STATE OF NEW JERSEY v. JOHNNY CRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3673-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNY CRUZ,

Defendant-Appellant.

________________________________________________________________

December 29, 2010

Submitted December 7, 2010 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 11A-2008-K06.

The Toscano Law Firm, LLC, attorneys for appellant (Patrick P. Toscano, Jr., on the brief).

Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Bennett A. Barlyn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo, defendant Johnny Cruz appeals from his March 16, 2009 Law Division conviction on charges of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to observe a marked lane, N.J.S.A. 39:4-88. The judge sentenced defendant as a second-time DWI offender to a two-year suspension of his driving privileges, required him to perform thirty days of community service and imposed the mandatory fines and penalties. The judge also required defendant to serve forty-eight hours in the Hunterdon County Correctional Facility. Neither the jail sentence nor the driver's license suspension were stayed pending appeal.

On appeal, although phrased as two separate arguments, defendant raises a single claim: the police officer lacked reasonable suspicion to stop defendant's automobile, and therefore the judge erred by denying defendant's motion to suppress. We reject that argument as we are satisfied the record amply supported the Law Division judge's conclusion that defendant's vehicle strayed over the white line separating the lane of travel from the right shoulder of the roadway, in violation of N.J.S.A. 39:4-88(b), thereby justifying the stop. We affirm defendant's DWI conviction.

I.

Officer Jennifer Petruzziello of the Clinton Township Police Department was on routine patrol on Route 31 at approximately 10:09 p.m. on May 25, 2008, when she observed the right tires of defendant's vehicle "cross[] the shoulder line on the right side of the road" on four occasions. After making those observations, Officer Petruzziello activated her overhead lights and siren. Once the overhead lights and siren were switched on, the mobile video camera on the patrol vehicle began recording defendant's car as it proceeded down Route 31. The mobile video camera also preserved the video footage of the two minutes immediately prior to the camera being turned on.

Once defendant pulled his vehicle to the side of the road, Officer Petruzziello ordered him out of his vehicle and required him to submit to roadside sobriety tests. Defendant's poor performance caused her to charge defendant with DWI and with failure to maintain his lane. She transported defendant to headquarters where a certified AlcoTest operator administered the test, yielding a 0.16 percent blood alcohol reading (BAC).

Defendant filed a motion to suppress, arguing that Officer Petruzziello lacked a reasonable and articulable suspicion that a motor vehicle offense had been committed, and therefore the stop was unlawful and the fruits of that stop should be suppressed. At the hearing on defendant's motion to suppress, the State presented Officer Petruzziello, who testified that she observed defendant's vehicle cross into the shoulder four times. The judge, counsel and defendant then watched the videotape of defendant's vehicle as it proceeded down Route 31 on the night in question. While watching the videotape, Officer Petruzziello pointed out the four occasions that defendant's car crossed over the white line into the shoulder. After reviewing the videotape and considering the testimony of the officer, the municipal court judge held that the stop of defendant's vehicle was based on a reasonable and articulable suspicion that defendant had committed a motor vehicle offense, namely, that he crossed over into the shoulder, thereby failing to maintain his vehicle within the marked lane, as required by N.J.S.A. 39:4-88(b).

In particular, the municipal court judge noted that while watching the videotape, he had observed defendant's vehicle cross the white line of the shoulder twice, rather than the four times that Officer Petruzziello had described. The judge commented that on several other occasions he had noticed defendant's tires touching the white line, but not crossing into the shoulder. Ultimately, the judge concluded that whether it was two times, or instead four times, was "not the conclusive factor" because "[w]e have the officer's testimony that she saw this happen four times. The fact that it was only captured on camera twice does not mean that the officer is incorrect about that, it simply means that the video camera did not go back for that period of time . . . ." The judge concluded that defendant's violation of N.J.S.A. 39:4-88(b) authorized Officer Petruzziello to effectuate the stop of defendant's vehicle. The judge therefore denied defendant's motion to suppress. The judge also found defendant guilty of violating N.J.S.A. 39:4-88(b).

After some brief additional testimony from Officer Petruzziello, defendant stipulated that his BAC was 0.16 percent. The judge found defendant guilty of DWI, based upon that stipulation.

Defendant appealed his convictions to the Law Division. At the conclusion of the trial de novo, Judge Mahon held that Officer Petruzziello possessed a reasonable and articulable suspicion that defendant had committed a motor vehicle offense, namely, failure to operate his vehicle within a marked lane. The judge reasoned that reasonable suspicion is a "lower standard than the probable cause necessary to sustain an arrest" because "the reasonable suspicion standard does not require proof that a defendant actually committed [the] motor vehicle offense. [Instead, the State] need only prove that the officer had a reasonable and articulable suspicion of a violation." The judge noted that N.J.S.A. 39:4-88(b) requires a driver to drive, as nearly as practicable, entirely within a single lane. Turning to the record before him, the judge concluded that the videotape "amply demonstrated that the defendant's vehicle was in violation of [N.J.S.A. 39:4-88(b)] by driving on and over the shoulder line of the roadway." The judge held that because Officer Petruzziello observed defendant's vehicle cross into the shoulder, she was authorized to effectuate a stop of defendant's vehicle. The judge therefore denied defendant's motion to suppress. He also held that the proofs were sufficient to establish defendant's guilt beyond a reasonable doubt on the charge of failure to maintain a lane.

