Opinion
DOCKET NO. A-4363-11T2
02-19-2013
STATE OF NEW JERSEY, Plaintiff- Appellant, v. VINCENT BERNARD, Defendant-Respondent.
Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief). Michael B. Meltzer, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-03-0064.
Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
Michael B. Meltzer, attorney for respondent. PER CURIAM
On leave to appeal, the State seeks reversal of the Law Division's June 21, 2011 grant of defendant Vincent Bernard's motion to suppress arising from a motor vehicle stop. As a result of the stop, defendant was charged with resisting arrest, N.J.S.A. 2C:29-2(a)(1), and issued motor vehicle summonses for driving while under the influence with a passenger under the age of seventeen, N.J.S.A. 39:4-50.15; driving while under the influence, N.J.S.A. 39:4-50; failure to maintain lane, N.J.S.A. 39:4-88(b); refusal to submit, N.J.S.A. 39:4-50.2; and unrestrained child, N.J.S.A. 39:3-76.2a, and eventually indicted for endangering the welfare of a child, N.J.S.A. 2C:24-4(a). For the reasons that follow, we vacate and remand for a testimonial hearing on the motion to suppress.
The State and defendant agreed to proceed on the motion based on stipulated proofs including the grand jury transcript and a still photo taken from the New Jersey State Police mobile video of the stop. Thus the court granted the application on only stipulated documents, briefs, and oral argument.
The State moved for reconsideration, contending that it erred by agreeing to proceed in the absence of testimony from the New Jersey state troopers who conducted the stop. That motion was denied on September 15, 2011. The State thereafter filed a second motion for reconsideration based on State v. Regis, 208 N.J. 439 (2011), issued after the initial decision on the motion to suppress. That second reconsideration motion was denied on April 5, 2012.
The circumstances can be briefly described. On September 9, 2010, at approximately 2:50 a.m., New Jersey State Trooper James Agens was on patrol headed northbound on County Road 612. He saw a dark colored Lexus SUV traveling southbound which, while negotiating a curve, "drifted off the roadway to the right and as it did we noticed the passenger's side, the right wheels, hit . . . the grass as it was coming around the corner." Agens then "effectuated a stop."
Defendant argued in support of the motion to suppress that the officers' observations were so minimal that they did not constitute a reasonable and articulable suspicion to stop the vehicle. See State v. Carty, 170 N.J. 632, 639-40 (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979)), modified, 174 N.J. 351 (2002). The court agreed.
The trial court's decision on the State's reconsideration requests was that, despite Regis, supra, 208 N.J. at 448, the law was clear that one instance of crossing over the fog line was patently insufficient reasonable and articulable suspicion, and that therefore no evidentiary hearing was required. The judge did not consider the State's agreement to proceed on such a limited record to be a mistake. The court also rejected the State's contention the stop was valid under the community caretaking theory as expressed in State v. Cryan, 320 N.J. Super. 325, 328-31 (App. Div. 1999).
Reconsideration "is a matter within the sound discretion of the court," and is "to be exercised in the interest of justice." Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195-96 (App. Div.), certif. denied, 208 N.J. 338 (2011). Accordingly, a trial judge's decision regarding a motion for reconsideration is reviewed under the "abuse of discretion" standard. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006).
Reconsideration . . . is appropriate "only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence."
[Dover-Chester Assocs., supra, 419 N.J. Super. at 196 (quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)).]
In Regis, the Court interpreted the first clause of N.J.S.A. 39:4-88(b) as meaning drivers have an affirmative duty to stay in their lane regardless of whether their failure to do so results in a risk to public safety:
The first clause imposes a continuous requirement upon the driver: to maintain his or her vehicle in a single lane, by avoiding drifting or swerving into an adjoining lane or the shoulder, unless it is not feasible to do so. . . .
Moreover, the first clause of N.J.S.A. 39:4-88(b) is not limited to circumstances in which the deviation from the lane is demonstrated to be a danger to other drivers. In contrast, the Legislature has specifically identified other traffic violations that require the presence of, and potential danger to, other motorists as an element of the violation. . . . By the terms of the first clause of N.J.S.A. 39:4-88(b), the mandate to drive within a single lane to the extent practicable applies, whether or not a deviation from that lane imposes a risk to another driver.
[Supra, 208 N.J. at 448 (citations omitted).]
In that case, the stop was effectuated during the early evening hours and the driver repeatedly swerved over the fog line on an empty road. Id. at 442.
In this case, the State argues that although the swerving only occurred once, since it happened at 2:50 a.m., the officers had reason for heightened concern, either under a reading of N.J.S.A. 39:4-88(b) in accord with Regis, or under a community caretaking analysis. See Regis, supra, 208 N.J. at 448; Cryan, supra, 320 N.J. Super. at 331. Given the hour, the officers were obliged in the public interest to investigate whether the driver of the vehicle was experiencing some difficulty which posed a hazard to himself or others.
We believe that without a complete record, the trial court could not fully analyze whether Regis changed the outcome. There were simply insufficient facts available even for us to determine whether an abuse of discretion occurred as to the denial of the motions for reconsideration. Therefore, the trial court must conduct a testimonial hearing. The stop may have been based on the officer having "reasonable grounds to conclude that the vehicle is a potential safety hazard to other vehicles and that there is either something wrong with the driver, with the car, or both." State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997). But the court may find, even after Regis, that the motion to suppress should be granted as there was no basis for a vehicular stop.
Our point is that the requisite fact-sensitive determination should be made only after a plenary hearing. See State v. Harris, 211 N.J. 566, 572 (2012).
Vacated and remanded for proceedings in accord with this decision.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION