STATE OF NEW JERSEY v. XAVIER SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

XAVIER SANCHEZ,

Defendant-Appellant.

July 22, 2016

Argued April 20, 2016 Decided

 
Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6090.

Michael J. Fasano argued the cause for appellant (Davison, Eastman & Mu oz, P.A., attorneys; Peter H. Lederman, of counsel and on the briefs; Mr. Fasano and Rebecca Carvalho, on the briefs).

Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Mr. Leibowitz, of counsel and on the brief).

PER CURIAM

Following a hearing and the denial of his motion to suppress in the municipal court, defendant Xavier Sanchez entered a plea of conditional guilty to driving while intoxicated, N.J.S.A. 39:4-50. He was sentenced as a third-time offender to, among other things, a ten-year suspension of his driver's license and six months county jail. Appropriate fines and penalties were imposed.1 Service of defendant's jail sentence was stayed pending his appeal de novo on the suppression issue.

The Law Division judge, after de novo consideration on appeal, also denied defendant's motion to suppress. She re-imposed the sentence and on February 9, 2015, stayed the jail term. We affirm, however, we remand the matter so the Law Division can dissolve the stay forthwith.

The following facts and circumstances are derived from the municipal hearing transcript and the record of the de novo appeal. Union County Police Officer Robert Garrison testified that at approximately 11:18 p.m. on May 24, 2013, a rainy night, he encountered a 2006 BMW in the opposite lane of travel. He noticed the vehicle when it swerved onto the wrong side of the road. The officer turned around to follow, and saw the vehicle then veer to the right, "driving down the shoulder." He noted that while making a double right turn, defendant failed to operate his turn signal for the second turn.

Garrison activated his overhead lights and stopped defendant's vehicle. As he approached defendant, he smelled alcohol on his breath. When asked, defendant said he had two drinks. Defendant's eyes were bloodshot and glassy, and his speech was slurred. On cross-examination trial counsel extensively examined the officer regarding differences between the mobile video recording of the encounter and his independent recollection. The officer acknowledged that defendant's speech did not sound slurred on the video.

Garrison called for backup, and asked defendant to step out of his vehicle. After the roadside field sobriety tests began, the officer observed that defendant swayed from side to side while walking. He did not touch his heel to his toe during that portion of the testing. Although counting to nine, defendant took eight steps in both directions. He swayed from side to side as he performed the one-leg stand test, and grabbed an adjoining fence to maintain his balance. At that point, defendant was placed under arrest.

On the day of the hearing, the video equipment in the courtroom was not working. Accordingly, the judge, the prosecutor, defendant's attorney, the police officer, and defendant watched it in chambers.

The officer was examined about the video, both on direct and cross-examination. The attorneys made reference to it during their summations. The judge relied upon it in rendering his decision. However, the video was never formally moved into evidence.

On the de novo appeal, the Law Division judge found that although the video had never been formally admitted into evidence, the attorneys and the judge

treated the DVD as evidential. . . . Defense counsel specifically referenced the videotape in his summation and did not object when the prosecutor referenced the video in her closing argument. Notably, counsel did object when the prosecutor referred to a diagram drawn by the officer, [not admitted into evidence] but not when the DVD was mentioned.

She concluded that the recording was in evidence and relied upon it in her decision.

The Law Division judge held that the officer had reasonable and articulable suspicion to stop the car based on defendant's manner of operation. The judge also held that the officer had probable cause to arrest defendant for DWI because of the manner of operation and defendant's conduct at the scene. Specifically, she found defendant admitted consuming two drinks, smelled of alcohol, and had bloodshot and glassy eyes. He swayed from side to side, failed to perform proper heel to toe touches, and counted nine steps while only taking eight. He had to steady himself by holding onto a fence to his left while performing the one-leg stand. The judge also observed that although defendant might, strictly speaking, have been considered to "pass" both field sobriety tests, the officer's observations gave rise to ample probable cause to arrest.

While rendering her decision the judge reiterated some of the municipal court judge's factual findings. Nonetheless, she recited relevant case law that required her to make fact findings anew on the de novo appeal, and she made such findings as we have stated. This appeal followed.

Defendant raises the following points for our consideration

POINT ONE: THE LAW DIVISION JUDGE IMPROPERLY RELIED UPON A MOBILE VIDEO RECORDING WHICH THE STATE DID NOT AUTHENTICATE OR MOVE INTO EVIDENCE.

POINT TWO: THE COURT EMPLOYED THE INCORRECT STANDARD OF REVIEW IN RULING UPON THE SUPPRESSION MOTION.

POINT THREE: THE STATE DID NOT ESTABLISH THE REQUISITE REASONABLE AND [ARTICULABLE] SUSPICION NEEDED TO JUSTIFY THE STOP OF THE DEFENDANT'S VEHICLE.

POINT FOUR: THE OFFICER DID NOT POSSESS A REASONABLE AND ARTICULABLE SUSPICION IN ORDER TO JUSTIFY ADMINISTRATION OF FIELD SOBRIETY TESTS.

POINT FIVE: THERE WAS NO SHOWING OF PROBABLE CAUSE NECESSARY TO JUSTIFY THE ARREST OF THE DEFENDANT.

First, we address defendant's contention that the Law Division judge improperly relied upon the mobile video recording. The doctrine of invited error resolves this issue.

The doctrine of invited error prevents counsel remaining silent as to objections at trial to "a certain course of action," and then later asserting on appeal that the course of action was "error and prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). Not only did defense counsel acquiesce to his adversary and the judge's reliance on the video throughout the proceedings, he joined the group in chambers and extensively relied upon it in cross-examination and in summation. State v. Munafo, 222 N.J. 480, 487 (2015) (quoting A.R., supra, 213 N.J. at 561) ("Under the invited error doctrine, 'trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'").

The doctrine is not applied if manifest injustice would result from its application. State v. A.R., 213 N.J. 542, 562 (2013). In this case however, even if consideration of the video was error, no manifest injustice resulted. The principal circumstances relied upon by the de novo judge came from the officer's observations, merely corroborated by the video with the exception of defendant's manner of speech. And on that issue, the video was favorable to him. Thus the claim does not warrant further discussion.

The assertion that the de novo judge employed the wrong standard of review is belied by the record. The Law Division judge discussed precedents regarding the right standard of review, clearly expressed the standard, and applied it. This claim is so lacking in merit as to not warrant further discussion in a written opinion. See R. 2:11-3(e)(2).

As to the merits of defendant's remaining points of error, our standard of review is quite narrow. As has been recently reiterated, we "uphold a trial court's factual findings in a motion to suppress provided those 'findings are supported by sufficient credible evidence in the record.'" State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Deference is appropriate particularly as to credibility findings. Ibid. We owe no deference to a trial court's interpretation of the law, as our review of legal issues is always plenary. Ibid. In this case, nothing in the record causes us to question Garrison having been found to be a credible witness, the factual findings overall, or the Law Division judge's legal conclusion.

It is well-established that automobiles may be stopped on a roadway based on reasonable and articulable suspicion that a motor vehicle infraction is taking place. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). Such investigative stops are lawful, for example, when police observe an automobile being driven in an erratic manner because of the possibility that the operator is intoxicated. State v. Chapman, 332 N.J. Super. 452, 463-64 (App. Div. 2000).

In this case, defendant, while operating a motor vehicle late on a rainy night, veered across the center line, then veered onto the shoulder. Once the officer turned around to follow, he saw other instances of improper driving including a wide turn and failure to use a directional signal. Thus we agree with the Law Division judge's conclusion of law that the officer's observations of defendant's erratic driving gave rise to a reasonable and articulable suspicion that motor vehicle infractions were taking place. These observations, when added to defendant's odor of alcohol, and his admission to consuming alcoholic beverages, justified the roadside field sobriety tests.

Probable cause is defined as a well-founded suspicion or belief that a crime has been or is being committed based on the facts and circumstances within the officer's knowledge. State v. Moore, 181 N.J. 40, 45-46 (2004). Probable cause is a fluid concept, requiring a common sense approach. State v. Basil, 202 N.J. 570, 585 (2010); State v. O'Neal, 190 N.J. 601, 612 (2007).

In this case, common sense compels the legal conclusion that adequate probable cause existed for defendant's arrest. The Law Division judge enumerated those factors as well: defendant's erratic manner of operation, odor of alcohol, admission to drinking, difficulty with balance, and bloodshot eyes. In combination, those circumstances gave rise to a well-founded suspicion.

Defendant argues that since he technically "passed" the field sobriety tests, that should negate any weight being given to the officer's observations. This argument may have been relevant in the context of an observational case in which proof of intoxication is drawn from conduct and demeanor. But when considering probable cause, something less is required than would be necessary for a conviction. The question is whether the officer's observations, viewed objectively, warranted his belief that defendant was driving while intoxicated. See Moore, supra, 181 N.J. at 46. Garrison's observations supported that belief.

Accordingly, we affirm the denial of the motion to suppress. We remand solely for the purpose of affording the Law Division judge the opportunity to vacate the stay of the jail portion of the sentence issued on February 9, 2015.

Affirmed.

1 The agreement called for the dismissal of the remaining charges: failure to keep right, N.J.S.A. 39:4-82, failure to make a proper signal, N.J.S.A. 39:4-126, and failure to produce proof of insurance, N.J.S.A. 39:3-29.