STATE OF NEW JERSEY VS. BRIAN CARTER(15-028, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0853-15T1
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN CARTER,

Defendant-Appellant.
___________________________________________

Argued December 13, 2016 – Decided June 27, 2017

Before Judges Messano, Guadagno and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Municipal Appeal No. 15-028.

Daniella Gordon argued the cause for appellant
(The Gordon Law Firm, attorneys; Ms. Gordon,
on the briefs).

Jeffrey St. John, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Keri-Leigh Schaefer, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Following a de novo trial in the Law Division on appeal from

the Red Bank municipal court, defendant Brian Carter was found

guilty of three summonses charging him with failing to possess his
driver's license, vehicle registration and insurance

identification card, N.J.S.A. 39:3-29; another summons charging

him with failing to properly signal, N.J.S.A. 39:4-126; and a

complaint charging defendant with obstructing the administration

of law, N.J.S.A. 2C:29-1(a). The judge imposed certain fines and

monetary penalties.

In the municipal court, defendant moved to suppress evidence

alleging a lack of "probable cause for the [motor vehicle] stop

and subsequent arrest." The municipal court judge considered the

testimony of Red Bank police officer Thomas Doremus, as well as

the motor vehicle recording (MVR) from a camera in Doremus's police

car.1 Doremus testified that on the morning of April 8, 2013, he

was on patrol driving westbound on Monmouth Street near its

intersection with Shrewsbury Avenue. Defendant's car was ahead

of Doremus's vehicle proceeding in the same direction.

Doremus testified defendant made a left turn, southbound onto

Shrewsbury Avenue, accelerated quickly and came within two-and-

one-half feet of the vehicle in front of him. Doremus saw

1
"[A]ppellate review of a municipal appeal to the Law Division is
limited to 'the action of the Law Division and not that of the
municipal court.'" State v. Palma, 219 N.J. 584, 591-592 (2014)
(quoting State v. Joas, 34 N.J. 179, 184 (1961); State v. Oliveri,
336 N.J. Super. 244, 251 (App. Div. 2001)). However, in this
case, the legal issues raised on appeal require a detailed
recitation of the testimony in the municipal court and the findings
and legal conclusions of the municipal court judge.

2 A-0853-15T1
defendant follow the car in front of him too closely for

approximately sixty-five feet. Doremus also turned left and

proceeded south on Shrewsbury before he saw defendant's car

"abruptly pull to the curb . . . without using the turn signal."

Doremus activated his overhead lights and approached, requesting

defendant's credentials.

The MVR video was played in court. As defendant's car

approached the intersection of Monmouth and Shrewsbury before

turning left, the judge asked Doremus "do you see any blinker or

anything . . . on that automobile?" Doremus responded, "I don't,

at the time, I don't recall." Defense counsel noted defendant was

not charged with failing to signal at the intersection but only

when he later pulled to the curb. In addition, she insisted the

video actually showed defendant signaled a left turn. An extended

colloquy ensued between defense counsel and the judge as the judge

repeatedly reviewed the video.

On cross-examination, Doremus testified that a car and truck

followed defendant's car southbound on Shrewsbury before Doremus

turned, meaning defendant's car was the third vehicle ahead of the

police unit.2 Doremus testified that defendant's abrupt turn to

the curb without signaling caused other cars behind him to brake

2
In actuality, the video shows two cars followed defendant's
vehicle.

3 A-0853-15T1
suddenly. However, Doremus admitted the MVR did not show the

vehicle immediately in front of the police car ever applied its

brakes, nor did it show defendant's abrupt turn to the curb.

Doremus acknowledged that defendant's car was already parked at

the curb when he approached.

Defense counsel argued it was impossible for Doremus to have

observed defendant following too closely or failing to signal as

he parked at the curb. As she began to argue that Doremus's

estimations of defendant's speed and distance were mathematically

impossible, the judge interrupted:

I don't even have to address the issue
as to whether he's driving too close. . . .
[T]here [were] two summonses issued. . . . I
find. . . there was a reason for the stop
. . . and I'm not even addressing the issue
of him driving too closely.

