On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal 32-07-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, David Montalvo, appeals from the Law Division's October 13, 2006 order entered after de novo review of the record of the Hamburg Municipal Court finding him guilty of driving under the influence of alcohol (DUI), contrary to N.J.S.A. 39:4-50. We affirm.
Defendant was arrested at approximately 5:00 a.m. by Patrolman Aronson of the Hamburg Police Department on February 18, 2006 for violations of N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.2, refusal to consent to the taking of a breath sample. Defendant filed a motion to suppress evidence of his stop and seizure. The municipal court judge denied defendant's motion. Defendant then entered a conditional guilty plea to the DUI charge, pursuant to Rule 7:6-2(c), and as part of a plea agreement the State dismissed the refusal charge.
Thereafter, defendant filed a notice of appeal with the Law Division. After conducting a trial de novo on the record of the motion to suppress before the municipal court, Judge Critchley denied the motion to suppress. This appeal followed.
On February 18, 2006, Patrolman Aronson was working the nightshift on patrol checking Hamburg businesses for criminal activity and anything unusual. At approximately 4:45 a.m., the officer observed an occupied GMC pickup truck parked with its engine running in a parking area in front of the Market Place Deli on Route 23. The deli was closed and scheduled to open between 5:00 and 5:30 a.m. Aronson had patrolled the area for several years and had driven by this parking lot "countless times."
Due to the hour, Aronson thought "something was not right," since at this hour none of the businesses in the mall were opened. Aronson repositioned his patrol car to get a closer look at the pickup truck. Aronson testified that he wanted to make sure the driver was "okay," and make sure the car was not stolen. Aronson verified the car was not stolen. In repositioning himself, he was able to peer into the truck's window and noticed a man in the driver's seat who appeared to be asleep. Aronson testified that the man appeared physically fine and was breathing.
Aronson exited the patrol car. He observed the engine of the truck was "racing," and there was exhaust coming out of the tailpipe. Aronson did not believe it to be normal for the engine to be racing. Aronson concluded the engine was racing since the engine sounded "a lot higher than that of a normal idl[ing engine.]" Aronson walked to the passenger side window and observed that the car keys were in the ignition. The vehicle was in park and the driver appeared to be asleep. Aronson believed his foot was on the gas pedal.
Aronson walked to the front of the truck on the driver's side in an attempt to make contact with the driver. He knocked on the window, but the driver did not wake up. Aronson found the door unlocked so he opened it to try to talk to the driver.
Immediately upon opening the door, Aronson could smell the odor of alcoholic beverages from within the vehicle. At that point, the officer again tried to talk to the driver and was eventually able to do so.
On de novo review in denying defendant's motion to suppress evidence of his stop and seizure, Judge Critchley stated:
I think its reasonable to be concerned about a running vehicle. Someone with their foot on the accelerator, but not in apparent control; themselves not able ...