STATE OF NEW JERSEY v. DANIEL P. ALEX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6192-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL P. ALEX,

Defendant-Appellant.

___________________________________

 

Argued July 24, 2007 Decided September 12, 2007

Before Judges Yannotti and C.L. Miniman

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, MA-05-073.

John Vincent Saykanic argued the cause for appellant.

Julian L. Hill, Assistant Morris County Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney, Joseph Connor, Jr., on the brief).

PER CURIAM

Defendant Daniel P. Alex appeals from his de novo conviction of driving while on the revoked list in violation of N.J.S.A. 39:3-40. Defendant entered a conditional plea after his suppression motion was denied. We affirm.

The following testimony was adduced at the suppression hearing. Officer John Barone of the Riverdale Police Department testified that on May 5, 2005, he observed defendant while on duty, stopped at a red light on Cutlass Road by the Home Depot. He did a random plate inquiry on the mobile data terminal (MDT) in his cruiser, entering the license plate number of the vehicle being operated by defendant. The software on the computer is known as "Info Cop," which provides information from the records of the New Jersey Division of Motor Vehicles (DMV). Within seconds, Barone received a "red hit" response, indicating that there was either a suspension or a warrant. In response to that alert, Barone made further inquiry on Info Cop and learned that there was a driver's license suspension for the owner of the vehicle. Info Cop also provided the date of birth, eye color, hair color, sex and name of the owner. The information matched the driver of the vehicle that Barone observed. When the light turned green, Barone activated his lights and stopped the vehicle on the other side of Route 23 by the Mobil Station. He determined that the driver matched the description provided by the MDT and asked defendant by name for his driver's license and vehicle registration. Barone then called police headquarters to have dispatch confirm the license suspension. After receiving a confirmation, he issued a summons for driving on the revoked list.

In their testimony, defendant and the passenger in his car disputed Barone's account of the circumstances of the stop, calling his credibility into question. The municipal judge, however, found that Barone's testimony was credible and denied the motion to suppress. Defendant then entered a conditional guilty plea to driving on the revoked list. Defendant filed a de novo appeal and the matter was heard in the Superior Court. The Law Division judge also denied the motion to suppress, found defendant guilty of the offense charged, and stayed the sentence imposed pending appeal.

The only issue on appeal is whether the arresting officer's testimony regarding information he learned from an "Info Cop" computer program was properly admitted. Defendant contends that it lacked a sufficient foundation under Article I, Paragraph 7, of the New Jersey Constitution and the Fourth Amendment to the United States Constitution. Unquestionably, under our state and the federal constitutions, a police officer must have a reasonable and articulable suspicion that a driver has committed a motor vehicle offense before the officer may stop the vehicle. Id. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Defendant contends that the information from "Info Cop" was inadmissible hearsay that should have been excluded, in which case the State could not have established that Barone had any reasonable or articulable suspicion permitting him to stop defendant's vehicle.

The scope of our review is limited. Both the municipal judge and the Law Division judge concurred in their assessments of the evidence.

[T]he rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Id. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).]

We find no obvious and exceptional error here.

Defendant asserts that information from a computerized database is hearsay, relying on State v. Lungsford, 167 N.J. Super. 296, 303, 306 (App. Div. 1979) (determining that the admissibility of computerized information is governed by Evid. R. 63(30) and requiring a hearing to establish whether or not the evidence meets the rule's conditions for admissibility). Such a showing, however, is not required where the information is contained in the computerized database of the DMV, as here. We have clearly stated that "DMV records of drivers' license suspensions are deemed sufficiently reliable to be admissible as prima facie evidence of the fact." State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005) (citations omitted).

Our Supreme Court has concluded that a police officer is not required to wait until he or she observes a driver commit an apparent motor vehicle violation before processing an inquiry of the DMV through a MDT. State v. Donis, 157 N.J. 44, 54 (1998). Such an observation would obviate the need for a DMV inquiry prior to a stop. Ibid. The Court reasoned that there was no reasonable expectation of privacy in a vehicle's license plate, "and thus to examine it does not constitute a 'search.'" Ibid. (quoting New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 966, 89 L. Ed. 2d 81, 90 (1986)).

To protect drivers' privacy interests in the information contained in the DMV database, N.J.S.A. 39:2-3.3 and -3.4 were enacted to bring New Jersey in compliance with the federal Driver's Privacy Protection Act, 19 U.S.C.A. 2721-2715. At the same time, the law balances those interests against the use of such information for law enforcement purposes. N.J.S.A. 39:2-3.4(c)(1). The Donis Court required that MDTs display data using a two-step process.

In the first step, the initial random license plate look-up would display information regarding only the registration status of the vehicle, the license status of the registered owner, and whether the vehicle has been reported stolen. The registered owner's personal information would not be displayed. If the original inquiry disclosed a basis for further police action, then the police officer would proceed to the second step, which would allow access to the "personal information" of the registered owner, including name, address, social security number, and if available, criminal record.

[Donis, supra, 157 N.J. at 55.]

In such a way, only nonprivate information could be accessed at first, and if that information "disclosed that the car was unregistered, reported stolen or that the registered owner was not properly licensed, that information would then justify the police officer accessing the 'personal information' from the MDT." Id. at 56.

There is no evidence here of any abuse of the officer's discretion to conduct an initial inquiry, id. at 57, and we are satisfied that the evidence from the DMV derived through the use of "Info Cop," an MDT, was properly admitted. The information derived from the initial inquiry "gave rise to the reasonable suspicion that the vehicle was driven in violation of the motor vehicle laws and was in itself sufficient to justify a stop." Id. at 58. The physical description of the registered owner also generally matched defendant's appearance, lending further support to Barone's suspicion that defendant was violating the motor vehicle laws. Ibid.

Defendant's effort to distinguish Donis is unavailing. The Law Division judge found that "the Info-Cop software here running on the officer's laptop computer in his police vehicle does constitute and/or is the equivalent of the MDTs referred to in the Donis opinion," and concluded that the evidence was admissible. The municipal judge, too, concluded that the requirements of Donis had been satisfied. Under the two-court rule, Locurto, supra, 157 N.J. at 474, we will not disturb those concurrent conclusions.

 
Affirmed.

He also issued a summons for driving a vehicle with hazardous tires in violation of N.J.S.A. 39:3-72. That charge was dismissed on motion of the prosecutor.

Neither witness directly disputed the accuracy of the information displayed by the MDT and confirmed by police headquarters.

Defendant briefly argues that Barone's testimony was not credible and that the defense witnesses should have been believed. He does not, however, suggest that the municipal judge's findings lacked sufficient credible evidence in the record. As a consequence, we are bound by his credibility determinations. State v. Locurto, 157 N.J. 463, 472 (1999).

Today, the applicable rule of evidence is N.J.R.E. 803(c)(8).

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A-6192-05T1

September 12, 2007