Opinion
DOCKET NO. A-1444-14T1
01-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JADWIGA CIERNIAK, Defendant-Appellant.
David A. Gies argued the cause for appellant. Joseph Paravecchia, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Mr. Paravecchia, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2014-12. David A. Gies argued the cause for appellant. Joseph Paravecchia, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Mr. Paravecchia, of counsel and on the brief). PER CURIAM
Defendant Jadwiga Cierniak appeals from the Law Division's October 31, 2014 order denying de novo her motion to suppress a motor vehicle stop which led to her arrest and conditional plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), and refusal to submit to a breath test, N.J.S.A. 39:4-50.2. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On September 6, 2013, the Ewing Township police dispatcher received a 9-1-1 call during which the caller reported:
It's not so much an emergency. I'm in a car. I'm driving, the person in front of me is obviously drunk, and I just don't want something bad to happen. . . . I'm on parkway and olden. . . . It's a Pontiac Vibe, license plate is. . . . I mean I can't imagine they're anything but drunk, the way they're driving.
As we have not been provided with the transcript of the 9-1-1 call, we take this quote from the Law Division decision. --------
The dispatcher provided Officer Larry Cabell with the description of a vehicle traveling erratically on Olden Avenue and the registered owner's name and address. Cabell was in the vicinity and within minutes observed a car matching the description on Olden Avenue. The officer noted that the car was driving very slowly, braking frequently, and was tilted to the right as a result of a flat front passenger tire. He testified that it was unsafe for this car to be on the roadway. The officer followed defendant into her driveway, and as he did so, she put her car into reverse and backed into his vehicle.
Defendant moved in the municipal court to suppress the evidence obtained following the stop of her motor vehicle. The motion was denied, and she renewed her motion in the Law Division where Judge Timothy P. Lydon found that the officer had a reasonable and articulable suspicion to effectuate the stop based on the eyewitness's description of her erratic driving relayed by the dispatcher, as well as his own observations.
On appeal, defendant raises the following issues:
POINT I: THE INFORMATION IMPARTED BY THE [9-1-1] CALLER DID NOT CONVEY AN UNMISTAKABLE SENSE THAT HE WITNESSED AN ONGOING OFFENSE WHERE THE CALLER FAILED TO MORE ACCURATELY DESCRIBE THE OPERATION OF THE VEHICLE.
POINT II: THE LAW DIVISION'S FINDING THAT THE POLICE OFFICER'S TESTIMONY WAS CREDIBLE SINCE IT WAS CONSISTENT WITH THE [9-1-1] CALL IS NEITHER SUPPORTED BY THE MUNICIPAL COURT'S BALD CREDIBILITY DETERMINATION NOR THE RECORD ITSELF.
POINT III: THE POLICE OFFICER WAS NOT JUSTIFIED TO STOP THE DEFENDANT'S VEHICLE UNDER THE COMMUNITY CARETAKING FUNCTION WHERE HE WAS NOT CONCERNED THE OPERATION OF THE CAR WOULD CAUSE DAMAGE TO EITHER THE DRIVING OR PEDESTRIAN TRAFFIC.
On this appeal, our review is "limited to determining whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), aff'd, 219 N.J. 584 (2014).
Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. . . . [T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.
[State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted).]
In reviewing a trial judge's conclusions in a non-jury case, substantial deference is given to the trial judge's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). These findings should only be disturbed when there is no doubt that they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Id. at 412. We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We find defendant's argument that the police officer lacked sufficient information to make the traffic stop to be without merit. The responding officer was acting on information received from a dispatcher relaying a motorist's observations of dangerous driving.
In State v. Golotta, 178 N.J. 205, 219 (2003), the Court held that a call from an anonymous person to a 9-1-1 operator to report erratic driving provides a sufficient basis for the police to respond and stop the described vehicle. In Golotta, the police officer received information of an erratic driver and the direction in which the vehicle was traveling from a dispatcher. Id. at 209. Following receipt of this information, the officer, while stopped at a traffic signal, observed the described car pass him. Id. at 210. The officer moved his car into the same traffic lane as the described vehicle and stopped the driver. Ibid. A second police officer arrived at the scene almost simultaneously. Ibid. Neither officer observed any erratic driving before stopping the described vehicle. Ibid.
The Court held that the information of erratic driving conveyed to the 9-1-1 dispatcher contemporaneously with the anonymous caller's observations and the prompt relay to the police officers provided reasonable suspicion of unlawful behavior to justify an investigatory stop. Id. at 228. The source of the information, an anonymous caller, was a factor to be considered in any determination of the justification of the stop. Id. at 213.
The Court identified three factors that informed its decision to reduce the degree of corroboration necessary to stop a motorist in this situation. Id. at 218. The Court stated:
First, by its nature, a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts. Second, the conduct at issue is the temporary stop of a motor vehicle based on reasonable suspicion, not the more intrusive search of its contents or arrest of its driver . . . . Third, an intoxicated or erratic driver poses a significant risk of death or injury to himself and to the public and, as such, that factor is substantial when evaluating the reasonableness of the stop itself.The caller must, however, "convey an unmistakable sense that [he or she] has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large." Id. at 221-22. Moreover, the call must be placed close in time to the observations. Id. at 222.
[Ibid.]
We find the facts here even more compelling than those in Golotta to support the stop. The 9-1-1 caller was following defendant, described the driver as "obviously drunk," and reiterated that the driver must be drunk based on the caller's observations of defendant's driving. The officer, who was in the area where the caller described defendant as driving, immediately spotted the car and had the opportunity to observe defendant driving her car for several minutes before she turned into her driveway. The officer described defendant as driving very slowly, braking frequently and more than required in the light traffic, and tilting towards one side riding on the rim of a flat tire. After defendant was in her driveway, and the officer had pulled in behind her, she put her car into reverse and struck the police vehicle.
The officer's observations themselves corroborated the information received from the caller. Indeed, Officer Cabell testified that he would have pulled the vehicle over in the absence of the 9-1-1 call, as he had concluded that the vehicle was driving in an unsafe manner, thus creating a safety hazard.
We, therefore, affirm the order denying defendant's motion to suppress substantially for the reasons set forth in Judge Lydon's thoughtful decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION