NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5251-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN D. WILLIAMS, JR.,
Defendant-Appellant. _____________________________
Submitted July 9, 2018 – Decided July 31, 2018
Before Judges Carroll and Rose.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 17-009.
Christopher T. Campbell, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief; Emily M. M. Pirro, Legal Assistant, on the brief).
PER CURIAM
Following denial of his suppression motion in municipal
court, defendant John D. Williams, Jr., entered a conditional
guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, and possession of a hypodermic syringe, N.J.S.A. 2C:36-6(a). The
municipal court suspended defendant's driving privileges for ten
years and imposed a five-day jail term, which was suspended on the
condition that defendant successfully complete a one-year
probationary term. The court also ordered defendant to participate
in the Intoxicated Driver Resource Center, and imposed the
appropriate fines, assessments, surcharges, and costs. Upon de
novo review, the Law Division judge denied defendant's suppression
motion, found defendant guilty, and imposed the identical
sentence.
On appeal, defendant challenges the denial of his motion to
suppress. Defendant argues the police lacked a reasonable and
articulable suspicion to approach his parked vehicle, and lacked
probable cause to search the car. He also argues that, because
there was no evidence he operated or intended to operate his car,
the police lacked probable cause to order him out of the vehicle
to perform field sobriety tests. Defendant further contends the
factual basis for his guilty plea was inadequate. We reject these
arguments and affirm.
We derive the following facts from the record of the
suppression hearing. Shortly before midnight on May 30, 2016,
Officer Jonathan Gramlich of the Wall Township Police Department
(WTPD) was on routine patrol when he was dispatched to the parking
2 A-5251-16T3 lot of a local Quick Chek convenience store to conduct "[a] welfare
check on a subject who was reported to be sleeping in the vehicle."
Upon arriving, Gramlich met with a retired WTPD emergency medical
technician who had called the police, and then directed Gramlich
to the parked vehicle. Gramlich noted the vehicle's engine was
running and an adult male, later identified as defendant, was
asleep in the driver's seat with his head "slumped backwards, to
the side."
Gramlich approached the car and awakened defendant by loudly
announcing his presence. According to Gramlich, defendant
stated that he was on his way to work, his speech was slow. He immediately appeared under the influence, specifically with droopy eye lids, slow lazy speech. Again, stated he was on his way to work. I observed cigarette ashes all over him, and he was dressed inappropriately with no shirt, pajama pants and a bathrobe on.
In response to Gramlich's inquiry, defendant "stated he had
to be at work at 6:00 a.m.[,]" which the officer "found suspicious
seeing it was nearly midnight." Gramlich also observed "[t]here
were bits of cotton on the floorboard [of the car] that are
indicative of heroin use."
Gramlich asked defendant to exit the vehicle to perform field
sobriety tests because he believed defendant might have been "under
the influence." When defendant stepped out of the car, Gramlich
3 A-5251-16T3 observed a hypodermic needle cap in his bathrobe pocket. In
response to a question from the officer, defendant advised there
"may be" hypodermic needles in the car. At some point, defendant
also stated he had used heroin that day. Gramlich searched the
car and recovered a hypodermic needle "loaded with an almost clear
fluid that is indicative of heroin[,]" located next to "a spoon
with burn marks underneath and a residue on top, that's indicative
of . . . preparing heroin for use."
Defendant testified at the suppression hearing that he left
his home around 11:10 or 11:15 p.m. and drove to the Quick Chek
"to buy a pack of cigarettes and use heroin in the parking lot."
He stated he had purchased the heroin in Asbury Park earlier that
day. At Quick Chek, defendant bought cigarettes, returned to his
car, and then "started the car because it was warm, put the air
conditioner on. And I lit the spoon to cook the heroin and load
the syringe, and I injected it in my arm." Defendant testified
he intended to leave "[a]s soon as I came down I guess." On cross-
examination by the prosecutor, the following exchange ensued:
Q. Mr. Williams where did you plan on going after you came to?
A. Most likely back home.
Q. And about how long would that have been after you initially took the heroin? A. I really couldn't tell you, it would depend on how bad I was.
4 A-5251-16T3 Q. But you planned on driving?
A. Eventually, yeah.
On re-direct examination, defendant stated: "I wasn't planning on
moving, I was staying there because I couldn't go home because my
wife would know that I was high."
At the conclusion of testimony, the municipal court judge
denied defendant's motion to suppress. The judge found the officer
had a right to confront defendant, and then based on his
observations, had a reasonable and articulable suspicion that
defendant was under the influence and properly ordered defendant
to exit his vehicle. Upon then observing a hypodermic needle cap
on defendant's person, "the patrolman's suspicion[,] which was
that . . . defendant was under the influence of heroin, became a
much more articulable suspicion because now he has proof that
. . . defendant is in fact using heroin." The judge further found
defendant "has the engine running, he is in the car, he is in the
driver seat, he is in control of the vehicle. And when he
testified, he indicated as soon as he 'came out of it' it was his
intention to operate the motor vehicle." Consequently, the judge
concluded "there was sufficient probable cause to arrest . . .
defendant for driving while intoxicated."
