STATE OF NEW JERSEY v. ANTONIA MCLEOD

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4790-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTONIA MCLEOD,
a/k/a ANTONIA L. MCLEOD,

     Defendant-Appellate.
____________________________

                    Submitted March 30, 2020 – Decided April 21, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Municipal Appeal No.
                    006-19.

                    Law Office of David S. Bradley, LLC, attorneys for
                    appellant (David S. Bradley, of counsel and on the
                    brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from his conviction for driving under the influence,

 N.J.S.A. 39:4-50.1 Defendant pleaded guilty to the offense. The sole argument

he raises on appeal is that the arresting officer had no lawful basis to initiate a

motor vehicle stop.    Defendant contends the Law Division judge erred in

denying the motion to suppress as part of the court's de novo review of the

municipal court record.     We reject defendant's contention and affirm the

conviction.

      Defendant raises the following contention for our consideration:



1
  We note the suspension of driving privileges mandated by  N.J.S.A. 39:4- -50
was stayed and has remained stayed pending this appeal. In State v. Robertson,
the Court noted that the standard for staying the suspension of driving privileges
pending Law Division de novo review of a municipal court DUI conviction is
different from the standard for staying that sanction during the pendency of a
subsequent appeal to the Appellate Division.  228 N.J. 138, 149–50 (2017). The
Court added that Rule 2:9-4 "highlight[s] the issues judges should consider when
they evaluate an application to stay the suspension of a driver's license." Id. at
150. That rule of appellate practice suggests that a stay would be appropriate
only if the case involves a "substantial question that should be determined by
the appellate court" and there has been a determination that "the safety of any
person or of the community will not be seriously threatened." Ibid. (quoting R.
2:9-4).
       We do not believe this appeal raises a substantial question within the
meaning of Rule 2:9-4. Furthermore, so far as we can tell from the record before
us, no findings were made with respect to the risk defendant poses to himself
and others as a result of the delay in effectuating the suspension of his driving
privileges during the pendency of this appeal. In any event, the stay is hereby
vacated by virtue of our affirmance of defendant's conviction.
                                                                           A-4790-18T1
                                        2
            THE COURT ERRED IN DENYING THE MOTION
            TO SUPPRESS BECAUSE THERE WAS NO
            OBJECTIVELY REASONABLE BASIS TO STOP
            DEFENDANT'S VEHICLE WHEN THERE WERE
            TWO WORKING STOPLIGHTS ON DEFENDANT'S
            VEHICLE.

      The motion to suppress was decided on stipulated facts. The officer

stopped defendant because he observed that the driver's side brake light was out.

It is not disputed that the passenger's side brake light was functioning, as was

the high-mounted center brake light.

      The sole legal issue before us is whether the officer had reasonable

articulable suspicion to believe that defendant's vehicle was being operated in

violation of the statute that prescribes the number and location of rear-mounted

brake lamps that must be functioning when a vehicle is in operation.          See

Delaware v. Prouse,  440 U.S. 648, 663 (1979) (requiring that a motor vehicle

stop be based on reasonable and articulable suspicion to believe the vehicle is

being operated in violation of law, such as a moving or equipment violation).

      Defendant contends that the relevant statute,  N.J.S.A. 39:3-66.3, only

requires that two brake lights be functioning.      He thus maintains that the

combination of the passenger-side and center-mounted brake lights satisfied the

statutory requirement. We disagree.



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                                       3
      In support of his argument, defendant seeks to extend the rationale of State

v. Sutherland,  231 N.J. 429 (2018). The Supreme Court held that police do not

have reasonable suspicion to stop a vehicle based on a non-functioning taillight

when another lamp on the same side is working. Id. at 444. In Sutherland, there

were a total of four taillights, two on each side. Id. at 432. The vehicle, in other

words, was equipped with more taillights than required by law. Id. at 444. Only

one of the four was out so that there was a functioning taillight on each side. Id.

at 432.

          Defendant's reliance on Sutherland is misplaced.           That case is

distinguishable both on the facts and the applicable statutory law. The plain

language of the statute governing brake lights,  N.J.S.A. 39:3-66.3, clearly

refutes defendant's contention that two working brake lights are all that is needed

to comply with the law. That statute provides in pertinent part:

              Every motor vehicle, other than a motorcycle, shall be
              equipped on the rear with at least two stoplights, one at
              each side of the vertical centerline at the same height
              and as far apart as practical . . . .

              All passenger automobiles manufactured on or after
              September 1, 1985, shall, in addition, be equipped with
              a high-mounted rear stoplight on the vertical centerline.

              All multipurpose passenger vehicles, trucks, and
              modified buses whose overall width is less than 80
              inches and whose GVWR is 10,000 pounds or less,

                                                                            A-4790-18T1
                                         4
            manufactured on or after September 1, 1993, shall, in
            addition, be equipped with a high-mounted rear
            stoplight on the vertical centerline.

            [(Emphases added).]

       Under this statutory framework, there must be a functioning brake light

on each side of the vertical centerline as far apart as practical.      Vehicles

manufactured after 1985 must also have a high-mounted brake light in the

center. The Legislature's use of the phrase "in addition" makes clear that a high-

mounted center light does not supplant the requirement to have brake lights on

each side of the centerline.    Therefore, a vehicle must have at least three

operating brake lights—one on each side of the vertical centerline and one on

the centerline.

      In this case, the stipulated record shows that the vehicle did not have a

functioning brake light on the driver's side. That circumstance constitutes a

clear violation of the statute. Because the arresting police thus had reasonable

suspicion to believe a violation of  N.J.S.A. 39:3-66.3 was occurring, the motor

vehicle stop and ensuing DUI investigation and arrest were lawful.




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                                        5
Affirmed.   The stay of the license suspension is hereby vacated.




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