STATE OF NEW JERSEY VS. LISA D. WARD(009-24-14, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2647-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LISA D. WARD,
Defendant-Appellant.
___________________________
Argued January 25, 2017 – Decided July 31, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Municipal
Appeal No. 009-24-14.
Matthew W. Reisig argued the cause for
appellant (Reisig Criminal Defense & DWI Law,
LLC, attorneys; Mr. Reisig, on the brief).
Suzanne E. Cevasco, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Ms. Cevasco, of counsel and on the brief).
PER CURIAM
Following the denial of her motion to suppress, defendant
Lisa D. Ward entered a conditional guilty plea to driving while
intoxicated (DWI), N.J.S.A. 39:4-50.1 Defendant was sentenced to
a seven-month driver's license suspension and ordered to
participate in the Intoxicated Driver Resource Center Program for
a period of twelve hours. The court also imposed the appropriate
fines, assessments, surcharges, and costs.
On appeal, defendant challenges the denial of her motion to
suppress and the admission of the arresting officer's narrative
incident report and a jail log. Defendant also contends that the
entire proceedings were tainted because her blood alcohol content
(BAC) reading of 0.12% was typewritten onto the order and
certification of intoxicated driving form (order form) prior to
her pleading guilty. We affirm.
I.
We derive the following facts from the record. At
approximately 10:00 p.m. on July 27, 2010, Officer Timothy Letavish
of the Township of Mahwah Police Department (MPD) was parked in
his marked patrol vehicle on the right hand side of Moffat Road
at the intersection with Route 17 North monitoring traffic. From
his position, Letavish had an unobstructed view of the traffic
moving northbound on Route 17 and could see a far distance away
from where he was positioned.
1
In exchange for defendant's guilty plea, the State dismissed
the summons charging her with speeding, N.J.S.A. 39:4-98.
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While monitoring the traffic, Letavish saw a vehicle
traveling at a high rate of speed in the left northbound lane of
Route 17 where the posted speed limit was fifty-five miles per
hour. The vehicle was approximately twenty feet away from Letavish
when he first observed it, and he believed the vehicle was
traveling approximately seventy miles per hour. He testified he
was trained to detect speed through observation without the use
of any electronic equipment.2
Letavish began following the vehicle. As he came within a
few car lengths, he activated his overhead emergency lights and
attempted to stop it. The driver, later identified as defendant,
signaled, moved into the center lane, and continued traveling
north. There was no traffic in the right lane that would have
prevented her from entering it. Letavish continued to follow
behind defendant with his overhead lights activated. After
traveling a fair distance and seeing that defendant was not
stopping, Letavish activated his siren. Defendant did not stop
and continued traveling north. She eventually stopped
approximately one mile from where Letavish had activated his
emergency lights.
2
Letavish used a handheld laser device, which showed that the
vehicle was traveling seventy-five miles per hour. However, the
municipal court judge ruled the results were inadmissible because
the laser device was not scientifically approved.
3 A-2647-14T2
Letavish did not measure defendant's speed as he followed
behind her, and did not see her drive erratically. She used her
directional signals to move from the left lane to the center lane
and eventually to the right shoulder, and also parked
appropriately.
Letavish parked his patrol vehicle directly behind
defendant's vehicle, exited his vehicle, and walked to the
passenger's side of defendant's vehicle. He asked defendant for
her license, registration, and proof of insurance. Defendant gave
him her registration and insurance, but did not produce her
driver's license until approximately one minute later and after
Letavish requested it a second time.
During Letavish's interaction with defendant, he detected a
strong odor of alcoholic beverage emanating from her vehicle. He
asked defendant if she had consumed any alcoholic beverages that
evening and she replied, "just one." Based on his observations
and interaction with defendant, the odor of alcoholic beverages,
and defendant's admission to having consumed alcohol, Letavish
believed she was impaired. Thus, he returned to his vehicle to
check her credentials and requested backup.
After backup arrived, Letavish asked defendant to exit her
vehicle. As she exited, she briefly stumbled and grabbed the top
half of the driver's side door to assist in balance. As she walked
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toward the back of her vehicle, she leaned on the vehicle with her
left hand.
