On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and St.John.
Following an unsuccessful motion to suppress in the Tinton Falls Municipal Court, defendant James Fox entered a conditional plea of guilty to a violation of driving while intoxicated, N.J.S.A. 39:4-50. The municipal judge sentenced defendant as a second offender to a license suspension of two years, a two-year revocation of registration, thirty days of community service as well as two days in jail to be served in the Intoxicated Driver Resource Center. In addition, defendant was assessed mandated fines and penalties. Defendant filed an appeal in the Law Division and following a de novo hearing on the motion to suppress, Judge Ronald L. Reisner denied the motion. He thereafter sentenced defendant to the same sentence imposed in the municipal court.*fn1 We affirm.
These are the facts adduced at the hearing on the motion to suppress. During the afternoon hours of February 28, 2009, Stephanie Alesi, then three and a half months pregnant, was a passenger in a vehicle operated by her husband,*fn2 proceeding northbound in the center lane on the Garden State Parkway.
Alesi, whose vehicle was traveling at a speed of sixty miles per hour, saw defendant's vehicle, which she identified as a "red Dodge Ram," in the left lane. She noted that defendant's vehicle was only "a few feet" behind the driver in front of him, and the vehicle was being driven erratically. As she characterized the operation of the vehicle, it "[j]ust [kept] speeding up, getting close to the person in front, then backing off. Speeding up, cutting across lanes. Just totally erratic." After she told her husband to "stay clear" of defendant, her husband "sped up a bit" to a speed of approximately seventy miles per hour, and they lost sight of defendant.
Approximately fifteen minutes later, Alesi and her husband were in the "second from the right lane" in light traffic when her husband said, "[O]h my God, what is this guy doing?" When she turned to look behind her, she saw defendant's vehicle. Defendant's vehicle then struck the Alesi vehicle "in the left rear driver's side." Mr. Alesi "immediately attempted to pull over, stunned," but they were struck by defendant's vehicle a second time, sending their car "completely out of control." According to Alesi, the vehicle spun several times, "[w]ent across the rest of the lanes and landed . . . in the [median] of the Parkway on the other side."
An off-duty police officer, Detective Frederick Soos, a former patrol officer, was also traveling on the Parkway at the same time and observed the operation of defendant's vehicle. According to Soos:
I was driving northbound on the Parkway. I'm not 100 percent sure of . . . exactly where I was. I know it was a couple of miles south of Exit 98.
I was in the left lane, and I recall seeing a red pickup truck come up behind me at a high rate of speed. And I remember saying to my father, who was sitting in the backseat, . . . pop, this guy's getting awful close to me.
And it was actually to the point where I actually couldn't see his lights in my rearview mirror. And . . . I saw him swerving back and forth, unable to maintain the lane.
And I remember I was a little nervous because I couldn't get over [to a new lane]. . . . And I was actually worried that he was going to strike me.
I noticed him come behind me, and he was having trouble maintaining the lane. He was . . . going all over the road, all over the lane. A couple of times he actually swerved to the point where he was over on the shoulder.
And I remember seeing sand and dust kick up from him . . . almost going on the median. As soon as I could, I sped up a little bit and I tried to get over. Because I remember just wanting to get away at that point, get him so he wasn't near me.
I remember moving over to the middle lane so I could kind of keep a distance from him. And at that point he was able to get past me. And I observed him, he was . . . all over the road.
He would go from the left lane all the way over to the right lane, you know, back to the left lane. He would slow down, speed up, slow down, speed up, weaving in and out of traffic for the period of a couple miles.
Soos called 9-1-1 to report that defendant was "driving recklessly." Although he lost sight of defendant during "a couple periods," Soos followed defendant for several miles. According to Soos, defendant left the Parkway at Exit 98, then reappeared "[m]aybe a minute or so later."*fn3 After "a space of a couple more miles," Soos drove "over the crest of a hill" and saw that an accident had occurred. Soos then stopped to offer assistance:
Q. Okay. Did you pull over at that point?
A. At that point I did. I was in the middle lane. . . . I stopped my car maybe 50 feet or so behind the vehicle, the red pickup truck, and encountered [defendant].
Q. Okay. Did you have a conversation with [defendant]?
A. Yeah, he had gotten out of his truck and was walking northbound on the east side of the Parkway there. At that point I grabbed him by the back of the shirt. I told him I was a police officer and I told him to stay put with his vehicle till the State Police arrived.
Q. As a police officer who has had training in motor vehicle stops and DWIs,*fn4
did you have any opinion as to the state of this individual?
A. I mean, when I encountered him I smelled the odor of alcohol. . . . [I]t wasn't my place to investigate any further than that. But I did detect an odor ...