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State v. Locurto

October 1, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMINICK J. LOCURTO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication October 1, 1997.

Before Judges Shebell and A.a. Rodriguez. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

This is an appeal by defendant, Dominick J. Locurto, from the affirmance by the Law Division of the Old Bridge Township Municipal Court's denial of his motion to suppress. *fn1 As a result of the denial, defendant stands convicted of driving while under the influence (N.J.S.A. 38:4-50). We reverse the denial.

In the early morning hours of December 8, 1995, defendant was stopped by a police officer employed by the East Brunswick Township Police Department, at a point where defendant travelling west on Old Matawan Road had left East Brunswick and entered the Township of Old Bridge. According to the officer, he was on special roving D.W.I. patrol when, at approximately 1:40 a.m., while driving east on Main Street in East Brunswick at a rate of 35 miles per hour, he observed defendant's 1988 Toyota pick-up truck travelling in the opposite direction on Main Street "at a high rate of speed."

The officer testified to making a u-turn and pursuing defendant for approximately 150 yards (450 feet) on Main Street at which point defendant turned left onto Emerson Street and travelled another 200 yards (600 feet) before turning left onto Old Matawan Road. The officer said he lost sight of defendant's vehicle after it turned left onto Emerson Street for a distance of "maybe 200 hundred yards -- ."

Nonetheless, the officer quickly caught up to and stopped defendant just short of the intersection of Route # 516 and Old Matawan Road. The officer was unable to state what speed he attained in pursuing defendant nor did he estimate the speed defendant was travelling while under his observation. On cross-examination, the officer was asked, "How far in total did you follow him?" He responded approximately 100 yards on Main Street; maybe 200 yards on Emerson, and approximately a quarter mile (440 yards) on Old Matawan Road. Although the officer issued a careless driving summons, his testimony was unequivocal that there was no other traffic on the road and that there was no indication of improper driving other than the alleged excessive rate of speed.

Defendant testified that as he travelled on Main Street, he did not exceed the 35 miles per hour speed limit. He said he did not observe any police car as he proceeded on that street, and that he first became aware of the officer when he saw the flashing lights of the patrol car behind him on Old Matawan Road, at which time his speed was 35 miles per hour. He pointed out that he did not receive a speeding ticket, and it was only after he was ticketed for driving under the influence that he received a summons for careless driving. He also pointed out that none of the sections on the summons which would indicate the miles per hour in "excess of speed limit" were marked.

Defendant's argument in the Municipal Court, the Law Division, and before this court is that there was no articulable and reasonable suspicion as would justify stopping his vehicle. He infers that the testimony concerning his travelling at a high rate of speed and the issuance of the careless driving summons, were merely subterfuges for the random stop of his lone vehicle on the roadway in the early morning hours in light of the D.W.I. Officer's "pre-Disposition to look for people who may be driving drunk[.]"

This appeal affords the court an opportunity to emphasize the importance of the right to de novo review by the Law Division on appeals from the Municipal Court. R. 3:23-8; see State v. Johnson, 42 N.J. 146, 157, 199 A.2d 809 (1964) (stating that the function of de novo review is to determine case completely anew on the Municipal Court record, giving due, although not necessarily controlling regard, to the Municipal Court Judge's assessment of credibility of witnesses). That right would indeed be hollow and Justice ill-served in the absence of a critical evaluation of the Municipal Court record and the absence of required factual findings.

It is every citizen's constitutional right while properly operating an automobile to be free from police interception. Only where there is an articulable and reasonable suspicion of impropriety or such other extraordinary circumstance as would reasonably justify a stop will it be permitted. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). Police interference with a citizen's liberty, when challenged, requires the State to prove the existence of an articulable and reasonable justification for the stop. Prouse, (supra) , 440 U.S. at 653, 99 S. Ct. at 1395-96, 59 L. Ed. 2d at 667.

Although the record is unclear, apparently the issue of defendant's guilt concerning his conviction for driving while under the influence was raised before the Municipal Court Judge on stipulated facts without entry of a guilty plea. In effect, however, the Municipal Court Judge assumed defendant's guilt and preserved as the only issue for appeal the validity of the ruling on the motion to suppress. The procedural posture of the case was not clarified on appeal to the Law Division, and no express finding of defendant's guilt was placed on the record there. In any event, the parties do not dispute that the only issue before the Law ...


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