STATE OF NEW JERSEY v. NICHOLAS MELLINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1788-09Y41788-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

NICHOLAS MELLINA,

Defendant-Respondent.

_________________________________________________

 

Submitted April 28, 2010 - Decided

Before Judges Cuff and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Municipal Appeal Docket No. 09-014.

Robert J. Bianchi, Morris County Prosecutor,

attorney for appellant (Erin Smith Wisloff,

Assistant Prosecutor, on the brief).

Kevin Sisco, attorney for respondent.

PER CURIAM

On September 23, 2005 at 10:56 p.m., defendant, Nicholas Mellina, was stopped by Riverdale Police Officer John Barone for violation of N.J.S.A. 39:4-88b after what the officer characterized as an unsafe lane change. He was subsequently found to have been driving while intoxicated, and he was charged with violation of N.J.S.A. 39:4-50. After a considerable delay, on June 16, 2009, a Kinnelon municipal judge heard a motion to suppress the stop filed on defendant's behalf. The motion was denied. Defendant thereupon pled guilty to violating the two statutes. Following the plea, the municipal judge merged the violation of N.J.S.A. 39:4-88b into the violation of N.J.S.A. 39:4-50. He fined defendant pursuant to N.J.S.A. 39:4-50 in the amount of $256 and assessed appropriate fees and costs. Defendant's drivers license was suspended for three months. The sentence was stayed pending the outcome of defendant's appeal to the Superior Court from the denial of his suppression motion.

On appeal, the Law Division judge found that the conduct observed by Officer Barone on September 23, 2005 did not constitute a violation of N.J.S.A. 39:4-88b, because no evidence was presented that, by changing lanes as he did, defendant placed any drivers in danger. In reaching this conclusion, the judge relied on our decision in State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005). The matter was then remanded to the municipal court for proceedings consistent with the judge's determination. The State moved for leave to appeal, and we granted its motion.

Testimony at the municipal hearing disclosed that Officer Barone, driving an unmarked police car approximately fifty feet behind defendant in the left lane of a three-lane stretch of Route 23, observed him travel from the far left lane, across the middle lane, and into the far right lane in one fluid motion, without stopping in the middle lane. The officer did not testify that defendant's change of lanes had actually endangered any other motorists, and indeed stated that his car was the only car behind defendant's. Because Officer Barone was traveling in the left lane, defendant's lane change did not endanger him.

The officer charged defendant with violating N.J.S.A. 39:4-88b, which provides:

When a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations:

. . .

b. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.

In Officer Barone's opinion, in moving his car as he did, defendant had failed to ascertain that the movement could be safely made.

To justify the motor vehicle stop, Officer Barone was required to have "'an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). To meet its burden of proof, "the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." State v. Williamson, 138 N.J. 302, 304 (1994).

The "[r]reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002). The standard requires "'some minimal level of objective justification for making the stop.'" State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)). The test is "highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules." Ibid. (internal citation and quotation marks omitted). For analytical purposes . . . a stop founded on a suspected motor vehicle violation essentially is governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity.

[State v. Golotta, 178 N.J. 205, 213 (2003).]

In Puzio, the case used as a basis for granting defendant's motion to suppress, we found that an officer who stopped a passenger car with commercial plates thinking that it was required to have business-identifying information visible on either side of the vehicle, when in fact passenger cars were excepted from the relevant statute, N.J.S.A. 39:4-46a, did not have an objectively reasonable basis for the stop, and that it was therefore unlawful. Puzio, supra, 379 N.J. Super. at 382-84. The judge who heard this matter on appeal from the municipal court found Puzio to govern the present matter. However, we find that the judge's conclusion was premised upon a mistaken construction of the applicable statute. The judge was of the opinion that a violation of N.J.S.A. 39:4-88b could occur only if defendant's lane change affected the safety of other drivers. However, that is not what the statute requires. Rather, the statute directs the driver to "first ascertain that the movement [of the vehicle] can be made with safety." Thus the statute requires observation of road conditions by the driver, regardless of how many vehicles are actually present. It is this observation that Officer Barone thought defendant had failed to perform when he crossed through the road's middle lane without pausing.

It is of course possible that defendant made the observations that the officer believed were lacking. However, we held in Puzio:

There is a clear distinction between the present situation [of misunderstanding what was statutorily required] and those presented in cases where the officer correctly understands the statute but arguably misinterprets the facts concerning whether a vehicle, or operator, has violated the statute. In those cases, the courts have approved the motor vehicle stop because it is only necessary that the officer have a reasonable and articulable suspicion of a violation. In such circumstances, it is not necessary or relevant that the facts testified to by the officer actually support a finding of guilt beyond a reasonable doubt of the statutory violation.

[Id. at 382 (citing Williamson, supra, 138 N.J. 302; State ex rel D.K., 360 N.J. Super. 49 (App. Div. 2003); State v. Cohen, 347 N.J. Super. 375 (App. Div. 2002); State v. Murphy, 238 N.J. Super. 546 (App. Div. 1990); and State v. Nugent, 125 N.J. Super. 528 (App. Div. 1973)).]

In the present case, we find that Officer Barone displayed a correct understanding of N.J.S.A. 39:4-88b at the time that he stopped defendant's vehicle and that at the time, objectively viewed, he had reasonable and articulable suspicion that a motor vehicle violation had occurred. As a consequence, the stop was legal. The judge's contrary determination was not correct.

Reversed and remanded to the municipal court for imposition of fines and penalties.

 

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A-1788-09T4

August 2, 2010