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State of New Jersey v. Irwin Morrisey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IRWIN MORRISEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 30-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 19, 2012

Before Judges Ashrafi and Fasciale.

After pleading guilty, defendant appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. The primary issue is whether the police had a reasonable articulable suspicion to stop defendant's vehicle. Defendant contends that the police lacked probable cause and, as a result, "the evidence derived [from the stop] should be suppressed." We disagree and affirm.

The events leading to the motor vehicle stop occurred at the intersection of County Road 530 (530) and Route 206 (206). Defendant had been traveling on 530 towards 206, and Officer Thomas O'Connor, driving a marked police vehicle, followed twenty feet directly behind defendant's car and never lost sight of him. When defendant reached the intersection, he intended to turn right onto 206 northbound.

Officer O'Connor testified at the motion to suppress hearing that defendant failed to obey a yield sign which controlled traffic traveling from 530 onto 206 northbound. As a result of defendant's failure to yield, a pickup truck traveling north on 206 stopped to avoid colliding with the driver's side of defendant's car. The officer then pulled defendant over within 100 feet from the intersection, arrested defendant, and charged him with DWI, careless driving, N.J.S.A. 39:4-97, and failure to yield, N.J.S.A. 39:4-144.

The municipal court judge conducted a hearing of the motion to suppress, considered the officer's testimony, viewed a DVD of the stop recorded by the patrol car's dashboard camera, and viewed a DVD of the area where the stop occurred provided by defendant. The judge issued an oral opinion denying the motion and stated:

In this case the officer's testimony was that there was a vehicle going eastbound on 530 making a left turn to go north on 206 and that the defendant failed to yield.

I've considered the testimony and I believe at the time that the officer was following the defendant's vehicle[,] he had reason to believe that a motor vehicle violation had occurred and that he had probable cause to stop the defendant and conduct a motor vehicle stop.

The municipal court judge imposed on defendant a $256 fine, $33 court costs, $200 drunk driving surcharge, $50 Victim Of Violent Crime Compensation Board assessment, and $75 Safe Neighborhood Fund Assessment. The judge suspended defendant's driver's license for 90 days, and ordered defendant to serve 12 hours in the Intoxicated Driver's Resource Center.

Defendant filed his municipal appeal and the Law Division conducted a trial de novo, issued a written opinion, and denied defendant's motion to suppress. The judge stated:

Trooper O'Connor testified that the defendant, by going right through the roadway when turning past the yield sign, caused oncoming traffic to stop immediately as defendant entered the roadway. Additionally, Trooper O'Connor testified [that] he recalled one vehicle that came to a complete stop because of defendant's actions. Therefore, Trooper O'Connor ultimately possessed a reasonable articulable suspicion that defendant violated N.J.S.A. 39:4-144, titled "Stopping or yielding right of way before entering stop or yield intersections." Thus, the stop was permissible and all evidence obtained as a result should be admissible. O'Connor's testimony regarding justification for the stop [was] credible. Therefore, by giving due deference to [that] credibility assessment as held in State v. Johnson[, 42 N.J. 146 (1964)], the [d]efendant's motion to suppress is denied . . . .

The Law Division judge imposed the same sentence as the municipal court judge. This appeal followed.

On appeal, defendant raises the following points:

POINT I

THERE IS NOT SUFFICIENT, CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE FINDING OF THE LOWER COURT THAT TROOPER O'CONNOR HAD PROBABLE CAUSE TO CONDUCT A MOTOR VEHICLE STOP OF DEFENDANT'S VEHICLE.

POINT II

THE LAW DIVISION JUDGE BASED HIS DECISION IN PART ON AN ARGUMENT ON THE MERITS OF THE CASE THAT TOOK PLACE DURING A TELEPHONE CONFERENCE WITH BOTH COUNSEL, OF WHICH NO SOUND RECORDING OR STENOGRAPHIC RECORD WAS MADE, IN VIOLATION OF R. 1:2-1 AND R. 1:2-2.

We conclude that defendant's second point is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We agree with defendant that the Law Division judge should not have permitted counsel to present further oral argument during an off-the-record conference call held on the day after the trial de novo, which was on the record. No additional evidence was presented during the conference call, and defendant has not pointed to any unrecorded argument made by the prosecutor that prejudiced defendant. While we caution judges not to permit off-the-record argument on the merits of a pending issue, there is no evidence that the inadvertent conference call affected the judge's ruling based on the evidence in the record. We focus, therefore, on defendant's contention that the police lacked probable cause to stop defendant's vehicle.

In reviewing a motion to suppress, we "'uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We reverse only if convinced that those findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).

The Constitutions of the United States and New Jersey protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "[T]he investigative stop of an automobile by police constitutes a seizure that implicates these constitutional protections." State v. Amelio, 197 N.J. 207, 211 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)).

"A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002). "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).

"Reasonable suspicion" is "less than proof . . . by a preponderance of the evidence," and "less demanding than that for probable cause," but must be something "more than an 'inchoate or unparticularized suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (internal quotation marks omitted) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).

Investigatory stops are valid in situations where the objective basis for the stop was a minor traffic infraction. State v. Locurto, 157 N.J. 463, 466 (1999) (stop justified where officer observed defendant driving at "a high rate of speed" in a zone where "[t]he posted speed limit was thirty-five miles per hour"); see also State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (stop justified where officer observed defendant weaving in and out of lanes); State v. Murphy, 238 N.J. Super. 546, 548-49 (App. Div. 1990) (stop justified where vehicle's license plate was in a diagonal position, which the officer believed violated the licensing display provisions of N.J.S.A. 39:3-33); State v. Carter, 235 N.J. Super. 232, 236-37 (App. Div. 1989) (stop justified where officer observed defendant tailgating). Here, in denying the motion to suppress, the Law Division judge found that O'Connor had testified credibly that defendant failed to yield the right of way causing another driver to stop. The judge relied in part on the credibility determinations of the municipal court trial judge, who heard firsthand the officer's testimony. We are not persuaded by defendant's argument that the absence of visual evidence of the other vehicle on the dashboard recording required that O'Connor's testimony be discredited. The trial judge viewed the recording and was in the best position to consider all the evidence in light of defendant's arguments. The Law Division judge acted within his discretion in determining there was reasonable suspicion that defendant committed a motor vehicle violation justifying the stop.

Affirmed.

20120409

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