STATE OF NEW JERSEY v. JEFFREY FLAMME

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JEFFREY FLAMME, Defendant–Appellant.

DOCKET NO. A–2554–12T3

Decided: March 25, 2014

Before Judges Fuentes, Fasciale and Haas. Gerard E. Hanlon argued the cause for appellant (Hanlon, Dunn and Robertson, attorneys;  Mr. Hanlon and Terry Webb, on the brief). Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Kareer, on the brief).

Defendant Jeffrey Flamme pled guilty to driving while under the influence of alcohol (DWI), N.J.S.A. 39:4–50, conditioned upon appealing the decision of the Law Division denying his motion to suppress evidence.1  The court sentenced defendant to pay the mandatory penalties and fees associated with this charge, imposed a $500 fine, directed defendant to serve forty-eight hours in the Intoxicated Drivers Resource Center in lieu of serving a term of imprisonment, ordered defendant to perform thirty days of community service, suspended defendant's driver's license for two years, and ordered defendant to install an interlock ignition device during the period of license suspension and, by agreement, for an additional six months thereafter.

Although defendant raises a number of issues on appeal, his principal argument concerns the legitimacy of the arresting officer's interactions at the point just prior to defendant's arrest.   Defendant claims the arresting officer did not have a legal basis to detain him when defendant returned his daughter to the residence of his estranged former wife, nor did the officer have a legal basis to interact with defendant in the manner the officer claimed established probable cause to question defendant's sobriety.   We reject these arguments and affirm substantially for the reasons expressed by Judge David H. Ironson in his statement of reasons dated March 29, 2010, and reaffirmed by Judge Robert J. Gilson, as reflected in his order and statement of reasons dated December 20, 2012.

We derive the following facts from the record developed before the Law Division.

At approximately 9:30 p.m. on July 3, 2009, defendant's former wife contacted the Harding Police Department to report that her daughter, a minor, was missing.   Officer Erik Heller responded to the caller's residence to investigate.   As found by the Law Division based on Heller's testimony, defendant's former wife told Heller that “her daughter was en route home with her ex-husband, Jeffrey [Flamme].” 2

This was the second time defendant's former wife had called the police that night concerning her daughter.   She had called approximately forty-five minutes earlier and spoken to Sergeant Irons, who explained to her “that this matter did not involve a missing child.”   Heller testified that despite being aware that the caller's “missing child” report was not a matter requiring the involvement of the police, he nevertheless decided to respond to the caller's residence and speak to her personally “just to make sure.”

Once there, Heller confirmed defendant was returning the child to her mother's residence after spending a week with her as part of his parenting time arrangement.   At this point, defendant's former wife asked Heller to leave before defendant arrived to avoid any trouble.

The marked patrol car Heller drove that night was parked in the driveway of defendant's former wife's house.   As Heller walked out of the residence on his way to the patrol car, defendant drove up the driveway and parked behind the patrol car.   From the testimony of the witnesses, Judge Ironson found:

Patrolman Heller remained in his vehicle, with the car running, for approximately thirty seconds to a minute before exiting the vehicle.   Patrolman Heller testified that he got out of his car and approached [defendant's] vehicle for three reasons:  first, to check on [defendant's] daughter;  second, to talk about the custody issue;  and third, to have [defendant] move his vehicle so that he could leave.

As Patrolman Heller approached the vehicle, [defendant's] daughter got out of her father's car, indicated that she was ‘okay’ and went inside the house.   Patrolman Heller knew the juvenile because she had previously been one of his DARE 3 students.   Patrolman Heller indicated that he engaged [defendant] in regard to the custody issue in order to let him know that it was going to be documented that he was present and that it was a ‘civil matter’ in the event [defendant's former wife] needed any information.   Further, Patrolman Heller approached the vehicle in order to have [defendant] move his vehicle so he could leave.   Otherwise, Patrolman Heller explained he would not have been able to leave without driving on the grass.

Heller testified, and Judge Ironson found, that as soon as Heller “started to speak” with defendant, he “immediately smelled ․ the odor of an alcoholic beverage.”   Heller also noticed defendant's speech was slurred and that he turned his head away from him to avoid a face-to-face interaction.   At this point, Heller told defendant to put the car in park so that they could continue talking.   According to Heller, although defendant complied with his instructions, he did so “very slowly and deliberately.”   Judge Ironson found that based on these observations, Heller asked defendant “how much alcohol he had consumed, to which [defendant] responded, ‘some over dinner.’ ”   On these facts, Heller arrested defendant at the scene for DWI. Judge Ironson also noted that Heller had arrested defendant for the same offense five years earlier.

From these discrete facts, defendant moved to nullify his arrest and suppress any evidence gathered by the State therefrom.   The municipal court granted defendant's motion.   On the State's motion for leave to appeal from this interlocutory decision, Judge Ironson found these facts sufficiently established probable cause to arrest defendant for DWI. We need not include here the procedural journey the case took from this point.   Suffice it to say that defendant entered a conditional guilty plea to DWI before the municipal court and sought further review before the Law Division.   As Judge Gilson correctly held in his December 20, 2012 order, and explained in the Statement of Reasons attached, this issue had been settled by Judge Ironson's earlier ruling.

Defendant now appeals to this court from this final judgment raising the following arguments.

POINT I

A WARRANTLESS SEIZURE IS PRESUMED TO BE INVALID.

POINT II

THE OFFICER ADMITTEDLY SEIZED MR. FLAMME WITHIN THE MEANING OF THE FOURTH AMENDMENT AND NO EXCEPTIONS TO THE WARRANT REQUIREMENT APPLY.

A. The Police Encounter Was Not A Field Inquiry.

B. Clearly Mr. Flamme Was Seized and Was Not Free to Leave.

POINT III

THERE WAS NO REASONABLE SUSPICION TO DETAIN MR. FLAMME AND QUESTION HIM ABOUT HIS PRIVATE FAMILY LIFE;  THUS, ANY EVIDENCE OBTAINED MUST BE SUPPRESSED.

POINT IV

JUDGE SCHAUL'S RULING WAS BASED ON SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD.

POINT V

THERE IS NO COMMUNITY CARETAKING TO JUSTIFY THE ILLEGAL SEIZURE OF MR. FLAMME.

When a defendant appeals a decision made by a municipal court to the Law Division, the court is required to conduct a de novo review of the record, giving “due regard to the municipal judge's opportunity to view the witnesses and assess credibility.”  State v. Golin, 363 N.J.Super. 474, 481 (App.Div.2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)).   On appeal from the Law Division's decision, we must determine whether the Law Division judge's findings “could reasonably have been reached on sufficient credible evidence in the record.”  State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 161–62).

In this light, we reject defendant's arguments and affirm substantially for the reasons expressed by Judge Ironson in his statement of reasons dated March 29, 2010.

Affirmed.

FOOTNOTES

1.  FN1. Defendant's guilty plea was part of a negotiated plea agreement through which the State agreed to dismiss two companion charges alleging reckless driving, N.J.S.A. 39:4–96, and driving while intoxicated with a minor as a passenger of the vehicle, N.J.S.A. 39:4–50.15.

2.  FN2. It appears the mother was concerned because defendant had agreed to return the child at 5:30 p.m. As noted earlier, Heller arrived at her residence in response to her call to the police, which she made at approximately 9:30 p.m.

3.  FN3. DARE is an acronym for “Drug Awareness Resistance and Education.” http://darenj.com/about_overview.asp (Last visited on March 12, 2014.)

PER CURIAM

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