A-0STATE OF NEW JERSEY v. DENA B. ZATOREN August 11, 2015

NOT FOR PUBLICATION WITHOUT THE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.

DENA B. ZATOREN,

Defendant-Appellant.

____________________________________________

August 11, 2015

Argued July 27, 2015 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2013-06.

Albert P. Mollo argued the cause for appellant.

Timothy F. Trainor, Legal Intern, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Matthew Regulski, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After defendant Dena B. Zatoren's motion to suppress was denied by the West Windsor Township municipal court, she proceeded to trial and was found guilty of driving an unregistered vehicle, N.J.S.A. 39:3-4, and possession of a controlled dangerous substance (CDS), Percocet, in a motor vehicle, N.J.S.A. 39:4-49.1. The municipal judge merged the two charges, sentenced defendant to a two-year loss of her driving privileges, and imposed appropriate fines and costs.

Defendant appealed to the Law Division, claiming the municipal court erred in denying her motion to suppress and the State failed to prove her guilt beyond a reasonable doubt. After a de novo hearing, Judge Mark J. Fleming found defendant guilty of both charges.1

On appeal, defendant challenges the search and the quantum of proof introduced at trial. We are not persuaded by these arguments and affirm.

On February 19, 2012, Officer David Jelinski of the West Windsor Township Police Department was on patrol in uniform in a marked police vehicle. While westbound on Quakerbridge Road, he observed defendant driving a 2008 silver Hyundai. When Jelinski ran the Hyundai's license plate, he learned that the registration of defendant's vehicle was expired.

Jelinski signaled defendant to pull over, intending to simply inform her of her expired registration. That changed as he stood next to the vehicle and smelled the odor of burnt marijuana emanating from it. From outside the car, Jelinski also noticed other indicia of marijuana use, including hollowed-out "Dutch" cigars and marijuana stems and seeds. He then asked defendant to step out of her car.

When Jelinski first stopped defendant, the video component of his mobile video recorder (MVR) was operating but he had not activated the audio function. After realizing that further investigation was warranted, he returned to his police vehicle, activated the microphone, and retrieved a "consent to search" form to present to defendant.

Jelinski went over the language of the form with defendant "word-for-word." He informed defendant that, if she consented, he would perform a complete search of her vehicle for CDS. He also informed defendant that she could refuse consent and, if she consented, could stop the search at any time. During this discussion, defendant asked if she could call her lawyer. Jelinski responded that she could. Defendant's mother, who was apparently nearby when defendant was pulled over, came to the scene. Jelinski explained to the mother that he stopped defendant for an expired registration but noticed a very strong odor of marijuana coming from inside the vehicle and observed marijuana kernels on the dash. Jelinski then explained the consent to search form to the mother. Defendant signed the consent form and her mother signed as a witness to her signature.

During the subsequent search, Jelinski found approximately twenty-five pills in a cotton bag in defendant's purse. Defendant told Jelinski the pills were over-the-counter headache medication, and her mother confirmed that defendant takes nonprescription Midol for headaches. Because defendant and her mother had been cooperative and, he thought, honest, Jelinski took only one of the pills for analysis. When Jelinski took the pill to a pharmacy, however, he learned that it was a "high-dose" Percocet. Jelinski felt that he had been "duped" and taken advantage of, and sent the pill to the State Police laboratory where it was confirmed to be Oxycodone.

After Jelinski testified, defendant's father, Paul Zatoren, testified that the Percocet pills were his and had been prescribed by his doctors. He said that he placed the pills in his daughter's purse because she drives him to his doctor appointments.

In denying defendant's motion to suppress, the municipal judge found that the search was valid as defendant's consent was knowing and voluntary. The judge also found that Jelinski's testimony was straightforward, credible, and consistent with the events depicted on the MVR video. The judge noted that no evidence was provided to indicate that defendant's father had a valid prescription for Percocet at the time of the traffic stop, and that defendant's statement to Jelinski that the pills were Midol was not credible.

In Judge Fleming's comprehensive, twenty-five-page written decision dated August 14, 2013, he rejected defendant's claim that inconsistencies between the consent form which indicated that the "vehicle and contents" would be searched and Jelinski's statement to defendant that he intended to search her vehicle somehow vitiated her consent. Judge Fleming termed the inconsistency "minor" and found that defendant knowingly and voluntarily signed the consent form and understood the scope of the search to which she consented. He also rejected defendant's claims that the consent form was illegible, that it was ambiguous and contained contradictory provisions, and that defendant was denied access to counsel.

On appeal, defendant raises the following points

point i

defendant-appellant's consent was not knowing and voluntary.

a. there were inconsistencies between the consent form and officer's oral statements.

b. the consent to search form was not legible.

c. the consent to search form was ambiguous and contained contradictory provisions.

d. defendant-appellant's consent was not voluntary.

e. defendant-appellant was denied access to counsel.

f. the search exceeded the scope of consent.

point ii

the consent to search was invalid because the arresting officer had a basis to arrest prior to the search.

point iii

the state did not prove defendant-appellant's guilt beyond a reasonable doubt.

The scope of our review of the Law Division's findings after conducting a trial de novo on the record developed in the municipal court is limited. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Judge Fleming was bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In contrast, our review is limited to determining whether there is sufficient credible evidence present in the record to support Judge Fleming's findings. Id. at 161-62.

Our deference is enhanced when "two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). Under this so-called "two-court rule," we ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts "absent a very obvious and exceptional showing of error." Ibid. In reviewing the extensive findings of fact and conclusions of law contained in Judge Fleming's thorough decision, we can find no such error. In particular, we agree that State v. Leslie, 338 N.J. Super. 269 (App. Div. 2001), the main consent-to-search case relied upon by defendant, may be factually distinguished in the various respects set forth in Judge Fleming's opinion. We affirm on the basis of his opinion.

The stay of defendant's sentence ordered by the trial court pending appeal shall dissolve within twenty days of the filing of this opinion.

Affirmed.

1 Although the transcript of defendant's sentencing conducted on de novo review in the Law Division was not supplied to us, defendant has not challenged that sentence on appeal.