On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 04-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Defendant, Gary Ramen, appeals from his February 27, 2008 conviction, following a trial de novo, on a charge of driving while intoxicated, N.J.S.A. 39:4-50. On appeal, he maintains the Law Division erred when it rejected his claim that his conviction should be reversed because the stop of his vehicle was not supported by an articulable and reasonable suspicion that he had committed a motor vehicle offense. We affirm.
On March 31, 2006, Officer Lynn Miller of the Lakewood Township Police Department set up stationary radar in her patrol car while located on Route 70. Two to three minutes later, while her "eyes were focused straight ahead toward the windshield," she observed a vehicle approaching her "going at a very high rate of speed."
Miller testified that she had received extensive training on detecting speeding vehicles solely based on visual observation. Miller also testified that she had "no question" that defendant's vehicle was exceeding the fifty mile per hour speed limit.
At the same time that Miller was making those observations, the radar gun was buzzing, signifying that the approaching driver was speeding. After observing the radar gun reading, Miller effectuated a motor vehicle stop. She ordered defendant to step out of the vehicle to perform field sobriety tests, which he failed. Because of a discovery violation,*fn1 the municipal court judge barred the State from relying on the reading from the radar unit. Defendant then moved to bar the State from presenting testimony of Miller's visual observations of defendant's vehicle, contending that such testimony was "fruit of the poisonous tree." Defendant argued that because Miller failed to include in her police report any description of her purported visual observation that defendant was speeding, Miller should not be permitted to testify about those observations. The municipal court judge rejected defendant's argument, concluding that the State's failure to turn over the documents attesting to the calibration of the radar gun had no bearing on the State's right to present testimony unrelated to the radar reading.
The municipal court judge made detailed findings of fact, in which he specifically found Officer Miller credible:
I find that [Officer Miller] testified in a credible fashion . . . . [W]e're dealing with a situation . . . where the officer's observations are the critical, and in fact the only point of the case[.] [T]he officer . . . testified such that I have no doubt about her credibility, her manner, her demeanor, her way of speaking were such that I am satisfied that she . . . remembers this encounter with the defendant and remembers it accurately and was able to tell us about it accurately, clearly, distinctly[. T]here was nothing that in my mind would suggest[,] having listened to the testimony and . . . watch[ing] the officer carefully[,] . . . that the officer was in any way unclear about what happened or had difficulty remembering or had embellished facts or something of that sort. I just did not hear anything that would cause me to have any concern with the officer's testimony and I find her to be more than credible in this instance.
Based upon defendant's inability to perform the field sobriety tests, his admission that he had consumed two glasses of Grey Goose vodka, and the smell of alcohol on defendant's breath, the municipal court judge found defendant guilty of DWI. Ultimately, the judge found defendant not guilty of speeding because the State did not prove the speeding violation beyond a reasonable doubt; however, the judge emphasized that Miller's observation of defendant driving in excess of the speed limit authorized the stop.
In a comprehensive and well-reasoned oral opinion, Judge Villano, like the municipal court judge, rejected defendant's argument that because the State failed to include the radar calibration data in its discovery package, the State was precluded from offering Miller's testimony of her visual observation of defendant's speed. The judge likewise rejected defendant's contention that once the municipal court found the evidence insufficient to establish defendant's guilt beyond a reasonable doubt on the charge of speeding, all testimony regarding speeding should have been barred as "fruit of the poisonous tree." Judge Villano reasoned:
[A]n officer is not limited to the four corners of the report. It's not akin to . . . a search warrant affidavit . . . where you're limited to just the four corners of the affidavit in a review. This is live testimony given by an officer and [she is] allowed to discuss [her] observations. Whether it is in the report or not sometimes go[es] to a clear question of credibility. Sometimes [officers] don't put down [in their report] what clothing somebody was wearing or they don't describe the lighting conditions or ...