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State v. Fash

September 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL W. FASH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 19-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges LeWinn and J.N. Harris.

On October 24, 2007, defendant was charged with three motor vehicle summonses: driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f). Defendant filed a motion to suppress in the municipal court, claiming that the police did not have a reasonable and articulable suspicion to justify the motor vehicle stop. On April 23, 2008, the municipal judge held a hearing on defendant's motion and, in an order filed on April 29, 2008, denied that motion but granted defendant a stay pending an interlocutory appeal to the Law Division.

On March 16, 2009, a Law Division judge heard oral argument on defendant's interlocutory appeal and, at the conclusion of the hearing, rendered an oral decision from the bench denying his motion and remanding the matter to the municipal court. On April 15, 2009, defendant entered a conditional guilty plea to DWI in the municipal court, specifically preserving his right to appeal the denial of his motion to suppress.*fn1 He was sentenced to an eight-month suspension of his driving privileges, along with the appropriate penalties and assessments.

On April 22, 2009, defendant filed an appeal de novo to the Law Division, challenging the length of the suspension of his driving privileges and seeking a continued stay pending appeal to this court. On August 28, 2009, another Law Division judge issued an order reducing defendant's sentence to a seven-month suspension of driving privileges and granting a stay of sentence pending appeal. Defendant now appeals from the denial of his motion to suppress. We affirm.

The evidence pertinent to our decision may be summarized from the transcript of the hearing on defendant's motion to suppress in the municipal court.

Manchester Township Police Officer Richard Conklin testified that

on October 23, 2007, at approximately 23:42 hours, [he] was dispatched to the parking lot of the Wawa store, 1180 State Highway 70 in Whiting, New Jersey, in reference to a report of a possible intoxicated driver. Dispatch advised that a Wawa employee had contacted police and stated that a blue Ford F-250 pickup truck with a male driver was in the parking lot and the caller believed the driver to be intoxicated.

....

... [U]pon arriving at the scene, [he], in fact, observed a vehicle matching the description given by [d]ispatch beginning to pull out of a parking spot of the Wawa. At the same time, the Wawa employee was pointing to the vehicle.

....

The vehicle was identified by [the officer] as being a blue... Ford 250 [sic] pickup truck.... As the vehicle began to pull out, [he] observed the driver was not wearing his seatbelt. After making that observation, [he] activated [his] emergency lights and effectuated a motor vehicle stop, and the vehicle came to a stop in the parking lot. Conklin identified defendant as the driver of the vehicle.

He testified that the Wawa parking lot was "[v]ery well lit[,]" and that there was nothing "obstructing [his] view" of defendant's vehicle.

On cross-examination, defense counsel played a tape of the Computer Assisted Dispatch (CAD) to which Conklin had responded.

The tape was not transcribed in the municipal court proceedings and is not in the record before us. We base our understanding of the contents of the ...


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