STATE OF NEW JERSEY VS. ERNEST E. COHEN (18-11-1510, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0210-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNEST E. COHEN, a/k/a
MARK COHEN,

Defendant-Appellant.
_______________________

Submitted January 11, 2021 – Decided April 5, 2021

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 18-11-
1510.

Wayne Powell, PC, attorney for appellant (Wayne
Powell, on the brief).

Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant appeals from his fourth-degree conviction for operating a

motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b).

Defendant pled guilty after Judge Terrence R. Cook denied his motion to

suppress. Defendant contends the trial court erred in ruling that the motor

vehicle stop was lawful. After carefully reviewing the record in view of the

applicable legal principles, we affirm substantially for the reasons explained in

Judge Cook's thorough and thoughtful oral decision rendered on April 17, 2019.

I.

Because we affirm for the reasons explained in Judge Cook's cogent

opinion, we need not re-address defendant's arguments at length and only briefly

summarize the relevant facts and procedural history. On February 22, 2018,

New Jersey State Police Trooper Paul Riccioli observed a 2006 Saab with

heavily tinted windows in apparent violation of N.J.S.A. 39:3-75,1 prompting

the trooper to initiate a motor vehicle stop. Defendant was operating the vehicle,

which belonged to his son's girlfriend. Both defendant and his son, who was

1
N.J.S.A. 39:3-75 provides: "No person shall drive any motor vehicle equipped
with safety glazing material which causes undue or unsafe distortion of visibility
or equipped with unduly fractured, discolored or deteriorated safety glazing
material, and the director may revoke the registration of any such vehicle."

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also in car, claimed that the windows were not improperly tinted. During the

encounter, the trooper learned from the dispatcher that defendant's driver's

license was suspended. The trooper issued defendant a summons for driving

while suspended but decided against issuing a ticket for the tinted window

violation because defendant was cooperative. A subsequent investigation

revealed that defendant's license had been suspended as a result of multiple

driving while intoxicated (DWI) convictions. Defendant was subsequently

indicted for the upgraded offense set forth in N.J.S.A. 2C:40-26(b).

Defendant filed a motion to suppress evidence, claiming that the trooper

lacked reasonable and articulable suspicion to stop the vehicle. Judge Cook

convened an evidentiary hearing at which Trooper Riccioli, defendant, and his

son testified. Defendant maintained that the trooper was mistaken about the

window tinting and claimed there was no obstruction of his view or distortion

of visibility sufficient to constitute a violation of N.J.S.A. 39:3-75.

Judge Cook found that Trooper Riccioli's testimony was credible. The

judge concluded that the trooper had reasonable and articulable suspicion to

believe the window tinting violated N.J.S.A. 39:3-75 and thus had an objectively

reasonable basis upon which to initiate a motor vehicle stop to investigate the

suspected violation. Judge Cook noted, "it is not necessary or relevant that the

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facts testified to by the trooper actually support a finding of guilt beyond a

reasonable doubt of the statutory violation[.]"

Defendant thereafter pled guilty and was sentenced to 180 days in county

jail and one year of probation. Judge Cook granted defendant's request to stay

execution of the sentence pending this appeal.

Defendant raises the following argument for our consideration:

THE POLICE OFFICER WAS WITHOUT
REASONABLE SUSPICION TO STOP THE
VEHICLE OPERATED BY DEFENDANT ON THE
DATE IN QUESTION
II.

We begin our analysis by acknowledging the governing legal principles.

When reviewing a motion to suppress evidence, we "must uphold the factual

findings underlying the trial court's decision, so long as those findings are

'supported by sufficient credible evidence in the record.'" State v. Evans, 235

N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).

Accordingly, "[a] trial court's findings should be disturbed only if they are so

clearly mistaken 'that the interests of justice demand intervention and

correction.'" Elders, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162

(1964)).

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 A police officer is authorized to stop a vehicle if he or she has an

articulable and reasonable suspicion that the driver committed an offense. State

v. Locurto, 157 N.J. 463, 470 (1999). See also Delaware v. Prouse, 440 U.S.

