STATE OF NEW JERSEY v. CHARLES W. CAIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES W. CAIN,

Defendant-Appellant.

__________________________________________

April 23, 2014

Argued February 24, 2014 - Decided

Before Judges Parrillo, Harris, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 112-200628.

Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the brief).

James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief).

PER CURIAM

Defendant Charles W. Cain appeals from the August 7, 2012 judgment of the Law Division convicting him of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, following a de novo trial. Defendant entered guilty pleas to DWI and refusal in Hamilton Township Municipal Court after his motion to suppress was denied. On appeal, he raises the following arguments:

POINT I

standard of review.

point ii

the trial court erroneously held that the state proved by the preponderance of the evidence that there was a reasonable and articulable basis to stop defendant's vehicle.

We have carefully considered these arguments in light of the record before us and applicable legal standards, and find no basis for disturbing the findings of the Law Division.

I.

On Friday, January 21, 2011, Peter Burns, then a patrol officer with the Hamilton Township Police Department (HTPD),1 began his shift at 7:00 p.m. on patrol at a local movie theater. The movie assignment ended at approximately 1:00 a.m. on Saturday, and Burns began a drunk driving enforcement detail. Burns focused on areas where he was likely to encounter drunk drivers, like local bars. One of these locations was Testa's Pub in Mays Landing. Burns decided to patrol Old River Road and explained that patrons from Testa's often used that as a back road when leaving to avoid patrols on nearby County Road 559. The HTPD had also received complaints that drivers were speeding on Old River Road.

At about 1:30 a.m., Burns was parked on the westbound shoulder of Old River Road when he observed a sport utility vehicle heading eastbound in his direction. Burns activated his radar and determined the car was traveling at forty miles per hour, where the speed limit was twenty-five miles per hour. As the SUV got closer, it crossed the center line and began to veer toward Burns. Burns suspected the driver might be under the influence and made a U-turn and began to follow him. After the SUV turned right onto Clarkstown Road, Burns activated his radar a second time and determined it was traveling at forty-two miles per hour. The SUV failed to keep to the right and, at one point, when going around a curve, was entirely in the left side of the roadway.

At 1:36 a.m., Burns activated the lights on his patrol car and stopped the SUV for exceeding the speed limit and driving on the wrong side of the roadway. Burns called in the license plate number to his dispatch but did not request a "lookup," as it was a dealer tag. When he stopped the SUV, Burns testified that he was unaware that defendant was the driver.

When Burns asked defendant for his driving credentials, he noticed that defendant had his wallet opened on his lap with a gold badge on one side and his driver's license on the other. Burns detected a strong odor of alcohol on defendant's breath and asked if he had been drinking. Defendant told Burns he had been at Testa's and had consumed three beers.

Burns placed defendant under arrest and transported him to the police station. Defendant provided a breath sample but when Burns asked him to provide a second, he refused. Burns charged defendant with DWI and refusal.

Defendant claimed that Burns lacked reasonable and articulable suspicion to stop his vehicle and moved to suppress all evidence obtained as a result of the stop. Defendant, who was Deputy Mayor of Hamilton Township and a member of the Township Committee, claimed that Burns stopped him in retaliation for a decision by the Township to lay-off eleven police officers, announced at a Township Committee meeting on January 18, 2011, three days before defendant's arrest. Defendant attempted to establish a conspiracy by the police to target him after spotting his car in Testa's parking lot on January 22.

In support of his theory, defendant called Sergeant Christopher Gehring, who was on duty with Burns when defendant was arrested. Gehring testified that he noticed a Toyota SUV bearing dealer license plates in Testa's parking lot at approximately 12:05 a.m. He thought it was "odd" to see a vehicle with dealer plates so late at night and suspected the car might be stolen, so he called the plates in. Dispatch informed Gehring the SUV was registered to the English Creek Auto Plaza.2

Gehring testified that he spoke with Burns on his cell phone at 1:01 a.m., and again at 1:26 a.m., but denied discussing defendant or the SUV with dealer tags in Testa's parking lot. Defendant argued that the proximity of the 1:26 a.m. call to the time Burns pulled defendant over at 1:35 a.m. is proof of a "conspiracy" by the officers to stop him. This argument was presented to the municipal court and rejected. The judge found Burns credible when he testified he did not recognize defendant when he stopped him.

