December 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE P. KENNY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-05-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges Payne and Messano.
Defendant, Eugene Kenny, who entered a conditional plea of guilty that resulted in his second conviction for driving while intoxicated, N.J.S.A. 39:4-50, appeals from an order of the Law Division affirming the denial of defendant's motion to suppress the evidence of his intoxication on the ground that it was obtained by the police as the result of an illegal stop of his vehicle. On appeal, defendant argues as follows:
THE EVIDENCE GATHERED AFTER STOPPING THE DEFENDANT'S MOTOR VEHICLE SHOULD BE SUPPRESSED BECAUSE THE STATE DID NOT JUSTIFY THE STOP BY THE PREPONDERANCE OF THE EVIDENCE.
The record discloses that on October 29, 2006, at approximately 3:00 p.m., Jay Rymarz, an officer of the East Rutherford Police Department on motorcycle patrol on a service road near Route 3 in the vicinity of Giants Stadium, but at the time warming himself in a fellow officer's patrol car, observed defendant making a U-turn in his vehicle, reversing his direction of travel from west to east. Defendant was stopped, arrested and, thereafter, issued summonses for making an illegal U-turn, N.J.S.A. 39:4-125; driving while intoxicated, N.J.S.A. 39:4-50; and refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2.
At the suppression hearing before the municipal court judge and in all subsequent proceedings, defendant argued that the officer did not have any basis for stopping his vehicle. The U-turn was conceded; its illegality was not. Defendant's position throughout has been premised, essentially, on the contention that his U-turn was accomplished in an area in which U-turns were not prohibited, and that the turn did not endanger any other motorists. In support of this contention, defendant relies on testimony by Officer Rymarz confirming that defendant was not driving erratically before the U-turn; the turn did not occur on or near a curve in the road or a hill; and it did not take place in a location in which U-turns were marked by signs as prohibited. Although Officer Rymarz testified that the turn endangered a passing motorist, defendant disputes the veracity of that testimony, noting alleged inconsistencies between the Officer's testimony before the municipal court judge and his official report.*fn1
On direct examination, Officer Rymarz testified:
I observed the defendant's vehicle exit the Giants Stadium parking lot, make a right-hand turn onto the service road, which would be heading westbound, and pull to the shoulder of the roadway. I then observed another vehicle traveling westbound on the same roadway. When it approached the defendant's vehicle, the defendant made a U-turn, nearly causing an accident. The defendant's vehicle proceeded eastbound in my direction at which point I stepped out of my patrol car that I was sitting in, stepped into the roadway, and motioned to the defendant to stop his vehicle and pull to the side.
It was established that, at the point where the U-turn was made, the roadway consisted of a total of two lanes, separated by a double yellow line.
On cross-examination, Officer Rymarz was asked whether the vehicle that defendant allegedly almost hit had actually passed defendant before he made his U-turn. When the officer denied that fact, he was confronted with his official report, and the following exchange occurred:
Q: . . . Do you see where it says the vehicle then pulled to the right side of the roadway and stopped?
Q: Then you say another vehicle was traveling west along the same roadway past the defendant. Then the defendant made an illegal U-turn. Right?
Q: And in your record, which you told me is complete and accurate, [you] said another vehicle was traveling west along the same roadway past the defendant when the defendant made the illegal U-turn. Does that refresh your recollection as to what occurred when you made these observations?
A: Yes, it does.
Q: So this other car was actually past the defendant before he . . . started to make his turn.
A: No, the defendant made a U-turn, an illegal U-turn in front of this vehicle.
After further cross-examination, during which Officer Rymarz continued to contend that the other car had not passed defendant's vehicle when the U-turn occurred, the following additional cross-examination took place:
Q: But you do agree your report says when the vehicle was passing he made a turn.
Q: No to what?
A: The defendant made a U-turn, and the vehicle that was traveling west passed the defendant's vehicle on the right-hand side.
Q: So when you say in your report the vehicle then pulled to the right side of the roadway, another vehicle was traveling west onto the roadway past the defendant when the defendant made an illegal U-turn. Past the defendant when he made the turn. You're saying that's not true. He wasn't past my client before my client made the turn.
A: No. Your client made the turn, and the second vehicle had to pass to the right to avoid colliding with your client who made a U-turn from the shoulder to the right-hand lane of travel.
Q: Can you show me where in your report it says that, by the way.
Later in the cross-examination, Officer Rymarz agreed with defense counsel that there was nothing in his report "about some other car taking some evasive action as a result of the defendant driving his car in some way." Defendant did not testify on his own behalf.
At the conclusion of the hearing, the judge credited Officer Rymarz's testimony that defendant nearly caused an accident when making his turn and, additionally, he found that defendant had acted illegally in crossing a double yellow line while making his turn. The judge denied defendant's motion to suppress evidence on these bases. After receiving the judge's decision, defendant conditionally pled guilty to driving while intoxicated as a second-time offender. The remaining charges were dismissed. Defendant's sentence was stayed pending appeal.