I find, from what I viewed on the video,
that [defendant] failed to use a signal to
make a left hand turn . . . within 100 feet
of the intersection. . . . I never saw a
signal being put on his vehicle before he made
his left turn.

On that basis alone, . . . I find that
there's a reason for stopping him on that
date. Period, that's it. . . .

. . . .

I'm not granting your motion to suppress,
and I'm basing it on his failure to signal
when he came to the intersection . . . .

4 A-0853-15T1
 The balance of the trial ensued, with Doremus testifying

about what happened after he approached defendant's already-

stopped car and asked for his credentials. The driver's window

was open and, without producing any documentation, defendant

picked up his cellphone, claimed he was calling the United States

Marshall, refused to provide his credentials and raised the window.

Defendant continued to ignore Doremus's request for documentation.

Doremus called dispatch and requested assistance.

Police Officer Jorge Torres testified that when he arrived

and approached defendant's vehicle, defendant lowered the window

and asked for a supervisor. Torres requested a supervisor respond

to their location. After a third officer arrived and defendant

continued to refuse to produce his credentials, Doremus "reached

in [through the window,] unlocked the door, unbuckled [defendant]

and had him exit the vehicle." Police arrested defendant and

transported him to headquarters.

The prosecutor asked Doremus why he charged defendant with

obstruction. The officer explained:

Because while I'm in the process of the motor
vehicle stop I requested his license,
registration and insurance numerous times.
[Defendant] refused numerous times, in not
providing information and refused any action
by me. He would not have any interaction, and

5 A-0853-15T1
 refuse[d] to give anything, any information
at all.3

The judge acquitted defendant of violating N.J.S.A. 39:4-89,

following too closely, but convicted him of the other motor vehicle

offenses. As to the obstruction charge, citing N.J.S.A. 39:3-29,

the judge reasoned defendant was required to produce his

credentials pursuant to a "good faith traffic stop." The judge

determined Doremus was "in the performance of his duties" and,

based on the judge's prior ruling, had "probable cause for the

initial motor vehicle stop." Citing our decisions in State v.

Camillo, 382 N.J. Super. 113 (App. Div. 2005), and State v.

Perlstein, 206 N.J. Super. 246 (App. Div. 1985), the judge

concluded defendant's failure to produce his credentials was an

"independent[] unlawful act." See N.J.S.A. 2C:29-1(a) ("A person

commits an offense if he purposely obstructs, [or] impairs . . .

the administration of law or other governmental function or

prevents or attempts to prevent a public servant from lawfully

performing an official function by means of . . . physical

interference . . . or . . . any independently unlawful act.").

Defendant appealed to the Law Division.

3
The complaint-summons actually stated defendant obstructed "by
means of physical interference, specifically by, refusing to roll
down his vehicle window and provide the uniformed . . . officer
with his information during a motor vehicle stop."

6 A-0853-15T1
 At the start of those proceedings, the judge viewed the MVR

recording. He noted that the municipal court judge made no

findings regarding Doremus' credibility, "[p]robably for good

reason," because the officer "couldn't have seen" what he claimed

was the reason for stopping defendant's car. However, the judge

concluded after viewing the video that defendant "did not signal"

as he turned left onto Shrewsbury Avenue.

The judge asked defense counsel why defendant refused to

produce his license for Doremus. When she responded with

uncertainty, the judge referenced defendant's driver's abstract,

a document not produced in the municipal court, that revealed

defendant had no New Jersey driver's license and had not obtained

a New York driver's license until a few days after this incident.

In rendering his oral decision, the judge concluded there

were "allegedly" two bases for the motor vehicle stop. Like the

municipal court judge, the judge found Doremus was not in a

position to see how closely defendant was following the car in

front of him. Rejecting the second alleged reason, the judge

noted the MVR showed "[t]he intervening two vehicles between the

front of [Doremus's] car and the rear of the defendant's car

precluded the [o]fficer from making any observation as to whether

[defendant] did or did not turn at that point."

7 A-0853-15T1
 However, because the summons did not specify when defendant

failed to signal, i.e., whether at the intersection or at the

curb, and Doremus did not recall whether defendant had signaled

left at the intersection, the judge concluded the "video bec[ame]

the best evidence." Based on his review of the video, the judge

concluded the officer had a "factual basis" for determining

defendant failed to signal left before turning.

With regard to the obstruction charge, the judge stated

"Perlstein [was] on all fours with [this] particular case." He

concluded defendant committed an "independent unlawful act" and

therefore was guilty of obstructing. The judge imposed various

fines and penalties and this appeal followed.

Defendant raises the following points on appeal:

I. EACH OF MR. CARTER'S CONVICTIONS SHOULD
BE REVERSED BECAUSE THE SUPERIOR COURT ERRED
IN MAKING AN IMPLIED FINDING THAT THE OFFICER
HAD A REASONABLE SUSPICION FOR THE TRAFFIC
STOP, WHERE THE OFFICER DENIED SEEING AN
ALLEGED FAILURE TO SIGNAL LEFT VIOLATION, AND
WHERE THE OFFICER'S OTHER STATED REASONS FOR
THE STOP WERE DEEMED INVALID.

II. THE CONVICTION FOR FAILURE TO SIGNAL
SHOULD BE REVERSED BECAUSE THE MVR DOES NOT
SHOW BEYOND A REASONABLE DOUBT THAT MR. CARTER
FAILED TO SIGNAL LEFT AND MR. CARTER WAS NEVER
GIVEN NOTICE OR DISCOVERY REGARDING A CHARGE
WITH THIS ALTERNATE FACTUAL BASIS.

III. WITH RESPECT TO THE CHARGE OF
OBSTRUCTION, IT WAS ERROR FOR THE COURT TO
FAIL TO MAKE ANY FINDING THAT THE OFFICER

8 A-0853-15T1
 ACTED IN GOOD FAITH IN STOPPING MR. CARTER,
WHERE THE OFFICER'S GOOD FAITH IS AN ELEMENT
OF A CHARGE OF OBSTRUCTION.

IV. THE EVIDENCE IS FACTUALLY AND LEGALLY
INSUFFICIENT TO SUSTAIN A CONVICTION FOR
OBSTRUCTION WHERE MR. CARTER HAD REASON TO
BELIEVE THAT HE WAS SUBJECT [SIC] OF A
VOLUNTARY FIELD INQUIRY, NOT A MOTOR VEHICLE
STOP.

V. IT WAS ERROR FOR THE SUPERIOR COURT TO
REFER TO MR. CARTER'S DRIVING ABSTRACT ON ITS
OWN INITIATIVE FOR THE FIRST TIME IN A TRIAL
DE NOVO ON THE RECORD IN ORDER TO MAKE
INFERENCES ABOUT MR. CARTER'S GUILT AND
MOTIVE, WHERE THE ONLY APPROPRIATE REFERENCE
TO A DRIVING ABSTRACT IS FOR SENTENCING, NOT
FOR A DETERMINATION OF GUILT.

We have considered these arguments in light of the record and

applicable legal standards. We reverse and remand for further

proceedings consistent with this opinion.

I.

In conducting our review of defendant's conviction following

a de novo trial in the Law Division, "[w]e defer to the judge's

fact finding, and our 'review is limited to whether the findings

made could reasonably have been reached on sufficient credible

evidence present in the record.'" State v. L.S., 444 N.J. Super.

241, 247-48 (App. Div. 2016) (quoting State v. Kuropchak, 221 N.J.

368, 382-83 (2015)). "We owe no deference, however, to the 'trial

court's interpretation of the law . . . and the consequences that

flow from established facts[,]' which we review de novo." Id. at

9 A-0853-15T1
248 (alteration in original) (quoting State v. Hubbard, 222 N.J.

249, 263 (2015)). We first consider whether the stop of

defendant's automobile was lawful.4

"To be lawful, an automobile stop 'must be based on reasonable

and articulable suspicion that an offense, including a minor

traffic offense, has been or is being committed.'" State v.

Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty, 170 N.J.

632, 639-40 (2002)). "To satisfy the articulable and reasonable

4
As the Court recently instructed in State v. Rosario, __ N.J. __
(June 6, 2017) (slip op. at 13-15), before determining the
lawfulness of an automobile stop, a judge must determine whether
the police encounter was a voluntary field inquiry or an
investigative stop where a reasonable person would not "feel free
to leave." In Point IV of his brief, defendant contends he "had
reason to believe that he was the subject of a voluntary field
inquiry, not a motor vehicle stop" because he was already parked
on the side of the road when Doremus pulled up and Doremus did not
provide a reason for the credential's request; therefore, he was
not obligated to engage in a discussion with Doremus or provide
Doremus with his driver's credentials. In Rosario, the Court held
the interaction between the defendant and the officer was an
investigative detention because the defendant would not reasonably
feel "free to leave" where she was parked lawfully outside her
home when an officer blocked her in with his vehicle, directed the
patrol car's alley light to shine into her car, and then approached
the driver's side to ask for her credentials. Id. at 4-5, 12-15.
Here, under similar circumstances, we conclude the stop was clearly
an investigative detention where Doremus parked behind defendant,
flashed his emergency lights, approached defendant on the driver's
side, and blocked his driver's side door; such "police activity
reasonably would, and should, prompt a person to think that [he]
must stay put and submit to whatever interaction with the police
officer was about the come," i.e., not feel "free to leave." Id.
at 12.

10 A-0853-15T1
suspicion standard, the State is not required to prove that the

suspected motor-vehicle violation occurred." State v. Locurto,

157 N.J. 463, 470 (1999). That is, "the State need prove only

that the police lawfully stopped the car, not that it could convict

the driver of the motor-vehicle offense." State v. Heisler, 422

N.J. Super. 399, 413 (App. Div. 2011) (quoting State v. Williamson,

138 N.J. 302, 304 (1994)).

Also, an officer's belief that a traffic violation actually

occurred must be objectively reasonable. State v. Puzio, 379 N.J.

Super. 378, 383 (App. Div. 2005). However, "the fact that

information an officer considers is ultimately determined to be

inaccurate" does not invalidate the motor vehicle stop. State v.

Pitcher, 379 N.J. Super. 308, 318 (App. Div. 2005), certif. denied,

186 N.J. 242 (2006).5

In this case, neither judge found Doremus made the

observations he claimed to have made and justified his stop of

defendant's car, i.e., following too closely or failing to signal

as he pulled to the curb. In fact, based upon their own

observations of the MVR, both judges concluded the officer could

5
In State v. Shannon, 222 N.J. 576, 578-79 (2015), cert. denied,
__ U.S. __ 136 S. Ct. 1657, 194 L. Ed. 2d 800 (2016), an equally-
divided Court affirmed our decision, which in turn affirmed the
trial judge's order of suppression. Because Shannon dealt with
the arrest of the defendant based upon an invalid warrant, ibid.,
the Court distinguished Pitcher as "inapposite." Id. at 591.

11 A-0853-15T1
not have made those observations. In other words, this case is

unlike Heisler, supra, 422 N.J. Super. at 413, where the officer

made observations that proved legally insufficient to convict the

defendant of a motor vehicle violation, or Pitcher, supra, 379

N.J. Super. at 318, where the officer relied upon computer

information that was not timely deleted from the system. See also

State v. Barrow, 408 N.J. Super. 509, 518-23 (App. Div.) (upholding

seizure following stop even though facts may not have proven a

motor vehicle violation), certif. denied, 200 N.J. 547 (2009).