Defendant called Amy Gatto, Mayor of the Township of Hamilton, who testified that Burns was present at the January 18, 2011 meeting when the police layoffs were discussed. Gatto also recalled that Burns was present in the Mill Street Pub where she and others went following the meeting.

Burns testified that he was on-duty that night and denied attending the Township Committee meeting or being in the Pub afterward. The municipal judge found Burns credible, noting that he was on-duty that night, responding to dispatch calls, and was aware of the policy that police could not attend such meetings.

The municipal judge also rejected the testimony of Gregory Crescenzo, a private investigator called by defendant. Crescenzo challenged Burns's testimony that he was able to make a U-turn on Old River Road after defendant drove by him. The judge found Burns's testimony to be "more credible and believable" than Crescenzo's.

The judge also found "nothing unusual" about Sergeant Gehring's testimony that he called in the license plate on defendant's car and accepted his explanation that it was unusual to see a dealer plate on a car late at night.

The judge rejected defendant's theory that the cell phone calls between Burns and Gehring established that they plotted beforehand to apprehend defendant, and accepted Burns's explanation of what he and Gehring were discussing during those calls. The judge concluded that Burns had a reasonable and articulable suspicion to stop defendant:

I'm satisfied that this was a enforcement stop that Officer Burns conducted because he was on a DWI patrol, because he's a trained officer, he knew what to look for, he observed the vehicle traveling in excess of the speed limit, he observed a vehicle that was not maintaining its lane of travel, and he effected an enforcement stop. And when he did, I am satisfied that I believe Officer Burns that he did not know and recognize Charles Cain, it had nothing to do with his position as Deputy Mayor or Committeeman for Hamilton Township, that Mr. Cain frankly admitted to the officer the he had been consuming alcoholic beverages, and the observations that Officer Burns made were consistent with a person who was consuming alcoholic beverages and operating a motor vehicle.

Defendant appealed and raised the same arguments before the Law Division. The judge conducted a trial de novo and concluded that Burns had a reasonable suspicion of "at least two motor vehicle violations, speeding and failure to maintain lane." Defendant was found guilty of DWI and refusal, and the judge re-imposed the same penalties.

II.

Appellate review of municipal court convictions is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999).

The appellate tribunal . . . must review the record in the light of the contention, but not initially from the point of view of how it would decide the matter if it were the court of first instance. It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.

[State v. Johnson, 42 N.J. 146, 161 (1964)].

We owe deference to a trial court's findings of fact in reviewing a motion to suppress, "provided those factual findings are 'supported by sufficient credible evidence in the record.'" State v. Smith, 212 N.J. 365, 387 (2012) (quoting State v. Handy, 206 N.J. 39, 44 (2011)), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

"It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)). To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred. State v. Williamson, 138 N.J. 302, 304 (1994). Both the municipal court and the Law Division found that the State demonstrated that Officer Burns possessed such a suspicion and denied defendant's motion to suppress evidence procured subsequent to the stop of his vehicle. Defendant argues that we should reject the conclusions of both courts, and determine that Burns and Gehring "plott[ed] and plann[ed] . . . . to identify, stalk and seize Charles Cain."

We are satisfied from our review of the record that the Law Division thoroughly reviewed the facts and exhibits presented at trial and its factual determinations find ample support in the record. The municipal judge engaged in an exhaustive analysis of the trial testimony and made extensive credibility determinations of each witness. Where witnesses called by defendant contradicted the testimony of Burns or Gehring, the judge provided detailed reasons for finding the defense witnesses less credible than the officers. The review by the Law Division was equally extensive and comprehensive.

When the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474. The Law Division clearly understood that its role was to make independent findings. Our review of that decision is limited to whether there is "sufficient credible evidence present in the record" to uphold the findings. Johnson, supra, 42 N.J. at 162; State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). We do not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Locurto, supra, 157 N.J. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)).

Neither the municipal court nor the Law Division found defendant's proof sufficient to undermine the credibility of Burns and Gehring. Granting the considerable deference the two-court rule demands, we see nothing in the record that causes us to disturb the findings of the Law Division.

Affirmed.

1 At the time of trial, Burns was employed by the Atlantic County Prosecutors Office.

2 Defendant is the owner of the Auto Plaza.