STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON C. ZITTER,
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
Submitted June 28, 2016 – Decided
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of
New Jersey, Law Division, Cape May County, Municipal Appeal No. 09-03-15.
Law Office of John M. Walsh, PC,
attorneys for appellant (John M. Walsh, on the brief).
Robert L.
Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
After
unsuccessfully seeking the suppression of evidence obtained as a result of a
motor vehicle stop, defendant entered a conditional guilty plea to driving
while under the influence, N.J.S.A. 39:4-50, and pursued, by way of an
appeal to the Law Division, his contention that the arresting officer lacked reasonable
suspicion to stop his vehicle. The Law
Division judge rejected defendant's argument, and defendant appeals, reprising
his contention that the officer lacked reasonable suspicion. We agree with that argument and reverse.
At
a hearing in municipal court, the officer testified the sole ground for the stop
arose from his belief that defendant made a right turn without signaling as
prohibited by N.J.S.A. 39:4-126, which declares: "[n]o person shall
[turn at an intersection or as otherwise defined] without giving an appropriate
signal . . . provided in the event any other traffic may be affected by such
movement." There being no dispute that
defendant made a turn without signaling, we focus on whether there was evidence
to support a finding that the un-signaled turn "affected" "any
other traffic." Ibid.
In
municipal court, the arresting officer testified he observed defendant and his
companions depart a pizza restaurant in Avalon at 2:34 a.m., on July 18, 2014. Defendant's vehicle proceeded onto Dune Drive;
while following, the officer observed the vehicle turn right onto 22nd Street. From
a distance of approximately twenty to twenty-five feet, the officer next
observed defendant's vehicle make a right turn onto Ocean Drive; the officer did
not see defendant signal in advance of that turn. A short distance later, defendant signaled for
and made a left turn onto 21st Street, and the officer activated his overhead
lights. Defendant turned left and then into the driveway of his Harbor Drive
residence. In the events that followed, defendant was arrested for driving
while under the influence.
As
mentioned, the sole rationale for the vehicle stop was defendant's un-signaled right
turn onto Ocean Drive. We start with the premise that not every turn of a vehicle
must be preceded by a signal. In State v. Williamson, 138 N.J.
302, 304 (1994), the Court interpreted N.J.S.A. 39:4-126 as prohibiting only
un-signaled turns that "have an effect on traffic." The arresting officer,
who observed defendant's vehicle travel from the pizzeria to his driveway, testified
there was no other traffic on the streets in question. And the officer never
testified the operation of his own vehicle was impacted by defendant's un-signaled
right turn onto Ocean Drive.
To
be sure, to prove the officer possessed an articulable and reasonable suspicion
for making the vehicle stop, State v. Locurto, 157 N.J. 463, 470
(1999), the prosecution was not required to prove a violation of N.J.S.A.
39:4-126 beyond a reasonable doubt. And,
in considering defendant's contentions we must accept — although he never said —
that the municipal judge found the officer credible.[1] But those circumstances only distract us from
the rather simple set of facts before us.
There being no other vehicles in sight when the turn was made, the only
"other traffic" that could have been affected, ibid.,
consisted of the arresting officer's vehicle, and he never testified the operation
of his vehicle was impacted by defendant's actions. Consequently, the officer could
not have possessed a reasonable suspicion that defendant had committed a motor
vehicle violation. There being no other articulated ground for the motor
vehicle stop, its fruits must be suppressed.
We,
thus, reverse the order denying suppression, vacate the judgment of conviction,
and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.