Upon trial de novo in the Law Division, based upon the record made in municipal court, defense counsel argued that Officer Rymarz had not testified truthfully when he stated that defendant's U-turn, which was accomplished from the westbound shoulder to the eastbound lane of traffic, had almost caused an accident. In this regard, counsel noted that the officer's report used the word "past" when describing the course of the other vehicle in relation to that of defendant, not the word "passed," and he emphasized the length of time elapsing between the contemporaneous issuance of the report and the officer's testimony.
While conceding the existence of a discrepancy between the officer's report and his testimony at trial, the Law Division judge found that the fact that . . . Officer [Rymarz] didn't put in his report what indeed he testified to at trial is not enough in my estimation as a reviewer here and the fact-finder to . . . decide that his testimony at trial was incredible or not to be believed.
It's very simple. He says he made an observation that another car had to take evasive action as a result of the U-turn made by Mr. Kenny and that's very simply in my opinion more than is necessary to justify a stop under the theory of a reasonable and articula[ble] suspicion.
He causes another car almost to collide with him. Even though it's not in his report, even though he's 3 or 400 feet away, I believe it is within the confines of his ability to make those observations -- make them believable to me.
And despite the fact that there is some consequence of disagreement between his report it's not enough for me to decide that his testimony was not credible.
The judge thus denied defendant's suppression motion and found defendant guilty of the charge of driving while intoxicated. His sentence again was stayed pending appeal.
On appeal to us, defendant argues that the evidence presented at the suppression motion regarding his U-turn did not establish, by a preponderance of the evidence, a reasonable and articulable suspicion that he was subject to seizure for violation of the law, as required by Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 673 (1979) and New Jersey decisions such as State v. Carty, 170 N.J. 632, 639-40, mod. on other grounds, 174 N.J. 351 (2002) and State v. Locurto, 157 N.J. 463, 470 (1999). In support of this position, defendant again contends, as he has throughout the proceedings in this case, that because the testimony of Officer Rymarz that defendant endangered another driver when making his U-turn differed from his official report, the officer's trial testimony provided an inadequate foundation for the courts' determination that the officer had a reasonable and articulable basis for the motor vehicle stop. Defendant argues, without citation to apposite authority*fn2 that the officer's contemporaneous report is controlling in this circumstance, and that report was inadequate to justify the stop. In addition, defendant suggests that because the officer was "a football field away" from defendant when his observations took place, those observations occupied a "split second," and the officer was warming his hands while gazing out of the patrol car's windshield, he could not have seen what he claimed to have observed.*fn3
We reject defendant's argument, regarding the findings of the municipal and Superior Court judges that a particularized suspicion existed that was sufficient to warrant a stop to have been reasonably supported by the officer's testimony at trial under the standards of proof set forth in cases such as State v. Nishina, 175 N.J. 502, 511 (2003) (discussing lower standard of proof applicable to determination that evidence of a particularized suspicion was sufficient) and Locurto, supra, 157 N.J. at 470-71 (adopting substantial credible evidence standard). Although the officer's official report suggested that the other vehicle was "past" that of defendant when the turn was made, Officer Rymarz stated at the suppression hearing that he did not view the circumstances in this fashion. The municipal and Superior Court judges found the officer's testimony to have been credible.
We do not perceive the officer's report, the meaning of which turns on the use of "past" rather than "passed," to be so fatally inconsistent with his testimony at the hearing as to require a different result. As the Supreme Court has stated in the context of a police affidavit supporting warrant request: "There must be an awareness that few policemen have legal training and that the material submitted to demonstrate probable cause may not be described with the technical nicety one would expect of a member of the bar." State v. Kasabucki, 52 N.J. 110, 117 (1968). Moreover, we are required to consider the special expertise of the police in this context. "The facts asserted must be tested by the practical considerations of everyday life on which reasonably prudent and experienced police officers act." Ibid. These observations are equally apt in the present circumstances. See State v. Pineiro, 181 N.J. 13, 22 (2004).
In reaching our conclusion, we recognize that N.J.S.A. 39:4-125 does not, by its terms, prohibit defendant's conduct.
However, "[t]o satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." Locurto, supra, 157 N.J. at 470. Moreover, our examination of Officer Rymarz's testimony satisfies us that his concern arose principally from his perception that defendant had created an unsafe condition - a circumstance that is clearly prohibited by the careless driving provisions of the State's motor vehicle laws. See N.J.S.A. 39:4-97 (careless driving) and -97.2 (unsafe driving). The totality of the circumstances thus demonstrates that a stop of defendant's vehicle was warranted.