State of New Jersey v. Nicole K. Chopp ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2798-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICOLE K. CHOPP,
Defendant-Appellant.
_______________________
Argued June 4, 2024 – Decided September 27, 2024
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.
22-016.
Christina Vassiliou Harvey argued the cause for
appellant (Lomurro Munson, LLC, attorneys; Christina
Vassiliou Harvey, of counsel and on the briefs).
Monica do Outeiro, Assistant Prosecutor, argued the
cause for respondent (Raymond S. Santiago,
Monmouth County Prosecutor, attorney; Monica do
Outeiro, of counsel and on the brief; Sarah Martinho,
on the brief).
PER CURIAM
Defendant Nicole K. Chopp appeals the Law Division order denying her
de novo appeal. After a motor vehicle stop, defendant was charged in municipal
court with N.J.S.A. 39:4-50, driving under the influence (DWI), among other
motor vehicle violations. Defendant moved to suppress, challenging both the
vehicle stop and her subsequent arrest. After a hearing in which the arresting
officer testified, the municipal court denied the motion. Defendant entered a
conditional plea to N.J.S.A. 39:4-50, then appealed the denial of her motion to
the Law Division, which affirmed the order of the municipal court on trial de
novo.
On appeal, defendant contends the Law Division exhibited bias against
her when it requested a police incident report not in evidence below and
challenged the legality of the plea agreement. Defendant also argues that the
Law Division erred on the merits and should have granted her motion to
suppress. We affirm but remand for resentencing for the reasons which follow.
I.
We glean the pertinent facts and procedural history from the record.
Shortly after midnight, on April 3, 2021, defendant was traveling south in
a pick-up truck on Routh 9 when she was spotted by Freehold Township Police
Lt. L.A. Loos, an officer on duty that morning. Lt. Loos observed defendant's
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truck "having difficulty maintaining its lane." He saw the truck drift back and
forth within its lane, and outside its lane. He activated his overhead lights and
followed the pick-up truck for a brief distance until it came to a stop in the right
shoulder, near a jughandle exit.
After defendant stopped, Lt. Loos approached the driver's side window,
where he "immediately detected the . . . odor of an alcoholic beverage" coming
from inside the truck. There were no passengers. Lt. Loos observed that
defendant's eyes were "glassy and moderately bloodshot." Defendant admitted
to the officer that she was coming from a bar, and had consumed "a few beers."
She said she was headed home, but Lt. Loos, a veteran of thirty-two years on
the local police force, immediately noted that she had missed her exit. The
lieutenant directed defendant to step out of the car for sobriety testing. The
record shows that Lt. Loos observed defendant failed to: keep her balance while
attempting to perform the walk and turn test; recite a segment of the alphabet as
instructed; and successfully perform the one-leg stand test. The officer then
arrested defendant.
Lt. Loos' dashcam video captured what he testified was the last thirty
seconds of his pursuit of defendant's pickup truck, as well as her sobriety field-
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testing. On cross-examination, Lt. Loos testified that he observed defendant's
erratic driving before his dashcam started recording.
Defendant was charged in municipal court with: DWI; reckless driving,
N.J.S.A. 39:4-96; traffic on marked lanes, N.J.S.A. 39:4-88; failure to have
license and related documentation, N.J.S.A. 39:3-29; and failure to notify the
Motor Vehicle Commission of change of address, N.J.S.A. 39:3-36. Prior to
trial, defendant moved to suppress the evidence which led to her arrest, arguing
that Lt. Loos did not have: a reasonable and articulable suspicion to justify the
vehicle stop or conduct field sobriety testing, or probable cause to arrest her.
The municipal court considered the testimony of Lt. Loos, as well as the
dashcam video in evidence, and denied the motion to suppress. Defendant's
Alcotest results were marked for identification, but not used by either party for
any purpose. The municipal court found Lt. Loos had reasonable suspicion for
the vehicle stop. The court also found that the record, including video of
defendant performing field sobriety tests, supported her arrest.
Defendant then entered a conditional guilty plea to a first-time offense
under N.J.S.A. 39:4-50, pursuant to Rule 7:6-2(c). At sentencing, in accordance
with a plea agreement, the municipal court imposed a one-day license
suspension, a two-day suspended jail term, twelve hours of Intoxicated Driver
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Resource Court, three months ignition interlock, as well as various mandatory
fines, surcharges, assessments, and costs.
Defendant appealed to the Law Division, making essentially the same
arguments she made before the municipal court. At the hearing, the Law
Division asked counsel for Lt. Loos' incident report. 1 Trial counsel objected,
stating the report was not in evidence below, and had been used exclusively to
cross-examine Lt. Loos. The court ordered the report be produced for its review
prior to deciding the motion. During the same colloquy, the court questioned
trial counsel as to the legality of the plea agreement.
In an email sent to counsel, the Law Division ultimately advised the
parties it did not require the report. The court then denied defendant's appeal,
affirming the order of the municipal court.
