STATE OF NEW JERSEY v. JOSEPH FABICS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5662-05T55662-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH FABICS,

Defendant-Appellant.

___________________________________________________________

 

Argued March 27, 2007 - Decided

Before Judges Coburn, Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 05-22.

Joseph Fabics, appellant, argued the cause pro se.

Julian L. Hill, Jr., Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Joseph Fabics appeals from a January 13, 2006, order of the Law Division, Morris County, entered following a de novo review of the record from the Denville Municipal Court, sitting for the Rockaway Borough Municipal Court. Defendant entered a conditional plea of guilty to driving while intoxicated, reserving his right to challenge the denial of his motion to suppress evidence. Additional charges of failure to yield and careless driving were merged into the drunk driving offense and dismissed. The municipal court imposed a fine and appropriate fees and suspended defendant's driving privileges for seven months, but it entered a stay pending defendant's de novo appeal to the Law Division. Following the de novo trial on the record below, the Law Division judge denied the suppression motion and imposed the same sentence.

This appeal ensued, with defendant raising the following issues in his brief:

POINT I: WHETHER THE TRIAL COURT MISAPPLIED THE LAW OF SEARCH AND SEIZURE BY HAVING FAILED TO CONSIDER THE PROPRIETY OF THE 911 EMERGENCY TELEPHONE CALL AS PART OF THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING THE MOTOR VEHICLE STOP.

POINT II: WHETHER DEFENDANTS CHARGED WITH QUASI-CRIMINAL OFFENSES, FACING A CONSEQUENCE OF MAGNITUDE, SHOULD BE AFFORDED A JURY TRIAL.

After careful consideration of defendant's arguments in light of the facts and applicable law, we affirm.

After leaving a wedding he had attended at Caf Navona on Route 46 in Rockaway Borough, where he had consumed three rums and cola drinks, defendant went to the Pizza Hut located almost directly across the street. There he became engaged in a heated conversation with the employees about bilingual signs in the bathroom. The Pizza Hut employee stated that defendant made racist comments and was so belligerent, the employee called 911. Defendant claims that he was merely exercising his free speech rights and that the employee misconstrued his remarks.

Patrolman Michael Gosden and Patrolman Conrad Pepperman, in separate vehicles, responded to the 911 call. According to Gosden, as he arrived, driving in the westbound lane of Route 46, he slowed to approximately thirty-five miles per hour in anticipation of turning left into the Pizza Hut parking lot. The vehicle's headlights were on, but the overhead lights were not. As he approached, defendant pulled out from the parking lot, across the eastbound lane and stopped in the middle of the road. The front of defendant's car intruded into the westbound lane and caused Gosden to swerve onto the shoulder to avoid a collision. After defendant fully entered the westbound lane, Gosden drove after him and executed a traffic stop. At this point, Gosden did not know that defendant was the subject of the earlier 911 call.

Gosden told defendant that he had stopped him because defendant had cut him off. Then Gosden smelled the odor of alcoholic beverages on defendant's breath, as a result of which Gosden arrested defendant for drunken driving and transported him to headquarters. There, Alcotest results produced two .10 percent readings.

Defendant's version of the encounter was different. He denies cutting off the officer and asserts that Gosden stopped him based on his comments at the Pizza Hut. He maintains that he safely entered onto Route 46, as Gosden had stopped to make his left turn. Defendant contends Gosden had no reason to stop him other than that he was targeted because of his statements at Pizza Hut. Gosden testified that he made the stop based on defendant's failure to yield and with no knowledge that defendant was the person whose statements and conduct had precipitated the call from Pizza Hut. Consequently, the disposition of the case turned upon a credibility determination.

The municipal court judge found the officer's testimony to be credible and believable, and he found the logic of plaintiff's version of the stop to be "less than credible." He found that defendant's vehicle failed to yield to the oncoming traffic on Route 46 and that the officer had probable cause to stop the vehicle. The Law Division judge observed the proper standard of review, acknowledging the obligation to "give due, although not necessarily controlling, regard to the opportunity of the trial judge to judge the credibility of the witnesses." State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). "The reviewing court must give deference to the findings of the trial judge which are substantially influenced by his or her opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). The Law Division judge commented that defendant believed he did not need to yield the right of way to the officer because he thought the officer was letting him go but, based on the record, the judge found there was a reasonable and articulable suspicion for the officer to make the stop. According to the officer, the vehicle pulled out onto the highway in front of his vehicle, stopping in the middle of the road and causing the officer to swerve to the shoulder to avoid a collision.

The scope of our review on appeal from a Law Division de novo adjudication of a municipal court trial is very narrow. State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001). "We do not re-weigh the evidence, but rather, [we] determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Ibid.; State v. Locurto, 157 N.J. 463, 471 (1999); Johnson, supra, 42 N.J. at 161-62.

Based on Gosden's testimony, which both courts found credible, the stop of defendant's vehicle was wholly justified. Gosden testified that he was unaware that defendant was the subject of the 911 call and, as far as he knew, that the customer was still inside. Gosden had no description of the customer and he had no reason to believe that the customer was leaving because the last information he had received was that the customer was going back inside. The sole basis for the stop was the manner of defendant's operation of his vehicle.

To execute a traffic stop, police need a reasonable articulable suspicion of wrongdoing. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). A reasonable articulable suspicion is less than probable cause, State v. Davis, 104 N.J. 490, 501 (1986), and the observation of an apparent motor vehicle violation justifies a stop. See generally State v. Murphy, 238 N.J. Super. 546, 553-54 (App. Div. 1990).

A motorist pulling onto an intersection street must "yield the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard[.]" N.J.S.A. 39:4-144. Additionally, a motorist is prohibited from driving "carelessly, or without due caution and circumspection, in a manner so as to endanger, or to be likely to endanger, a person or property[.]" N.J.S.A. 39:4-97. Based on defendant's actions, Gosden had a reasonable, articulable suspicion that defendant had violated either of these statutes, justifying a stop. Therefore, defendant's motion to suppress evidence resulting from the stop was properly denied.

Defendant's remaining argument is without sufficient merit to warrant a written opinion. R. 2:11-3(e)(2); State v. Stanton, 176 N.J. 75, 88, cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003) ("[T]here is no right to trial by jury of DWI or other Title 39 offenses because they are not deemed to be serious enough").

Affirmed.

 

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A-5662-05T5

July 26, 2007