On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 003-07-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Axelrad and Gilroy.
Defendant Karl Vierheilig appeals from a conviction for careless driving, N.J.S.A. 39:4-97, and leaving the scene of an accident, N.J.S.A. 39:4-129(b), following a trial de novo in the Law Division. After his motion to suppress was denied and he was found guilty and sentenced on both charges in the municipal court, defendant appealed to the Law Division, where he argued that: (1) he was denied procedural due process and effective assistance of counsel in the municipal court; and (2) his motion to suppress should have been granted. His arguments were limited to the municipal court judge's rulings relating to his motion to suppress. The Law Division judge rejected defendant's arguments and he appealed. We affirm.
On June 3, 2004, in connection with an incident occurring on May 31, 2004, defendant was issued summonses in Midland Park for careless driving and leaving the scene of an accident with property damage. The matter was transferred to the Northvale municipal court.*fn1 Prior to trial, defendant filed a motion and brief seeking to suppress "all evidence obtained subsequent to the officer's warrantless entry into [his] rear yard," contending the police had no probable cause to intrude upon his rear yard, which was not visible from the street, and that while on his property, the police interrogated him, resulting in inculpatory statements; thus, the fruits resulting from the illegal warrantless entry must be suppressed. The State filed a responsive brief, disputing the manner in which the observations of defendant's car were able to be made and contending the officers' entry was restricted to the access portion of the "curtilage" not covered by the Fourth Amendment.
At the commencement of the proceeding on November 23, 2004, defense counsel requested a sequestration order. The prosecutor said he had no objection provided any defense witnesses were subject to the same requirements, and identified the State's witnesses as: John Anello, a witness to the accident; Michael McNeely, the owner of the vehicle involved in the accident; Patrolman Kasbarian, the officer who came to the accident scene; Detective-Lieutenant Casson, who entered upon the rear yard and who took the inculpatory statement; and Chief Klingen, who accompanied Casson onto the property. The municipal court judge asked defense counsel to identify his witnesses, to which he responded, "We have none."
Detective Casson testified on a discovery issue, after which the municipal court judge heard argument on defendant's motion to suppress. As he had in the brief, defense counsel's arguments focused on the officers' entry onto the property. He contended the officers had no right to be on the property and that the illegal entry tainted any statements defendant made in the rear yard, as well as the resulting inculpatory statement at the police station as fruits of the poisonous tree. The prosecutor made a proffer of the facts and contended the police were entitled to be on the property investigating the accident and restricted their movements to the semi-private portion of the curtilage. After the judge stated he was reserving decision on defendant's motion until after he heard more facts, the prosecutor presented various witnesses.
Anello reported seeing a gold Maxima, with one headlight out and a flat tire, leaving the scene after side-swiping a parked blue Mustang. McNeely faxed a description of the fleeing car to a number of auto salvage yards in the area, in response to which the police were provided information that an individual had purchased parts for a car matching the description and paid with a credit card under the name "Vierheilig." Detective Casson and Chief Klingen*fn2 then met at the home of defendant's sister, Jackie Vierheilig, on Godwin Avenue, Midland Park, and stood on the sidewalk at the driveway that enters the property from Center Street. The detective explained that the officers heard noises coming from a detached garage at the rear of the property and observed a lit garage with an opened front door and two people inside working on a damaged motor vehicle that was facing nose out.*fn3 The officers went up to, but did not enter, the garage and the detective spoke with defendant and requested that he accompany him back to the police station, which defendant voluntarily did. At the station, the detective read defendant his Miranda*fn4 rights, which defendant acknowledged in writing, and handwrote a statement.
When Detective Casson began to read defendant's statement, defense counsel objected, arguing this was a suppression hearing. The judge disagreed, stating it was the "trial" and the following colloquy ensued as to the status of the proceeding:
MR. KARCH [Prosecutor]: Judge, at this point, I think Mr. Kelly's motion goes as to whether or not they had the right to require Mr. Vierheilig [to] go back to the police station. Is that right?
MR. KELLY [Defense counsel]: Right. And as far as I know, Judge, most respectfully, that we're still on the motion to suppress. This is not the trial. This is the motion to suppress.
THE COURT: No, this is the trial. This is the trial. I told you I reserved decision on your motion to suppress because there were minimal facts. So, we're in trial.
MR. KELLY: Your Honor, most respectfully, and I'm not trying to be rude or show the Court any lack of respect, but I was ...