STATE OF NEW JERSEY v. SUSAN LAMBERT-COWAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SUSAN LAMBERT-COWAN,

Defendant-Appellant.

___________________________

October 20, 2016

Submitted October 5, 2016 Decided

Before Judges Reisner and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2013-045.

Frederic H. Brooks, attorney for appellant.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIUM

Defendant Susan Lambert-Cowan appeals from a February 7, 2014 order of the Law Division denying her suppression motion and upholding her conviction for driving while intoxicated, N.J.S.A. 39:4-50. She also appeals from orders dated March 28, 2014 and May 20, 2014 denying her motions for reconsideration. We affirm.

Defendant was charged with DWI after an Alcotest revealed that she had a blood alcohol content of .09. The defense rested on her claim that the arresting officer had no reasonable grounds to stop her car and had no probable cause to arrest her. At the suppression hearing, the State presented testimony from a private investigator who had been following defendant as part of a divorce investigation. The investigator testified that he observed defendant arrive at a bar and leave the bar four hours later. He followed her car, a black SUV, and called 911 after observing her driving erratically. The investigator testified that he followed defendant's car until the police stopped her, but he denied that he was speeding.

A South Orange police officer testified that, while he was stopped at an intersection, he saw two cars speeding past him on the cross street. He began pursuing the cars because they were speeding and, during the pursuit he saw the lead car, a black SUV, swerving between lanes. While he was chasing the two cars, he received a call from the police dispatcher alerting him to a 911 call about a possibly intoxicated driver in a black SUV. When the officer caught up with and stopped defendant's car, he detected a strong odor of alcohol coming from the car. He testified that defendant fumbled with her credentials, had to hold onto the car for support when she stepped out of the vehicle, and failed the roadside sobriety tests.

On cross-examination of the officer, defense counsel played an audiotape of the call from the dispatcher. In response to the judge's question, defense counsel stated that he intended to use the tape to cross-examine the officer, but was not seeking to put the tape into evidence at that time. The cross-examination focused on a passage in which the officer asked the dispatcher which car was the subject of the 911 call. The officer testified that when the dispatcher called him, he was following two speeding cars, and he wanted clarification from the dispatcher as to which car was allegedly being driven by an intoxicated driver.

Also during the cross-examination of the officer, defense counsel referred to a video allegedly recorded by a dashboard camera (dashcam) in the officer's patrol car. However, he neither questioned the officer about it nor offered it in evidence. In fact, the video could not have been offered in evidence because it was on defendant's iPhone; defense counsel did not have a DVD to offer in evidence. The transcript reflects that the video was not played for the judge, although some of it was shown to the prosecutor after he claimed surprise.

The municipal judge discounted the testimony of the private investigator, whom he considered a biased witness, but he found the police officer completely credible. The judge found that the officer had reasonable grounds to stop defendant for speeding and swerving in traffic, and had probable cause to arrest her based on the evidence of her intoxication. After the municipal judge denied her suppression motion, defendant entered a guilty plea conditioned on her right to appeal on the suppression issue. On February 7, 2014, the Law Division judge issued a thorough written opinion denying the suppression motion on a de novo review.

Defense counsel filed a motion for reconsideration, asserting that he believed that the audiotape and the dashcam video had been admitted in evidence at the suppression hearing. In support of his motion, he noted a passage in the municipal judge's oral opinion where the judge referred to "the tapes that were put into evidence." In the transcript, in the middle of the judge's opinion, the transcriber had inserted a parenthetical notation "(D-1 and D-2 admitted in evidence) (Videotaped [sic] marked D-3 in evidence)." The index to the transcript also listed D-2, an audiotape, and D-3, a videotape, as having been admitted in evidence on page 188, which as previously noted, was in the middle of the judge's opinion.

In response to defendant's motion, on March 6, 2014, the Law Division judge remanded the matter to the municipal judge for a hearing to determine whether those materials had been admitted in evidence. The municipal judge reviewed the record and held a telephonic hearing on March 24, 2014, at which defense counsel presented his arguments. Among other arguments, counsel urged that the municipal judge should watch the videotape and decide the suppression hearing de novo. The municipal judge rejected that request as being beyond the scope of the remand. In a March 27, 2014 letter, the municipal judge advised the Law Division judge that neither the audiotape nor the video tape was admitted in evidence. He indicated that the audiotape "was played during the course of trial, but never moved or accepted into evidence." He also stated that it was "clear" from his review that "a videotape was never played nor made part of the evidence."

On March 28, 2014, the Law Division judge denied defendant's motion and ordered that the February 7, 2014 order "shall remain the same." Defense counsel responded with a letter stating his "total disagreement" with the municipal judge's letter and stating his "intent to appeal" from the municipal judge's "decision" concerning the record. After considering the State's response to defense counsel's letter and the transcript of the March 24, 2014 hearing before the municipal judge, the Law Division judge issued another written decision and "final" order, once again finding that the videotape was neither played nor introduced in evidence at the suppression hearing. She also found that the video was not newly discovered evidence, pursuant to Rule 7:10-1, because counsel was aware of the video at the time of the suppression hearing and was not entitled to "endless opportunities" to introduce new evidence "after the fact."

On this appeal, defendant presents the following points of argument

THE SUPERIOR COURT ERRED WHEN THE MUNICIPAL COURT DENIED APPELLANT'S MOTION TO SUPPRESS EVIDENCE WHEN THERE WAS SUFFICIENT EVIDENCE SHOW [sic] THAT IT WAS IMPOSSIBLE FOR THE POLICE OFFICER TO MAKE AN INDEPENDENT OBSERVATION OF THE APPELLANT'S VIOLATION OF THE MOTOR VEHICLE LAWS.

THE LOWER COURT ERRED BY NOT HOLDING A TRIAL DE NOVO TO CONSIDER THE CAMCORDER AND THE AUDIO TAPES FROM THE SOUTH ORANGE POLICE DEPARTMENT AS THE BEST EVIDENCE IN CONSIDERING THE POLICE OFFICER'S CREDIBILITY.

Based on our review of the record, we find those arguments are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. R. 2:11-3(e)(2). Like the Law Division judge, we find no basis to second-guess the municipal judge's conclusion that the audio CD and the dashcam video were not introduced in evidence at the suppression hearing. These items did not constitute newly discovered evidence, and the Law Division judge did not abuse her discretion in declining to conduct a supplemental hearing or a new trial on the suppression motion, in order to consider these materials. See R. 3:23-8(a)(2); State v. Russo, 333 N.J. Super. 119, 136-37 (App. Div. 2000). Nor did the municipal judge err in declining to conduct such a hearing on remand. See R. 7:10-1.

Although defendant did not focus on the issue, Rule 3:23-8(a) provides that where there are flaws in the transcription of the municipal trial, the Law Division judge may remand the case to settle or correct the record

If it appears that the record is partially unintelligible, the court to which the appeal is taken may supplement the record or may remand the matter to the municipal court to reconstruct the portion of the record that is defective. If the record below is substantially unintelligible, the matter shall be remanded to the municipal court to reconstruct the entire record or, if the record cannot be reconstructed, for a new trial or hearing.

[R. 3:23-8(a)(1).]

Had defendant asked for that relief, it might have been appropriate, because the audiotape, which was played for the court during the police officer's cross-examination, was not transcribed as part of the trial transcript. As a result, there is no verbatim record of what the officer and the municipal judge were listening to during the officer's cross-examination. In another case, the failure to sua sponte remand the case to the municipal court to reconstruct that portion of the transcript might constitute plain error, if the audiotape was a crucial piece of evidence.1

However, in this case we find no plain error. R. 2:10-2. In the municipal judge's oral opinion, he clearly described the critical portion of the audio recording and explained why he concluded it did not affect the police officer's credibility. The judge's description is consistent with defense counsel's cross-examination questions to the officer. As recounted by both defense counsel and the municipal judge, at some point during the officer's conversation with the dispatcher, the officer asked the dispatcher which car was the subject of the 911 call about a possible intoxicated driver. At that point, the dispatcher gave the officer a description of the SUV the suspect was driving.

The municipal judge found that the audiotape corroborated the officer's testimony that he was following two cars. The judge also found that the fact that the question was asked did not undercut the officer's credibility. The judge reasoned that, even if the officer saw the lead car swerving, he would not necessarily know if that car's driver was swerving because of intoxication or because the second car was "following too close to the other, and creating a problem." Consequently, on this record, a remand was not required.

Moreover, even if the officer had not observed defendant's car swerving, and had only seen the car speeding, the officer had objectively reasonable grounds to believe that defendant was violating the traffic laws and hence had a legal basis for the traffic stop. See State v. Golotta, 178 N.J. 205, 212-13 (2003). After defendant pulled over and the officer approached her car, he made a series of observations which clearly justified the arrest. Those observations included defendant emitting a strong odor of alcohol, fumbling with her paperwork, having to lean on her car for support, and failing the roadside sobriety tests. As a result, there is sufficient credible evidence to support the Law Division judge's decision to deny the suppression motion. See State v. Reece, 222 N.J. 154, 166 (2015).

1 Contrary to defendant's argument, Rule 1:2-2 - which requires the making of a verbatim record of an audiotape played in court, unless a transcript is marked in evidence - does not apply to the municipal courts. Rule 1:2-2 specifically provides that "[i]n the municipal courts, the taking of a verbatim record of the proceedings shall be governed by R. 7:8-8," which does not contain the same requirement. However, where an audiotape is important to the case, and there is the prospect of an appeal, the proponent should provide a transcript and mark it into evidence.