On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MA# 06-027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Yannotti and LeWinn.
Defendant Gary Wade was a police officer with the Tinton Falls Police Department when he was convicted of obstruction of the administration of law and ordered to forfeit his public employment. On appeal, he raises the following legal arguments:
I. WADE DID NOT OBSTRUCT JUSTICE BY ALLEGEDLY FAILING TO KEEP HIS HANDS ON HIS DASH BOARD OR BY NOT IMMEDIATELY RESPONDING TO COLANER'S QUESTIONS; THEREFORE, HIS CONVICTION MUST BE REVERSED.
II. THE RECORD DOES NOT INDICATE BEYOND A REASONABLE DOUBT THAT WADE "PURPOSELY" OBSTRUCTED THE ADMINISTRATION OF LAW.
III. THE STATE FAILED TO ESTABLISH THAT THERE WAS PROBABLE CAUSE TO STOP WADE; THEREFORE, DEFENDANT'S MOTION TO SUPPRESS SHOULD BE GRANTED.
IV. THE FAILURE OF THE COURT AND THE STATE TO PROVIDE WADE WITH THE DISCOVERY HE REQUESTED, AND THE COURT'S DECISION TO QUASH THE SUBPOENA ISSUED TO COLONEL FUENTES, DENIED THE DEFENDANT A FAIR TRIAL; THEREFORE, HIS CONVICTION MUST BE REVERSED.
V. WADE'S ALLEGED OFFENSE DID NOT "INVOLVE OR TOUCH" HIS DETECTIVE POSITION WITH TINTON FALLS; THEREFORE, WADE IS NOT SUBJECT TO FORFEITURE OR DISQUALIFICATION UNDER N.J.S.A. 2C:51-2.
VI. IN THE EVENT THIS COURT DECIDES THAT WADE COMMITTED AN OFFENSE WHICH IS GRAVE ENOUGH TO MERIT CONSIDERATION OF FORFEITURE AND DISQUALIFICATION, THIS COURT SHOULD STILL DENY THE REQUEST BECAUSE THE STATE HAS FAILED TO PROVE THAT WADE IS NOT QUALIFIED FOR HIS OFFICE.
We have carefully considered these arguments in light of the prevailing law and the record and conclude that they are without merit. We affirm substantially for the reasons expressed by Judge Chaiet.
Defendant was charged with obstruction of the administration of law, N.J.S.A. 2C:29-1; resisting arrest, N.J.S.A. 2C:29-2a; and careless driving, N.J.S.A. 39:4-97. He was tried in the Freehold Borough Municipal Court over five days from November 2005 through March 2006. The trial evidence shows the following.
On August 17, 2004, New Jersey State Troopers Michael Colaner and David Ryan were assigned to the Commercial Vehicle Inspection Unit of the State Police. At around 9:00 a.m., they were driving north on the Garden State Parkway, with Colaner in front, driving a marked Dodge Durango, and Ryan following Colaner in a marked Ford Expedition. The troopers were traveling in the far left lane of the Parkway, which at that point was four lanes wide. Colaner testified that as they passed the Monmouth Service Area, he saw a Ford Crown Victoria suddenly pass him on the right. He was traveling at least seventy miles per hour at the time, and the passing vehicle "accelerated at a very high speed and went right by [him]" in the left center lane. Colaner testified that the vehicle contained several roof antennas, with one broken off; and a spotlight on the driver's side. The paint on the vehicle was worn, and the car was dirty. He was unsure if the vehicle was an unmarked police car because of its poor condition.
Colaner "accelerated up adjacent to the driver," attempting to determine if the driver was a police officer or if he was "just dealing with somebody that has just total disregard for a marked state police unit." Traveling ninety miles per hour, Colaner, when parallel with the other driver's window, looked to his right and gestured by putting his palms up in the air, as if to say, "I don't know who you are." Defendant, the driver, gestured in response. Colaner interpreted his response as saying, "what the, and he flung his arms up."
While still traveling "well in excess" of the sixty-five-mile-per-hour speed limit, Colaner pulled behind defendant's car. He activated his overhead lights and turned on his Motor Vehicle Recorder (MVR), as it was standard procedure to record traffic stops. He did not actually turn on the MVR camera for operation at that time, however, because the camera took about twenty-five seconds to activate and begin recording. Colaner testified that during those twenty-five seconds, defendant refused to pull his car over, and continued driving at ninety miles per hour in the left center lane before suddenly veering the car to the right, without signaling, and coming to an abrupt stop on the right shoulder.
When Colaner and defendant were on the right shoulder, Ryan pulled up behind them. Ryan had been unable to keep up with Colaner because his vehicle could not travel more than eighty miles per hour. When Ryan arrived, defendant's vehicle had its "wig wags" (strobe lights) flashing; Ryan believed it was an unmarked police car.
Colaner testified that defendant activated his rear strobe lights when he stopped the car. As Colaner approached defendant's car, he was unsure if it was a police vehicle. He testified that "it didn't appear that a police officer was in control of [the] vehicle." He had previously seen strobe lights on other vehicles, such as those driven by building inspectors, fire fighters, "emergency management type people" and "first aiders." He had also stopped similar vehicles that were driven by bounty hunters and "look-alike police."
When Colaner approached the driver's side of defendant's car, he saw that defendant was not in a police uniform, but was wearing a blue knit shirt with embroidery, partially obscured by the shoulder strap of the seatbelt, with the word detective on the shirt. On direct examination, while referring to his report of the incident, Colaner testified to his interaction with defendant as follows:
Q: Okay. And as a result of walking up, what was the first thing that you said?
A: State Police and I attempted to ask for [defendant's] license, registration and insurance.
Q: . . . When you say you attempted, how far did you get those requests out?
A: . . . I stated State Police. At which point I was interrupted by the driver.
Q: When you say you were interrupted by the driver, what was it that the driver said?
A: He was adversarial . . . . He said, "I want to know the reason you stopped me."
Q: And did he say anything else, before you responded?
A: . . . [H]e said the same thing again. "I want to know the reason you stopped me."
Q: Did you respond to that?
A: At that point I'm trying to get control and again, State Police, may I see your license, registration and insurance.
Q: And you were able to, at this second attempt, to get all that out?
A: I don't believe so. No, again, he interrupted me. I got as far as license, at which time he responded, "I want your supervisor out here."
Q: He wanted your supervisor?
A: Wanted [my] supervisor.
Q: And what was your response to that?
A: . . . He further stated, you pulled me over in my town. I responded with, may I see your and he interrupted me again . . . I tried one more time and said, may I see your and that's as far as I got, when he said, "You pulled me over in my town. I want your supervisor out here right now."
Q: . . . Now, how many times did you ask him for his credentials, either fully or in an interrupted fashion?
A: . . . It was five times before he started moving around the vehicle.
Q: Okay. When you say moving around the vehicle, could you tell us specifically what he was doing?
A: He starts reaching into the center area and grabbed his radio that was in the center console there. . . .
Q: What about on the front seat?
A: The front seat I believe there was a laptop and a briefcase.
Q: You've got a laptop on the front seat. At this particular point don't you think that you've got a police officer here?
A: His actions are telling me no.
Q: What do you mean by that?
A: . . . I've been stopping police officers a long time on the Garden State Parkway, they got their ID out, sorry, Troop, just going to work, I'm on the job, you know, they're not sitting there cutting me off, trying to gain control of the stop. His actions are contrary to everything the vehicle is telling me.
Q: Because the vehicle itself is telling you what?
A: This is probably a police car.
Q: . . . But the actions are ...