STATE OF NEW JERSEY v. WALTER F. HEUBLEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3899-08T43899-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER F. HEUBLEIN,

Defendant-Appellant.

_______________________________

 

Submitted: February 24, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 27-08.

Saponaro & Sitzler, attorneys for appellant (George R. Saponaro, of counsel and on the brief; Edward C. Logan, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Thomas Cannavo, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Walter Heublein appeals from his conviction of refusal to submit a breath sample, N.J.S.A. 39:4-50.4a, after a trial de novo in the Law Division, see R. 3:23-8(a). Following denial of his motion to suppress challenging the motor vehicle stop, defendant entered a conditional guilty plea to the refusal offense in the Jackson Township Municipal Court. The refusal was treated as a second offense pursuant to the N.J.S.A. 39:4-50(a)(3) "step-down" provision because more than ten years had passed between the last DWI and this 2007 refusal offense. Accordingly, he was sentenced to a two-year suspension of his driver's license and monetary fines and surcharges were assessed. Defendant was also ordered to attend a forty-eight hour Intoxicated Driver Resource Center (IDRC) program. The sentence was stayed pending appeal to the Law Division.

On de novo review, the Law Division denied defendant's suppression motion and again convicted defendant of refusal to submit to a breath test. Defendant was sentenced just as he had been in the municipal court, except upon the request of the State, the court vacated the improperly imposed Safe Neighborhood Services Fund (SNSF) and Violent Crimes Compensation Board (VCCB) penalties. See State v. Tekel, 281 N.J. Super. 502, 510-ll (App. Div. l995) (VCCB and SNSF penalties do not apply to refusal convictions). The court also vacated the stay.

On appeal, defendant presents the following arguments:

POINT I

THE WARRANTLESS STOP WAS A SEIZURE WITHIN THE MEANING OF THE FOURTH AMENDMENT OF THE FEDERAL CONSTITUTION.

POINT II

THE WARRANTLESS STOP WITH THE PATROL CAR PULLED UP VERY CLOSE WITH THE SPOTLIGHT ON THE DEFENDANT WAS NOT A FIELD INQUIRY WHERE UNDER ANY REASONABLE OBJECTIVE STANDARD THE DEFENDANT WOULD HAVE REASONABLY BELIEVED HE WAS FREE TO LEAVE. THEREFORE, THE POLICE CONDUCTED A DETENTION WITHOUT ANY CONSTITUTIONALLY PERMISSIBLE BASIS.

POINT III

THE POLICE CANNOT STOP CARS WITHOUT PROBABLE CAUSE.

Based on our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm.

The following testimony and evidence was presented at the suppression hearing. On September 3, 2007, at about 9:30 p.m., Jackson Township Police Officer Michael Kelly had been traveling in the opposite direction when he observed a State Police car following defendant's car. Believing the trooper was going to effect a motor vehicle stop, he made a U-turn, anticipating serving as back-up, but, apparently, the trooper had not stopped the car and had proceeded down the road. Officer Kelly observed defendant's car pull into, circle around and stop in the parking lot of a closed bar.

The officer testified he pulled into the lot for a variety of reasons: the vehicle had been traveling slowly through the dark parking lot and circling around it, he was concerned the driver was lost or needed help, there had been several burglaries in the area, and he decided to check the establishment and the driver's welfare as part of his caretaking duties. The officer pulled up to the open window of defendant's stopped car and engaged him in conversation; the officer's overhead lights were not on, only a side spotlight was used to see defendant and the car.

When Officer Kelly asked about defendant's destination, he responded that he wanted to go to the bar. The officer noticed that defendant had physical characteristics of a person under the influence -- a pale face, droopy eyes and slurred speech. The officer then exited his car and requested defendant's driving credentials, and, while speaking with defendant, detected the odor of alcoholic beverage on him, although defendant denied drinking any alcohol that evening. The officer formed an opinion, based on his observation of defendant and conversation with him, that defendant was under the influence of an unknown substance or alcohol, so he called for back up and proceeded with the further investigation that resulted in the filing of the subject charges.

The municipal court judge found Officer Kelly's testimony to be "extremely credible." The court found the officer had no intention to conduct the motor vehicle stop at the time of the initial meeting with defendant and did so only after he observed signs of intoxication after speaking with defendant. Accordingly, the municipal court judge denied defendant's motion to suppress based on an alleged illegal stop. The pleas were entered and sentence imposed as we described at the outset of this opinion.

In the Law Division, Judge Hodgson tried the case de novo based on the municipal court record. He gave due, though not controlling, deference to the municipal court judge's credibility assessment, finding the officer's testimony to be "uncontradicted and, as such, based on [his] review of the transcript, to be credible." Then, making his own independent findings of fact and conclusions, the judge found the initial encounter with defendant was not a stop, but a field inquiry, requiring no constitutional justification, and the investigative detention thereafter was justified by the officer's observations of signs of intoxication demonstrated by defendant. Accordingly, defendant's suppression motion had been properly denied. The judge declined to find the stop was justified under the circumstances pursuant to the community caretaking function, as urged by the State. He also rejected the State's challenge to the applicability of the step-down leniency provision of N.J.S.A. 39:4-50(a)(3). Judge Hodgson imposed the same sentence that had been imposed by the municipal court judge, with the removal of the SNSF and VCCB penalties. This appeal followed.

