State v. Malia

Page 198

287 N.J.Super. 198

670 A.2d 1075

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Michael J. MALIA, Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 12, 1995.

Decided Feb. 2, 1996.

Susan L. Reisner, Public Defender, for appellant and cross-respondent (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the letter brief).

Deborah T. Poritz, Attorney General, for respondent and cross-appellant (Debra A. Owens, Deputy Attorney General, of counsel and on the letter brief).

Before Judges MICHELS, BAIME and KIMMELMAN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Michael J. Malia was found guilty of possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1). The trial court denied defendant's motions for a new trial or, alternatively, a judgment of acquittal notwithstanding the verdict, and placed defendant on three years probation with strict narcotic controls and conditioned his probation upon working four days a week and obtaining his driver's license within thirty days. Finally, the trial court suspended defendant's New Jersey driver's license for six months, concurrent with and co-terminus to his previous driver's license suspension. The trial court waived the Violent Crime Compensation Board, the Drug Enforcement and Demand Reduction penalties and the forensic laboratory fee. Defendant appeals and the State cross-appeals.

Defendant seeks a reversal of his conviction and a remand for a new trial on the following grounds set forth in his letter brief:

I. THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO PROVE THAT ORDERING DEFENDANT TO EXIT THE VEHICLE AND SEARCHING THE AREA UNDER HIS SEAT WAS JUSTIFIED AND REASONABLE IN SCOPE.

II. THE INACCURATE AND OUT-DATED JURY CHARGE ON REASONABLE DOUBT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. (Not Raised Below.)

We have carefully considered these contentions and all the arguments advanced by defendant in support of them and find that they are without merit and require only the following comments in a written opinion. R. 2:11-3(e)(2).

I.

First, we are satisfied the trial court properly denied defendant's motion to suppress the cocaine seized from defendant's motor vehicle during the roadside stop. Under both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, a warrantless search and seizure is prima facie invalid and can be justified only if it falls within a specific exception. State v. Demeter, 124 N.J. 374, 379-80, 590 A.2d 1179 (1991); State v. Hill, 115 N.J. 169, 173, 557 A.2d 322 (1989); State v. Patino, 83 N.J. 1, 7, 414 A.2d 1327 (1980). The Fourth Amendment does not, however, proscribe all searches and seizures, rather it only proscribes those that are judicially deemed unreasonable. State v. Davis, 104 N.J. 490, 498-99, 517 A.2d 859 (1986); State v. Bruzzese, 94 N.J. 210, 216-17, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984); see also State v. Anderson, 198 N.J.Super. 340, 348, 486 A.2d 1311 (App.Div.), certif. denied, 101 N.J. 283, 501 A.2d 946 (1985). Indeed, "the touchstone of the Fourth Amendment is reasonableness." State v. Bruzzese, supra, 94 N.J. at 217, 463 A.2d 320. In cases involving warrantless searches, the burden is on the State to prove the overall reasonableness and validity of the search. Id. at 218, 463 A.2d 320.

The resolution of such Fourth Amendment issues is particularly dependent upon the facts involved. Commonly, such constitutional issues involve no more than a seasoned "value judgment upon a factual complex rather than an evident application of a precise rule of law." See State v. Funicello, 60 N.J. 60, 72, 286 A.2d 55 (Weintraub, C.J., concurring), cert. denied, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). This is especially true with regard to investigatory stops and detentions. Our Supreme Court has held that under a narrowly defined and controlled set of circumstances, such detentions can be constitutionally permissible, although based on less than probable cause. In State v. Hall, 93 N.J. 552, 561, 461 A.2d 1155, cert. denied, 464 U.S. 1008, 104 S.Ct. 526, 78 L.Ed.2d 709 (1983), the Court pointed out in a somewhat related context that:

Our reading of Davis convinces us that for certain detentions--those that do not entail significant intrusions upon individual privacy or freedom, are productive of reliable evidence, and can be effectuated without abuse, coercion or intimidation--"no probable cause in the traditional sense" is necessary in order to obtain the "authorization of a judicial officer[.]" We conclude that, under a "narrowly defined" set of circumstances, such detentions can be constitutionally permissible, Davis, 39 U.S. at 727-28, 89 S.Ct. [1394] at 1398, 22 L.Ed.2d at 681. Strictly limiting the circumstances under which such detentions take place insures that the restrictions upon individual privacy and freedom interests are minimized so that a showing of need upon less than traditional probable cause can be tolerated.