648, 663 (1979) (Holding that "except in those situations in which there is at

least articulable and reasonable suspicion that a motorist is unlicensed or that an

automobile is not registered, or that either the vehicle or an occupant is

otherwise subject to seizure for violation of law, stopping an automobile and

detaining the driver in order to check his driver's license and the registration of

the automobile are unreasonable under the Fourth Amendment."). An officer's

observation of a motor vehicle violation constitutes sufficient justification for a

stop. State v. Murphy, 238 N.J. Super. 546, 552–55 (App. Div. 1990).

Furthermore, "the State is not required to prove that the suspected motor-vehicle

violation occurred." Locurto, 157 N.J. at 470. The State need only prove that

there was an objectively reasonable basis for the stop. See State v. Pitcher, 379

N.J. Super. 308, 314 (App. Div. 2005).

Applying these foundational principles to the present case, we agree with

Judge Cook that Trooper Riccioli had an objectively reasonable basis to stop the

vehicle defendant was driving to investigate the suspected window-tinting

violation. We reject defendant's argument that the trooper violated the rule

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announced in State v. Puzio. 379 N.J. Super. 378 (App. Div. 2005). In that

case, we addressed the validity of a stop based on an officer's misinterpretation

of a statute. Id. at 379–80. The officer stopped Puzzio's vehicle when he noticed

it bore commercial license plates but did not display a sign or placard indicating

the name and address of the business as required by N.J.S.A. 39:4-46(a). Id. at

380. The plain language of the statute, however, expressly exempts passenger

vehicles from this requirement. Because it was not disputed that Puzzio's car

was a passenger vehicle, we concluded that the stop was based "on an entirely

erroneous reading of [N.J.S.A. 39:4-46a]." Id. at 382.

Importantly for purposes of the present appeal, we also held in Puzzio

that:

There is a clear distinction between the present
situation and those presented in cases where the officer
correctly understands the statute but arguably
misinterprets the facts concerning whether a vehicle, or
operator, has violated the statute. In those cases, the
courts have approved the motor vehicle stop because it
is only necessary that the officer have a reasonable and
articulable suspicion of a violation. In such
circumstances, it is not necessary or relevant that the
facts testified to by the officer actually support a
finding of guilt beyond a reasonable doubt of the
statutory violation.

[Ibid. (citations omitted)]

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 In view of the distinction, we drew between mistakes of law and mistakes

of fact, defendant's reliance on Puzzio is misplaced. He argues, "[i]n the instant

case although the police officer believed that there had been a violation of

N.J.S.A. 39:3-75 by Defendant, the officer was factually incorrect as was

indicated by both the Defendant and his passenger." In short, and as Judge Cook

aptly recognized, defendant challenges the trooper's factual assessment of

whether the windows were so tinted as to constitute a violation of N.J.S.A. 39:3-

75. Defendant does not assert that Troop Riccioli misread the plain language of

the statute as occurred in Puzzio. Contrary to defendant's contention, our

decision in Puzzio actually supports the lawfulness of the present stop by making

clear that an officer does not need grounds to convict for a motor vehicle

infraction to justify an investigative detention.

As we have noted, Judge Cook found the trooper's testimony to be

credible. We conclude the judge's findings underlying his decision are amply

supported by sufficient credible evidence in the record. Evans, 235 N.J. at 133

(2018). Nor is there reason to disturb the judge's conclusion that the trooper's

observation of the vehicle provided an objectively reasonable basis to initiate

the stop so that the trooper could investigate the suspected equipment violation.

Cf., State v. Cohen, 347 N.J. Super. 375, 381 (App. Div. 2002) ("We are also

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satisfied that the officer's belief that the darkly-tinted windows represented a

significant obstruction, even if not violative of Title 39, is a sufficient reason to

implicate 'the community caretaking function' and permit inspection of what

appears to be a hazardous vehicular condition that deviates from the norm.").

To the extent we have not addressed them, any remaining arguments

raised by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

We affirm the conviction and remand solely for the purposes of vacating the

stay of execution of sentence.

Affirmed.

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