Defendant entered a conditional guilty plea to DWI and
possession of a hypodermic syringe. Pertinent to this appeal,
5 A-5251-16T3 during the plea colloquy, defendant admitted that on May 30, 2016,
in Wall Township, he was "driving while intoxicated as a result
of [his] ingestion of heroin while [he was] seated in [his] motor
vehicle." The State agreed to dismiss the associated motor vehicle
and drug charges, subject to reinstatement if defendant were
successful on appeal.
Defendant appealed to the Law Division, arguing there was no
reasonable suspicion to seize defendant, nor probable cause to
search his vehicle or arrest him for DWI. Defendant also
challenged the factual basis for his guilty plea to DWI as
inadequate. Following a de novo review, Judge Thomas F. Scully
denied defendant's suppression motion. In a thoughtful oral
opinion, Judge Scully found that "Patrolman Gramlich's initial
approach of . . . defendant's already stopped vehicle . . . was
for a valid field inquiry for which no suspicion was required."
Next, Judge Scully noted that after Gramlich approached the
car, he observed defendant appeared to be under the influence, and
there were bits of cotton on the vehicle's floor that were
consistent with heroin use. The judge determined that based on
the totality of the circumstances, "Gramlich . . . [then] had a
sufficient basis to reasonably suspect that . . . defendant was
intoxicated and could lawfully ask . . . defendant to step out of
the vehicle and to administer a sobriety test, and also had the
6 A-5251-16T3 basis to conclude that he has been or is about to engage in
criminal wrongdoing."
Regarding defendant's operation of the vehicle, Judge Scully
found defendant's argument erroneously conflated probable cause
to arrest defendant for DWI with the proof beyond a reasonable
doubt necessary to convict him of that offense. The judge again
found, based on the totality of the circumstances, which included
the officer's observation of bits of cotton on the vehicle's floor
that were consistent with heroin use and his admission that he had
used heroin that day, that there was
more than a fair probability that a crime has been committed and defendant was intoxicated and intended to drive his vehicle at the moment the officer approached him. The officer, in this [c]ourt's view, did not have to wait until . . . defendant put his vehicle in motion to offend the law. . . . [D]efendant offended the law the moment he articulated his intention to drive his vehicle.
Finally, Judge Scully found "defendant's factual basis [for
his guilty plea] established all the essential elements of N.J.S.A.
39:4-50." The judge declined to consider defendant's argument
concerning the search of the vehicle because defendant did not
raise that contention in the municipal court and, as such, the
record was insufficient to address it. This appeal followed.
Our review of a trial judge's decision on a motion to suppress
is limited. State v. Robinson, 200 N.J. 1, 15 (2009). "An
7 A-5251-16T3 appellate court reviewing a motion to suppress evidence in a
criminal case must uphold the factual findings underlying the
trial court's decision, provided that those findings are
'supported by sufficient credible evidence in the record.'" State
v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,
226 N.J. 20, 40 (2016)). We do so "because those findings 'are
substantially influenced by [an] opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014)
(alteration in original) (quoting State v. Johnson, 42 N.J. 146,
161 (1964)). We owe no deference, however, to conclusions of law
made by trial courts in suppression decisions, which we instead
review de novo. State v. Watts, 223 N.J. 503, 516 (2015).
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.
Johnson, 42 N.J. at 157. On appeal from a Law Division decision,
the issue is whether there is sufficient credible evidence present
in the record to uphold its findings. State v. Segars, 172 N.J.
481, 488 (2002). "We do not weigh the evidence, assess the
8 A-5251-16T3 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 assess
credibility, the municipal court's credibility findings are given
deference. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing
Johnson, 42 N.J. at 161-62).
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, 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 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
9 A-5251-16T3 formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see
also Terry v. Ohio, 392 U.S. 1, 16 (1968). 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, 392 U.S. at 21). Under this well-
established standard, "An 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 (Law Div. 1999) (quoting
State v. Sheffield, 62 N.J. 441, 447 (1973)). The transition from
field inquiry to investigatory stop occurs when the interaction
objectively conveys to the driver that the engagement was not
10 A-5251-16T3 voluntary, and he or she was not free to leave. Stampone, 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, 325
N.J. Super. at 409 (quoting State ex rel. J.G., 320 N.J. Super.
21, 30 (App. Div. 1999)).
Here, Officer Gramlich'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 him in consensual conversation and check on his
condition. Id. at 410.
