January 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM PAEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 2006-037.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges A.A. Rodríguez and C.S. Fisher.
On March 30, 2006, defendant was driving through Newark when stopped by police officers and issued summonses for: driving while intoxicated, N.J.S.A. 39:4-50; failing to wear a seat belt, N.J.S.A. 39:3-76.2(f); driving the wrong way on a one-way street, N.J.S.A. 39:4-85; and having a broken tail light, N.J.S.A. 39:8-4. He was found guilty of all these charges at the conclusion of a municipal trial.
The municipal judge imposed a sentence of 180 days in jail, a ten-year suspension of defendant's driving privileges, and a $1,000 fine and other monetary penalties, on the DWI conviction -- defendant's third such conviction. The municipal judge also imposed lesser fines and monetary penalties on the other offenses.
Defendant appealed to the Law Division. After considering the testimony adduced at the municipal trial and the legal arguments of counsel, Judge John C. Kennedy convicted defendant of the same offenses and imposed the same penalties as had the municipal judge. Judge Kennedy also stayed the fines, penalties and jail term pending defendant's appeal to this court.
In this appeal, defendant presents the following arguments for our consideration:
I. THE STOP OF THE DEFENDANT WAS UNCONSTITUTIONAL.
II. THE TRIAL WAS TAINTED AND UNFAIR, DEPRIVING PAEZ HIS DUE PROCESS RIGHTS. THE STATE'S WITNESS WAS ALLOWED TO CONFER WITH THE PROSECUTOR DURING THE TRIAL, AND THE COURT COMMENTED THAT PAEZ DOES NOT "REALLY THINK HE'S INNOCENT," . . . AMOUNTING TO A TAINTED PROCESS.
III. THERE WAS NOT SUFFICIENT EVIDENCE UPON WHICH THE COURT BELOW COULD HAVE REASONABLY CONCLUDED THAT PAEZ WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT.
IV. THE CONVICTION FOR TRAVELING THE WRONG WAY ON A ONE-WAY STREET MUST BE SET ASIDE. THE STATE ERRONEOUSLY CHARGED THE DEFENDANT WITH VIOLATING [N.J.S.A.] 39:4-85, NOT THE WRONG WAY STATUTE, [N.J.S.A.] 39:4-85.1. THE CONVICTION BELOW NECESSITATED AMENDING OF THE COMPLAINT, A CONSTITUTIONALLY PROHIBITED ACT.
We find insufficient merit in these arguments to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
The testimony heard and credited by the municipal judge, and later credited by the Law Division judge, revealed that defendant's vehicle was observed proceeding in the wrong direction on Jefferson Street, a one-way street. Defendant's contention that the officer's testimony insufficiently demonstrated that Jefferson Street contained street signs that would indicate it was a one-way street is without merit.
Upon questioning defendant, one of the officers detected a strong odor of alcohol. And, when asked to exit the vehicle, defendant "could barely stand, he was grasping for support, swaying." The officer also testified that defendant's face was flushed, and his eyes were red and watery. Defendant was asked to execute a field sobriety test, which he was unable to perform or complete; indeed, the officer testified that he "was afraid [defendant] was going to fall on his face."
Certainly, the fact that defendant was driving the wrong way on a one-way street did not constitute probable cause to believe that defendant was driving while intoxicated. But it did provide a reasonable basis for the stop of defendant's vehicle. And, upon approaching defendant and engaging him in conversation, probable cause for driving while intoxicated was established, as briefly summarized above. See State v. Moskal, 246 N.J. Super. 12, 20 (App. Div. 1991); State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S.Ct. 251, 112 L.Ed. 2d 209 (1990). The stop and detention of defendant was constitutional.
We affirm the judgment under review, vacate the stay of the sentence previously ordered by the trial court, and remand to the Law Division for the setting of a date for defendant's surrender so that he may forthwith begin service of his jail sentence. We do not retain jurisdiction.
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