STATE OF NEW JERSEY v. WILLIAM RENDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4096-07T44096-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM RENDER,

Defendant-Appellant.

___________________________

 

Submitted February 23, 2010 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 20-A-06-K84.

Stephen E. Klausner, attorney for appellant.

J. Patrick Barnes, Hunterdon County Prosecutor, attorney for respondent (Bennett A. Barlyn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the March 11, 2008 order of the Criminal Part finding him guilty, upon de novo review, of driving while intoxicated in violation of N.J.S.A. 39:4-50 (DWI), and imposing the following sentence: a $256 fine, three months' loss of his driver's license, various assessments and costs, and attending twelve to forty-eight hours of programs at the Intoxicated Driver Resource Center. We affirm.

We summarize the pertinent facts from the evidence adduced at the October 25, 2006 hearing in the municipal court on defendant's pre-trial motion to suppress. Defendant sought to suppress "any and all evidence from the search and seizure of his motor vehicle . . . which was based upon no probable cause for the arrest and investigation."

Clinton Police Officer Ollerenshaw was on duty in his marked patrol car on the night of June 24, 2006. At approximately 10:00 p.m., he received an anonymous report "of a car being back behind the Water Authority at . . . DeMott Park[,]" which he described as an area on the far side of the park marked by "two signs that say Restricted -- Authorized Vehicles Only and went back behind the Water Authority Building." In order to gain access to that area, a vehicle must drive down a one-way driveway. There is no other access to that particular location.

In response to the anonymous call, Ollerenshaw "went through the park and followed it down to the turnaround where the Water Authority building is and [he] found [a] vehicle behind the building." The vehicle was approximately 100 to 150 yards into the area and was located behind the Water Authority building, and thus "hidden from view of anyone except someone already inside the restricted area[.]"

Ollerenshaw approached the vehicle; he observed "the driver [later identified as defendant] . . . behind the driver's seat. The car was running, the car had it[s] windows up. It was hot and humid. There was no fog on the windows." Ollerenshaw knocked on the window and instructed defendant to lower the window. He then observed that defendant was "sitting in the driver's seat with . . . [the] seat ratcheted . . . and . . . his head would be where the left passenger window would be. Not fully laying down but on an angle." The keys were in the ignition and the air conditioning was on.

When Ollerenshaw knocked on the window, defendant "looked at [him] then looked back again." It "took him a while to roll the window down." As soon as defendant rolled down the window, Ollerenshaw could smell "an odor of an alcoholic beverage." Defendant "was having difficulty . . . responding to . . . direction. He was a little slow." Also, the officer observed that his eyes were bloodshot.

When Ollerenshaw asked defendant to get out of the car, he "asked if he could just drive away[,]" and the officer insisted he exit the vehicle. Ollerenshaw observed defendant as he exited the car "fooling with the keys . . . trying to take them out of the ignition."

Ollerenshaw concluded that defendant "appeared to be under the influence of an alcoholic beverage[,]" based on the following observations: "He was slow. He was having trouble listening, following instructions. I could smell it. His eyes were bloodshot. He . . . was sagging with his knees, had a hard time standing erect." When the officer asked defendant how much he had had to drink, he responded "a few beer[s]." Defendant also stated that he lived close by.

The officer administered three field sobriety tests; defendant was "slow" on the "finger dexterity test"; he "failed" the "heel raise" and "heel to toe" tests. At that point, the officer placed defendant under arrest.

Defendant testified that his car engine was not running at the time the officer approached him. He stated that he was in the park on that night because his wife had just informed him that she "was leaving [him] the next Monday. . . . [He] was very, very depressed . . . completely shocked, unhappy and [he] was in the park." When asked why he went to the park he stated, "To be honest I really don't remember any more."

