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State v. Locurto

March 02, 1999

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



The opinion of the court was delivered by: Coleman, J.

Argued October 14, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 304 N.J. Super. 514 (1997).

This appeal involves a conviction for driving while intoxicated (DWI). Both the East Brunswick Township Municipal Court and the Law Division found the testimony of the arresting police officer to be more credible than the testimony of defendant. The Appellate Division in a published opinion reversed the conviction after rejecting the lower courts' credibility determinations. 304 N.J. Super. 514 (1997). The primary issue before us is whether the Appellate Division exceeded the scope of its appellate review. We granted the State's petition for certification, 152 N.J. 365 (1998), and now reverse.

I.

On December 8, 1996, at 1:40 a.m., East Brunswick Police Officer John Napoli was on a special roving DWI patrol. While driving eastbound on Main Street in East Brunswick, Officer Napoli observed defendant's 1988 Toyota pick-up truck proceeding westbound on Main Street at "a high rate of speed." The posted speed limit was thirty-five miles per hour.

Officer Napoli made a U-turn and followed defendant on Main Street for about 100 yards attempting to catch defendant's vehicle. Defendant made a left turn on Emerson Street, and then a left turn on Matawan Road, causing the officer to momentarily lose sight of defendant's vehicle. Defendant was eventually stopped by Officer Napoli in Old Bridge Township. Officer Napoli issued defendant a summons for driving while intoxicated, in violation of N.J.S.A. 39:4-50, careless driving, in violation of N.J.S.A. 39:4-97, and possession of a controlled dangerous substance in a motor vehicle, in violation of N.J.S.A. 39:4-49.1. Officer Napoli did not issue defendant a summons for operating his vehicle in violation of any speeding laws, ostensibly because the careless driving charge was based on the alleged speeding.

On February 29, 1996, the East Brunswick Township Municipal Court denied defendant's motion to suppress evidence, such as his sobriety test results, obtained as the result of the vehicular stop. That decision was based on sworn testimony from both Officer Napoli and defendant. The officer testified that defendant was driving at a high rate of speed in excess of the posted speed limit; defendant testified that he was driving at the posted thirty-five miles per hour speed limit. The Municipal Court found the testimony of the police officer more credible than that of defendant for several reasons. It found that the absence of other traffic on the road at the time of the offense enhanced the officer's ability to make careful observations of defendant's vehicle. The court also found credible the officer's testimony that the short interval of time in which he lost sight of defendant's vehicle when defendant made the two left turns did not affect his certainty that the vehicle he stopped was the same one he initially observed speeding. The court also determined that the officer's observations of speeding provided him with a "reasonable, articulable rationale" for stopping defendant's vehicle, and thus, denied defendant's motion to suppress. Defendant was convicted on all the charges. For sentencing, the trial court merged the careless driving charge with the driving while intoxicated charge, suspended defendant's driver's license for two years, and imposed statutory penalties. The court granted defendant a conditional discharge on the drug conviction.

Defendant appealed to the Law Division where a trial de novo was conducted based on the record. The Law Division also denied defendant's suppression motion and found him guilty on all the charges. In arriving at its Conclusions, the Law Division adopted the credibility findings made by the Municipal Court, stating:

The standard that applies in this case is whether or not Officer Napoli had an articulable reason, a reasonably articulable reason for stopping this vehicle. . . . Napoli concluded that . . . based on his experience, which I believe he testified to be some ten years, that, in his opinion, the vehicle was traveling in excess of the speed limit, which he also testified was 35 miles per hour.

And he concluded that, based on his observations, after making the U-turn, he then continued to make observations of the vehicle. Granted, those observations were for a limited period of time. He did not pace the vehicle. He didn't have any type of radar apparatus. And he did not employ the use of any other electronic devices or assistance from other officers, in terms of determining what the speed of the vehicle was.

However, he had, in my mind, observed what he thought to be a violation of a motor vehicle ordinance or motor vehicle statute. And it was, on that basis, that he took actions that are set forth in his testimony, regarding the Lo[c]urto vehicle.

The Law Division also rejected defendant's contention that the officer's testimony that he was driving at a "high rate of speed" was insufficient to support a careless driving charge. The court found "the officer certainly could have issued a ticket for speeding, . . . [but] instead . . . chose to issue a careless driving ticket." In making that determination, the Law Division emphasized the following findings made by the Municipal Court:

The way the [c]court proceeded was to listen to the testimony of Officer Napoli. Then the [c]court concluded that, although there was no testimony regarding the effects on other traffic, which is a viable and salient argument, the [c]court concluded that there was a potential danger, on the part of Mr. Lo[c]urto, based on what the [c]court found to be the credible testimony of Officer Napoli, regarding the speed with which the Lo[c]urto vehicle was traveling.

Now [the municipal court] found that, as to the effects on the other traffic issue, that the lack of other traffic actually in the [c]court's mind, enhanced the credibility of the officer. Because ...


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