Opinion
DOCKET NO. A-1480-14T2
05-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEFANIE O. EL-ANSARI, Defendant-Appellant.
McNerney & McAuliffe, attorneys for appellant (Daniel P. McNerney, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-20-14. McNerney & McAuliffe, attorneys for appellant (Daniel P. McNerney, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Stefanie O. El-Ansari appeals from the October 10, 2014 Law Division order entered after she conditionally pled guilty to refusing to provide a breath sample, N.J.S.A. 39:4-50.2. The Law Division judge suspended her driver's license for seven months, ordered her to serve twelve hours in an intoxicated drivers resource center, fined her $406, and imposed a $100 Drunk Driving Enforcement Fund assessment, N.J.S.A. 39:4-50.8, as well as $33 in court costs, N.J.S.A. 22A:3-4. She contends on appeal the judge erroneously denied her motion to suppress evidence the police obtained after a patrol officer stopped her for speeding. We affirm.
The arresting officer testified at the municipal court suppression hearing. On the night he arrested defendant, he was seated in his parked vehicle when he continuously observed defendant's vehicle as it travelled "a little less than a quarter of a mile," at a high rate of speed, through a twenty-five mile per hour speed zone. Based on his observations, the officer was of the opinion defendant was travelling at a speed in excess of twenty-five miles per hour. He used his radar device and "pegged" the speed of defendant's vehicle at forty-eight miles per hour.
Due to administrative issues not relevant here, the officer's certification to operate the radar device was not in effect that night. Nonetheless, the municipal court judge found credible the officer's opinion testimony concerning the speed of defendant's vehicle, as did the Law Division judge who presided over defendant's trial de novo. Based on the officer's opinion, the Law Division judge concluded the arresting officer had a reasonable and articulable suspicion defendant committed a motor vehicle offense. The parties do not dispute that the facts and circumstances leading to defendant's arrest for refusing to provide a breath sample resulted from the motor vehicle stop.
Defendant argues that because the arresting officer was not certified to operate the radar device, and because the municipal court judge failed to address this issue, the conviction should be reversed and the case remanded to municipal court. Defendant's argument is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-(3)(e)(2). We add only the following brief comments.
"It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)); Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). It is also firmly established that lay opinion testimony concerning the speed of a vehicle is admissible once a proper foundation has been established. Gretowski v. Hall Motor Exp., 25 N.J. Super. 192, 196 (App. Div. 1953); Miller v. Trans Oil Co., 33 N.J. Super. 53, 56-57 (App. Div. 1954), aff'd, 18 N.J. 407 (1955).
Here, defendant does not challenge the basis of the arresting officer's opinion defendant was speeding on the night of her arrest, an opinion both the municipal court judge and Law Division judge found credible. The officer's observations and opinion defendant was exceeding the speed limit provided a reasonable and articulable suspicion defendant was violating a motor vehicle law. Accordingly, the officer was justified in stopping defendant.
When a party appeals from a de novo trial on the record, we generally "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). In view of the officer's credible observation and opinion defendant was exceeding the twenty-five mile per hour speed limit, Law Division Judge James J. Guida correctly found irrelevant the lapse of the officer's certification to operate the radar device. Judge Guida properly denied defendant's suppression motion. Consequently, there is no need to remand the matter to the municipal court for a ruling on the admissibility of the radar data.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION