STATE OF NEW JERSEY v. CASSI R. WANCURA-LAVA

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4441-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CASSI R. WANCURA-LAVA,

     Defendant-Appellant.
______________________________

                    Submitted May 11, 2020 – Decided June 25, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Sussex County, Municipal Appeal No. 03-03-
                    19.

                    Levow DWI Law, PC, attorney for appellant (Evan M.
                    Levow, of counsel and on the brief; Christopher G.
                    Hewitt, on the brief).

                    Francis A. Koch, Sussex County Prosecutor, attorney
                    for respondent (Shaina Brenner, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant, Cassi R. Wancura-Lava, appeals from her conviction for

driving under the influence in violation of  N.J.S.A. 39:4-50. She conditionally

pled guilty, preserving the right to appeal from denial of her motion to suppress

in which she contends the motor vehicle stop leading to her arrest was unlawful.

Both the municipal court judge and the Law Division judge on de novo review

found that the police officer lawfully stopped her car pursuant to the community-

caretaking doctrine. After reviewing the record in light of the applicable legal

principles, we affirm the denial of her motion to suppress and therefore affirm

her conviction.1

      The record shows that police were dispatched to a Quick-Check store in

response to a call from the night manager. The manager had provided reliable

information to the police department on past occasions. She reported that a

patron was unsteady on her feet and appeared to have been the victim of an

assault. The store manager advised that the patron "looked like she got the shit



1
   The municipal court judge sentenced defendant as a second DUI offender,
imposing a two-year suspension of her driver's license, a two-day jail term,
forty-eight hours of intoxicated driver's resource center, thirty days of
community service, installation of an ignition interlock device for a period of
one year, and mandatory fines and fees. The municipal court judge granted a
stay of the fines and penalties pending appeal to the Law Division. The Law
Division judge granted a separate stay of his denial of defendant's municipal
appeal. By virtue of our affirmance, both stays are hereby vacated.
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kicked out of her" and was "playing with her jaw." The manager further advised

that patron was sitting in her car in the store parking lot.

      An officer was dispatched to investigate the store manager's report and to

do a welfare check. The vehicle operated by defendant was beginning to pull

out of the parking lot when the responding officer arrived. Before stopping the

vehicle, the officer observed the female driver appeared to be visibly upset, had

runny makeup, and looked like she had been crying. The officer then stopped

defendant's vehicle to check on her condition. The officer testified that he

wanted to see if she was a domestic violence victim. He eventually determined

that she was under the influence.

      Defendant raises the following contention for our consideration:

             THE STOP OF [DEFENDANT] MUST BE
             SUPPRESSED AS THERE WAS NO REASONABLE
             OR ARTICULABLE SUSPCION THAT A MOTOR
             VEHICLE   VIOLATION    OCCURRED,  AND
             "COMMUNITY CARERTAKING" DOES NOT
             APPLY TO THE FACTS OF THIS CASE.

      We begin our analysis by acknowledging the legal principles that govern

this appeal. Following a trial de novo in the Law Division, we consider the

court's legal rulings de novo. State v. Kuropchak,  221 N.J. 368, 383 (2015)

(citing State v. Gandhi,  201 N.J. 161, 176 (2010)). In contrast, our review of

the court's factual and credibility findings is quite limited. State v. Clarksburg

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Inn,  375 N.J. Super. 624, 639 (App. Div. 2005).             Importantly, we do not

independently assess the evidence as if we were the court of first instance. State

v. Locurto,  157 N.J. 463, 471 (1999). Rather, we focus our review on "whether

there is 'sufficient credible evidence . . . in the record' to support the trial court's

findings." State v. Robertson,  228 N.J. 138, 148 (2017) (alteration in original)

(quoting State v. Johnson,  42 N.J. 146, 162 (1964)).

      Deference is especially appropriate when, as in this case, two judges have

examined the facts and reached the same conclusion. As the Supreme Court

made clear in Locurto, "[u]nder the two-court rule, appellate courts ordinarily

should not undertake to alter concurrent findings of facts and credibility

determinations made by two lower courts absent a very obvious and exceptional

showing of error."  157 N.J. at 474 (citing Midler v. Heinowitz,  10 N.J. 123,

128–29 (1952)). Therefore, our review of the factual and credibility findings of

the municipal court and the Law Division "is exceedingly narrow." State v.

Reece,  222 N.J. 154, 167 (2015) (quoting Locurto,  157 N.J. at 470); see also

Meshinsky v. Nicholas Yacht Sales, Inc.,  110 N.J. 464, 475 (1988) (observing

that appellate courts defer to the Law Division's credibility findings that were

not "wholly unsupportable as to result in a denial of justice" (quoting Rova

Farms Resort v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 483–84 (1974))).


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      The sole issue on appeal is whether the stop was lawful. As a general rule,

police may not initiate an investigative detention of a motor vehicle unless they

have reasonable and articulable suspicion to believe that the vehicle is being

operated in violation of law, typically an observed motor vehicle infraction.

Delaware v. Prouse,  440 U.S. 648, 663 (1979). The State does not argue that

the officer in this case observed a motor vehicle violation. Rather, the State

maintains this stop was based solely on the community-caretaking function of

law enforcement.

      Our Supreme Court has recently examined the nature and boundaries of

the community-caretaking doctrine. In State v. Scriven, the Court held that,

"[p]olice officers who have an objectively reasonable basis to believe that a

driver may be impaired or suffering a medical emergency may stop the vehicle

for the purpose of making a welfare check and rendering aid, if necessary."  226 N.J. 20, 39 (2016). "In their community-caretaker role," the Court explained,

"police officers, who act in an objectively reasonable manner, may check on the

welfare or safety of a citizen who appears in need of help on the roadway without

securing a warrant or offending the Constitution." Id. at 38. The Court added

that, "police do not have to wait until harm is caused to the driver or a pedestrian

or other motorist before acting." Id. at 39.


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      We conclude, as did the municipal and Law Division judges, the officer

in this case had an objectively reasonable basis to believe the driver was in need

of help and posed a risk to herself and others on the road by reason of her

physical condition. Minutes earlier she was observed to be unsteady on her feet

while in the store and appeared to have been beaten recently. That information

was reported by a known reliable source who deemed it necessary to alert police

to defendant's physical condition. The officer who eventually made the arrest

had been dispatched to the store parking lot to conduct a welfare check. The

information provided by the store manager, moreover, was consistent with the

officer's own observations before he initiated the stop.

      These facts, viewed collectively, amply establish an objectively

reasonable basis to believe that defendant may have been impaired or suffering

a medical emergency. Although the community caretaking doctrine is a "narrow

exception," id. at 38 (citing State v. Vargas,  213 N.J. 301, 324 (2013)), 2 we

conclude that in this instance, the State met its burden to show that the doctrine

applies and justifies the decision to stop defendant's vehicle. Indeed, in our


2
  We note that the community-caretaking doctrine is a recognized exception to
the search warrant requirement. In this instance, the doctrine is invoked not to
justify a warrantless entry of a premises or to conduct a search, but rather to
justify the investigative detention of a motor vehicle—a Fourth Amendment
intrusion that requires neither a warrant nor probable cause.
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                                        6
view, the officer would have been derelict in his duties had he allowed defendant

to drive off onto a public roadway without first determining if she was in need

of medical assistance.

      Affirmed. By virtue of our affirmance, the stays imposed by the Law

Division and municipal court judges are hereby vacated. The matter is remanded

to the Law Division for imposition of sentence forthwith. We do not retain

jurisdiction.




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