NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3727-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GLENN D. ZIELINSKI,
Defendant-Appellant. _____________________________
Submitted January 13, 2020 – Decided March 31, 2020
Before Judges Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 22- 18.
John M. Makowski, attorney for appellant.
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Melinda A. Harrigan, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant, Glenn Zielinski, was convicted in municipal court of driving
while using a cell phone in violation of N.J.S.A. 39:4-97.3. He now appeals
from his de novo conviction in the Law Division. Defendant contends the motor
vehicle stop was unlawful. He also contends both the municipal court and Law
Division judges erred in concluding that the State had proven his guilt beyond a
reasonable doubt. In support of that argument, defendant relies on police video
evidence he claims refutes the officer's trial testimony. Both of defendant's
contentions hinge on credibility assessments made by the municipal court and
Law Division judges. Given the deferential standard of review, we affirm his
conviction.
I.
In April 2018, defendant was stopped by Mullica Township Police
Sergeant Christopher Silva on suspicion of distracted driving. After conducting
an on-scene investigation, Silva issued a summons for violation of N.J.S.A.
39:4-97.3. Silva and defendant were the only witnesses who testified at the
municipal court trial. Following testimony and summations, the municipal court
judge found defendant guilty and imposed a fine of $306 and $33 in court costs.
Defendant appealed the conviction to the Law Division. Before the Law
Division judge, defendant for the first time challenged the lawfulness of the
A-3727-18T3 2 motor vehicle stop. 1 After reviewing the municipal court record de novo and
hearing arguments from the prosecutor and defense, the Law Division judge
denied defendant's motion to suppress and found defendant guilty beyond a
reasonable doubt.
II.
The facts pertinent to this appeal are recounted in the Law Division judge's
opinion and need only be briefly summarized in this opinion. Sergeant Silva
was "working a cell phone grant" from the State, indicating that his attention
was focused on identifying distracted drivers. He observed defendant's vehicle
pass by while defendant was holding a cell phone in his right hand. Silva
indicated that the speed limit was 50 mph, and defendant was neither speedi ng
nor driving slowly.
Silva pulled out of his parked location and initiated a motor vehicle stop.
In the conversation that followed, defendant admitted he was using the GPS
feature of his phone. Defendant was then issued a summons for violating
N.J.S.A. 39:4-97.3.
1 It does not appear that the motion to suppress was properly filed in accordance with Rule 7:5-2(b). The State has not claimed on appeal that our consideration of the motion is procedurally barred. We elect to consider, and reject, defendant's constitutional argument on the merits. A-3727-18T3 3 The police vehicle was equipped with a mobile video recorder, commonly
referred to as a "dash cam." Defendant at trial presented three still images taken
from the video. Silva admitted after viewing the video and still shots that this
evidence did not show defendant holding a telephone in his right hand. At the
close of the State's case, defendant moved to dismiss the charge based on Silva's
admission that the video evidence did not show that defendant was holding his
phone. The municipal court judge denied the motion.
Defendant testified that his cellphone was connected to his car radio
through Bluetooth and that the cellphone was on the seat beside him. He
admitted he was using his GPS while driving but claimed that he did not have
to look at it since it was "set." Defendant further claimed that he could not have
been holding his cellphone because if he did, it would cause "feedback" on the
radio.
After hearing both witnesses and viewing the video evidence, the
municipal court judge accredited Silva's testimony over defendant's testimony.
Accordingly, the municipal judge found defendant guilty of driving while using
a cell phone.
After reviewing the municipal court record, the Law Division judge made
the same factual and credibility findings. Based on Silva's credible testimony,
A-3727-18T3 4 the judge rejected defendant's motion to suppress. The judge found that Silva
"observed . . . defendant holding a phone in his right hand while operating his
motor vehicle, and that [Silva] knew this was a motor vehicle offense giving rise
to a reasonable suspicion for . . . Silva to pull over defendant's vehicle." The
judge further found that the State proved defendant's guilt beyond a reasonable
doubt. The judge relied on both Silva's testimony and defendant's admission to
Silva that he had been using GPS on his phone.
III.
Defendant raises the following issues for our consideration:
POINT I
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [] DEFENDANT WAS GUILTY OF A VIOLATION OF N.J.S.A. 39:4- 97.3.
POINT II
THE POLICE OFFICER LACKED PROBABLE CAUSE TO STOP [] DEFENDANT.
IV.
We begin our analysis by acknowledging the standard of review that
applies to this appeal. Our review is limited following a trial de novo in the Law
Division. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).
A-3727-18T3 5 Importantly, 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 in this case, two judges have
examined the facts and reached the same conclusion. As the Supreme Court
made clear in Locurto, "[u]nder the two-court rule, appellate courts ordinarily
should not undertake to alter concurrent findings of facts and credibility
determinations made by two lower courts absent a very obvious and exceptional
showing of error." 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123,
128–29 (1952)). Therefore, our review of the factual and credibility findings of
the municipal court and the Law Division "is exceedingly narrow." State v.
Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470); see also
Meshinsky v. Nicholas Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (observing
that appellate courts defer to the Law Division's credibility findings that were
not "wholly unsupportable as to result in a denial of justice" (quoting Rova
Farms Resort v. Inv'rs Ins.
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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-3727-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GLENN D. ZIELINSKI,
Defendant-Appellant. _____________________________
Submitted January 13, 2020 – Decided March 31, 2020
Before Judges Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 22- 18.
John M. Makowski, attorney for appellant.
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Melinda A. Harrigan, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant, Glenn Zielinski, was convicted in municipal court of driving
while using a cell phone in violation of N.J.S.A. 39:4-97.3. He now appeals
from his de novo conviction in the Law Division. Defendant contends the motor
vehicle stop was unlawful. He also contends both the municipal court and Law
Division judges erred in concluding that the State had proven his guilt beyond a
reasonable doubt. In support of that argument, defendant relies on police video
evidence he claims refutes the officer's trial testimony. Both of defendant's
contentions hinge on credibility assessments made by the municipal court and
Law Division judges. Given the deferential standard of review, we affirm his
conviction.
I.
In April 2018, defendant was stopped by Mullica Township Police
Sergeant Christopher Silva on suspicion of distracted driving. After conducting
an on-scene investigation, Silva issued a summons for violation of N.J.S.A.
39:4-97.3. Silva and defendant were the only witnesses who testified at the
municipal court trial. Following testimony and summations, the municipal court
judge found defendant guilty and imposed a fine of $306 and $33 in court costs.
Defendant appealed the conviction to the Law Division. Before the Law
Division judge, defendant for the first time challenged the lawfulness of the
A-3727-18T3 2 motor vehicle stop. 1 After reviewing the municipal court record de novo and
hearing arguments from the prosecutor and defense, the Law Division judge
denied defendant's motion to suppress and found defendant guilty beyond a
reasonable doubt.
II.
The facts pertinent to this appeal are recounted in the Law Division judge's
opinion and need only be briefly summarized in this opinion. Sergeant Silva
was "working a cell phone grant" from the State, indicating that his attention
was focused on identifying distracted drivers. He observed defendant's vehicle
pass by while defendant was holding a cell phone in his right hand. Silva
indicated that the speed limit was 50 mph, and defendant was neither speedi ng
nor driving slowly.
Silva pulled out of his parked location and initiated a motor vehicle stop.
In the conversation that followed, defendant admitted he was using the GPS
feature of his phone. Defendant was then issued a summons for violating
N.J.S.A. 39:4-97.3.
1 It does not appear that the motion to suppress was properly filed in accordance with Rule 7:5-2(b). The State has not claimed on appeal that our consideration of the motion is procedurally barred. We elect to consider, and reject, defendant's constitutional argument on the merits. A-3727-18T3 3 The police vehicle was equipped with a mobile video recorder, commonly
referred to as a "dash cam." Defendant at trial presented three still images taken
from the video. Silva admitted after viewing the video and still shots that this
evidence did not show defendant holding a telephone in his right hand. At the
close of the State's case, defendant moved to dismiss the charge based on Silva's
admission that the video evidence did not show that defendant was holding his
phone. The municipal court judge denied the motion.
Defendant testified that his cellphone was connected to his car radio
through Bluetooth and that the cellphone was on the seat beside him. He
admitted he was using his GPS while driving but claimed that he did not have
to look at it since it was "set." Defendant further claimed that he could not have
been holding his cellphone because if he did, it would cause "feedback" on the
radio.
After hearing both witnesses and viewing the video evidence, the
municipal court judge accredited Silva's testimony over defendant's testimony.
Accordingly, the municipal judge found defendant guilty of driving while using
a cell phone.
After reviewing the municipal court record, the Law Division judge made
the same factual and credibility findings. Based on Silva's credible testimony,
A-3727-18T3 4 the judge rejected defendant's motion to suppress. The judge found that Silva
"observed . . . defendant holding a phone in his right hand while operating his
motor vehicle, and that [Silva] knew this was a motor vehicle offense giving rise
to a reasonable suspicion for . . . Silva to pull over defendant's vehicle." The
judge further found that the State proved defendant's guilt beyond a reasonable
doubt. The judge relied on both Silva's testimony and defendant's admission to
Silva that he had been using GPS on his phone.
III.
Defendant raises the following issues for our consideration:
POINT I
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [] DEFENDANT WAS GUILTY OF A VIOLATION OF N.J.S.A. 39:4- 97.3.
POINT II
THE POLICE OFFICER LACKED PROBABLE CAUSE TO STOP [] DEFENDANT.
IV.
We begin our analysis by acknowledging the standard of review that
applies to this appeal. Our review is limited following a trial de novo in the Law
Division. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).
A-3727-18T3 5 Importantly, 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 in this case, two judges have
examined the facts and reached the same conclusion. As the Supreme Court
made clear in Locurto, "[u]nder the two-court rule, appellate courts ordinarily
should not undertake to alter concurrent findings of facts and credibility
determinations made by two lower courts absent a very obvious and exceptional
showing of error." 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123,
128–29 (1952)). Therefore, our review of the factual and credibility findings of
the municipal court and the Law Division "is exceedingly narrow." State v.
Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470); see also
Meshinsky v. Nicholas Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (observing
that appellate courts defer to the Law Division's credibility findings that were
not "wholly unsupportable as to result in a denial of justice" (quoting Rova
Farms Resort v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483–84 (1974))).
A-3727-18T3 6 IV.
We first address defendant's appeal from the Law Division judge's denial
of his motion to suppress. Here, defendant claims the motor vehicle stop was
unlawful.2 Officers need only have an "articulable and reasonable suspicion"
that the driver has committed a motor vehicle offense. Delaware v. Prouse, 440
U.S. 648, 663 (1979); Locurto, 157 N.J. at 470 (citing State v. Smith, 306 N.J.
Super. 370, 380 (App. Div. 1997)). The standard requires only "some minimal
level of objective justification for making the stop." State v. Nishina, 175 N.J.
502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). The
State is not required "to prove that the suspected motor-vehicle violation
occurred." Locurto, 157 N.J. at 470 (citing State v. Williamson, 138 N.J. 302,
304 (1994)).
Often, the reasonable suspicion standard is satisfied when an officer
observes what he reasonably believes to be a motor vehicle violation. In this
instance, Silva had reasonable suspicion to initiate a motor vehicle stop when he
observed defendant holding his cellphone as he drove past Silva's location. As
2 Defendant claims in his point heading that "[t]he police officer lacked probable cause to stop [] defendant." As was made clear in State v. Pitcher, the level of proof needed to sustain a motor vehicle stop is reasonable suspicion, not the higher standard of probable cause. 379 N.J. Super. 308, 314 (App. Div. 2005). A-3727-18T3 7 we have noted, both the municipal court and Law Division judges accepted
Silva's testimony as credible. Accordingly, we conclude that the motor vehicle
stop was lawful and affirm the Law Division judge's denial of defendant's
motion to suppress. Locurto, 157 N.J. at 470 (citing Smith, 306 N.J. Super. at
380).
Defendant also argues that the State failed to prove beyond a reasonable
doubt that defendant was guilty of violating N.J.S.A. 39:4-97.3. As we have
noted, this case boils down to a credibility assessment. Defendant admitted that
he was using the cellphone's GPS function but testified that the device remained
on the seat next to him. Silva testified that defendant was holding the phone as
he passed by the parked police vehicle. The municipal and Law Division judges
considered the evidence adduced at trial, including the video images that,
according to defendant, refute Silva's testimony. Both judges concluded that
Silva was credible, and defendant was not.
Applying our deferential standard of review to a trial court's factual
findings, including those based on video or documentary evidence, we decline
to substitute our judgment for that of the municipal and Law Division judges.
State v. S.S., 229 N.J. 360, 379–81 (2017) (deferring to trial courts' findings of
A-3727-18T3 8 fact based on video or documentary evidence that are not clearly mistaken). The
two judges determined, based on the totality of the evidence—including the
municipal court judge's ability to view the witnesses' live testimony—that
Sergeant Silva was the more credible witness on the key issue of wh ether
defendant was holding the phone while driving. See Locurto, 157 N.J. at 474
(citations omitted) (deferring to credibility findings). Accordingly, we decline
to hold that their factual findings were based on a very obvious and exceptional
showing of error. Ibid. (citing Midler, 10 N.J. at 128–29).
Affirmed.
A-3727-18T3 9