STATE OF NEW JERSEY v. DOSSO LOVA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0235-06T50235-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOSSO LOVA,

Defendant-Appellant.

_________________________________________________

 

Submitted September 4, 2007 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Municipal

Appeal 06-057.

Allan Weinberg, attorney for appellant.

Luis A. Valentin, Monmouth County

Prosecutor, attorney for respondent (Mary

R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following his arrest, in the early morning hours of January 28, 2006, defendant, Dosso Lova, was charged with the motor vehicle offenses of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, consuming an alcoholic beverage while operating a motor vehicle in violation of N.J.S.A. 39:4-51a, failure to maintain a lane in violation of N.J.S.A. 29:4-88b, reckless driving in violation of N.J.S.A. 39:4-96, and driving while his license was suspended in violation of N.J.S.A. 39:3-40. Following denial of defendant's suppression motion, premised upon the claim that the arresting officer lacked a reasonable and articulable suspicion that defendant had committed a motor vehicle offence, defendant entered a conditional plea of guilty to the DWI charge. He was sentenced by a judge of the municipal court as a third offender to 180 days in the Monmouth County Correctional Institution, a ten-year loss of license, a three-year interlock requirement, and to appropriate fines and penalties. The remaining charges were dismissed. Upon appeal to the Superior Court and trial de novo on the municipal court record, defendant's conviction was affirmed, and his prior sentence was reimposed.

Defendant has appealed, claiming that:

THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE, CONSISTENT WITH LAW AND IS NOT REASONABLE IN SCOPE OR APPLICATION.

We affirm.

Testimony at the suppression hearing was given on behalf of the State by State Police Officer Juan Siso, who testified that, at approximately 1:28 a.m. on January 28, 2006, he observed defendant driving on the right, westbound side of Interstate 195 in Upper Freehold Township. At that location, the road consisted of two lanes in each direction, separated by a median. Rumble strips were present in the shoulder beyond the right or "fog" line demarking the extent of the right lane of travel. Defendant was driving in the right-hand lane.

Siso testified that he observed defendant for a distance of approximately three- to five-tenths of a mile. During that interval, defendant crossed the fog line on two or three occasions, deviating by two or three feet from the lane of travel and onto the shoulder. Also, during this period, defendant rode on the dotted line between the two westbound lanes on one or two occasions.

After making these observations, Siso activated his lights, causing defendant to stop. When asked if it was his practice to stop drivers in similar circumstances, Siso responded:

Yes. . . . [T]hat time of night you have many people get[ting] off work late, they're tired, we have more vehicle accidents, so we check on them. It's not always an indicator of someone under the influence of alcohol or narcotic, it could be just a tired driver and for their safety, we do check them.

After approaching the car, however, Siso smelled alcohol and observed an open Heineken beer bottle located in the passenger space. He therefore ordered defendant to leave the vehicle and, after defendant failed field sobriety tests, Siso arrested him. Subsequent breathalyzer readings showed defendant's blood alcohol content to be .16 and .17 percent.

At the conclusion of the hearing, defense counsel argued that the movement of defendant's vehicle was too slight to give rise to a reasonable and articulable suspicion that defendant had committed a motor vehicle offense. A legal brief on the issue was presented and, after considering it, the municipal judge denied defendant's motion, finding the cited legal precedent distinguishable, the testimony of Officer Siso to have been credible, and the evidence to have been sufficient to meet Fourth Amendment requirements.

On appeal to the Superior Court, Judge Chaiet reached the same conclusion, stating as a preamble to his opinion:

[O]n de novo review of the record, the reviewing court is required, based on the record below, to make its own independent findings of fact and conclusions of law . . . to independently determine the guilt or innocence of the defendant. State v. States, 44 N.J. 285, 293 (1965).

The evidentiary record made in the municipal court is binding. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). In reviewing the record, this court must give due, although not necessarily controlling regard to the municipal judge's opportunity to [weigh] the credibility of witnesses by observing their demeanor and reaction while testifying. State v. Riccardo, 157 N.J. 463, 471 (1991).

Additionally, the court conducting the de novo proceeding must itself impose sentence rather than affirming or modifying the municipal court sentence. State v. States, 44 N.J. 285, 293 (1965).

"A lawful stop of an automobile must be based on reasonable and articulable suspicion an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, [6]39-40 (2002) (citing Delaware v. [Prouse], 440 U.S. 648, 663 (1979)). Such articulable reasons must be based on the totality of the circumstances in view of the officer's experience and knowledge, taken together with [the] rational inferences drawn from those facts. State v. Davis, 104 N.J. 49[0], [504] (1986).

Reasonable suspicion requires "considerably less than proof of [wrongdoing] by a preponderance of the evidence." Drake v. County of Essex, 275 N.J. Super. 585, 589 (App. Div. 1994).

Moreover, the State need only prove that the police lawfully stopped the car, not that it could convict the driver of the motor vehicle offense. State v. Williamson, 138 N.J. 302, 304 (1994). And I think that is a critical point in this case.

After reciting applicable portions of the text of N.J.S.A. 39:4-88b that led to defendant's stop, and following a review of the evidence that we have described, Judge Chaiet found that "defendant's vehicle was not driven as nearly as practicable within the single lane," as the statute requires but, instead, crossed the fog line on at least two occasions and, on other occasions, rode the "center" line. Finding out-of-state precedent, cited by defense counsel, to be inapposite, the judge then concluded that the evidence was sufficient to raise an articulable suspicion that defendant was violating the statute at issue, and thus that the vehicle stop was lawful. He stated:

Considering all of the officer's observations, the Court accepts that the stop was reasonable when talking about a situation where it is 1:38 a.m. in the morning. The trooper is on the roadway. He is behind this particular vehicle. He has an opportunity to see him veer off the roadway twice. And I think under those circumstances a trooper doesn't have to wait until perhaps something more severe happens.

* * *

I've read the [out-of-s]tate opinions. I don't agree that when you focus in on

. . . reasonable and articulable suspicion and move away from . . . proving the statute beyond a [reasonable] doubt, that it is unreasonable for a trooper in this state with [its] high concern about traffic safety to make the stop that he did in this particular case.

We affirm substantially on the basis of Judge Chaiet's well-reasoned decision.

We add only that we, like Judge Chaiet, are satisfied that the out-of-state precedent cited on defendant's behalf does not suggest to us that we should reach a decision different from that of the trial judge. The cited cases that have not been overruled by subsequent precedent all concern more minor lane deviations than those observed by Officer Siso. State v. Tague, 676 N.W.2d 197 (Iowa 2004), construing a similar statute requiring that drivers maintain a lane to apply only when the driver intends a lane change, id. at 203, represents a Court's interpretation of relevant statutory language at odds with that of the courts of New Jersey. See State v. Cerefice, 335 N.J. Super. 374, 378, 384 (App. Div. 2000). We decline to adopt the narrow statutory construction espoused by defendant and some out-of-state courts in the present Fourth Amendment context.

In sum, we are satisfied that the evidence in this matter was sufficient to raise a reasonable and articulable suspicion that a traffic offense had been committed. The officer's consequent stop of defendant's vehicle was thus lawful.

 
Affirmed.

We have conformed the style of the citations upon which the judge relied and corrected minor transcription errors in the text of quoted material.

We express no opinion as to whether defendant would have been convicted of the charged offense, if trial had occurred.

(continued)

(continued)

7

A-0235-06T5

September 19, 2007