Letavish advised defendant that he was going to administer
field sobriety tests. As he stood approximately twenty-four inches
away from her, he detected a strong odor of alcoholic beverage
emanating from her breath. He administered the one-leg-stand test
and walk-and-turn test, both of which she did not successfully
perform.3
Based on his observations of defendant, her performance on
the field sobriety tests, and the odor of alcoholic beverage,
Letavish concluded she was under the influence of alcohol and
placed her under arrest for DWI. Letavish transported defendant
police headquarters, where she gave breath samples to determine
her blood alcohol content (BAC). Within twenty-four hours of
defendant's arrest, Letavish completed an arrest packet. The
packet included his narrative incident report, which indicated
that defendant had a BAC of 0.12%. Municipal Court Judge Roy F.
McGeady4 admitted the narrative incident report into evidence over
defendant's objection.
3
Defendant does not challenge the administration or performance
of the field sobriety tests.
4
Judge McGeady is the municipal court judge in Vicinage 2
Municipal Court for Bergen County. The matter was transferred to
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Defendant's testimony contradicted most of Letavish's
testimony. Defendant admitted she did not pull over immediately
when Letavish activated his emergency lights because she thought
he was attempting to get past her. She further admitted to
traveling in the left lane when driving past Letavish, and
acknowledged that the left lane is for drivers traveling faster
than those in the right lane. She testified there was moderate
to heavy traffic on Route 17 that evening, with approximately four
or five vehicles within 100 feet of her vehicle. She also
testified that she was not speeding, but was traveling at
approximately fifty miles per hour according to her speedometer.
However, she admitted she never had her speedometer calibrated.
In denying defendant's motion to suppress, Judge McGeady
found that Letavish's observations of defendant speeding provided
a reasonable and articulable suspicion to stop her for committing
a motor vehicle violation. The judge also found there was probable
cause to arrest defendant for DWI.
Judge McGeady then conducted a N.J.R.E. 104 hearing on the
admissibility of defendant's Alcotest results because defendant
challenged the twenty-minute observation period. Sergeant Harry
Hunt of the MPD, who administered the Alcotest, testified that he
that court after the Mahwah Municipal Court judge recused himself
following a defense request.
6 A-2647-14T2
observed defendant for twenty minutes before he began the Alcotest.
The prosecutor then showed Hunt the jail log to refresh his
recollection as to the exact time he began and ended the
observation period. Defense counsel objected because the State
did not produce the document during discovery. The judge afforded
defense counsel an approximately ten-minute break to review the
document with defendant. The judge then overruled the objection,
finding as follows:
I could accept [Hunt's] testimony. I
have the right to choose to accept his
testimony that he watched for twenty minutes.
Whether that twenty minutes was 11:30 to
[12:00], -- whether it was [12:00] to 12:30,
may not be relevant. I could choose to accept
that [Hunt] watched for twenty minutes period
without knowing the exact time. He's trying
to corroborate the exact time. I find that
to be reasonable. The fact the [defense
counsel] . . . can cross-examine[]. I don't
see how it's going to change. [Defense
counsel] came into this case knowing twenty
minutes would be an issue so that's my
ruling[.]
Hunt never testified about the time periods on the jail log
and Judge McGeady never ruled on the admissibility of the Alcotest
results because, prior to completion of the N.J.R.E. 104 hearing,
defendant entered a conditional guilty plea to DWI. Defendant
preserved her right to appeal from the denial of her motion to
suppress and the State's failure to produce the jail log.
7 A-2647-14T2
Defendant admitted to driving her vehicle after consuming
approximately four beers, and that the consumption of the beers
influenced her operation of her vehicle.
After defendant pled guilty but before sentencing, Judge
McGeady asked if there was a BAC reading. The State represented
to the judge, without objection, that defendant's BAC reading was
0.12%. The judge then accepted defendant's guilty plea and
sentenced her.
After Judge McGeady imposed sentence, defense counsel took
issue with the order form, arguing that defendant's BAC reading
was typewritten onto the order form prior to her pleading guilty.
The judge stated this was the first time saw the form and did not
know anything about it. The judge also stated he did not know the
case involved an Alcotest reading until the Rule 104 hearing.
On appeal to the Law Division, defendant raised the same
issues she raises in this appeal. In a comprehensive oral opinion,
Judge James J. Guida rejected defendant's argument that the entire
proceedings were tainted because her BAC reading was typewritten
on the order form prior to her pleading guilty. Judge Guida found
that Judge McGeady said in certain and specific terms that he
never saw the order form prior to defendant's guilty plea and, in
fact, had asked if there was a BAC reading prior to sentencing
her. Judge Guida also found that even if Judge McGeady saw the
8 A-2647-14T2
order form before defendant pled guilty, this fact did not taint
the proceedings or preclude Judge McGeady from deciding the pre-
trial motions.