Moreover, there is no authority to support the municipal

court and Law Division judges' transmutation of their personal

observations of the MVR recording into a reasonable and articulable

basis for Doremus to stop defendant's vehicle. Doremus never

testified that he saw defendant fail to signal at the intersection,

and there is no doubt that he never thought defendant had committed

a motor vehicle violation at that point. When asked at trial,

Doremus candidly answered, "I don't, at the time, I don't recall."

He was never asked to view the recording to refresh his memory.

Therefore, while the Law Division judge determined Doremus's

response left the judge free to view the tape as the "best

evidence" of the incident, that conclusion did not permit the

judge to find Doremus actually possessed a reasonable and

articulable basis for the stop.

12 A-0853-15T1
 Additionally, we think it axiomatic that defendant could not

be convicted of failing to signal at the intersection. Doremus

never testified that defendant failed to signal at that point, or

that the MVR recording showed that to be the case. Although the

summons, as issued, did not specify exactly where the infraction

took place, the State presented the case based upon Doremus's

claim that the violation occurred when defendant pulled to the

curb. Defendant was never on notice otherwise. It is

fundamentally unfair to rest defendant's conviction solely upon

the independent viewing of the MVR by the judges when the State

never sought to convict defendant of that offense and proffered

no testimony the offense had occurred.

As a result, we conclude based on the record before the Law

Division that the stop of defendant's motor vehicle was unlawful,

and the State failed to prove beyond a reasonable doubt that

defendant violated N.J.S.A. 39:4-126. We reverse his conviction

and remand the matter for entry of a judgment of acquittal.

II.

Even though the State failed to prove the lawfulness of the

motor vehicle stop, we must nevertheless consider whether that

conclusion compels reversal of defendant's convictions for failure

to exhibit his driver's credentials, N.J.S.A. 39:3-29, and

obstruction, N.J.S.A. 2C:29-1(a). Neither the municipal court

13 A-0853-15T1
judge nor the Law Division judge specifically addressed this issue

because they both found the stop was lawful.

N.J.S.A. 39:3-29 provides in pertinent part:

The driver's license, the registration
certificate of a motor vehicle and an
insurance identification card shall be in the
possession of the driver or operator at all
times when he is in charge of a motor vehicle
on the highways of this State.

The driver or operator shall exhibit his
driver's license and an insurance
identification card, and the holder of a
registration certificate or the operator or
driver of a motor vehicle for which a
registration certificate has been issued
. . . shall also exhibit the registration
certificate, when requested so to do by a
police officer or judge, while in the
performance of the duties of his office
. . . .

[(Emphasis added).]

N.J.S.A. 2C:29-1(a) provides:

A person commits an offense if he purposely
obstructs, impairs or perverts the
administration of law or other governmental
function or prevents or attempts to prevent a
public servant from lawfully performing an
official function by means of flight,
intimidation, force, violence, or physical
interference or obstacle, or by means of any
independently unlawful act.

[(Emphasis added).]

14 A-0853-15T1
Both judges concluded the evidence supported a conviction for

obstruction by "means of any independently unlawful act."6

In Perlstein, police stopped the defendant for having a PBA

sticker on her windshield. 206 N.J. Super. at 249. The officer

allowed her an opportunity to remove the sticker, but the defendant

refused and also refused to provide her credentials. Id. at 249-

50. The officer told the defendant he would issue summonses if

she refused to produce her license, registration, and insurance

card. Id. at 250. She did and was subsequently charged with

obstruction. Id. at 251.

We reasoned that N.J.S.A. 39:3-29 required the production of

credentials upon the officer's demand, and N.J.S.A. 39:4-57

required all drivers to comply with the officer's direction while

enforcing provisions of Title 39. Id. at 253. As a result, we

held that refusing an officer's request to show driving credentials

and failing to comply with the officer's directions are

"independently unlawful acts" sufficient to support a conviction

6
Defendant does not specifically argue this was error. In any
event, the court has the authority to amend the precise charge to
the evidence produced at trial. See R. 7:14-2 (permitting a
municipal court to "amend any process or pleading . . . for any
variance between the complaint and the evidence adduced at trial,
but no such amendment shall be permitted which charges a different
substantive offense)." Defendant has not argued he was convicted
of "a different substantive offense."

