State of New Jersey v. Jeffrey T. Morton

• Court: New Jersey Superior Court Appellate Division
• Decided: December 23, 2024
• Docket: A-3744-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3744-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY T. MORTON,

Defendant-Appellant. __________________________

Argued October 29, 2024 – Decided December 23, 2024

Before Judges Smith and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MA-22-017.

Christina Vassiliou Harvey argued the cause for appellant (Lomurro Munson, LLC, attorneys; Peter H. Lederman, of counsel; Christina Vassiliou Harvey, of counsel and on the briefs).

Melinda A. Harrigan, Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Melinda A. Harrigan, of counsel and on the brief).

PER CURIAM Defendant Jeffrey Morton appeals the Law Division order denying his 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 the motor vehicle stop

and arrest. After a suppression hearing in which the arresting officer testified

and the court reviewed the mobile video recording (MVR) from the police

vehicle, the municipal court denied the motion. In the resultant trial, the

municipal court found defendant guilty of DWI pursuant to N.J.S.A. 39:4 -50.

Defendant appealed to the Law Division, which, on de novo review, affirmed

denial of the suppression motion and, after a trial, again found defendant guilty

of DWI.

On appeal, defendant contends, among other things, that the Law

Division: should have granted the suppression motion; should have drawn an

adverse inference against the State at trial when a police officer was not called

to testify; and the Law Division judge exhibited bias toward him when it

inquired into Alcotest results not admitted into evidence. We affirm.

I.

We glean the pertinent facts and procedural history from the record.

Around midnight, on May 30, 2021, defendant was driving in the rain on Route

A-3744-22 2 9 in Freehold Township. Lt. L.A. Loos and Police Officer Zachary Pittius were

on duty patrolling when they noticed a silver Chevrolet Silverado driven by

defendant, "start[ing] to list over to the left[,] over the solid yellow line in the

left lane...." Officer Pittius then pulled directly behind defendant and observed

him drive the Silverado left over the solid yellow line. Officer Pittius observed

defendant cross the solid yellow line three more times over the next 20 seconds.

He noted that the car "almost hit the grass median."

Shortly after, Officer Pittius activated his lights and conducted a motor

vehicle stop. After defendant stopped, both Lt. Loos and Officer Pittius

approached the vehicle. Officer Pittius identified himself and asked defendant

for his license, registration and insurance. Defendant provided the requested

documents, however, the officers noted defendant's movements were "a little

slow." While speaking to defendant, Officer Pittius smelled an odor of alcohol

emanating from the vehicle and on defendant's breath. Based on these

observations, he asked defendant to step out of the car to administer a field

sobriety test, which the officers performed.

The record shows that Lt. Loos and Officer Pittius observed that defendant

failed to: touch his heel to toe while attempting to perform the walk and turn

test; failed to keep his balance while performing the one leg test; and failed to

A-3744-22 3 recite a segment of the alphabet as instructed. Along with the officers'

observations, the mobile video recording (MVR) captured defendant's driving

before the stop and the field sobriety test.

Based on his observations and defendant's performance, Officer Pittius

determined that the defendant was under the influence and placed the defendant

under arrest. Defendant was then transported to the police station. En route,

Officer Pittius continued to smell a strong odor of alcohol coming from the rear

passenger seat where defendant was sitting. Once at the police station and while

defendant was being processed, Officer Pittius continued to smell the odor of

alcohol on defendant. At the station, an Alcotest was administered to defendant.

Defendant was charged in municipal court with: Driving While

Intoxicated (DWI), N.J.S.A. 39:4-50; Failure to Maintain Lane, N.J.S.A. 39:4-

88; and Reckless Driving, N.J.S.A. 39:4-96. Prior to trial, defendant moved to

suppress the motor vehicle stop, arrest, and the Alcotest results. The State did

not introduce the Alcotest results at the municipal court trial, relying instead on

the observational testimony of Officer Pittius.