In its statement of reasons, the Law Division found Lt. Loos credible,
deferring to the findings of the municipal court judge. The court next found
Officer Loos' testimony that defendant failed to maintain her truck in its proper
lane, combined with his other observations, "[was] enough to provide [the
1
Lt. Loos' incident report is referred to in the record as the April 3, 2021
O.P.C.I.M. report.
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officer] with a reasonable and articulable suspicion that a violation of N.J.S.A.
39:4-88 had occurred." The court concluded Lt. Loos' vehicle stop was lawful.
The Law Division next turned to the question of whether defendant's
investigative detention was supported by a reasonable and articulable suspicion
that she was under the influence while operating her pickup truck. The court
found the record sufficient. Again citing Lt. Loos' detailed observations, the
court found that the totality of the circumstances supported a "reasonable and
articulable suspicion of defendant's driving while intoxicated," justifying the
field sobriety tests.
Finally, the court considered whether Lt. Loos had probable cause to arrest
defendant for DWI. Citing the record, including defendant's sobriety test
performance captured on video, the judge found probable cause existed.
Defendant then moved for the court's disqualification, contending that its
order to produce the incident report and its inquiry about the legality of the plea
were indicative of the court's improper bias. She also sought a stay pending
appeal before the Law Division. The Law Division declined to recuse itself, and
denied the stay application.
Defendant appealed, arguing the following points:
A. The Trial Court Deprived Defendant of a Fair
DeNovo Hearing Requiring Reversal
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B. The Trial Court Denied Defendant a Fair Hearing by
Overlooking Issues with Lt. Loos' Credibility
II.
Whether a judge should disqualify himself or herself is a matter within the
sound discretion of the judge. State v. McCabe, 201 N.J. 34, 45 (2010);
Goldfarb v. Solimine, 460 N.J. Super. 22, 30 (App. Div. 2019). "Motions for
recusal ordinarily require a case-by-case analysis of the particular facts
presented." McCabe, 201 N.J. at 46. We review de novo whether the judge
applied the proper legal standard. Id. at 45 (citing Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We summarized our
"two-court" standard of review in State v. Triosi:
Our review of a de novo decision in the Law Division
is limited. State v. Clarksburg Inn, 375 N.J. Super. 624,
639 (App. Div. 2005). We do not independently assess
the evidence as if we were the court of first instance.
State v. Locurto, 157 N.J. 463, 471 (1999). Rather, we
focus our review on "whether there is 'sufficient
credible evidence . . . in the record' to support the trial
court's findings." State v. Robertson, 228 N.J. 138, 148
(2017) (alteration in original) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)). Deference is
especially appropriate when, as here, two separate
courts have examined the facts and reached the same
conclusion. Under the two-court rule, we do not
ordinarily alter concurrent findings of fact and
credibility determinations made by two prior courts
absent a very obvious and exceptional showing of error.
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Locurto, 157 N.J. at 474 (citation omitted). The trial
court's legal rulings, however, are considered de novo.
Robertson, 228 N.J. at 148. A "trial court's
interpretation of the law and the consequences that flow
from established facts are not entitled to any special
deference." Rowe v. Bell & Gossett Co., 239 N.J. 531,
552 (2019) (quoting Id. at 378).
[471 N.J. Super. 158, 164 (App. Div. 2022).]
III.
A.
We consider first defendant's claims that the Law Division showed
impermissible bias against her by ordering production of Lt. Loos' report and
questioning counsel regarding the legality of the conditional plea. We are not
persuaded.
Rule 1:12-1 provides, in pertinent part:
The judge of any court shall be disqualified on the
court's own motion and shall not sit in any matter. . . .
(g) when there is any other reason which might
preclude a fair and unbiased hearing and judgment, or
which might reasonably lead counsel or the parties to
believe
Similarly. the Code of Jud. Conduct, r. 3.17(B) provides, in pertinent part:
Judges shall disqualify themselves in proceedings in
which their impartiality or the appearance of their
impartiality might reasonably be questioned, including
but not limited to the following:
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Personal bias, prejudice or knowledge.
Judges shall disqualify themselves if they
have a personal bias or prejudice toward a
party or a party's lawyer or have personal
knowledge of disputed evidentiary facts
involved in the proceeding.
"Any party, on motion made to the judge before trial or argument and
stating the reasons therefor, may seek that judge's disqualification." R. 1:12-2.
"A movant need not show actual prejudice; 'potential bias' will suffice."
Goldfarb, 460 N.J. Super. at 31. "[J]udges must avoid acting in a biased way or
in a manner that may be perceived as partial." DeNike v. Cupo, 196 N.J. 502,
514 (2008) (emphasis in original). "[B]ias is not established by the fact that a
litigant is disappointed in a court's ruling on an issue." State v. Marshall, 148
N.J. 89, 186 (1997). "[T]he belief that the proceedings were unfair must be
objectively reasonable." Id. at 279.
The Law Division mistakenly determined that Lt. Loos' report was
properly before it. The record shows that trial counsel and the court engaged in
a contentious exchange over this issue. Nonetheless, the record also shows in
the Law Division's letter of amplification that it did not consider the report in
making its findings on the suppression motion. The Law Division's order is
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supported by its statement of reasons, which in turn is grounded in the record
below. We discern no reversible error.
