July 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH MUSTARO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. A-03-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2007
Before Judges Fuentes and Baxter.
Defendant Joseph Mustaro pled guilty, in the Paulsboro Municipal Court, of refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2, and leaving the scene of an accident, N.J.S.A. 39:4-129. This was defendant's third conviction for refusing to submit to a breathalyzer test. The court thus imposed $1,139 in fines, and suspended his driving privileges for ten years, pursuant to N.J.S.A. 39:4-50.4a. On the conviction for leaving the scene of an accident, defendant was sentenced to thirty days imprisonment and an appropriate fine.
Defendant agreed to plead guilty in municipal court while preserving his right to appeal the court's denial of a motion to suppress. In a de novo review, the Law Division again denied defendant's motion to suppress. Defendant now appeals raising the following arguments.
ONCE PATROLMAN GRAY PHYSICALLY IDENTIFIED APPELLANT-DEFENDANT AS THE DRIVER INVOLVED IN THIS ACCIDENT AND THEN ORDERED THE DEFENDANT TO ACCOMPANY HIM TO THE SCENE OF THE ACCIDENT, PATROLMAN GRAY WITH PROBABLE CAUSE TO ARREST FOR ONLY A TRAFFIC OFFENSE SEIZED THE DEFENDANT IN CONTRAVENTION OF STATE V. BOLTE INFRA, SO THAT ALL EVIDENCE OBTAINED BY THE STATE AFTER THE SEIZURE OF THE DEFENDANT AT HIS HOME MUST BE SUPPRESSED.
We reject this argument and affirm substantially for the reasons expressed by Judge Marshall. We gather the following facts from the record developed before the trial court.
Paulsboro Police Sergeant Michael Minniti testified that at approximately 12:55 a.m. on September 15, 2005, he was dispatched to respond to a motor vehicle accident at the intersection of Billingsport Road and Delaware Street. When he arrived, fellow officer John Hass was already at the scene.
Minniti gave the following description of what he encountered upon arriving:
I saw a tractor trailer, with its hazard [lights] on, stopped on Billingsport Road, at the stop sign, at the intersections of Billingsport Road and North Delaware Street. I then observed a pickup truck, which was slammed in the back of it, directly behind the tractor trailer. I then checked on the occupants to see if there was anybody hurt or injured. I did come into contact with the tractor trailer driver.
I noticed that the pickup truck did not have an occupant in it. The tractor trailer driver informed me that someone ran in the back of him. . . [He o]bserved a stocky, white male, wearing a green shirt and shorts, get out of the vehicle. He asked the occupant of that vehicle if he was okay.
He said he was fine. He started walking away from the scene. The tractor trailer driver then asked him[:] where are you going[?] He said he was calling the police.
The tractor trailer driver then called 911 on his cell phone.
From the license plate number of the pickup truck, Minniti obtained defendant's name and address as the registered owner. Minniti informed Patrolman Donald Gray of this information, as well as the description of the driver of the pickup truck given by the tractor trailer driver. He then directed Gray to respond to the address of the registered owner to ascertain whether he was in fact the driver of the pickup truck, or if not, whether he knew who was driving the vehicle that night.
Gray eventually returned to the scene of the accident accompanied by defendant who was seated in the back of the police car. The tractor trailer driver immediately identified defendant as the driver of the pickup truck that had struck his vehicle from behind.
Patrolman Gray testified as to the details surrounding his arrival at defendant's home. He drove to the location in a marked police vehicle, but without sounding sirens or activating the overhead emergency lights. He was accompanied by two other officers, including one from the Gibbstown Police Department. Gray proceeded to the front of the house "and started banging on the front door" and "the back door." It took approximately three minutes for defendant to respond.
Gray explained to defendant the reason for his visit, including the fact that defendant fit the description of the driver of the pickup truck. Gray then told defendant "that I needed him to come [to the scene of the accident] to be identified." Defendant eventually acceded. Finally, Gray testified that when defendant responded to the door of the house he was wearing a dark colored green shirt, and blue jean shorts.
Gray testified that he at no time at this initial encounter told defendant he was under arrest. Defendant was transported in the police car without being handcuffed or restrained in any way. By contrast, defendant testified that Gray and the other two officers entered his home, arrested him and transported him to the scene of the accident with his hands handcuffed.
As a matter of credibility, Judge Marshall accepted the testimony of the police witnesses. Against these facts, he found that the actions of the officers were appropriate. That the defendant did voluntarily agree to return to the scene with the officers. And that the occurrences of taking the defendant back to the scene, his identification there, and subsequent arrest, all were done properly.
It well-settled that in reviewing an order to set aside the factual findings made by the trial court, we must be "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." State v. Locurto, 157 N.J. 463, 471 (1999). Given this standard of review, we discern no legal basis to disturb the court's findings.
Accordingly, we are satisfied that police did not enter defendant's home and that defendant voluntarily agreed to accompany them to the scene. The warrantless entry into a home when no exigent circumstances existed, that the court invalidated in State v. Bolte, 115 N.J. 579, cert. denied, 493 U.S. 936, 110 S.Ct. 330, 107 L.Ed. 2d 320 (1989) is not present here, and defendant's reliance on Bolte is therefore misplaced.
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