May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY RAMEN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2009
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 things of that nature and much is made on cross-examination about omissions in police reports and, certainly, it goes to credibility.
But the question the court has before it is whether or not the stop was somehow constitutionally defective. I don't see the Fourth Amendment connection . . . between the disallowance of the radar as a taint against any other testimony that officer may give in connection with her observations. I don't see that as a constitutional chain, or fruit of the poisonous tree argument. To me, the radar issue was strictly a discovery issue, a due process issue, a court-required issue based on what's required in order to admit the radar reading. And I see that as separate and distinct from the basis for the stop.
I do believe that there must be a basis for the stop and there must be a reasonable basis for it, but I believe that's unrelated to the question of the rule-out of the radar reading.
Next, Judge Villano reviewed the evidence in the record, finding that when Officer Miller heard her radar gun buzzing, she simultaneously observed defendant's vehicle going at a high rate of speed, well in excess of the applicable speed limit. The judge also found that based upon Miller's experience on the police force and her training in identifying cars traveling at a high rate of speed, Miller was qualified to determine that defendant was driving in excess of the applicable speed limit based solely upon her visual observations. The judge held that Miller's observations of defendant's speeding provided a "reasonable, . . . particularized and objective basis" for stopping his vehicle.
After giving deference to the municipal court's findings concerning Miller's credibility, Judge Villano concluded the evidence established defendant's guilt beyond a reasonable doubt on the charge of driving while intoxicated. The judge imposed appropriate fines and penalties, and suspended defendant's driver's license for a period of two years. The sentence is not an issue on appeal, nor does defendant challenge the sufficiency of the evidence on the DWI charge itself. Instead, he claims:
I. THE COURT ERRED BECAUSE THE 4TH AMENDMENT OF THE U.S. CONSTITUTION REQUIRES THE SUPPRESSION OF EVIDENCE FROM AN UNCONSTITUTIONAL AUTOMOBILE STOP.
II. THE COURT BELOW INCORRECTLY FOUND THAT THE STOP COULD BE SUPPORTED BY OTHER GROUNDS, REQUIRING A REVERSAL OF THE CONVICTION.
III. ALLOWING AN OFFICER TO TESTIFY AS TO THE EVENTS IN AN EFFORT TO GLEAN SOME OTHER POSSIBLE PROBABLE CAUSE TO VALIDATE THE STOP VIOLATES THE RULES OF DISCOVERY AND CREATES COMPLETE SURPRISE AT THE TIME OF TRIAL.
A defendant convicted in municipal court must appeal first to the Law Division, State v. Cerefice, 335 N.J. Super. 374, 380-81 (App. Div. 2000), where review is de novo on the record.
R. 3:23-8(a); State v. Ward, 303 N.J. Super. 47, 55 (App. Div. 1997). In a Law Division trial de novo, the judge must "determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964).
On appeal to the Appellate Division, this court does not "engage in an independent assessment of the evidence as if it were the court of first instance," but instead determines whether the Law Division's findings reasonably could have been reached on the record before it. State v. Locurto, 157 N.J. 463, 470-72 (1999).
Stopping an automobile and detaining its occupant, even if only for a brief period and for a limited purpose, constitutes a seizure under the Fourth and Fourteenth Amendments. State v. Hickman, 335 N.J. Super. 623, 633-34 (App. Div. 2000). Consequently, a police officer is not authorized to stop a motor vehicle unless he or she had an articulable and reasonable suspicion that either the vehicle or the occupant therein is otherwise subject to seizure for violation of the law. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997).
We reject defendant's argument that the State's failure to provide information about the radar gun calibration required the judge to bar Miller's testimony describing her visual observations of the speed of defendant's vehicle. That discovery violation, on its own, is not material because it fails to create a reasonable doubt that would not otherwise exist. State in the Interest of D.P., 232 N.J. Super. 8, 20 (App. Div. 1989).
Defendant's reliance upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), and State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), is misplaced. Both of those cases address the State's failure to turn over exculpatory material. Here, the evidence concerning the radar gun was inculpatory, not exculpatory, and neither Brady nor Marshall provides any support for defendant's position.
Moreover, defendant has cited no persuasive authority in support of his contention that Miller's testimony should have been confined to the four corners of her report. At the time Miller prepared her report, she had no way to predict that ultimately the State would omit the radar gun calibration data from its discovery package, and the radar gun testimony would therefore be disallowed. Consequently, at the time she wrote her report, there was no need to also include a description of her visual observations.
We do agree, however, that her failure to include such information in her police report presented a legitimate credibility issue, which defendant explored fully in the municipal court. We agree with the municipal court judge's conclusion that Miller provided a valid basis for not providing such information in her report and that such omission had no bearing on the State's ability to produce evidence regarding Miller's visual observation. Consequently, the discovery violation had no just bearing upon other evidence, namely Miller's visual observations, which supported the validity of the stop.
We reject defendant's argument that because the municipal court ultimately found defendant not guilty of speeding, all evidence pertaining to speeding should have been excluded, thereby invalidating the stop. As the Court held in State v. Williamson, 138 N.J. 302, 304 (1994):
[T]he State need not prove that a motor-vehicle violation occurred as a matter of law. Constitutional precedent requires only reasonableness on the part of the police, not legal perfection. Therefore, the State need prove only that the police lawfully stopped the car, not that it could convict the defendant of the motor-vehicle offense.
Last, defendant was not surprised by Miller's testimony. The suppression hearing, at which the testimony of her visual observations was first presented, occurred on October 5, 2006. The municipal court judge rendered his decision on the suppression motion on November 2, 2006. It was not until December 15, 2006, some six weeks later, that Miller again testified substantively to her visual observations. Thus, defendant was not taken by surprise and had ample opportunity to prepare for Miller's testimony.
We are satisfied, as was Judge Villano, that once Miller observed defendant's speeding vehicle, such motor vehicle violation authorized Miller to conduct the stop. Smith, supra, 306 N.J. Super. at 380. On appeal, defendant does not challenge the adequacy of the proofs regarding the DWI conviction; however, our own independent review of the record demonstrates the proof was more than sufficient to establish his guilt beyond a reasonable doubt on the violation of N.J.S.A. 39:4-50.