Defendant also contends that the Law Division's inquiry about her DWI
plea showed impermissible bias. We disagree.
In its statement of reasons, the Law Division correctly observed that it had
the authority to ensure that court rules are followed. See Summit Trust Co. v.
Baxt., 333 N.J. Super 439, 450 (App. Div. 2000). The record clearly showed
that defendant's plea called for a one-day license suspension, a sentence not
authorized under N.J.S.A. 39:4-50. In the context of an unauthorized sentence,
we discern nothing in the record that would lead us to conclude the Law Division
was biased in any way towards defendant. See State v. Medina, 349 N.J. Super.
109, 131 (App. Div. 2002).
B.
We address the merits of the suppression order next. Defendant argues
that the Law Division erred by finding: Lt. Loos credible; that defendant failed
to maintain her lane while operating the truck; and by not finding that Lt. Loos
failed to comply with certain field sobriety testing standards.
We briefly dispose of the first two arguments, as they are grounded in
defendant's dispute with facts found by both the municipal court and the Law
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Division. Both courts found Lt. Loos credible with respect to his observations
of defendant while driving her truck and immediately after she was stopped.
Both courts made findings supported in part by their view of dashcam videos of
defendant's truck on the highway and her field sobriety tests. We defer to those
findings since two separate courts have examined the facts and made the same
findings. We see no need under the two-court rule to alter concurrent findings
of fact and credibility determinations made by the municipal court and the Law
Division. We discern no "obvious and exceptional showing of error" which
would justify overturning the courts' findings. 157 N.J. at 474.
Next, defendant contends that Lt. Loos failed to administer the standard
field sobriety tests in a "correct" manner, and that this deficiency negates
probable cause. She points to the record, which shows that Lt. Loos "last
received training to perform field sobriety tests thirty years ago," and that he
"never sought certification for the Horizontal Gaze Nystagmus Test (HGN)."
The record shows the municipal court barred Lt. Loos from testifying about
defendant's HGN test performance because he did not have the proper training.
Nonetheless, both courts cited credible evidence in the record to support their
findings. That evidence included: Lt. Loos' observations of defendant's driving;
his smelling an odor of alcohol coming from the truck; defendant's bloodshot
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eyes; defendant's statement that she was coming from a bar and "had a few
beers"; defendant's statement that she was headed home, even though she missed
her exit; and the raw video footage of defendant attempting to walk outside of
the truck after she was stopped.
Both courts reached their probable cause finding based on the totality of
the evidence in the record. The courts below found Lt. Loos' dated field sobriety
training and lack of certification on testing procedures did not defeat his overall
credibility, citing to his thirty-two years of experience as a police officer and his
involvement in approximately 1,000 DWI investigations. We discern no abuse
of discretion on this record.
C.
We turn to defendant's conditional plea agreement. We start with the well-
settled principle that "a reviewing court is not free to ignore an illegal sentence."
State v. Moore, 377 N.J. Super. 445 (App. Div. 2005).
We note "[t]here are two categories of illegal sentences: (1) those that
exceed the penalties authorized by statute for a particular offense and (2) those
that are not in accordance with the law, or stated differently, those that include
a disposition that is not authorized by our criminal code." State v. Schubert, 212
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N.J. 295, 308 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)); see
also State v. Acevedo, 205 N.J. 40, 45 (2011).
N.J.S.A. 39:4-50(a)2 states in pertinent part:
[A] person who operates a motor vehicle while under
the influence of intoxicating liquor . . . shall be subject
. . . [f]or the first offense: . . . to a fine of not less than
$300 or more than $500 and a period of detainment of
not less than 12 hours nor more than 48 hours spent
during two consecutive days of not less than six hours
each day . . . and shall forthwith forfeit his right to
operate a motor vehicle over the highways of this State
for a period of not less than seven months nor more than
one year.
[(Emphasis added).]
Defendant entered the conditional plea on August 9, 2022. The part of
defendant's sentence which imposed a one-day license suspension was not
authorized by N.J.S.A. 39:4-50 when the municipal court approved it. Our
courts may not enforce a plea agreement that results in an illegal sentence. State
v. Manzie, 335 N.J. Super. 267, 278 (App. Div. 2000); State v. Nemeth, 214 N.J.
Super. 324, 327 (App. Div. 1986). We may correct an illegal sentence at any
time. See R. 3:21-10(b)(5); State v. Tavares, 286 N.J. Super. 610, 619 (App.
2
Section (a) of N.J.S.A. 39:4-50, referencing penalties for first offenders, was
effective on August 9, 2022 and was not altered or changed in any way by the
recent amendments to the statute.
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Div. 1996). We do so now, and we vacate defendant's sentence in its entirety as
illegal. It was not authorized by N.J.S.A. 39:4-50(a), which establishes a
minimum seven-month license suspension for first offenders. See State v.
Hyland, 238 N.J. 135, 145 (2019).
Affirmed. We remand this matter to municipal court for further
proceedings consistent with the laws of this State.
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