Further, it is firmly settled that law enforcement officials may stop motor vehicles where they have a reasonable and articulable suspicion that a motor vehicle violation has occurred. See, e.g., New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Carter, 235 N.J.Super. 232, 561 A.2d 1196 (App.Div.1989); State v. Pierce, 190 N.J.Super. 408, 463 A.2d 977 (App.Div.1983); State v. Nugent, 125 N.J.Super. 528, 312 A.2d 158 (App.Div.1973); State v. Griffin, 84 N.J.Super. 508, 202 A.2d 856 (App.Div.1964).

Applying these fundamentally sound principles here, there cannot be the slightest doubt on this record that Bergen County Police Officer Lynam had an articulable and reasonable suspicion that a motor vehicle violation had occurred, justifying the investigatory stop and detention of the vehicle in which defendant was a passenger. This vehicle was traveling with no rear lights. As the vehicle was pulled over, Officer Lynam shined his spotlight and take-down lights on the vehicle and observed defendant bend down towards the floor. Officer Lynam approached the vehicle and when he leaned down and requested the driver's credentials, he detected the odor of alcohol on the driver's breath and coming from the interior of the car. Officer Lynam then asked the driver if he had been drinking and the driver responded that he had two beers.

Officer Lynam plainly had probable cause to believe that a crime had been committed based on the furtive movements of defendant and the odor of alcohol emanating from the interior of the vehicle and, therefore, was justified in asking the driver and defendant to exit the vehicle and in searching the vehicle. See Pennsylvania v. Mimms, supra, 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337; State v. Smith, 134 N.J. 599, 617-20, 637 A.2d 158 (1994); State v. Anderson, supra, 198 N.J.Super. at 351, 486 A.2d 1311; State v. Nittolo, 194 N.J.Super. 344, 346, 476 A.2d 1253 (App.Div.1984). Cf. State v. Judge, 275 N.J.Super. 194, 202-03, 645 A.2d 1224 (App.Div.1994) (holding that odor of marijuana emanating from vehicle provides probable cause to search). Since the stop of the vehicle passed constitutional muster, it follows that the cocaine seized was not the "fruit of the poisonous tree." See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Accordingly, the order denying the motion to suppress is affirmed.

II.

Defendant contends for the first time on appeal that the trial court improperly diluted the State's burden of proof and deprived him of his right to due process by deviating from the model jury charge on reasonable doubt. More precisely, defendant challenges the use of the words "moral certainty", pointing to the following excerpt from the charge to support his argument:

Reasonable doubt is not a mere possible or imaginary doubt because as everyone knows everything pertaining to human affairs is subject to some possible or imaginary doubt. A reasonable doubt is an honest and reasonable uncertainty as to the guilt of the defendant existing in your minds after you have given full and impartial consideration to all of the evidence. Reasonable doubt may arise from the evidence itself or from the lack of evidence.

In order to convict the law does not require that you be absolutely certain of the guilt of the defendant. The law requires moral certainty. To meet the requirements of finding the defendant guilty beyond a reasonable doubt and to a moral certainty you must have, after an evaluation of the facts and the evidence in this case, an abiding belief of his guilt and you must have that abiding belief to a moral certainty.

[Emphasis added.]

The phrase "moral certainty" became common in jury charges after the Massachusetts Supreme Court's opinion in Massachusetts v. Webster, 59 Mass. 295 (1850). The Webster charge was approved of and became a standard definition of reasonable doubt in our State. See Donnelly v. State, 26 N.J.L. 601, 615 (E. & A.1857); State v. Linker, 94 N.J.L. 411, 417, 111 A. 35 (E. & A.1920); State v. Rubenstein, 104 N.J.L. 291, 294, 140 A. 287 (Sup.Ct.1928). In State v. Lane, 52 N.J. 123, 125-26, 244 A.2d 108 (1968), our Supreme Court held that the omission of the phrase "abiding conviction to a moral certainty" in a reasonable doubt charge was not error. Further, by 1974 we noted that the phrase "abiding conviction ... to a moral certainty" had "not been in general use for several years." State v. Sherwin, 127...