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State of New Jersey v. Kazimierz Skalski

January 18, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KAZIMIERZ SKALSKI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-33-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 24, 2012

Before Judges Simonelli, Koblitz and Accurso.

After defendant Kazimierz Skalski's motion to suppress was denied by the Palisades Interstate Park Municipal Court, he pled guilty to driving while intoxicated, N.J.S.A. 39:4-50; refusal to take a breath test, N.J.S.A. 39:4-50.2; failure to keep right, N.J.S.A. 39:4-88(a); and crossing a solid line, Municipal Ordinance No. 411.1(k). The charge of reckless driving, N.J.S.A. 39:4-96, and another municipal ordinance violation were dismissed. The Law Division denied defendant's motion to suppress de novo on the record on February 24, 2012. Defendant appeals from the Law Division decision, arguing that he was subjected to an unlawful pretext motor vehicle stop and arrested without probable cause. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's native language is Polish. He speaks English with an accent, and used an interpreter in court. Det. Matthew Levine from the Palisades Interstate Parkway Police Department was the only witness at trial. On March 9, 2011, at approximately 1:00 a.m., he was parked at the center median of the Palisades Interstate Parkway facing northbound when he observed defendant's sport utility vehicle (SUV) traveling in the left-hand lane headed northbound. Det. Levine saw the SUV make an abrupt, "very fast movement left," such that the left tires of the vehicle crossed over the solid yellow line on the shoulder. He saw the SUV "redirect[]" to the right, cross the dotted yellow line located between the two traffic lanes and then return to the left-hand lane. Det. Levine followed the SUV, caught up to defendant and activated his patrol car's video camera. Det. Levine pulled defendant over, approached defendant's passenger-side window and requested his license and registration. Det. Levine noticed that defendant's eyes were watery, bloodshot and droopy, and a strong odor of alcohol emanated from inside the SUV. Det. Levine directed defendant to exit the vehicle and go to the back of the car. Although Det. Levine could smell alcohol on defendant's breath, defendant initially denied drinking that evening. Later he acknowledged having one drink. Defendant responded to Det. Levine's questions and followed his instructions. Defendant handed Det. Levine his license and registration without further explanation, and he understood Det. Levine's request for him to get out of the car.

Det. Levine next asked defendant to move to a safer location at the front of defendant's car, where the road surface was flat. They were therefore no longer on camera for the walk-and-turn and the one-legged stand field sobriety tests. Defendant seemed to understand the directions for the sobriety tests and Det. Levine demonstrated the tests for defendant.*fn1

Det. Levine testified that defendant "fell off the starting position twice" and lost his balance before he even started the walk-and-turn test. Det. Levine explained that:

During the first walk down, one through nine, he failed to put his heel to his toe for the first seven steps. He fell off the line. Not fell onto the ground, but just lost his balance, re-corrected himself at ... steps two and four. . . . The eighth and ninth step he did touch his heel to his toe.

He did the -- he did the turn completely correct, I believe, and on his nine steps back towards me, he failed to touch his heel to his toe the entire time back. He also did not count out loud the entire time [] there and back [during] the complete [eighteen] steps.

Next, Det. Levine administered the one-legged stand test, which requires a person to raise his right or left leg six inches off the ground, point his toes outward, keep his hands to his side and count out loud until being told to stop, which Det. Levine demonstrated for defendant. The test's duration is ordinarily thirty seconds. Det. Levine asked defendant if he had any injuries that would prevent his performance of the test and defendant responded that he had been in a skiing accident. Det. Levine advised defendant to raise the injured leg so as not to put undue pressure on it.

Initially, defendant stated that he did not understand the test. However, Det. Levine testified that "[b]efore I could even explain the test and demonstrate the test ag[a]in, he started the test, as he -- as I explained it." Defendant then dropped his leg before being told to do so. Det. Levine placed defendant under arrest.

On appeal, defendant raises the following issues*fn2

POINT I: THE OPEN FILE DISCOVERY MATERIAL(S) INCLUDING BUT NOT LIMITED TO THE VIDEOTAPED EVIDENCE AS THE "BEST EVIDENCE" CLEARLY INDICATE ...


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