Judge Guida found that Letavish's narrative incident report
was properly admitted into evidence. The judge determined the
document was admitted at a N.J.R.E. 104 hearing where the rules
of evidence did not necessarily apply pursuant to N.J.R.E. 104(a),
and there was no N.J.R.E. 403 issue or claim of privilege. The
judge found no authority prohibiting a trial judge from knowing a
defendant's BAC reading prior to a guilty plea, or requiring the
case to be transferred to a different judge if the BAC reading was
revealed. The judge noted that seeing the BAC reading does not
mean the judge is going to be tainted or cannot sit as the trier
of fact. He compared this situation to a Miranda5 hearing, where
the trial judge rules on the admissibility of a confession and
that ruling does not preclude the judge from sitting as the trier
of fact. Lastly, Judge Guida found there was no Crawford6
violation because Letavish testified and was subject to cross-
examination.
5
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004).
9 A-2647-14T2
Judge Guida found the motion to suppress was properly denied,
reasoning as follows:
Bottom line is, Judge McGeady found [Letavish]
to be credible in his observations. Now
defense counsel over several pages does set
forth various mathematical calculations to
make a determination that, for the [c]ourt
rather, to determine that it was impossible
for the officer to judge such speed. In that
regard this [c]ourt does not find that the
calculations are such that . . . it's
impossible, that it is physically through the
laws of science or any other way, impossible
for [] defendant to have been speeding based
upon the observations of [Letavish].
[Letavish's] observations, while he did
set forth particular feet and distance are not
necessarily deemed to be gospel, if he says
687 feet doesn't mean it couldn't be 690 feet
or 600 feet and likewise. And that wasn't the
decision, the basis of the decision, Judge
McGeady didn't base his decision on any
calculation of distance times speed or rate
or use any formula. He based it upon human
experience.
And in that regard this [c]ourt finds
that . . . [Letavish] did have a reasonable
and articulable reason to stop. Namely in
[Letavish's] opinion, which the [j]udge found
to be credible, the defendant was exceeding
the speed limit. That of itself was the basis
for the stop. Once the stop was made
[Letavish] noted and detected an odor of
alcohol. And that then allowed the officer
to continue with the stop.
Lastly, Judge Guida found defendant suffered no prejudice as
a result of the State's failure to produce the jail log, reasoning
as follows:
10 A-2647-14T2
There shall be a continuing duty to provide
discovery pursuant to [Rule 7:7-7(j)]. If at
anytime during the course of the proceedings
it is brought to the attention of the [c]ourt
that a party has failed to comply with this
rule or with an order issued pursuant to this
rule the [c]ourt may, and the operative term
is may, order that party to provide the
discovery of materials not previously
disclosed, grant a continuance, prohibit the
party from introducing it in evidence or such
other relief as it deems appropriate.
And I am just, I note that the Municipal
Court does have broad discretion to decide
what sanction, if any, is appropriate if there
is a violation of discovery, a failure to
provide discovery. And that's [State v.
Wolfe, 431 N.J. Super. 356 (2013).] In that
case the [c]ourt actually allowed the State
to cure at trial deficiencies that were
necessary to support a foundation for an
alcohol influence report, when the
deficiencies caused no prejudice and were not
the result of any intent to mislead.
. . . .
In that regard the [c]ourt does not find
that there is any prejudice to the defendant.
And that the appropriate remedy at the time
was to provide a short break for defense
counsel to review with . . . his client, the
report. But I find that it did not prejudice
the defendant in this instance on that
particular issue.
II.
We first address defendant's argument that both trial courts
erred in denying her motion to suppress. Defendant argues that
Judge Guida based his ruling on his erroneous belief that Judge
11 A-2647-14T2
McGeady made credibility determinations regarding the testimony
of Letavish and defendant. Defendant also argues that Judge
McGeady never answered the dispositive factual question as to how
a police officer could ever observe an alleged motor vehicle
violation from a distance that was so great it could not even be
estimated.
