STATE OF NEW JERSEY v. JANET GALLAGHER

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JANET GALLAGHER, Defendant–Appellant.

DOCKET NO. A–0559–12T1

Decided: March 12, 2014

Before Judges Simonelli and Fasciale. Robert A. Marks, attorney for appellant. Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Following a trial de novo in the Law Division, defendant Janet Gallagher was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4–50.   Because this was defendant's third DWI conviction, Judge Stuart Minkowitz sentenced her to a ten-year driver's license suspension and a 180–day term of incarceration, with ninety days to be served in an in-patient rehabilitation center.   The judge also ordered defendant to install an ignition interlock device for one year following completion of her suspension, and imposed the appropriate fines, costs and surcharges.

On appeal, defendant raises the following contentions:

POINT I

THE COURT BELOW ERRED IN FINDING THAT THE STOP WAS MERELY A “FIELD INQUIRY” EVEN THOUGH THERE WAS NO SUSPICION OF CRIMINAL ACTIVITY, THE DEFENDANT WAS NOT ASKED IF SHE WAS WILLING TO ANSWER QUESTIONS, THE FIRST QUESTION WAS ACCUSATORY AND, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE DEFENDANT COULD NOT HAVE REASONABLY FELT FREE TO SIMPLY DRIVE OFF.

POINT II

THE COURT BELOW ERRED IN FINDING THAT THE COMMUNITY CARETAKING EXCEPTION WAS ALSO APPROPRIATE HERE, WHERE THE POLICE OFFICER ADMITTED THAT DEFENDANT'S VEHICLE WAS STOPPED SOLELY BECAUSE HE BELIEVED DEFENDANT GAVE HIM THE “MIDDLE FINGER” AND NOT BECAUSE OF ANY UNUSUAL OR ABNORMAL OPERATION OF HER VEHICLE.

POINT III

THE COURT BELOW ABUSED ITS DISCRETION BY REAFFIRMING THE TRIAL COURT'S DENIAL OF DEFENDANT'S THREE REQUESTS FOR DISMISSAL FOLLOWING THE STATE'S INABILITY TO PROCEED ON FOUR CONSECUTIVE MOTION/TRIAL DATES.1

We reject these contentions and affirm.

The record reveals the following facts.   At approximately 5:00 a.m. on March 7, 2011, Detective Michael Patchunka of the Mount Olive Police Department responded in his marked patrol vehicle to a medical assistance call at an apartment complex.   It was dark, snowing, sleeting, and windy, and the roadway was icy.   After completing the call, at approximately 5:15 a.m., the detective drove through the complex and encountered a vehicle parked and blocking the roadway.   He remained behind the vehicle for approximately three or four minutes without activating his overhead lights.   The driver, later identified as defendant, finally realized the patrol vehicle was behind her vehicle and pulled over to let it pass.

As Detective Patchunka was passing defendant's vehicle, he looked at her driver's side window, which was “frosted over ․ with ice and slush.”   He saw that defendant appeared to be an older woman who was raising her hand up and down, making what he thought was an obscene hand gesture.   Based on the time of day and circumstances, he found this “was kind of strange” and that “maybe [he] was seeing things with the ice and ․ [defendant's driver's side] window covered.”   He also thought that maybe defendant had not made an obscene hand gesture, but rather, was “waving [him] over for help.”   He testified that “at that point [he] really didn't know what ․ was going on,” so he backed up behind defendant's vehicle, exited his patrol vehicle without activating his overhead lights, and approached her “to find out ․ what was the matter ․ if she was alright.”   Defendant answered “no” when he asked if she made an obscene hand gesture, but did not respond when he asked if she had waved him over or needed help.   While speaking to defendant, he smelled an odor of alcoholic beverage emanating from her vehicle, and she appeared to be intoxicated.   The detective returned to his patrol vehicle, activated his overhead lights, and radioed for assistance.   Defendant was arrested following the administration of field sobriety tests.   The Alcotest administered at police headquarters revealed that defendant had a .15 percent blood alcohol content.

Defendant testified she did not make an obscene hand gesture to Detective Patchunka and was not intoxicated.   She could not recall, however, whether the detective asked her if she needed help or was not feeling well.

The municipal court judge found Detective Patchunka's testimony was “extremely credible” and defendant's testimony was inconsistent in certain areas.   The judge concluded that based on the totality of the circumstances, the detective had an objectively reasonable basis to investigate, the community-caretaking exception applied, and once he smelled alcohol and observed defendant, he had probable cause to arrest her.

On appeal to the Law Division, Judge Minkowitz rejected defendant's speedy trial argument.   In an August 17, 2012 oral opinion, the judge found the trial was adjourned six times:  twice at defendant's request;  once to allow the State sufficient time to respond to defendant's motion to suppress that she filed shortly before the trial date;  and three times because Detective Patchunka suffered a knee injury and was on temporary disability.   The judge determined that the detective was the principal witness whose testimony was crucial, the State could not proceed without him, and the matter proceeded as soon as he was available.   After balancing the fours factors in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101 (1972), the judge concluded the State did not deliberately delay the trial, the reason for the six-month delay was reasonable, and the delay did not unduly prejudice defendant.

On the substantive issues, Judge Minkowitz made detailed factual findings and concluded that Detective Patchunka conducted a field inquiry, not an investigatory stop.   Alternatively, the judge determined that the community-caretaking exception applied based on the totality of the circumstances.

