STATE OF NEW JERSEY v. STEVEN CUMMINGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2518-07T42518-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN CUMMINGS,

Defendant-Appellant.

_______________________________________

 

Submitted October 7, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Appeal No. 24-07.

Basile & Testa, attorneys for appellant (Michael L. Testa and Justin R. White, of counsel; Mr. White, on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Dennis J. Hernon, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steven Cummings appeals from a determination of the Law Division finding him guilty of driving while intoxicated, in violation of N.J.S.A. 39:4-50, and failing to drive his vehicle within a single lane of travel, in violation of N.J.S.A. 39:4-88b. Defendant argues that the trial court erred by denying his motion to suppress evidence obtained when his vehicle was stopped by a police officer. For the reasons that follow, we disagree and affirm.

At the suppression hearing in the municipal court, New Jersey State Trooper Jonathan Frasca testified that, on January 30, 2007, he was on patrol in Maurice River Township, in the vicinity of State Highway 47. Frasca observed defendant's vehicle traveling southbound on the highway, near milepost 34 or 35. Frasca was stopped in a parking lot when defendant's car passed by. Frasca pulled out behind the vehicle.

Frasca said that he "observed the vehicle cross the center line" of the highway. He explained that the two left-side tires of the car crossed the center line into the northbound travel lanes of the highway. Frasca activated the lights on his police vehicle and stopped defendant's car.

Defendant argued that Frasca did not have a reasonable and articulable suspicion to stop his vehicle. He asserted that N.J.S.A. 39:4-88b only requires that a vehicle be driven within a single lane "as nearly as practicable[.]" Defendant maintained that the statute recognizes that vehicles often cannot be driven "entirely within a single lane of traffic, considering the nature of automobile operation."

The municipal court judge rejected defendant's arguments, stating:

We're not talking about staying in one's lane. We're not even talking about straddling a white line or the shoulder line. We're talking about both tires going over the center line. That certainly gives rise to a possible motor vehicle violation and, as such, it is something that would, in my opinion, easily permit the officer to stop the vehicle to make an inquiry of what's going on.

The municipal court judge therefore denied defendant's motion to suppress. Defendant then entered a plea of guilty, reserving his right to appeal from the denial of his suppression motion.

The judge merged the offenses for sentencing purposes. Defendant conceded that he was eligible for sentencing as a third-time offender pursuant to N.J.S.A. 39:4-50a3. Defendant was sentenced to 180 days of incarceration, which could be lowered to 90 days if defendant participates in an approved rehabilitation program. The judge also imposed a $1,000 fine, a $200 surcharge, and $125 in penalties; mandated installation of an ignition interlock device on defendant's vehicles for one year; and ordered a ten-year suspension of defendant's driving privileges. The sentence was suspended pending defendant's appeal to the Law Division.

Judge Richard J. Geiger heard the appeal on January 23, 2008, and the judge rendered an oral decision on the record on that date. Judge Geiger found that the officer had a "sufficient, reasonable, and articulable basis for the motor vehicle stop[.]" The judge noted that the officer had observed the left-side tires on defendant's vehicle cross the center line of the highway. The judge stated, "That is a sufficient basis for a motor vehicle stop. It's a reasonable basis. It's an articulable basis. And, it meets constitutional muster."

The judge filed a supplemental written opinion on January 24, 2008, in which he stated the following:

On January 30, 2007, defendant was driving a Toyota Camry southbound on State Highway Route 47 in Maurice River Township. A State Trooper, who had been parked in a parking lot, pulled out directly behind the Camry and observed it cross the center line of the roadway into the northbound travel lanes of the highway with both of its left tires. The Trooper then activated his lights and camera and made a motor vehicle stop of defendant's vehicle, which pulled onto the right-hand shoulder. Defendant was issued summonses for DWI in violation of N.J.S.A. 39:4-50, and failure to maintain lane in violation of N.J.S.A. 39:4-88(b).

The Court finds the testimony of the Trooper to be credible and believable. His testimony was uncontroverted. Indeed, defendant does not contest the facts in this matter.

The Court further finds that the Trooper had a reasonable and articulable suspicion that defendant had committed a motor vehicle offense when both left tires of his vehicle crossed the centerline of the roadway. The Trooper personally observed the defendant fail to maintain his lane of travel. This constituted a sufficient basis for the Trooper to stop defendant's vehicle[.]

The judge entered an order dated January 24, 2008, finding defendant guilty of driving while intoxicated, and imposing the same sentence that had been imposed by the municipal court. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I:

THE DE MINIMIS NATURE OF CUMMINGS' VEHICLE CROSSING THE CENTERLINE DID NOT CREATE A REASONABLE AND ARTICULABLE SUSPICION THAT A MOTOR VEHICLE STATUTE WAS VIOLATED.

POINT II:

BECAUSE THERE WAS NOT A REASONABLE AND ARTICULABLE SUSPICION JUSTIFYING CUMMINGS' TRAFFIC STOP[,] THE STOP WAS UNLAWFUL AND ALL EVIDENCE MUST BE SUPPRESSED.

We have thoroughly reviewed the record in light of these contentions and the applicable law. We are convinced that defendant's arguments are entirely without merit. We therefore affirm substantially for the reasons stated by Judge Geiger in the decision that he placed on the record on January 23, 2008, and his supplemental written opinion dated January 24, 2008. R. 2:11-3(e)(2). We add the following brief comments.

"It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990)). "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Williamson, 138 N.J. 302, 304 (1994)). We are satisfied that the trial judge correctly found that Trooper Frasca had a reasonable and articulable suspicion that defendant had committed a violation of N.J.S.A. 39:4-88b when he observed the two left-side tires on defendant's vehicle cross the center line of the highway.

We recognize that N.J.S.A. 39:4-88b provides that, "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety." We also recognize that, in certain exceptional circumstances, a driver may be justified in failing to remain "within a single lane" of travel. However, when Trooper Frasca observed the two tires on the left side of defendant's vehicle cross over the center line of the highway, no such exceptional circumstances were apparent.

In short, Trooper Frasca had a reasonable and articulable basis for suspecting that defendant had committed a motor vehicle violation. The resulting motor vehicle stop was valid and, for that reason, the trial court correctly denied defendant's motion to suppress the evidence obtained during the stop.

We note, however, that the judgment of January 24, 2008 does not reflect defendant's conviction for violating N.J.S.A. 39:4-88b. The judgment states only that defendant was convicted of driving while intoxicated. While the offenses were merged for sentencing purposes, the judgment should indicate that defendant was found guilty of both violations. We therefore remand for entry of a corrected judgment.

Affirmed and remanded for the entry of a corrected judgment.

 

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A-2518-07T4

October 23, 2008