On appeal from a municipal court to the Law Division, the
review is de novo on the record. R. 3:23-8(a)(2). The Law
Division judge must make independent findings of fact and
conclusions of law based upon the evidentiary record of the
municipal court and must give due regard to the opportunity of the
municipal court judge to assess the witnesses' credibility. State
v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division
decision, the issue is whether there is "sufficient credible
evidence present in the record" to uphold the findings of the Law
Division, not the municipal court. Id. at 162. However, as with
the Law Division, we are not in as good a position as the municipal
court judge to determine credibility, and should not make new
credibility findings. State v. Locurto, 157 N.J. 463, 470-71
(1999) (citing Johnson, supra, 42 N.J. at 161-62). We "do not
weigh the evidence, assess the credibility of witnesses, or make
conclusions about the evidence." State v. Barone, 147 N.J. 599,
615 (1997). We give due regard to the trial court's credibility
12 A-2647-14T2
findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div.
2000). Applying these standards, we discern no reason to reverse
any of Judge Guida's rulings.
Contrary to defendant's argument, Judge McGeady made
credibility findings when he found as follows:
In examining the testimony[,] the first
thing the [c]ourt has to decide is whether
. . . Letavish has reasonable, articulable
suspicion to stop [defendant] in the first
place . . . [Delaware v. Prouse, 440 U.S. 648,
99 S. Ct. 1391, 59 L. Ed. 660 (1979)] is the
key United States Supreme Court case. [State
v. Zapata, 297 N.J. Super. 160 (1997), certif.
denied, 156 N.J. 405 (1998)] is the key New
Jersey case. Both hold that a vehicle is
subject to seizure if the [o]fficer has a
reasonable, articulable suspicion to believe
that either the vehicle is unregistered, the
operator is unlicensed or either the operator
or a passenger in the vehicle is subject to
seizure for some violation of the law. And
it's clear the State is basing the seizure
upon speeding.
. . . .
I'm satisfied that . . . Letavish is a
certified radar operator separate and apart
from the laser operator. He has testified to
that as to his training. He said that he had
as part of that radar operator training, he
had to visually estimate speed and then
compare it to the radar reading and he has a
supervisor who observed this and he had to be
accurate as to what the actual speed was
compared to the radar, his observations of the
radar.
[Letavish] said he had an opportunity to
observe [defendant's] vehicle by more than 487
13 A-2647-14T2
feet away and from that distance, whatever
that was, we don't know, we know it was more
than 487 feet until she passed him and until
a mile after he put on the overhead lights.
He testified that the speed limit is [fifty-
five] miles per hour. I find as a fact that
that is true. [Defendant] confirmed that.
There's no contest as to the actual speed
limit.
At different times, the [c]ourt
interpreted [Letavish's] testimony as being
that [defendant] was traveling either
[seventy] or [seventy-five] miles per hour.
So either [fifteen] or [twenty] miles per hour
over the speed limit. I'm satisfied that
through his training, despite [defendant]
testifying that she observed her speedometer
and the needle was exactly on [fifty-five] the
whole time from Paramus through Mahwah the
time of the stop, as pointed out by [the
State], there was no evidence that her
speedometer is calibrated so even if that's
true, we don't know if that means she was
actually going [fifty-five] miles per hour.
I'm satisfied that . . . Letavish has a
higher degree of skill in determining the
speed based on the distinction I've just made
and that his estimate is accurate and I accept
it, at least by a preponderance of the
evidence standard and I'm satisfied that while
[defense counsel] argued that maybe there was
speculating as to how fast he could operate
the laser device after he first saw the
vehicle, that we didn't measure that from 487
feet away until the time that she passes him
because he observed her way before that and
it appears the only reason he noticed she was
487 feet away because at that point he was
using the laser and the laser told him that.
So I'm satisfied that [Letavish] did
observe [defendant] more than 487 feet away
when he made his speed estimate. I'm
14 A-2647-14T2
satisfied that that is reasonable, especially
for a trained radar operator. So I'm
satisfied there's reasonable, articulable
suspicion that he had to stop [defendant] for
a violation of [N.J.S.A. 39:4-98 or N.J.S.A.
39:4-99] which is probably the proper section
for speeding in excess of [fifty-five] miles
per hour.
[(Emphasis added).]
The words "I'm satisfied" and "I accept" are undoubtedly
credibility determinations.
In any event, Judge McGeady was not required to articulate
detailed credibility findings. See Locurto, supra, 157 N.J. at
474. The reasons supporting his determinations may be inferred
from, and are well-supported by, the facts and the testimony of
both witnesses. See ibid. Judge McGeady found Letavish's
testimony credible and defendant's testimony not credible.
