March 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEBORAH J. BUTLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 11A-2009-K23.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2011 - Decided
Before Judges Carchman and Messano.
Following an unsuccessful motion to suppress, defendant Deborah J. Butler entered a plea of guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50. Her license was suspended for a period of seven months, and she was assessed fines and penalties. A trial de novo was conducted in the Law Division, and again, defendant's motion to suppress was denied. A stay entered by the municipal court was vacated, and defendant's seven-month suspension followed. This appeal followed, and we denied defendant's motion to stay the suspension. We affirm.
On appeal, defendant asserts that the trial judge erred in finding that defendant's arrest for DWI was based on probable cause. While defendant focuses exclusively on the observation and conduct of the arresting officer, an examination of the facts reveals an extensive factual basis established by the observations of a disinterested witness who called 9-1-1 to report defendant's erratic driving, which prompted a police response, for concluding that there was probable cause. In addition, observations made by the officer at defendant's home coupled with the conduct of her boyfriend provided sufficient underpinnings to conclude that there was sufficient probable cause to justify the arrest.
We restate the factual findings of Judge Rubin on the trial de novo of the motion to suppress. On Friday, October 10, 2008, Carol Papazian, was the front seat passenger in a vehicle driven by her husband, traveling westbound on Route 22. The Papazians noticed a vehicle in front of them that was "practically zig-zagging" in traffic. Mrs. Papazian called 911 on her cell phone when her husband suggested passing the vehicle driving erratically. Mrs. Papazian provided the dispatcher with a description of the vehicle and the license plate number. The Papazians followed the vehicle, and a second vehicle closely following the erratic driver. The Papazians followed the two vehicles onto Ridge Road. The first vehicle continued to "zig-zag" to the point where it hit an embankment, causing sparks to come from the vehicle. Mrs. Papazian stayed on the phone with the dispatcher the entire time, and relayed this information to dispatch. Mrs. Papazian testified that "it was like no one was driving the car and the car was just hitting the sides . . . ." Near the end of Ridge Road, a police car began following the Papazians. This was confirmed by dispatch when Mrs. Papazian was asked if they were driving a Nissan Murano. After the police arrived, the Papazians continued to their house without speaking to the police.
Readington police officer, Joseph Reilly ("Officer Reilly") was dispatched at approximately 10:01 on a report of an aggressive or drunk driver. Officer Reilly proceeded to the area of Pulaski Road, where the 911 caller stated they traveled. The officer observed a silver Honda Accord, make a right turn onto North Honeyman Road, and noticed that the car was being followed closely by a white vehicle. Prior to activating emergency lights and effectuating a vehicle stop, the officer confirmed with the dispatcher that he was following Mrs. Papazian in her Nissan Murano, and that the car in question was a silver Honda Accord. When following the vehicle, Officer Reilly observed the silver Accord make a right turn onto Pulaski at a very slow rate of speed, engaging the brakes several times while making the turn. Upon turning onto North Honeyman, the officer activated the overhead emergency lights, and attempted to effectuate the motor vehicle stop. At that time, the silver Honda Accord made a left turn into the driveway of . . ., with the white car followed closely behind. The white car stopped at the driveway entrance allowing the silver Honda to proceed into the garage. Officer Reilly then exited his vehicle, approached the white car, and requested identification from the driver of the white car. The driver of the white car produced credentials and identified himself as Edward Pellegrino. The officer and Mr. Pellegrino approached the garage as the driver of the Accord was exiting her vehicle. The driver of the Honda produced credentials identifying her as Deborah Butler.
At the Municipal Court hearing, Edward Pellegrino testified for the Defendant. He admitted that he was dating the Defendant, but that the relationship did not interfere with his testimony. Mr. Pellegrino testified that he followed the Defendant back to her house, that she was not driving erratically, and denied that she struck anything. However, on cross-examination Mr. Pellegrino testified that earlier on the evening of October 10, 2008, he and the Defendant shared a pizza dinner at a restaurant after having buffalo wings at another restaurant. He also admitted that he observed the Defendant consume four glasses of wine.
Judge Rubin also concluded that at the time Mrs. Papazian was following defendant's vehicle, the witness was on the phone with the Hunterdon County Dispatcher describing, in detail, the erratic operation of the vehicle and including a description of the vehicle.
We have carefully reviewed the record. We conclude that defendant's arguments are without merit and do not warrant full discussion in a written opinion. R. 2:11-3(e)(2). We do add the following comments.
We find little meaningful distinction between the facts established here and those detailed by the Supreme Court in State v. Golatta, 178 N.J. 205 (2003), relied on by Judge Rubin. See also State v. Amelio, 197 N.J. 207 (2008). In fact, if anything, the facts here are stronger. The 9-1-1 caller was identified, gave a real-time report to the operator as she observed defendant's conduct and provided the factual basis for the officer to investigate and then make his independent observations of defendant's erratic driving. The officer's arrest of defendant was based on sufficient probable cause as found by both the municipal court and Law Division.
We affirm substantially for the reasons set forth in Judge Rubin's thorough and thoughtful written opinion of March 11, 2010.
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