STATE OF NEW JERSEY v. STEPHANIE BARTOLOTTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5839-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHANIE BARTOLOTTA,

Defendant-Appellant.

_______________________________________________

December 4, 2012

Submitted August 6, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Municipal Appeal No. ll-007.

The O'Mara Law Firm, attorneys for appellant (Peter M. O'Mara, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stephanie Bartolotta appeals from a July 1, 2011 Law Division final judgment of conviction, following a municipal court appeal, finding her guilty of driving while intoxicated and other related offenses. For the reasons that follow, we affirm.

We discern the following facts from the evidence presented at the motion to suppress and the subsequent trial. On September 16, 2010, the Matawan police received a report of a late model black Mercedes Benz pulling in and out of driveways on Aberdeen Road in the Borough of Matawan.1 The police were aware that several "home invasions" had recently occurred in the neighborhood. Consequently, Police Officer Bryan Murphy was dispatched to investigate the report.

When he reached Aberdeen Road, Officer Murphy saw a black Mercedes pulling into a driveway. He pulled his patrol car behind the vehicle and exited without engaging his emergency lights. As he approached the Mercedes, he observed defendant "slumped" behind the steering wheel with her arm hanging out of the window. In less than two minutes, Officer Jennifer Paglia arrived as backup and stood behind Officer Murphy. Defendant stated that she was looking for a friend's house when the officer asked why she had pulled into the driveway. Officer Murphy immediately noted a strong smell of alcohol coming from defendant, her speech was slurred and her eyes were droopy. Officer Murphy asked defendant for her motor vehicle documents but she was unable to find them after she fumbled around the interior of the car for several minutes, frequently forgetting what she was trying to find.

Due to defendant's physical condition and her state of confusion, Officer Murphy suspected that she was intoxicated and asked her to step out of the car so he could administer the field sobriety tests. After defendant repeatedly refused to obey the officer's instructions, he informed her she was under arrest for obstruction and again told her to get out of the car. Due to her continued refusal, Officer Murphy had to physically remove her from the vehicle and place her under arrest. Defendant stumbled, swayed, and had difficulty walking when she was outside her car.

On the trip to the police station, defendant asked several times why she was being arrested and continued to emanate an odor of alcohol. After the police car arrived at the station, defendant again had difficulty walking and requested assistance from Officer Paglia. Further, defendant declined to participate in a field sobriety test and refused to take the breathalyzer test because "the police rig the machines." The police charged defendant with driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; refusal to submit breath samples, N.J.S.A. 39:4-50.2; and obstruction of the administration of law, N.J.S.A. 2C:29-1(a).

The municipal court judge determined that the testimony of both officers was credible and found defendant guilty of DWI, refusal to take the breathalyzer and obstruction, and not guilty of reckless driving. He merged the obstruction conviction with the DWI, suspended defendant's license for three months on the DWI and seven months on the refusal, to run concurrently, and imposed the appropriate fines and penalties. Defendant appealed her conviction to the Law Division.

Judge Jamie S. Perri conducted a trial de novo in the Law Division and issued a fourteen-page oral decision. Judge Perri deferred to the municipal judge's credibility findings. Judge Perri observed that the record showed that the call came through the County Dispatch, which conveyed 911 calls to the local police, and thus the police reasonably believed that it was a 911 call because of its source. The judge found that Officer Murphy's approach to defendant's car after it pulled into the driveway was consistent with a valid field inquiry regarding the complaint received through the police dispatch. The officer's almost simultaneous observation of defendant slumped in the car with her arm out the window, the odor of alcohol, her slurred speech, and her lack of focus, according to the judge, was sufficient to convert the mere field inquiry into an investigatory stop. Further, the judge determined that defendant's refusal to cooperate with the officer in the discharge of his duties after the officer gave her ample opportunity to cooperate was sufficient for Officer Murphy to charge defendant with obstruction and to suspect intoxication, warranting her removal from the vehicle. Based upon the officers' credible testimony concerning defendant's actions and appearance, the judge found defendant guilty of DWI, refusal and obstruction, and sentenced her to the same sentence given by the municipal court judge. This appeal followed.

On appeal, defendant raises the following contentions for our consideration.

POINT I - THE ARRESTING OFFICER'S SEIZURE OF MS. BARTOLOTTA WAS UNCONSTITUTIONAL ON THE GROUNDS SET FORTH BELOW, AND THEREFORE ALL EVIDENCE OBTAINED SUBSEQUENTLY SHOULD BE SUPPRESSED.