The municipal court heard the testimony of Officer Pittius, viewed the

MVR evidence, and then denied the motion to suppress and found defendant

guilty of DWI. The municipal court found: Officer Pittius credible; that he had

A-3744-22 4 reasonable suspicion for the vehicle stop; and that defendant had been operating

a vehicle under the influence of alcohol. The municipal court found defendant

guilty of violating N.J.S.A. 39:4-50.

Defendant appealed to the Law Division. At the hearing, the court asked

counsel why defendant's Alcotest results weren't admitted into evidence. The

State replied, informing the court that Lt. Loos was observed on video

improperly using his cellphone while inside the Alcotest room. The State

explained that was the reason that it would not proffer the Alcotest results in the

affirmative case against defendant.

Consequently, the State proffered observation testimony from Officer

Pittius and the MVR footage. Trial counsel raised objections and requested an

adverse inference be drawn against the State because Lt. Loos was not called to

testify. The Law Division denied the motion to suppress, declined to give an

adverse inference, and again found defendant guilty under N.J.S.A. 39:4-50.

In its written statement of reasons, the Law Division found the State met

its burden to show Officer Pittius was justified in stopping defendant's vehicle,

because: there was reasonable and articulable suspicion that defendant operated

his vehicle in violation of the law; there was reasonable suspicion that defendant

A-3744-22 5 operated a motor vehicle under the influence, and there was probable cause to

arrest defendant for a violation of N.J.S.A. 39:4-50.

Defendant appealed, arguing the following points:

A. WHETHER THE STOP MADE BY POLICE OFFICER PITTIUS WAS VALID UNDER STATE V. BOONE, 479 N.J. SUPER. 193 (APP. DIV. 2024).

B. THIS COURT SHOULD REVERSE BECAUSE DEFENDANT'S RIGHTS UNDER THE CONFRONTATION CLAUSE WERE VIOLATED.

C. THE DE NOVO COURT DEMONSTRATED BIAS BY INQUIRING INTO MATTERS THAT EXCEEDED THE SCOPE OF THE HEARING.

D. THE DE NOVO COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADVERSE INFERENCE.

E. THE DE NOVO COURT ERRED IN AFFIRMING THE ARREST AND CONVICTION GIVEN OFFICER PITTIUS DID NOT COMPLY WITH THE SCORING PROTOCOLS FOR ADMINISTERING THE STANDARIZED FIELD SOBRIETY TESTS.

II.

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

A-3744-22 6 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. 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 Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

[471 N.J. Super. 158, 164 (App. Div. 2022).]

If issues are raised for the first time on appeal, we review them under the

plain error standard. R. 2:10-2. "Under that standard, an unchallenged error

constitutes plain error if it was 'clearly capable of producing an unjust result.'"

State v. Singh, 245 N.J. 1, 13 (2021) (citing R. 2:10-2).

III.

A.

We first consider defendant's claim that the Law Division judge erred

when it found that Officer Pittius had a reasonable and articulable suspicion of

a motor vehicle violation before stopping defendant's vehicle. Defendant argues

A-3744-22 7 that under State v. Boone 1, 479 N.J. Super. 193 (2024), a police officer must

include particularized, credible details to justify an initial motor vehicle stop

and that factors such as driving conditions, the size of the vehicle, the number

of times the vehicle travels outside the lane and the amount of time the vehicle

continued outside of the lane must be considered. Defendant argues that Officer

Pittius failed to meet these criteria and therefore, the Law Division should have

granted his suppression motion. We are unpersuaded.

It is well settled that law enforcement officers "may stop motor vehicles

where they have a reasonable and articulable suspicion that a motor vehicle

violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div.

1990). "To establish reasonable suspicion, 'the officer must be able to point to

specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant' the suspicion." State v. Pitcher, 379 N.J. Super.

308, 315 (App. Div. 2005) (quoting State v. Pineiro, 181 N.J. 13, 19 (2004)).