In its de novo review of municipal court convictions, the Law Division must make independent findings of fact and conclusions of law, although it is bound by the evidentiary record in the municipal court. State v. Thomas, 372 N.J. Super. 29, 31 (Law Div. 2002), aff'd, 372 N.J. Super. 1 (App. Div. 2004). The Law Division must also give due regard to the municipal court judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964).

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. l995). However, as with the Law Division, we are not in a position to judge credibility and do not make credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." State v. Avena, supra, 281 N.J. Super. at 333 (citations omitted).

Defendant's arguments before us regarding the motor vehicle stop are substantially the same as those he made in the municipal court and the Law Division, namely that defendant did not reasonably believe he was free to leave when Officer Kelly's patrol car pulled up close to him with its spotlight on, and thus this stop was constitutionally impermissible.

After crediting Officer Kelly's testimony, Judge Hodgson set forth in detail his factual and legal basis for finding: (1) the officer initially made a field inquiry, not an investigative stop, when he drove up to defendant's car, and (2) after it appeared to the officer that defendant demonstrated signs of intoxication based on the officer's visual observations of and conversation with defendant, the officer had reasonable and articulable suspicion that defendant was violating the law to justify an investigative detention. The judge explained, in part:

A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave. State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007) (citing [State v.]Maryland,. . . 167 N.J. [471,] 483 [(2001)].

Here the defendant's vehicle was already stopped. Nothing in these circumstances supports a finding that the officer's conduct before requesting documents arose to a level of a seizure beyond a mere field inquiry. The officer had inquired into defendant's destination without stepping out of the vehicle or activating his emergency lights. The officer did not effectuate his seizure by simply conducting a legal field inquiry, the reason for which he had testified to repeatedly.

Nothing in his demeanor revealed that his inquiry had an overbearing or harassing nature. He did not ask the defendant to get out of his vehicle nor did he get out of his own vehicle initially.

. . . .

[In contrast to State v. Costa, 327 N.J. Super. 22, 26 (App. Div. 1999),] the distinction is the defendant was in a closed establishment. He was parked. He had not exited his car nor did he try to leave. Therefore, this [c]ourt finds the initial inquiry was not a stop but merely a field inquiry.

. . . .

Such an investigatory stop is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. State v. Williams, 192 N.J. 1, 9 (2007)[] [(]quoting State v. Pineiro, 181 N.J. 13, 20 (2004)[)].

. . . .

The officer testified as to his observations and the reasons for his suspicion of the defendant being under the influence of alcohol by describing defendant's driving and certain physical characteristics that are indicative of an individual being under the influence of alcohol. Considering the totality of the circumstances, Officer Kelly had a reasonable and articulable suspicion that the occupant of the vehicle was engaged in a violation of the law by operating his vehicle while under the influence of alcohol. Therefore, the investigative detention that [proceeded] was justified.

As a reviewing court, we defer to Judge Hodgson's factual findings, including those regarding credibility, as long as those findings are supported by substantial credible evidence in the record. It is not our function to supplant such evidentiarily-supported findings made by a trial court with independent findings of our own. We are satisfied the credible evidence in the record amply supports the Law Division judge's findings and he performed the appropriate legal analysis. Accordingly, we have no occasion to interfere. We therefore affirm substantially for the reasons articulated by Judge Hodgson in his comprehensive oral decision of March 30, 2009.

The State raised as a point in its brief the argument that "[d]efendant's sentence is illegal and must be modified [because] [t]he step-down leniency provision in N.J.S.A. 39:4-50(a)(3) does not apply to refusals." The State has not filed a cross-appeal. Because the State did not appeal defendant's sentence, the issue is not before us. See State v. Elkwisni, 190 N.J. 169, 175 (2007) (holding that a respondent must cross-appeal to obtain relief from a judgment).

Affirmed.

 

Defendant had also been charged with DWI, N.J.S.A. 39:4-50, which was dismissed by the court based on insufficient evidence pursuant to stipulated facts of some "unremarkable" psychophysical tests and no breathalyzer readings and a representation that the prosecutor could not prove DWI beyond a reasonable doubt. The State dismissed the charge of reckless driving, N.J.S.A. 39:4-96. The careless driving charge was amended to an unsafe operation violation, N.J.S.A. 39:4-97.2, to which defendant pled guilty.

Defendant had two previous convictions for DWI in l979 and l98l.

Defendant was also found guilty of unsafe operation and sentenced on that offense; however, as that offense is not being appealed we will ignore it for purposes of this opinion.

(continued)

(continued)

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A-3899-08T4

March 12, 2010