Our review of a trial judge's decision on a motion to suppress is limited.   State v. Robinson, 200 N.J. 1, 15 (2009).   In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, ‘so long as those findings are supported by sufficient credible evidence in the record.’   State v. Rockford, 213 N.J. 424, 440 (2013) (citations and internal quotation marks omitted).   We do not, however, defer to a trial judge's legal conclusions, which we review de novo.  Ibid. We review de novo mixed questions of law and fact.  In re Malone, 381 N.J.Super. 344, 349 (App.Div.2005).

In addition, on appeal from a municipal court to the Law Division, the review is de novo on the record.   R. 3:23–8(a).   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 a municipal court judge to assess the credibility of the witnesses.  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.  State v. Segars, 172 N.J. 481, 488 (2002).  “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).   Because neither this court nor the Law Division judge is in a good position to judge credibility, the municipal court's credibility findings are given deference.  State v. Locurto, 157 N.J. 463, 470–71 (1999).

Our Supreme Court has defined a field inquiry as “the least intrusive” form of police encounter, occurring “when a police officer approaches an individual and asks ‘if [the person] is willing to answer some questions.’ ”  State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).  “A field inquiry is permissible so long as the questions ‘[are] not harassing, overbearing, or accusatory in nature.’ ”   Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510).   During such an inquiry, “the individual approached ‘need not answer any question put to him;  indeed, he may decline to listen to the questions at all and may go on his way.’ ”  State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).

In contrast to a field inquiry, an investigatory stop, also known as a Terry 2 stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest.  State v. Stovall, 170 N.J. 346, 355–56 (2002);  see also Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878–79, 20 L. Ed.2d at 904.   The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is “based on ‘specific and articulable facts which, taken together with rational inferences from those facts,’ give rise to a reasonable suspicion of criminal activity.”  State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L. Ed.2d at 906).   Under this well-established standard, “[a]n investigatory stop is valid only if the officer has a ‘particularized suspicion’ based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing.”  State v. Davis, 104 N.J. 490, 504 (1986).

In the context of a motor vehicle stop, a police officer is permitted to approach a parked car and engage the driver in voluntary conversation.   State v. Stampone, 341 N.J.Super. 247, 252 (App.Div.2001).   This constitutes a field inquiry.  Ibid. “[A] field [inquiry] is not a Fourth Amendment event ‘so long as the officer does not deny the individual the right to move.’ ”  State v. Egan, 325 N.J.Super. 402, 409 (App.Div.1999) (quoting State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L. Ed.2d 121 (1973)).   The transition from field inquiry to investigatory stop occurs when the interaction objectively conveys to the driver that the engagement was not voluntary, and he or she was not free to leave.  Stampone, supra, 341 N.J.Super. at 252.   However, there is no seizure if:  “(1) the officer's questions were conversational in manner;  (2) the officer made no demands or issued orders;  and (3) the officer's questions were neither ‘overbearing or harassing in nature.’ ”  Egan, supra, 325 N.J.Super. at 409 (quoting State ex rel. J.G., 320 N.J.Super. 21, 30 (App.Div.1999)).

Here, Detective Patchunka's initial approach of defendant's vehicle was clearly a field inquiry.   The scope of the field inquiry permitted him to inquire why defendant was there or to otherwise engage her in consensual conversation.  Id. at 410.   The detective made no demand, issued no orders, his questions were not overbearing or harassing in nature, and he did not impede defendant's ability to leave if she so chose.   He approached defendant's vehicle and merely asked if she had made an obscene hand gesture or needed help, which were obviously permissible inquiries.  Pineiro, supra, 181 N.J. at 20.   Defendant voluntarily complied.   Thus, it was not necessary that the detective have a reasonable suspicion that defendant had engaged in criminal activity before speaking to her.   However, once he smelled alcohol and saw that defendant appeared intoxicated, he had probable cause to arrest her.   The Alcotest was lawfully conducted incident to that arrest.

Alternatively, the community-caretaking exception justified an investigatory stop based on the totality of the circumstances.   The community-caretaking function may be implicated where a police officer observes something abnormal about the operation of a motor vehicle.  State v. Martinez, 260 N.J.Super. 75, 78 (App.Div.1992).

Such abnormal conduct suggests a number of objectively reasonable concerns:  (a) something might be wrong with the car;  (b) something might be wrong with its driver;  (c) a traffic safety hazard is presented to drivers approaching from the rear when an abnormally slow moving vehicle is operated at night on a roadway without flashers;  (d) there is some risk that the residential neighborhood is being cased for targets of opportunity.

[Ibid.]

The first three concerns trigger the community-caretaking function, while the fourth implicates the common-law right to inquire based upon a founded suspicion that criminal activity might be afoot.  Ibid. We are satisfied that under his community-caretaking function, Detective Patchunka was justified in conducting an investigatory stop to determine if defendant needed help based on the circumstances of an occupied vehicle parked on an icy roadway early in the morning in bad weather.

We have considered defendant's speedy trial argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons expressed in Judge Minkowitz's August 17, 2012 oral opinion, which the record amply supports.   However, we make the following brief comments.

Directive # 1–84 established a sixty-day dispositional goal for DWI cases, not a bright-line try-or-dismiss rule.  State v. Cahill, 213 N.J. 253, 270 (2013).   The four-factor Barker balancing analysis governs the evaluation of speedy trial violations in DWI cases.  Id. at 271.

Affirmed.

FOOTNOTES

1.  FN1. The record indicates that defendant raised the speedy trial issue before the municipal court judge;  however, she has not supplied any transcripts of the municipal court judge's ruling on the issue.

2.  FN2. Terry v. Ohio, 392 U.S. 1, 19–21, 88 S.Ct. 1868, 1879–80, 20 L. Ed.2d 889, 904–06 (1968).

PER CURIAM

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