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State v. Cilli

January 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
VICTOR E. CILLI, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-097.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2010

Before Judges Baxter and Alvarez.

By leave granted, the State appeals from a July 9, 2009 Law Division order, which in a trial de novo, granted defendant's motion to suppress evidence that resulted from a motor vehicle stop. The municipal court had previously denied defendant's motion to suppress, after finding the motor vehicle stop to be lawful, and found defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We agree with the State's contention that the Law Division erred by unjustifiably disregarding the municipal court judge's credibility findings, by improperly considering the arresting officer's subjective intent, and by questioning the officer's asserted reason for the stop merely because the detective did not immediately ask defendant to produce his driver's license and registration. We reverse the interlocutory order under review, reinstate defendant's DWI conviction, and remand to the Law Division for imposition of sentence.

I.

In the early morning hours of November 1, 2008, defendant Victor Cilli was backing his vehicle out of a parking space in a crowded parking lot behind a strip mall in Riverdale. The strip mall contained a bar. At the same time as defendant was backing out of the parking space, Detective John Barone of the Riverdale Police Department was patrolling the strip mall parking lot because the strip mall was located in a high crime area.

As Barone was proceeding through the parking lot, he observed defendant's vehicle backing out of a parking space "a little quickly." It was apparent to Barone that defendant did not see him because the rear of defendant's vehicle came within inches of striking the driver's side of Barone's patrol vehicle. Barone testified that his vehicle was only a "couple of feet" away from defendant's vehicle when defendant began to back out of the space. According to defendant, because larger vehicles were parked on his left and right, he could not see to either side as he backed up, and therefore was proceeding very slowly. He testified that he brought his vehicle to a stop only because he "could hear someone yelling and screaming at [him]."

Immediately after defendant came to a stop, Barone approached defendant's vehicle, directed him to open the window, and told defendant that he had almost struck Barone's vehicle. Barone testified that his purpose in speaking with defendant was "just to see if everything was okay." As he began speaking with defendant, he formed a "sensory impression" that defendant was under the influence of alcohol. Consequently, he asked defendant for his license and registration. He charged defendant with careless driving, N.J.S.A. 39:4-97, and with DWI.

At trial in the municipal court, defendant argued that the stop of his motor vehicle was unlawful and that the evidence of DWI should therefore be suppressed. Defendant advised the judge that his sole challenge was to the validity of the stop, and that other issues, such as whether there was probable cause to arrest, and whether the Alcotest results were valid, were not in dispute.

At the conclusion of the testimony, the municipal court judge, John A. Paparazzo, found the detective's testimony more credible than defendant's. He rejected defendant's claim that if he had continued to back out of the parking space, he would not have struck Barone's patrol vehicle because it was still four feet behind his rear bumper. The judge rejected defendant's testimony and specifically found Barone "was actually forced to stop" his vehicle to avoid being struck by defendant. The judge concluded that Barone "absolutely had a right" to stop defendant's vehicle "because he almost got struck by the car. He had a right to inquire. He had a right to address the defendant, make sure he was okay." For those reasons, the municipal court judge concluded that Detective Barone had a reasonable and articulable suspicion that a motor vehicle offense, namely careless driving, had been committed and that such suspicion justified the motor vehicle stop Barone conducted. The judge denied defendant's motion to suppress.

On de novo appeal to the Law Division, in a written opinion, the court granted defendant's motion to suppress. The Law Division did so for three reasons: 1) Barone detained defendant not to cite him for a motor vehicle violation but only "to see if everything was okay," and thus the detective's "articulated" reason for the stop did not involve either suspicion of criminal activity or a motor vehicle violation and was therefore unlawful; 2) Barone did not request defendant's credentials at first, "which at least inferentially would have been probative of his intent to cite [defendant] for a moving violation," and thus the detention for the reason articulated [by Detective Barone] "does not pass constitutional muster"; and 3) defendant should not have been found guilty of careless driving because he exercised due care by backing slowly out of the parking space, and therefore the stop of his vehicle, which was based on careless driving, was unlawful.

After finding the motor vehicle stop unlawful, the Law Division suppressed the Alcotest readings, found defendant not guilty of careless driving, and remanded the matter to the municipal court for further proceedings. Before a judgment of acquittal was entered on the DWI, the State sought, and was granted, leave to appeal the Law Division's order that granted defendant's motion to suppress.

On appeal, the State maintains that the Law Division judge's reasoning was flawed in several respects. First, the State maintains that its proofs amply supported a finding that defendant operated his vehicle in a careless manner, thereby justifying the stop. The State maintains that the judge improperly conflated the beyond a reasonable doubt standard that is required to convict a defendant on a motor vehicle offense with the less demanding standard of reasonable and articulable suspicion that is necessary for a valid motor vehicle stop. Second, the State contends that the Law Division erred by giving dispositive weight to Barone asking defendant if he "was okay" before directing defendant to produce his credentials; the judge erroneously used the sequence of events as a basis for finding that there was a discrepancy between Barone's stated reason for the stop, namely defendant's careless operation of his vehicle, and what the judge believed was the true reason for the stop, namely to ensure that defendant was not suffering from a ...


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