15 A-0853-15T1
for obstruction of justice under N.J.S.A. 2C:29-1. Id. at 253-

54.

In short, we agree with the Law Division judge that Perlstein

is dispositive. Defendant's conduct after Doremus and the other

officers approached his car was sufficient to convict defendant

of the motor vehicle offense and obstruction.

Our recent decision in State v. Powers, 448 N.J. Super. 69

(App. Div. 2016), does not compel a different result. There, we

concluded the defendant could not be convicted of obstruction by

an "independently unlawful act," specifically failing to heed an

officer's command under N.J.S.A. 39:4-57, because the defendant

was not driving his car at the time, and the officer, who was

writing a parking ticket, was not enforcing Chapter 4 of Title 39.

Id. at 75-76.

However, defendant argues that he could not be convicted of

obstruction because the State failed to prove Doremus acted in the

good faith performance of his duties. Regarding the obstruction

charge, the Court previously held "that a defendant may be

convicted of obstruction under N.J.S.A. 2C:29-1 when he flees from

an investigatory stop, despite a later finding that the police

action was unconstitutional." State v. Crawley, 187 N.J. 440,

460, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d

563 (2006). "N.J.S.A. 2C:29-1 should be construed to require

16 A-0853-15T1
submission even to an unlawful stop . . . ." Ibid. The Court

construed the statute's terms — "lawfully performing an official

function" — to mean the officer must act "in objective good faith,

under color of law in the execution of his duties." Id. at 460-

61. The Court specified "good faith means 'honesty in belief or

purpose' and 'faithfulness to one's duty or obligation.'" Id. at

461 n.8 (quoting Black's Law Dictionary 701 (7th ed. 1999)).

Regarding the motor vehicle offenses, while we could find no

case interpreting the phrase, "while in the performance of the

duties of his office," as used in N.J.S.A. 39:3-29, it is clear

that after Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59

L. Ed. 2d 660 (1979), police may not randomly stop motorists for

credential checks. State v. Carpentieri, 82 N.J. 546, 548 (1980).

We assume arguendo that the State must demonstrate Doremus acted

"in objective good faith, under color of law in the execution of

his duties," when he demanded defendant produce his credentials.

Crawley, supra, 187 N.J. at 460-61.

Unfortunately, as noted, the issue was not addressed in either

the municipal court or the Law Division. Defendant argues that

because neither judge credited Doremus's testimony regarding the

two reasons he stopped defendant's car, it follows the stop could

not have been made in objective good faith. However, we do not

believe one proposition necessarily follows the other. In other

17 A-0853-15T1
words, the present record does not necessarily foreclose the

possibility that Doremus acted in a good faith, albeit mistaken,

belief that defendant had violated the motor vehicle laws.

As a result, we are compelled to reverse defendant's

convictions and remand the matter for a new trial in the municipal

court. See R. 3:23-8(a)(2) (permitting reversal and new trial).

The State is permitted to introduce evidence demonstrating

Doremus's good faith. See Pressler & Verniero, Current N.J. Court

Rules, comment 1 on R. 3:23-8 (2017) (explaining post-2013

amendment to the Rule permitting the State to introduce evidence

at the new trial unless barred by the Constitution or statute).

In sum, we reverse defendant's convictions. We remand the

matter to the municipal court to enter a judgment of acquittal on

the summons charging defendant with violating N.J.S.A. 39:4-126.

We remand to the municipal court for a new trial on the summons

charging defendant with violating N.J.S.A. 39:3-29 and the

complaint charging him with a violation of N.J.S.A. 2C:29-1(a).

Our conclusion that the stop of defendant's motor vehicle was

unlawful is binding upon the municipal court.

Reversed and remanded.7 We do not retain jurisdiction.

7
As a result, we need not consider Point V in defendant's brief.

18 A-0853-15T1