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State v. Alex

September 12, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL P. ALEX, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, MA-05-073.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 24, 2007

Before Judges Yannotti and C.L. Miniman.

Defendant Daniel P. Alex appeals from his de novo conviction of driving while on the revoked list in violation of N.J.S.A. 39:3-40. Defendant entered a conditional plea after his suppression motion was denied. We affirm.

The following testimony was adduced at the suppression hearing. Officer John Barone of the Riverdale Police Department testified that on May 5, 2005, he observed defendant while on duty, stopped at a red light on Cutlass Road by the Home Depot. He did a random plate inquiry on the mobile data terminal (MDT) in his cruiser, entering the license plate number of the vehicle being operated by defendant. The software on the computer is known as "Info Cop," which provides information from the records of the New Jersey Division of Motor Vehicles (DMV). Within seconds, Barone received a "red hit" response, indicating that there was either a suspension or a warrant. In response to that alert, Barone made further inquiry on Info Cop and learned that there was a driver's license suspension for the owner of the vehicle. Info Cop also provided the date of birth, eye color, hair color, sex and name of the owner. The information matched the driver of the vehicle that Barone observed. When the light turned green, Barone activated his lights and stopped the vehicle on the other side of Route 23 by the Mobil Station. He determined that the driver matched the description provided by the MDT and asked defendant by name for his driver's license and vehicle registration. Barone then called police headquarters to have dispatch confirm the license suspension. After receiving a confirmation, he issued a summons for driving on the revoked list.*fn1

In their testimony, defendant and the passenger in his car disputed Barone's account of the circumstances of the stop, calling his credibility into question.*fn2 The municipal judge, however, found that Barone's testimony was credible and denied the motion to suppress. Defendant then entered a conditional guilty plea to driving on the revoked list. Defendant filed a de novo appeal and the matter was heard in the Superior Court. The Law Division judge also denied the motion to suppress, found defendant guilty of the offense charged, and stayed the sentence imposed pending appeal.

The only issue on appeal is whether the arresting officer's testimony regarding information he learned from an "Info Cop" computer program was properly admitted. Defendant contends that it lacked a sufficient foundation under Article I, Paragraph 7, of the New Jersey Constitution and the Fourth Amendment to the United States Constitution.*fn3 Unquestionably, under our state and the federal constitutions, a police officer must have a reasonable and articulable suspicion that a driver has committed a motor vehicle offense before the officer may stop the vehicle. Id. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Defendant contends that the information from "Info Cop" was inadmissible hearsay that should have been excluded, in which case the State could not have established that Barone had any reasonable or articulable suspicion permitting him to stop defendant's vehicle.

The scope of our review is limited. Both the municipal judge and the Law Division judge concurred in their assessments of the evidence.

[T]he rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Id. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).]

We find no obvious and exceptional error here.

Defendant asserts that information from a computerized database is hearsay, relying on State v. Lungsford, 167 N.J. Super. 296, 303, 306 (App. Div. 1979) (determining that the admissibility of computerized information is governed by Evid. R. 63(30)*fn4 and requiring a hearing to establish whether or not the evidence meets the rule's conditions for admissibility). Such a showing, however, is not required where the information is contained in the computerized database of the DMV, as here. We have clearly stated that "DMV records of drivers' license suspensions are deemed sufficiently reliable to be admissible as prima facie evidence of the fact." State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005) (citations omitted).

Our Supreme Court has concluded that a police officer is not required to wait until he or she observes a driver commit an apparent motor vehicle violation before processing an inquiry of the DMV through a MDT. State v. Donis, 157 N.J. 44, 54 (1998). Such an observation would obviate the need for a DMV inquiry prior to a stop. Ibid. The Court reasoned that there was no reasonable expectation of privacy in a vehicle's license plate, "and thus to examine it does not ...


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