If findings are not supported by the record, an appellate court may "appraise the record as if we were deciding . . . at inception and make our own findings and conclusions." Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div. 1978), aff'd 78 N.J. 320 (1978). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Locurto, supra, 157 N.J. at 471.

 

The trial court found that the officer was experienced, having made about 600 prior motor vehicle stops. He was familiar with the roadway, and it was a well-lit area. The officer could see that defendant was shirtless and had a female companion in the car, but could not determine the ethnicity of the defendant. The court believed the officer and found that crossing the double yellow center lines gave the officer a reasonable and articulable suspicion of a violation of the law even if every crossing of the center lines might not constitute guilt of a failure to maintain his lane under N.J.S.A. 39:4-88(b). Under our state and federal constitutional protections, to justify a motor vehicle stop the officer must have reasonable suspicion rather than the more stringent standard of probable cause. State v. Pitcher, 379 N.J. Super. 308, 313-14 (App. Div. 2005). We agree with the trial court s legal analysis and defer to its credibility findings.

Defendant argues that even if the trial court s credibility findings are accepted, defendant s movement across the center lines was made with safety, given the lack of traffic, and therefore he is not guilty of a violation of N.J.S.A. 39:4-88(b), which requires a finding that the driver did not ascertain that the movement [from the lane] can be made with safety." We find that even if defendant might not be found guilty after trial of this traffic violation, the two-foot movement across the center lane for no readily ascertainable reason provided the officer with reasonable and articulable suspicion sufficient to stop the car.

III.

Defendant raises on appeal that the trial court improperly increased the sentence imposed for the same offense by the municipal court. In State v. De Bonis, 58 N.J. 182 (1971), the Court announced its policy against increasing sentencing on municipal appeal. This policy was recently reaffirmed by the Court: "[W]e take this opportunity to reaffirm our prior policy decision that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal." State v. Kashi, 180 N.J. 45, 49 (2004). Originally, defendant was sentenced to a thirty-day driving license suspension, $106 in fines, and $33 in court costs. On the appeal de novo, defendant was instead sentenced to pay $33 in court costs, to perform fifteen days of community service, to complete and pay for a twelve-hour IDRC program, and a thirty-day driving license suspension. While the imposition of the IDRC program and community service was added to the sentence, $106 in fines was removed. The categorization of this second sentence as more severe is not entirely clear. The statute requires the imposition of at least twelve hours of attendance at the IDRC program and fifteen days of community service. An illegal sentence may be corrected at any time pursuant to R. 3:22-2(c). See State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). The trial court correctly imposed the mandatory penalties that were overlooked by the municipal court.

IV.

Defendant raises two final issues. First, that the delay of over one year in providing the final transcript postponed this litigation, contrary to R. 3:23-8(a) (which requires the filing of a municipal transcript "within twenty days, or . . . such extension of time as the court permits."). Unfortunately, defendant was stopped well over three years ago. The rehabilitative efficacy of a sentence served more than three years after the offense is dubious. Nonetheless, most of this delay was due to defendant s choice to appeal his conviction. Although defendant has the right to appeal, he may not then argue that he was deprived of a speedy disposition by the appellate process. See State v. Farrell, 320 N.J. Super. 425, 447 (App. Div. 1999)("Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation.") (citing State v. Gallegan, 117 N.J. 345, 355 (1989)).

Defendant also argues that we should consider his appeal unopposed pursuant to R. 2:6-4 since the State filed its brief six days after the extended date we allowed. We do not choose to enforce such a drastic remedy for this lapse, which has caused no harm to defendant.

Affirmed.

 

1 The municipal court did not supply the transcript of its denial of an evidentiary hearing. The Law Division initially remanded the matter to the municipal court for a hearing and directed the municipal court to provide any missing transcripts. Defendant filed a motion for leave to appeal the decision to remand this case and requested an order to supply any missing transcripts. On August 29, 2008, we granted leave to appeal and summarily reversed, ordering the municipal court administrator to provide the full transcripts and the Law Division to hear the matter de novo, in accordance with R. 3:23-8. The Law Division judge then vacated defendant s conditional guilty plea and held an evidentiary suppression hearing.

2 The speed limit was twenty-five miles per hour when children were present or lights flashing.