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State v. Kenny

December 21, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EUGENE P. KENNY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-05-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

We affirm.

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 ...


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