Moreover, because the stop of defendant's car was lawful, the evidence obtained from the officer's roadside investigation, including the subsequent AlcoTest results, was properly obtained. Based upon the AlcoTest results to which defendant had stipulated, the judge found defendant guilty of DWI. The judge imposed the same sentence that the municipal court had imposed.

On appeal, defendant argues: 1) "he did not violate N.J.S.A. 39:4-88 based on the exact and specific verbiage[sic] of this statute and therefore there existed no probable cause and/or reasonable suspicion to warrant the initial stop of his vehicle"; and 2) the findings of fact made by the municipal court judge find no support in the record.1

II.

In a trial de novo in the Law Division, the judge is obliged to determine the case completely anew based on the record made in the municipal court, giving due regard, although not necessarily controlling weight, to the opportunity of the municipal court judge to evaluate the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). The judge in a trial de novo must make his or her own findings of fact based upon the record, limited to the record that was created in the municipal court. State v. Locurto, 157 N.J. 463, 472 (1999).

In our review of the Law Division's findings of fact, we are obliged to affirm so long as those findings "could reasonably have been reached upon sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We should not alter the Law Division's factual findings merely because we might have reached a different conclusion. Ibid. Only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid.

In relevant part, N.J.S.A. 39:4-88(b) reads as follows:

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 safely.

Another portion of the motor vehicle code defines the shoulder of a roadway as "that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular traffic." N.J.S.A. 39:1-1.

Before stopping a motor vehicle, the police must have an "articulable and reasonable suspicion that the driver has committed a motor vehicle offense." Locurto, supra, 157 N.J. at 470 (internal quotation marks and citations omitted). Reasonable suspicion is a "lower standard than the probable cause necessary to sustain an arrest." State v. Golotta, 178 N.J. 205, 213 (2003) (internal quotation marks and citations omitted). The "reasonable and articulable suspicion" standard does not require the State to prove that a defendant actually committed a motor vehicle violation; the State need prove only that the officer had a reasonable and articulable suspicion. State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999).

Although phrased differently, defendant's two arguments raise a central claim, namely, the motor vehicle stop was not supported by an articulable and reasonable suspicion. We do not agree. Having viewed the videotape, we are satisfied that on a minimum of two occasions, defendant's vehicle left the lane of travel and moved into the shoulder. Such conduct constituted a violation of N.J.S.A. 39:4-88(b), which requires a driver to maintain his vehicle within the marked lane. Standing alone, the videotape footage provided a legitimate basis for the motor vehicle stop.

The videotape was not, however, the sole evidence upon which the Law Division relied when it denied defendant's motion to suppress. The judge credited Officer Petruzziello's testimony that she had witnessed defendant's vehicle leave the lane of travel four times. While our own review of the record demonstrates only two such instances with absolute certainty, we agree with Judge Mahon's conclusion that Officer Petruzziello made additional observations of defendant that were not captured on the videotape. We have been presented with no meritorious basis to question her credibility, or to reject the Law Division's decision to accept the municipal court's determination that Officer Petruzziello's testimony was credible. See Locurto, supra, 157 N.J. at 474 (observing that an appellate panel is bound by the Law Division's findings of fact where those findings are based upon substantial and credible evidence in the record).

Thus, the videotape and the testimony of Officer Petruzziello, taken together, amply support the Law Division's conclusion that Officer Petruzziello had a reasonable and articulable suspicion that defendant violated N.J.S.A. 39:4-88 by crossing into the shoulder a minimum of two times. The motor vehicle stop was therefore lawful, defendant's arguments to the contrary notwithstanding. We therefore reject defendant's challenge to the motor vehicle stop and affirm his conviction on the charge of failure to maintain a lane.

Defendant does not challenge the AlcoTest reading of 0.16 percent BAC, which constitutes a per se violation of N.J.S.A. 39:4-50. We therefore affirm defendant's DWI conviction.

1 We have paraphrased defendant's second point, which reads as follows: "[i]t was obvious from the outset of the municipal trial that the judge was not listening to that which the officer was testifying to, in that the officer testified that [defendant] crossed the white line of the shoulder. Accordingly, because there existed no probable cause to stop his vehicle, all evidence rendered from same should have been suppressed."