Here, Officer Pittius noticed defendant "start[ing] to list over to the left

over the solid yellow line in the left lane of Route 9." After pulling behind him

he noticed the defendant drive his vehicle over the yellow line of the left lane.

1 Pursuant to Rule 2:6-11(d)(1), defendant properly filed a letter with a brief indication of its significance, calling to the court's attention a relevant published opinion after the filing of the brief. A-3744-22 8 This occurred three more times over a short amount of time. Notably, the car

"almost hit the grass median". Both trial judges found Officer Pittius' testimony

credible. His testimony, combined with the MVR footage corroborated his

observation that defendant violated N.J.S.A. 39:4-88.

We do not independently assess the evidence after both the municipal

court and the Law Division have tried this matter. Triosi, 471 N.J. Super at 164.

We consider the ample record and conclude there is sufficient credible evidence

in it to support the Law Division's finding that Officer Pittius had reasonable

suspicion that defendant violated N.J.S.A. 39:4-88. Ibid. We discern no error.

B.

Defendant next argues the Law Division violated his rights under the

Confrontation Clause of the United States and the New Jersey Constitution

because it considered evidence beyond the scope of the municipal court record,

specifically a police report and Alcotest results. We are not persuaded.

Both the Sixth Amendment to the United States Constitution and Article

I, Paragraph 10 of the New Jersey Constitution provide that the accused in a

criminal prosecution has the right "to be confronted with the witnesses against

him." State v. Branch, 182 N.J. 338, 348 (2005) (citing the U.S. Const. amend.

VI and N.J. Const. art. I, ¶ 10). The right of confrontation is an essential part of

A-3744-22 9 the right to a fair trial, requiring that a defendant have a '"fair opportunity to

defend against the States accusations.'" State v. Garron, 177 N.J. 147, 169

(2003) (quoting Chambers v. Mississippi, 410 U.S. 284, 294 (1973)).

In New Jersey, it is error to rest a decision on matters not appearing in the

record. Second Reformed Church v. Bd. of Adjustment of Borough of Freehold,

30 N.J. Super. 338, 341 (App. Div. 1954). However, "'a judge sitting as the

factfinder is certainly capable of sorting through admissible and inadmissible

evidence without resultant detriment to the decision-making process . . . .'" State

v. Medina, 349 N.J. Super. 108, 130 (App. Div. 2002) (citing State v. Kern, 325

N.J. Super. 435, 444 (App. Div. 1999)). Nonetheless, a matter should be

reversed when inadmissible evidence is used to implicate a defendant's guilt.

State v. Weaver, 219 N.J. at 152 (quoting Branch, 182 N.J. at 351).

The record shows the Law Division never saw the police report and found

the report was not in evidence before the municipal court. After hearing

argument from trial counsel, the Law Division clearly stated that it would not

consider the report on the de novo appeal.

Next, the Law Division inquired about why defendant's Alcotest results

were not admitted before the municipal court. The State explained that Lt. Loos

was captured on video using his cellphone in the Alcotest room, and that such

A-3744-22 10 use was a violation of State v. Chun, 194 N.J. 54 (2008), which in turn caused

the State to refrain from using the results at defendant's trial. Continuing the

colloquy, the State confirmed before the Law Division that it chose to prosecute

the case against defendant based on officer observations alone. Finally, the Law

Division made quite plain on the record that defendant's Alcotest results were

not in evidence.

There is nothing in the record to suggest that the Law Division considered

either the police report or the Alcotest results in making its suppression motion

or trial findings. The Law Division carefully grounded its findings on the

credible observational testimony of Officer Pittius and the MVR footage, and

the record clearly shows the court was "capable of sorting through admissible

and inadmissible evidence without resultant detriment to the decision-making

process . . . ." Medina, 349 N.J. Super. at 130. We discern no error.

C.

