On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-097.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011
Before Judges Wefing, Payne and Baxter.
Defendant, Sean Brackin, appeals from an order of the Law Division, following a trial de novo on the municipal court record, finding him guilty of driving while intoxicated (DWI). N.J.S.A. 39:4-50. On appeal, he makes the following arguments:
POINT I OFFICER TOBIN LACKED THE REQUISITE REASONABLE AND ARTICULABLE SUSPICION TO STOP BRACKIN'S VEHICLE WHICH REQUIRES A DISMISSAL OF THE SUMMONSES ISSUED TO BRACKIN.
POINT II THE TRIAL JUDGE'S RELIANCE ON STATE v. MAHON AN UNPUBLISHED OPINION, WITHOUT PRIOR NOTICE OF SUCH RELIANCE, DEPRIVED BRACKIN OF HIS CONSTITUTIONAL RIGHTS OF NOTICE AND AN OPPORTUNITY TO BE HEARD, IN ANY EVENT THAT OPINION IS CLEARLY DISTINGUISHABLE FROM THE FACTS HEREIN.
Prior to trial in the municipal court in this matter, defendant moved to suppress the evidence of his intoxication and other offenses, arguing that the police had lacked a reasonable suspicion of wrongdoing sufficient to justify the stop of his vehicle. At a hearing on defendant's suppression motion, testimony on behalf of the State was given by Denville Police Officer Scott Tobin. He testified that, on October 9, 2009, at approximately 11:00 p.m., he was stopped at a traffic light on Franklin Road and Route 10, facing south toward Route 10. While there, the Officer observed a vehicle, later determined to be operated by defendant, on Route 10 west, stopped at the light, which was green. When asked how long defendant remained stopped at the light, Tobin responded:
Approximately I believe maybe 10 seconds or so. It wasn't . . . you know, that long of time, but again long enough that I believe that when someone has a green light, you know they're going to go through. Defendant then proceeded on the green,*fn1 but was stopped by Tobin, who thought "[e]ither something was wrong with him or his vehicle that someone would sit . . . at a traffic light." No vehicle was behind defendant's car while he was stopped at the light, and defendant committed no motor vehicle offenses after commencing to proceed through the light.
At the conclusion of Tobin's testimony, counsel for defendant argued that the stop was unjustified. In support of that position, counsel relied on State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police's community caretaking function. Additionally, counsel argued that, to the extent that Tobin claimed defendant's conduct was delaying traffic, he had cited to the wrong statute, N.J.S.A. 39:4-56, which is applicable only to delays caused by the condition, construction or loading of a vehicle, not the conduct of its operator. The State argued that the Officer had merely cited to the wrong statute, and that the proper one was N.J.S.A. 39:4-67, which governed obstruction of the passage of other vehicles. Further, the State sought to distinguish Cryan on the basis that it concerned a five-second infraction, whereas the present case concerned a ten-second one.
The judge denied defendant's motion, although the basis for that denial was not clearly set forth. Thereafter, defendant entered a conditional plea of guilty to a second DWI offense, admitting to a blood alcohol content reading of 0.2 as the result of consuming vodka and cranberry juice. The remaining charges against defendant of reckless driving and obstructing the passage of other vehicles were conditionally dismissed.
On appeal to the Law Division, following a review of the record and
oral argument on the law, the judge found that reasonable suspicion
sufficient to justify the stop had been demonstrated as the result of
defendant's delay in proceeding on a green light. In reaching his
conclusion, the judge relied on an unpublished opinion*fn2
affirming a determination that reasonable suspicion was
raised by defendant's conduct in remaining stopped after a light
turned green for more than sixty seconds and by
the fact that the defendant looked directly at the police officer
before proceeding slowly through the intersection. In that decision,
Cryan was distinguished on the basis that the delay in proceeding was
much shorter and the driver did not look directly at the police.
Despite the fact that the evidence in the present case more closely
resembled that of Cryan than the unreported decision upon which the
judge relied, he found the stop to have been justified. After finding
defendant guilty, the judge imposed fines and surcharges, a two-year
loss of license and registration privileges and forty-eight hours of
instruction at the Intoxicated Driver's Resource Center. A stay of
sentence pending appeal was denied.
On appeal, defendant again argues that, as the result of our opinion in Cryan, charges against him should have been dismissed. Although defendant's blood alcohol content was very high, and his conviction for driving while intoxicated was otherwise justified - a matter that we hope has been fully considered by defendant in determining the future course of his conduct - we agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable.
We reject the argument that Officer Tobin's identification of the wrong statute when citing defendant for conduct that obstructed traffic provides an alternative ground for relief. Unlike State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), upon which defendant relies, in the present case, the Officer did not hold a mistaken view of the law at the time he stopped defendant. Compare id. at 381-84. Rather, he understood the law, but misstated the statutory reference. Nonetheless, Officer Tobin could not have had a reasonable belief that a traffic law had been violated, id. at 383, thereby justifying the stop, because as he testified, no cars followed defendant's, and thus there was ...