Thereafter, Gramlich's observations of and conversation with
defendant, coupled with the presence of bits of cotton on the
vehicle's floor that were consistent with heroin use, gave the
officer an ample factual basis for a reasonable and articulable
suspicion that defendant was under the influence and had violated
N.J.S.A. 39:4-50. Accordingly, the officer properly ordered
defendant to exit the vehicle to administer field sobriety tests.
A hypodermic needle cap was then observed in defendant's pocket
and he admitted to using heroin, thus establishing probable cause
for his arrest.
11 A-5251-16T3 We also agree with Judge Scully that the evidence adduced at
the suppression hearing established probable cause that defendant
intended to operate his car. "[A] person who operates a motor
vehicle while under the influence of intoxicating . . . narcotic"
is guilty of DWI. N.J.S.A. 39:4-50(a). The term "operate" as
used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State
v. Tischio, 107 N.J. 504, 513 (1987); State v. Mulcahy, 107 N.J.
467, 478-79 (1987). Proof of actual operation of a motor vehicle
is not required. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div.
2005). Intent to move a motor vehicle is "operation" under the
statute. Tischio, 107 N.J. at 513; Mulcahy, 107 N.J. at 478-79.
Specifically, our Supreme Court has held that
a person "operates" -- or for that matter, "drives" -- a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 . . . when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle.
[State v. Sweeney, 40 N.J. 359, 360-61 (1963).]
Evidence of intent to drive or "intent to move the vehicle"
satisfies the statutory requisite of operation so that the actual
movement of the vehicle is not required. Id. at 361.
12 A-5251-16T3 Judge Scully properly noted that, at the motion to suppress
stage, the State was merely required to establish probable cause
that defendant intended to operate the vehicle, versus proving
such intent to operate beyond a reasonable doubt. "Probable cause
has been defined as a well[-]grounded suspicion that a crime has
been or is being committed, and as a reasonable ground for belief
of guilt." State v. Gibson, 218 N.J. 277, 292 (2014) (citations
omitted). It "is more than a mere suspicion of guilt, [but]
. . . less than the evidence necessary to convict a defendant of
a crime in a court of law." State v. Basil, 202 N.J. 570, 585
(2010). In the context of an arrest for DWI, "the yardstick
. . . is whether the arresting officer had reasonable grounds to
believe that the driver was operating a motor vehicle in violation
of [N.J.S.A.] 39:4-50." Strelecki v. Coan, 97 N.J. Super. 279,
284 (App. Div. 1967) (citation omitted).
There was sufficient credible evidence in this case to
establish probable cause that defendant intended to move his car.
In particular, the engine was running, defendant was sitting in
the driver's seat at the steering wheel, albeit passed out, and
when he awoke, he expressed to Officer Gramlich his clear intent
to drive to work.
Like Judge Scully, we decline to address defendant's
contention that the subsequent search of his vehicle was illegal.
13 A-5251-16T3 At the motion to suppress hearing in municipal court, defense
counsel agreed the issue was limited to whether "probable cause
[existed] to have . . . defendant exit his vehicle for the purpose
of performing psychophysical tests." "We generally 'decline to
consider questions or issues not properly presented to the trial
court . . . unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public
interest.'" State v. Marroccelli, 448 N.J. Super. 349, 373 (App.
Div. 2017) (alteration in original) (quoting Robinson, 200 N.J.
at 20). Neither exception applies here.
Finally, we reject defendant's contention that the factual
basis elicited for his guilty plea to DWI was insufficient. When
a defendant challenges the factual basis for a guilty plea, our
review is de novo. State v. Tate, 220 N.J. 393, 403-04 (2015).
That is so because "[a]n appellate court is in the same position
as the trial court in assessing whether the factual admissions
during a plea colloquy satisfy the essential elements of an
offense." Id. at 404.
Trial courts may not accept a guilty plea unless there is a
factual basis supporting it. R. 3:9-2. "Indeed, 'it is essential
to elicit from the defendant a comprehensive factual basis,
addressing each element of a given offense in substantial detail.'"
State v. Perez, 220 N.J. 423, 432 (2015) (quoting State v.
14 A-5251-16T3 Campfield, 213 N.J. 218, 236 (2013)). Trial courts "must be
satisfied from the lips of the defendant . . . that he committed
every element of the crime charged[.]" Id. at 432-33 (citations
and internal quotation marks omitted). The factual foundation for
the plea "may take one of two forms[:] defendant may either
explicitly admit guilt with respect to the elements or may
'acknowledge[] . . . facts constituting the essential elements of
the crime.'" Campfield, 213 N.J. at 231 (second and third
alterations in original) (quoting State v. Sainz, 107 N.J. 283,
293 (1987)).
Here, during the plea colloquy, defendant expressly admitted
driving while intoxicated in Wall Township on May 30, 2016, as a
result of his ingestion of heroin. Accordingly, defendant
sufficiently acknowledged facts that constituted the essential
elements of N.J.S.A. 39:4-50.
Affirmed.
15 A-5251-16T3