Accordingly, Judge Guida's reliance on Judge McGeady's credibility
determinations was proper. See Johnson, supra, 42 N.J. at 157(holding that the Law Division judge must give due regard to the
opportunity of the municipal court judge to assess the witnesses'
credibility).
That being said, we now address defendant's challenge to the
motor vehicle stop. "[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." Locurto,
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supra, 157 N.J. at 470 (citations omitted). "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 "[a] less demanding
[standard] than that for probable cause," but must be something
greater "than an 'inchoate and unparticularized suspicion or
hunch.'" U.S. v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,
104 L. Ed. 2d 1, 10 (1989).
"The fact that the officer does not have the state of mind
hypothesized by the reasons which provide the legal justification
for the search and seizure [or investigatory stop] does not
invalidate the action taken, so long as the circumstances, viewed
objectively, support the police conduct." State v. Kennedy, 247
N.J. Super. 21, 28 (App. Div. 1991). A Fourth Amendment violation
is assessed based upon an objective viewing of the officer's
actions considering the circumstances confronting him at that
time, not his actual state of mind. Maryland v. Macon, 472 U.S.
463, 470-71, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985).
Ultimately, "courts will not inquire into the motivation of
a police officer whose stop of an automobile is based upon a
16 A-2647-14T2
traffic violation committed in his presence." Kennedy, supra, 247
N.J. Super. at 28. "The fact that the justification for the stop
was pretextual . . . [is] irrelevant." Id. at 29. Investigatory
stops are valid in situations where the objective basis for the
stop was a minor traffic violation. Locurto, supra, 157 N.J. at
466 (finding the stop was justified based on the officer's
observations of the defendant driving at a high rate of speed in
excess of the posted speed limit). The State need not prove that
the suspected motor vehicle violation had in fact occurred. Id.
at 470.
The record amply supports Judge Guida's finding that
Letavish's observation of defendant's vehicle speeding was
sufficient to prove the officer had a reasonable and articulable
suspicion that defendant committed a motor vehicle violation,
justifying the stop. See id. at 474-75. Our Supreme Court has
recognized that "[i]ntoxicated drivers generally do not recall
with precision the exact speed they were driving when first
observed by a police officer. A police officer, on the other
hand, has been trained to estimate the speed of a moving vehicle."
Id. at 472. Letavish testified, credibly, that he observed
defendant's vehicle traveling at approximately seventy miles per
hour in a fifty-five mile–per-hour zone. Accordingly, the denial
of defendant's motion to suppress was proper. Defendant's argument
17 A-2647-14T2
about how a police officer can observe an alleged motor vehicle
violation from a great distance has no merit whatsoever.
III.
We have considered defendant's remaining contentions in light
of the record and applicable legal principles and conclude they
are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
Judge Guida expressed in his comprehensive and cogent oral opinion.
We add the following brief comments.
Admission of Letavish's narrative incident report was not an
abuse of discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015).
The rules of evidence, other than N.J.R.E. 403, did not apply to
a motion to suppress hearing. N.J.R.E. 104(a). There was no
N.J.R.E. 403 issue. In fact, defense counsel used the document
on cross-examination to attack Letavish's credibility.
Further, the inclusion of defendant's BAC reading on the
narrative incident report and order form caused her no prejudice.
The record is clear that Judge McGeady never saw defendant's BAC
reading until after she pled guilty, and even if he had seen it
beforehand, nothing precluded him from sitting as the factfinder.
We have held that "[a] judge sitting as the factfinder is certainly
capable of sorting through admissible and inadmissible evidence
without resultant detriment to the decision[-]making process."
18 A-2647-14T2
State v. Medina, 349 N.J. Super. 108, 130 (App. Div.) (citations
omitted), certif. denied, 174 N.J. 193 (2002). We emphasized that
judges are presumed to "have the ability 'to exclude from their
consideration irrelevant or improper evidence and materials which
have come to their attention.'" Ibid. (citation omitted).
Lastly, the State's failure to provide the jail log prior to
the Rule 104 hearing did not deprive defendant of due process. A
municipal court judge has broad discretion to decide an appropriate
sanction for a discovery violation pursuant to Rule 7:7-7(j).
Judge McGeady appropriately remedied the State's discovery
violation by granting a recess to allow defense counsel to review
the document and cross-examine Hunt. Nonetheless, as both judges
properly found, Hunt's testimony alone established the twenty-
minute observation period without the jail log.
Affirmed.
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