Defendant testified that he had a history of arthritis and an orthopedic "problem[]" in that his "right side is shorter than the left side." His right leg "atrophied . . . so [he does not] have the usual flexibility in the right knee ligaments." He stated that when he walks, he "bob[s] up and down . . . ." Defendant acknowledged, however, that "there was no physical reason[] [he] couldn't do the tests," and he did not mention anything to the police officer about a physical disability.

Defendant stated that he "had a couple of beer bottles that [he] had purchased and had it [sic] with . . . other alcohol that was in the trunk." He testified that he "sat down at [a] park bench" to drink the beer, and disposed of the containers in a nearby trash can. He denied consuming any alcoholic beverages before he arrived at the park. Defendant acknowledged that he drove past a sign indicating he was entering a restricted area, but added that "there's nothing that says by ordinance number or by property owner or by authority of New Jersey Statute . . . ."

Defendant stated that he could not comply immediately when the officer asked him to roll down the window because the window would not operate without the key in the ignition. He picked up his key from "the front passenger seat," and put it in the ignition to activate the window. Defendant testified that someone standing outside the front driver's door of his vehicle would not be able to see the ignition.

At the conclusion of the testimony, the municipal judge found that under the circumstances, the police officer

had reasonable grounds to inquire as to why the defendant was there in the restricted area and that once he began interacting with the defendant he had reasonable grounds to ask the defendant to perform the . . . tests and once they were performed, he had reasonable grounds to place the defendant under arrest and bring him back to the [p]olice [s]tation for the purpose of performing a breath test on him . . . .

The judge found that the police officer's presence on the property was "totally justified[,]" as there was "a potential security concern . . . in the immediate vicinity of a water supply . . . ." The judge opined that "it would have been grossly negligent on the [o]fficer's part had he not responded to that telephone call which said that there had been a vehicle parked by the building for a half an hour." Therefore, the judge denied defendant's motion to suppress.

Defendant thereupon entered a conditional plea of guilty to the DWI charge. It was stipulated that defendant's breathalyzer reading was .09.

Defendant filed an appeal to the Law Division. However, the State and defense counsel jointly requested a remand to the municipal court for the purpose of clarifying the property on which the arrest occurred. The remand request stated that

the [c]ourt, the prosecutor, and perhaps at times the arresting officer, appeared confused . . . about where the defendant's car was parked and whether it was town or [S]tate property. It appears that they believed that the car was on Water Authority property owned by the State, which is adjacent to the reservoir. As a result, the [c]ourt and prosecutor felt that the officer was responding to a call by a concerned citizen and that the community had to be protected from a possible threat to the public water supply. Several comments, especially made by the [c]ourt, makes [sic] it seem that the [c]ourt was mistaken as to where this occurred.

Remand proceedings occurred in the municipal court on June 21, 2007. Officer Ollerenshaw testified and clarified that the property in question is De Mott Park "in the Town of Clinton[,]" and although the officer was not certain who owned the property, he "believe[d]" that the building at that site is "a well[,] . . . [with] pipes . . . for gathering water inside." He stated that he could see such pipes through the building's windows.

The judge concluded that his prior reasoning, which he had applied to what he mistakenly believed was a State water supply facility, "applies equally well to this park where they have some [w]ater pumping equipment that in a post[-]911 world we expect some higher level of vigilance by our Public Safety personnel." The judge "re-affirm[ed] all of [his] other findings from earlier as to the propriet[]y of Officer Ollerenshaw's interaction with the defendant at the scene . . . [p]rior to his coming to believe that the defendant might be intoxicated and may have operated or intended to operate a motor vehicle."

On de novo appeal to the Law Division, the judge noted the discrepancies in the testimony of the police officer and defendant and recognized that he was obliged to give due regard to the municipal judge's credibility determinations, citing State v. Johnson, 42 N.J. 146, 157 (1964). The judge concluded that defendant's Fourth Amendment rights had not been violated, as the police officer had engaged in a "field inquiry" and that "[n]o suspicion whatsoever is required to justify an inquiry because the inquir[y] itself does not significantly curtail the defendant's freedom of movement."

The judge further found that the municipal judge "did not miscategorize the officer as acting in a community caretaking function[,]" noting that "the community caretaker role and a field inquiry can overlap in many situations and it did so here."

On appeal here, defendant contends that the police officer lacked probable cause to approach his vehicle, compel him to exit and require him to perform field sobriety tests. We have reviewed the record in light of this contention, and find it to be without merit.

A "field inquiry may be conducted in the absence of grounds for suspicion without violating the Fourth Amendment or Article I, paragraph 7 of the New Jersey Constitution . . . ." State v. Maryland, 167 N.J. 471, 484 (2001). Moreover, "[c]ourts have allowed warrantless searches under the Fourth Amendment when police officers have acted not in their law enforcement or criminal investigatory role, but rather in a community caretaking function." State v. Bogan, 200 N.J. 61, 73 (2009). "[T]he community caretaker doctrine . . . is based on a service notion that police serve to ensure the safety and welfare of the citizenry at large." State v. Diloreto, 189 N.J. 264, 276 (2004) (citation and internal quotation marks omitted). We are satisfied that both courts below properly found that Officer Ollerenshaw was acting in a community caretaking role when he initiated his field inquiry of defendant, which in turn, led to defendant's DWI arrest.

Generally, we must defer to a trial court's fact findings when the evidence is largely testimonial and involves questions of credibility. We will not disturb findings which "'could reasonably have been reached on sufficient credible evidence presented in the record'" considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 162). We "exercise [our] original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Applying these principles, we are satisfied from our review of the record that the findings of both the municipal court judge and the Law Division judge are unassailable. In short, we affirm for the reasons stated by Judge Roger F. Mahon in his decision rendered from the bench on March 10, 2008.

Defendant further asserts that "[t]he issue of operation is strenuously disputed in this case." The record, however, does not reveal that defendant raised this issue before either the municipal court or the Law Division. Moreover, we concur with the State's position that defendant has waived this issue by entering a conditional plea reserving only his right to challenge the breathalyzer test pursuant to State v. Chun, supra.

In any event, we are satisfied that this issue is wholly without merit. The evidence which two courts found credible established that defendant was seated in his car with the key in the ignition and the engine running; defendant smelled of alcohol, had bloodshot eyes and was unable to perform field sobriety tests.

Our courts have not hesitated to give a broad construction to the terms of N.J.S.A. 39:4-50(a) when a narrow or literal interpretation would frustrate the fundamental regulatory goals underlying New Jersey's drunk-driving laws. . . . [W]ith respect to the most pivotal phrase of the statute -- "operates a motor vehicle" -- the courts of this State have consistently adopted a practical and broad interpretation of this language in order to express fully the meaning of the statute. A pragmatic definition of this term is necessary in order to effectuate the legislative intent to deal with the risk that intoxicated drivers will cause harm to themselves and to others who use the roadways of this State, a danger that frequently arises even before an intoxicated person may have put his or her car in motion. Thus, while the statute refers to the operation of a motor vehicle, actual operation is not required to satisfy this element of the statutory offense. . . . We are thus strongly impelled to construe the terms of N.J.S.A. 39:4-50(a) flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk-driving laws.

[State v. Tischio, 107 N.J. 504, 513-14 (1987) appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988) (emphasis added).]

Defendant's circumstances clearly fall within these parameters.

Affirmed.

 

Imposition of sentence was stayed on March 4, 2009 pending appeal.

Defendant conditioned his plea on his ability to challenge the Alcotest breathalyzer in the event the Supreme Court ruled such test results inadmissible. At the time of defendant's plea in October 2006, the Supreme Court's decision in State v. Chun was still pending. The Court rendered that decision on March 17, 2008, upholding the Alcotest as "generally scientifically reliable . . . ." 194 N.J. 54, 65, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

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A-4096-07T4

July 21, 2010