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State v. Roman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THEODORE P. ROMAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. 22-11-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 19, 2008

Before Judges Rodríguez and Waugh.

Defendant Theodore Roman appeals his conviction for driving while intoxicated in violation of N.J.S.A. 39:4-50. Roman entered a plea of guilty following the denial of his motion to suppress the motor vehicle stop that resulted in the charge against him. We affirm.

We glean the following facts from the record. On August 12, 2007, a dispatcher for the Middle Township Police instructed Officer Jason Sweitzer to proceed to Court House/Dennisville Road. The dispatcher informed Sweitzer that a concerned citizen telephoned the Middle Township Police Department twice to report an individual driving his vehicle erratically.

The dispatcher provided a description of the vehicle and a license plate number. The dispatcher informed Sweitzer that the vehicle was being driven southbound on Court House/Dennisville Road and had nearly collided head-on with two vehicles.

Sweitzer eventually observed Roman's vehicle, which fit the description and had the plate number given by the dispatcher, traveling southbound on Magnolia Drive in Middle Township, near the area reported by the dispatcher. Sweitzer initiated a motor vehicle stop, which led to the charge against Roman.

On October 1, 2007, Roman filed a motion to suppress in the Middle Township Municipal Court. The motion was denied by the municipal court judge on October 29, 2007. Following the denial of his motion, Roman pled guilty to operating a vehicle under the influence of intoxicating liquor, N.J.S.A. 39:4-50. He was sentenced to a $306.00 fine, a $200.00 DWI (Driving While Intoxicated) Enforcement Assessment, a $75.00 Safe Neighborhood Assessment, a $50.00 VCCB (Violent Crimes Compensation Board) Penalty, and $33.00 court costs. The municipal court judge suspended Roman's privilege to operate a motor vehicle for seven months, but granted Roman's motion for a stay of the sentence pending appeal.

Roman appealed to the Law Division. On February 27, 2008, Judge Raymond A. Batten denied Roman's motion to suppress, found him guilty of the offense, and imposed the same sentence as was imposed by the municipal court judge. Judge Batten also granted Roman's motion for a stay of the sentence pending appeal. This appeal followed.

Having reviewed the record and considered the points raised on appeal, we conclude that they are without merit and affirm essentially for the reasons set forth in Judge Batten's comprehensive oral opinion. R. 2:11-3(e)(2). We add only the following.

In State v. Golotta, 178 N.J. 205, 221-22 (2003), the Supreme Court held:

We do not, however, suggest that any information imparted by a 9-1-1 caller will suffice. The information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large. The caller also must place the call close in time to his first-hand observations. When a caller bears witness to such an offense and quickly reports it by using the 9-1-1 system, those factors contribute to his reliability in a manner that relieves the police of the verification requirements normally associated with an anonymous tip.

Nor do we suggest that no corroboration or predictive information is necessary in this setting. We adopt the formulation of other courts that the 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or "similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller." We are satisfied that such details, when verified or observed by the officer conducting the stop and viewed within the context of the factors described above, provide an adequate basis under the Fourth Amendment [of the U.S. Constitution] and Article I, paragraph 7 [of the New Jersey Constitution] to justify the government's conduct. [(emphasis in original) (internal citations omitted).] The relevant testimony at the suppression hearing in this case was basically as follows: "[Dispatch] gave me a description and a tag of the vehicle. That it was driving erratically southbound down Dennisville Road; almost had a head-on collision with two vehicles." The police officer saw the vehicle described and followed it briefly before pulling it over. While he personally observed no activity that would itself have justified a motor vehicle stop, it was clearly the same vehicle to which the caller to the police department had attributed erratic driving and two near-collisions.

We are satisfied that there was a sufficient factual basis for the motor vehicle stop. That someone drives properly for a short period when under observation by a police vehicle does not, we believe, undermine the reliability of the information received from the caller for the purposes of justifying the stop. As the Supreme Court noted in Golotta, supra, "an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public and, as such, that factor is substantial when evaluating the reasonableness of the stop itself." 178 N.J. at 218. Although the record does not state that the call came to the dispatcher through the 9-1-1 system, we do not understand Golotta to contain such an absolute requirement.

Affirmed.

20081211

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