STATE OF NEW JERSEY v. MICHAEL A. VARGAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5997-04T15997-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. VARGAS,

Defendant-Appellant.

_______________________________________________________________

 

Submitted October 31, 2006 - Decided December 28, 2006

Before Judges Kestin and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2005-001.

Paul W. Bergrin, attorney for appellant (Annette Verdesco, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Michael Vargas, appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and no driver's license in possession, N.J.S.A. 39:3-29. He had also been charged with refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2, driving with a suspended license, N.J.S.A. 39:3-40, and blocking a driveway, N.J.S.A. 39:4-138(d). During the municipal court proceeding, defendant filed a motion to suppress or dismiss all charges, asserting the State's failure to sustain the probable cause necessary to effectuate a legal stop of the defendant's vehicle, and for his arrest. After the municipal court denied the motion, defendant entered a conditional guilty plea to the charges of DWI and failure to have a driver's license in his possession. The remaining charges were dismissed. Defendant was sentenced as a third-time DWI offender, N.J.S.A. 39:4-50(a)(3), resulting in the suspension of his driver's privileges for ten years; a 180-day prison term, of which ninety days may be served in an in-patient alcohol rehabilitation facility; and assessed the applicable fines and penalties.

After trial de novo in Superior Court, R. 3:23-8(a), defendant was convicted. He was sentenced just as he was in municipal court, however, the Law Division judge stayed the sentence pending appeal.

Briefly, the facts are as follows. At approximately 3:00 a.m., Officer Mantanari, of the Nutley Police Department, observed defendant's vehicle stopped in an apartment entrance driveway. Passing the driveway five minutes later, the officer noticed defendant's vehicle had not moved. Two cars also were stopped, apparently blocked by defendant's vehicle. Officer Mantanari stated he approached defendant's vehicle to check on his welfare. He saw defendant sitting in the driver's seat slumped over the wheel, the car engine was running, the gear shift was in the "drive" position, and the radio was blaring. "As [Officer Mantanari] got closer, he noticed saliva from the mouth of the defendant." He was uncertain whether defendant was asleep or passed-out. Repeated unsuccessful attempts to awaken defendant, by shaking him, were made. When defendant finally awoke, he complied with Officer Mantanari's requests to turn off the engine, lower the radio, and exit the vehicle. Officer Mantanari noticed an odor of alcohol on defendant's breath and observed defendant's eyes were bloodshot and watery; defendant stumbled when exiting his vehicle and had difficulty standing; and defendant was unable to perform physical field sobriety tests. Defendant was then placed under arrest for DWI.

During the trial in municipal court, Officer Mantanari was subjected to extensive cross-examination regarding his actions in approaching the vehicle. Defendant specifically challenged the officer's failure to interview the two drivers stopped behind defendant's vehicle or the guardhouse employee at the complex entrance, who spoke to defendant when he first drove into the complex and testified she noticed nothing unusual about his behavior.

In the trial de novo, the Law Division judge framed the issue presented, stating:

The only issue before me is whether . . . [O]fficer Mantanari[] had probable cause to arrest the defendant that night. . . . So, arguments such as [whether] the State established the requisite burden of proof that the defendant was driving under the influence[,] is not before this court.

In this regard, the Law Division judge accepted the credibility determinations of the municipal court and concluded that, under the community caretaking doctrine, Officer Mantanari had a duty to approach the defendant's car. See State v. Diloreto, 180 N.J. 264, 275-76 (2004). The Law Division judge stated:

The closer [the officer] g[ot] to the car . . . the more observations he made and the more he had a duty to check on the welfare of the driver . . . under the [c]ommunity c]aretaker [s]tandard[,] as set forth in Cady v. Dombrowski[, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)], or State v. Diloreto[, supra, 180 N.J. at 275].

"A police officer's observation of a person operating a motor vehicle in a manner that indicates something may be wrong with the vehicle or its driver is one recognized circumstance in which the police may take appropriate action in the performance of their community caretaking responsibilities." State v. Garbin, 325 N.J. Super. 521, 526 (App. Div. 1999); see also
State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). Reasonable police intervention in such situations is justified to fulfill the caretaking function, which is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Stott, 171 N.J. 343, 361 (2002).

Defendant argues that because his vehicle was parked and not in operation, no "unusual" circumstances required police investigation. Contrary to this contention, defendant was slumped over the wheel of his car while the engine was running. Officer Mantanari noticed the vehicle was not moving and two cars had stopped behind defendant's vehicle unable to pass. These facts alone suggest something may have been "wrong with the vehicle or its driver." See Garbin, supra, 325 N.J. Super. at 526. Further, as noted by Judge Fullilove during the Law Division trial, the closer Officer Mantanari got to defendant, the more apparent the need for caretaker intervention became. The officer observed the vehicle was in drive, defendant's foot was on the brake, the car radio was blaring, but defendant was unresponsive. Our review determines that the totality of these circumstances provide a reasonable and objective basis, from the perspective of the officer on duty, justifying his actions. State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997).

As for the arrest, sufficient observations by Officer Mantanari support the reasonable suspicion that defendant was intoxicated. The Law Division judge stated the reasons supporting his acceptance of the determinations of the relative credibility findings of the witnesses, as made by the municipal court. State v. Locurto, 157 N.J. 463, 474 (1999); State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995).

After reviewing the record and applicable law in light of the contentions advanced by defendant, we conclude that the findings by the Law Division judge are firmly supported by sufficient credible evidence, and his conclusions, predicated on those findings, are legally sound. Id. Accordingly, we affirm defendant's conviction.

Affirmed.

 

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A-5997-04T1

December 28, 2006