We consider defendant's claim that the Law Division showed bias against

him by inquiring as to why the Alcotest evidence was not admitted. 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 . . . .

....

A-3744-22 11 (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 so

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:

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 v. Solimine, 460 N.J. Super. 22, 31 (App. Div. 2019), aff'd as modified

and remanded, 245 N.J. 326 (2021). "[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.

A-3744-22 12 Here, the Law Division did inquire as to why the Alcotest was not

admitted into evidence. However, the court's inquiry, without more, cannot

form a basis to conclude it was biased toward defendant. Our careful review of

the record reveals no facts to support defendant's theory that the Law Division

took note of the State's strategic choice not to introduce defendant's Alcotest

results and then used that information in its analysis of whether defendant

violated N.J.S.A. 39:4-50. We decline to engage in the speculation required to

sustain this argument, and again we discern no error.

D.

We turn to defendant's argument that the judge erred by refusing to give

an adverse inference charge pursuant to State v. Clawans, 38 N.J. 162, 170

(1962). Defendant contends that the State should have called Lt. Loos to testify

because he was within the State's control, had superior knowledge to Officer

Pittius on the administration of the scoring of the standardized field sobriety

test, was available within the court, and had information that was crucial to the

suppression motion and trial. We disagree.

Defendant did not raise this issue at trial, consequently, we use a plain

error standard of review. R. 2:10-2.

A-3744-22 13 In State v. Hill, the Court explained a trial judge may provide an adverse

inference charge after considering and making findings based on the following

circumstances:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[199 N.J. 545, 561 (2009) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985)).]

An adverse inference charge is not "invariably available whenever a party

does not call a witness who has knowledge of relevant facts." Washington v.

Perez, 430 N.J. Super. 121, 128 (App. Div. 2013) (quoting Hill, 199 N.J. at 561).

In many cases the only rational inference to be drawn is the witness's testimony

would not have been helpful to the trier of fact. State v. Velasquez, 391 N.J.

Super. 291, 308 (App. Div. 2007) (citation omitted). Where the witness's

testimony is unimportant, cumulative, or inferior to testimony already presented

on the issue, it is reasonable to infer that non-production is explained by the fact

that the testimony is unnecessary. Id. at 308-09 (citing Clawans, 38 N.J. at 171).

A-3744-22 14 Defendant failed to show an adverse inference was warranted on these

facts. Officer Pittius and Lt. Loos both observed defendant's behavior and

performance on the field sobriety test, and Loos' testimony in these areas would

have been cumulative. The record shows that Lt. Loos' primary role in this

matter was administration of the Alcotest, the results of which the State chose

not to use at trial.

We agree with the Law Division, which noted defendant could have called

Lt. Loos as a defense witness. It follows that there was no prejudice to

defendant. The court properly applied the principles of Clawans to reject

defendant's request for an adverse inference.

E.

Finally, we address defendant's argument that Officer Pittius failed to use

the proper field sobriety test scoring factors, and that this deficiency negates

probable cause.

Although Officer Pittius was not well versed in the scoring factors, both

the municipal court and the Law Division found Officer Pittius' observational

testimony credible. Additionally, both courts cited specific facts in the record

to support their findings. Those facts included: Officer Pittius' observation of

defendant's driving; his detection of alcohol odor coming from defendant's

A-3744-22 15 vehicle; his detection of alcohol odor coming from defendant; his detection of

alcohol odor coming from the back seat of the police car during defendant's

transport to the police station; and the MVR footage of defendant attempting to

perform the field sobriety tests.

Both courts reached their probable cause findings based on the totality of

the evidence in the record. Neither court found Officer Pittius' lack of

experience scoring the field sobriety test hurt his overall credibility. Our

jurisprudence calls for deference "when, as here, two separate courts have

examined the facts and reached the same conclusion." Triosi, 471 N.J. Super.

at 164. We exercise that deference here.

Affirmed.

A-3744-22 16