On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 31-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2010
Before Judges Payne and Koblitz.
Defendant appeals the denial of his motion to suppress evidence of a motor vehicle stop and subsequent plea of guilty to driving after underage consumption of alcohol. N.J.S.A. 39:4-50.14. As part of his plea agreement the court dismissed the other charges against him, driving while intoxicated, N.J.S.A. 39:4-50, and failure to maintain his lane, N.J.S.A. 39:4-88(b). After reviewing his contentions on appeal in light of the record and applicable law, we affirm.
The Pine Hill municipal court denied defendant's motion to suppress without allowing an evidentiary hearing. Defendant entered a conditional plea of guilty to driving after underage consumption of alcohol, preserving his right to appeal the denial of his suppression motion pursuant to R. 7:6-2(c). The municipal court sentenced defendant to $106 in fines, $33 in court costs, and a thirty-day driving license suspension. The sentence was stayed pending appeal.
On his appeal de novo, the Law Division judge conducted an evidentiary motion to suppress hearing.*fn1 It disclosed that on June 26, 2007, at 2:00 a.m., nineteen-year-old defendant was arrested. An experienced Pine Hill police officer testified that he observed defendant's car cross two feet over the center double yellow line and proceed to drive ten miles below the posted speed limit of 35 miles per hour.*fn2 The officer said he could not see defendant's face. The officer stopped defendant for failure to maintain his car in the proper lane of traffic. After administering three standard field sobriety tests, defendant was arrested. He subsequently told the officer he had "[a] couple sips of wine coolers." His blood alcohol content was .04%. Defendant testified that he did not drive over the center lines. His attorney argued that the officer stopped defendant because he was Mexican, making up evidence of the swerve outside the lane as a pretext.
The court found the testimony of the officer to be credible, concluding that the officer's observation that defendant crossed two feet over the double yellow center lines gave him a reasonable and articulable suspicion that a violation of the traffic laws had occurred, which justified the stop. The motion to suppress was denied.
On September 24, 2009, defendant entered a conditional guilty plea to the charge of driving after underage consumption of alcohol. The Law Division judge sentenced defendant to pay $33 in court costs, perform fifteen days of community service, complete and pay for a twelve-hour Intoxicated Driver Resource Center Program (IDRC), and undergo a thirty-day driving license suspension. The execution of the sentence was stayed pending the outcome of this appeal.
On appeal defendant raises the following issues:
I. THIS COURT MUST VACATE THE DEFENDANT'S CONVICTION AND SENTENCE AND ENTER A FINDING OF NOT GUILTY BECAUSE THE RECORD BELOW FAILS TO ESTABLISH THAT THE MOTOR VEHICLE STOP CONSTITUTED A REASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
A. THE DECISION OF THE LAW DIVISION JUDGE TO HOLD A NEW PLENARY HEARING UPON THE DEFENDANT'S MOTION TO SUPPRESS WAS REVERSIBLE ERROR.
1. ON DE NOVO REVIEW ON THE RECORD, WHEN CONSIDERING THE REASONABLENESS OF A WARRANTLESS SEARCH AND SEIZURE, THE LAW DIVISION JUDGE IS GENERALLY BOUND BY THE EVIDENTIARY RECORD MADE IN THE MUNICIPAL COURT IN DETERMINING WHETHER THE STATE HAS JUSTIFIED ITS WARRANTLESS CONDUCT.
2. THE DECISION OF THE LAW DIVISION JUDGE TO HOLD A NEW PLENARY HEARING WAS IMPROPER BEC[A]USE THE "SUBSTANTIAL PREJUDICE TO THE RIGHTS OF THE DEFENDANT" GROUND ARTICULATED IN RULE 3:23-8(a) FOR REMAND OR NEW PLENARY ...