On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 11A-2008-K06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010
Before Judges Payne and Baxter.
Following a trial de novo, defendant Johnny Cruz appeals from his March 16, 2009 Law Division conviction on charges of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to observe a marked lane, N.J.S.A. 39:4-88. The judge sentenced defendant as a second-time DWI offender to a two-year suspension of his driving privileges, required him to perform thirty days of community service and imposed the mandatory fines and penalties. The judge also required defendant to serve forty-eight hours in the Hunterdon County Correctional Facility. Neither the jail sentence nor the driver's license suspension were stayed pending appeal.
On appeal, although phrased as two separate arguments, defendant raises a single claim: the police officer lacked reasonable suspicion to stop defendant's automobile, and therefore the judge erred by denying defendant's motion to suppress. We reject that argument as we are satisfied the record amply supported the Law Division judge's conclusion that defendant's vehicle strayed over the white line separating the lane of travel from the right shoulder of the roadway, in violation of N.J.S.A. 39:4-88(b), thereby justifying the stop. We affirm defendant's DWI conviction.
Officer Jennifer Petruzziello of the Clinton Township Police Department was on routine patrol on Route 31 at approximately 10:09 p.m. on May 25, 2008, when she observed the right tires of defendant's vehicle "cross the shoulder line on the right side of the road" on four occasions. After making those observations, Officer Petruzziello activated her overhead lights and siren. Once the overhead lights and siren were switched on, the mobile video camera on the patrol vehicle began recording defendant's car as it proceeded down Route 31. The mobile video camera also preserved the video footage of the two minutes immediately prior to the camera being turned on.
Once defendant pulled his vehicle to the side of the road, Officer Petruzziello ordered him out of his vehicle and required him to submit to roadside sobriety tests. Defendant's poor performance caused her to charge defendant with DWI and with failure to maintain his lane. She transported defendant to headquarters where a certified AlcoTest operator administered the test, yielding a 0.16 percent blood alcohol reading (BAC).
Defendant filed a motion to suppress, arguing that Officer Petruzziello lacked a reasonable and articulable suspicion that a motor vehicle offense had been committed, and therefore the stop was unlawful and the fruits of that stop should be suppressed. At the hearing on defendant's motion to suppress, the State presented Officer Petruzziello, who testified that she observed defendant's vehicle cross into the shoulder four times. The judge, counsel and defendant then watched the videotape of defendant's vehicle as it proceeded down Route 31 on the night in question. While watching the videotape, Officer Petruzziello pointed out the four occasions that defendant's car crossed over the white line into the shoulder. After reviewing the videotape and considering the testimony of the officer, the municipal court judge held that the stop of defendant's vehicle was based on a reasonable and articulable suspicion that defendant had committed a motor vehicle offense, namely, that he crossed over into the shoulder, thereby failing to maintain his vehicle within the marked lane, as required by N.J.S.A. 39:4-88(b).
In particular, the municipal court judge noted that while watching the videotape, he had observed defendant's vehicle cross the white line of the shoulder twice, rather than the four times that Officer Petruzziello had described. The judge commented that on several other occasions he had noticed defendant's tires touching the white line, but not crossing into the shoulder. Ultimately, the judge concluded that whether it was two times, or instead four times, was "not the conclusive factor" because "[w]e have the officer's testimony that she saw this happen four times. The fact that it was only captured on camera twice does not mean that the officer is incorrect about that, it simply means that the video camera did not go back for that period of time . . . ." The judge concluded that defendant's violation of N.J.S.A. 39:4-88(b) authorized Officer Petruzziello to effectuate the stop of defendant's vehicle. The judge therefore denied defendant's motion to suppress. The judge also found defendant guilty of violating N.J.S.A. 39:4-88(b).
After some brief additional testimony from Officer Petruzziello, defendant stipulated that his BAC was 0.16 percent. The judge found defendant guilty of DWI, based upon that stipulation.
Defendant appealed his convictions to the Law Division. At the conclusion of the trial de novo, Judge Mahon held that Officer Petruzziello possessed a reasonable and articulable suspicion that defendant had committed a motor vehicle offense, namely, failure to operate his vehicle within a marked lane. The judge reasoned that reasonable suspicion is a "lower standard than the probable cause necessary to sustain an arrest" because "the reasonable suspicion standard does not require proof that a defendant actually committed [the] motor vehicle offense. [Instead, the State] need only prove that the officer had a reasonable and articulable suspicion of a violation."
The judge noted that N.J.S.A. 39:4-88(b) requires a driver to drive, as nearly as practicable, entirely within a single lane. Turning to the record before him, the judge concluded that the videotape "amply demonstrated that the defendant's vehicle was in violation of [N.J.S.A. 39:4-88(b)] by driving on and over the shoulder line of the roadway." The judge held that because Officer Petruzziello observed defendant's vehicle cross into the shoulder, she was authorized to effectuate a stop of defendant's vehicle. The judge therefore denied defendant's motion to suppress. ...