STATE OF NEW JERSEY v. FRANCIS MICHAEL CORNELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3137-04T13137-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

FRANCIS MICHAEL CORNELL,

Defendant-Appellant.

__________________________________

 

Submitted: June 5, 2006 - Decided June 20, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, No. 35-04.

Levow & Costello, attorneys for appellant (Evan M. Levow, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Francis Michael Cornell entered a conditional plea of guilty to driving while intoxicated contrary to N.J.S.A. 39:4-50 following denial of his motion to suppress. The municipal court judge fined defendant $250, imposed a $200 driving while intoxicated surcharge, a $50 Violent Crimes Compensation Board assessment, a $75 Safe Neighborhood assessment, and $30 in court costs. The municipal court judge also required defendant to attend twelve hours at the Intoxicated Driver Resource Center. On appeal to the Law Division, Judge Paul Armstrong held that the investigatory stop of defendant's vehicle was valid and imposed the same sentence as the municipal court judge. The sentence has been stayed pending appeal.

On appeal, defendant raises the following argument:

NO ARTICULABLE SUSPICION OF ANY CRIME HAD TAKEN PLACE OR WAS ABOUT TO TAKE PLACE, AND, AS SUCH, THE PRE-TEXTUAL STOP OF DEFENDANT WAS ILLEGAL.

The material facts are essentially undisputed. On March 28, 2004, at approximately 1:00 a.m., Sergeant Gerard DiDonato was advised that Pamela Cornell was on her way to the Montgomery Township Police Department to apply for a temporary restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, against defendant, her former husband. Ms. Cornell reported to police that she feared that her husband was intoxicated, emotionally upset, and possibly on his way to her residence in Montgomery Township. Ms. Cornell expressed her concern for her mother and young child who remained at her residence.

Sergeant DiDonato drove to Ms. Cornell's residence and spoke to her mother. Ms. Cornell's mother advised the officer that she too believed that defendant was intoxicated and that she was in fear of her safety. She provided the officer with a description of defendant's car. DiDonato provided another officer with the description of defendant's car, and that officer stationed his cruiser at the entrance to the street that led to Ms. Cornell's residence. Soon thereafter, the officer observed defendant's car approach the intersection. He motioned for defendant to stop and defendant complied.

The issue before Judge Armstrong was whether these facts provided an articulable suspicion to warrant an investigatory stop. He held that the officer who stopped defendant had an objectively reasonable basis to stop defendant and that the stop was lawful. We agree.

We have carefully reviewed the record in its entirety and conclude that the argument presented by defendant is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-3137-04T1

June 20, 2006