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State v. Cilli


January 14, 2010


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

Per curiam.


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.


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 medical problem or other impairment. Third, the State argues the Law Division impermissibly conducted a subjective evaluation of Detective Barone's motives, in violation of relevant precedent, which requires courts to evaluate police conduct under an objective standard.

Defendant urges us to affirm, arguing that the State's proofs did not establish a reasonable and articulable suspicion of wrongdoing that would justify a stop of his vehicle. He further maintains that the mere occurrence of a near-accident is not a sufficient basis from which to conclude that he operated his vehicle carelessly.


In an appeal from a trial de novo in the Law Division, we are obliged to accept the Law Division's findings of fact so long as they are based on substantial and credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). We review the Law Division's conclusions of law de novo. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

A motorist is prohibited from driving "carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-97. Thus, if Detective Barone had a reasonable and articulable suspicion that defendant violated N.J.S.A. 39:4-97, he was authorized to effectuate a motor vehicle stop. A police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense. State v. Elders, 192 N.J. 224, 247 (2007).

In determining the validity of a motor vehicle stop, we do not determine whether the defendant was guilty of the violation, or whether the State offered proof sufficient to establish a defendant's guilt beyond a reasonable doubt on the motor vehicle infraction. Instead, our review is confined to whether the officer had an objectively reasonable suspicion that a motor vehicle offense had been committed. State v. Pitcher, 379 N.J. Super. 308, 315-16 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

We are satisfied from our review of the record that, contrary to the conclusions reached by the Law Division, defendant was backing out of the parking space without due caution and circumspection in a manner so as to endanger, or be likely to endanger, Detective Barone or his vehicle. Defendant himself conceded that he never saw Barone's vehicle and stopped only because he heard Barone "yelling and screaming" at him. Had Barone not been so vocal, and had he instead assumed that defendant would soon bring his vehicle to a stop, a collision would have occurred. Even by defendant's own admission, half of his vehicle was already out of the parking space at the time he heard Barone yelling at him.

While we recognize that a driver's view of oncoming traffic may at times be somewhat obscured by larger vehicles to his right and left, a driver who permits the rear of his vehicle to come within inches of an oncoming vehicle without ever seeing the other car is a driver who has operated his vehicle "without due caution and circumspection." See N.J.S.A. 39:4-97. Under such circumstances, a police officer viewing such conduct has a reasonable and articulable suspicion that the driver has committed a violation of the motor vehicle laws, thereby authorizing the officer to stop the vehicle. Elders, supra, 192 N.J. at 247.

Defendant's reliance on State v. Wenzel, 113 N.J. Super. 215, 217 (App. Div. 1971), is misplaced. There, we held that the mere occurrence of an accident is not a sufficient basis from which to conclude that the defendant operated his vehicle carelessly. Ibid. In Wenzel, defendant was charged with careless driving when his tractor-trailer jackknifed and struck another vehicle. Id. at 216. The State's only witness, a police officer, did not see the accident and there was no evidence establishing that the defendant drove without due caution or circumspection. Id. at 216-17. Nonetheless, both the municipal court and the Law Division determined that an otherwise unexplained jackknifing of a truck was sufficient to establish careless driving. Id. at 217. We reversed, holding that there was no testimony that defendant was speeding, or indeed, that he had driven carelessly. Id. at 217-18.

The facts here are clearly distinguishable from those in Wenzel. As we have already noted, defendant admitted that he stopped only because he heard the detective yelling and screaming at him, and conceded that he never saw the patrol vehicle while backing out of the parking space. Although he denied that his rear bumper was within a few inches of the patrol vehicle, as Barone claimed, he did admit that his vehicle was "fairly close" to the patrol vehicle.

Unlike the police officer in Wenzel, who was not present when the tractor-trailer jackknifed, here Detective Barone was present and personally observed defendant back out of a parking space, too quickly, without observing the patrol vehicle that was in his path. Under those circumstances, Detective Barone possessed a reasonable and articulable suspicion that defendant was operating his vehicle carelessly. The Law Division's conclusions to the contrary were error.

Although that determination is sufficient basis for reversal, we comment briefly on other portions of the judge's opinion. The judge's conclusion that Detective Barone lacked reasonable and articulable suspicion to justify the stop of defendant's vehicle was based, at least in part, on the judge's dim view of Detective Barone's credibility. While it is true that the Law Division is not required to blindly accept a municipal court judge's assessment of a witness's credibility, the Law Division is obliged to give due regard to those credibility findings and is not free to lightly disregard them. State v. Johnson, 42 N.J. 146, 157 (1964). Here, having had the opportunity to observe Detective Barone's demeanor while he testified, the municipal court judge expressly found Barone to be credible. The Law Division was not entitled to disregard those credibility findings in Detective Barone's favor on so slender a reed as the Detective's slight delay in asking defendant to produce his license and registration. The judge did not provide, and defendant has not cited, any authority for the proposition that asking a defendant a question, such as whether he "was okay," before requiring defendant to produce his driving credentials, invalidates an otherwise lawful automobile stop. Thus, to the extent that the judge's ultimate conclusions on the validity of the stop were influenced by the sequence of events, such finding was erroneous.

The Law Division's conclusion that the stop was in violation of defendant's Fourth Amendment rights was also influenced, to a great degree, by the judge's skepticism about Detective Barone's motives when he effectuated the motor vehicle stop. According to the judge, the officer stopped defendant not to cite him for a motor vehicle violation but instead to determine if "everything was okay" with defendant, and thus the officer's "articulated" reason did not involve suspicion of criminal activity or of a motor vehicle violation. The judge reasoned that Barone had the opportunity on direct examination to state otherwise, but had not done so.

In so concluding, the Law Division ignored the substantial body of caselaw that requires judges to evaluate the lawfulness of a stop, a search, or a seizure of a defendant, based only on objective evidence. Excepting instances of racial profiling, which are not present here, judges are not permitted to speculate about an officer's subjective or undisclosed motivations. State v. Bruzzese, 94 N.J 210, 222, 228 (1983) (observing that "'sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources'") (internal citation omitted). Thus, we reject the Law Division's conclusion that any subjective motivation Detective Barone may have had negates the officer's objective reason for the stop, namely, defendant's careless operation of his vehicle.

We thus reverse the granting of defendant's motion to suppress and reinstate the Alcotest evidence. We remand to the Law Division for the entry of a judgment of conviction on the DWI offense and for the imposition of sentence.*fn1

Reversed and remanded.

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