A. Ms. Bartolotta was indeed seized pursuant to law.

B. Officer Murphy did not have particularized suspicions that defendant had been, or was about to engage in criminal wrongdoing, thereby making this seizure and inquiry unconstitutional, and all evidence obtained thereafter inadmissible.

C. Anonymous tip investigations require additional proof to be considered valid.

D. The officer's testimony does not provide facts which are unusual enough for the time and space to warrant the closer scrutiny of a community caretaking stop and inquiry.

POINT II - THE EVIDENCE SUBMITTED TO THE COURT BELOW WAS WHOLLY INSUFFICIENT TO PROVE MS. BARTOLOTTA GUILTY BEYOND A REASONABLE DOUBT OF DRIVING WHILE INTOXICATED.

We find no merit in these contentions.

Initially, we observe that in an appeal such as this our role is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). In making his or her determination de novo on the record from the municipal court, "the Law Division judge must give 'due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.'" State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (internal citation omitted) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)), certif. denied, 209 N.J. 430 (2012). Our role is to determine whether the Law Division's de novo finding could reasonably have been reached on sufficient credible evidence present in the record. Ibid. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Fourth Amendment to the U.S. Constitution and its state analogue, Article I, paragraph 7 of the New Jersey Constitution, protects people in this State from unreasonable searches and seizures "by requiring warrants issued upon probable cause 'unless [the search] falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Maryland, 167 N.J. 471, 482 (2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973)). "It is well settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds for suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.) (citations omitted), certif. denied, 172 N.J. 178 (2002).

Hence, while a police stop of a moving motor vehicle requires a reasonable and articulable suspicion of either criminal activity or a motor vehicle violation, "[b]rief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." State v. Harris, 384 N.J. Super. 29, 45 (App. Div.) (citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)), certif. denied, 188 N.J. 357 (2006). Mere inquiries of a person who is already stopped require no constitutional justification so long as the encounter is brief and non-intrusive. See State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Sirianni, supra, 347 N.J. Super. at 391-92 (police inquiry of defendant parked in front of home of homicide suspect deemed a minimal intrusion not requiring a reasonable articulable suspicion of criminal activity).

An encounter will be deemed non-intrusive so long as the officer asks his questions "in a conversational manner," without "mak[ing] demands or issu[ing] orders, and if [the] questions [are] not overbearing or harassing in nature." State v. Davis, 104 N.J. 490, 497 n.6 (1986) (citation omitted). Only where the questions are posed in an authoritative tone that "presuppose[s] criminal activity or are otherwise indicative of criminal suspicion, thus making the suspect aware he is the focus of a particularized investigation," will reasonable and articulable suspicion be required. Sirianni, supra, 347 N.J. Super. at 389.

Here, we conclude, as did Judge Perri, that the brief, non-confrontational encounter between the police and defendant did not offend the Fourth Amendment prohibition against unreasonable search and seizures. The encounter between Officer Murphy and defendant involved the same "minimal degree of intrusion" that it did in Sirianni. Id. at 392. As the trial judge found, there was no evidence that Murphy was confrontational or authoritative when he inquired of defendant what she was doing in the area, or that his query was overbearing, harassing or accusatory. Accordingly, we agree that the brief questioning constituted a field inquiry, for which no justification is required. When the officer observed defendant's condition - odor of alcohol, slurred speech, droopy eyes and general confusion - a reasonable articulable suspicion arose that justified detention and further inquiry. Stovall, supra, 170 N.J. at 356-57. We thus conclude that Judge Perri properly denied defendant's motion to suppress.

Defendant next contends that the evidence was insufficient to prove that she was driving while intoxicated. In determining whether a driver is under the influence of alcohol, field sobriety tests and breathalyzer tests are not always necessary. See State v. Ravotto, 169 N.J. 227, 242 (2001) (noting that proof of blood alcohol levels are not required to convict drunk drivers). Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff d, 293 N.J. Super. 535 (App. Div. 1996); see also State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). Physical manifestations of intoxication have been held to include slurred speech, smell of alcohol on defendant's breath, fumbling for credentials, staggering or swaying when standing or walking, and belligerent behavior. See Ravottto, supra, 169 N.J. at 242; State v. Hammond, 118 N.J. 306, 308 (1990).

Here the State submitted credible evidence that defendant had slurred speech, droopy eyes, a strong odor of alcohol, swayed and stumbled when walking, and seemed confused and unfocused. We conclude that the record contains sufficient credible evidence that defendant is guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Thus, we affirm substantially for the reasons expressed in Judge Perri's oral opinion.

Affirmed.

1 The report came from an anonymous concerned citizen, who called either 911 or a police number and reached the Monmouth County Police Dispatch, which then conveyed the information to the Matawan police.