                                NOT FOR PUBLICATION WITHOUT THE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-4249-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FATEEN K. DAWSON, a/k/a
KHALID DAWSON, FATEEM
DAWSON, FATEEM RUMPH,
and FATEEN RUMPH,

     Defendant-Appellant.
____________________________

                    Submitted March 25, 2020 – Decided April 23, 2020

                    Before Judges Fuentes and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment Nos. 16-11-
                    0985, 16-12-1097 and 17-12-1079.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rochelle M. Watson, Deputy Public
                    Defender, of counsel and on the brief).

                    Jennifer    Webb-McRae,        Cumberland       County
                    Prosecutor, attorney for respondent (Andre R. Araujo,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Fateen Dawson appeals from the September 26, 2017 denial of

his motion to suppress physical evidence recovered following a motor vehicle

stop. We affirm.

      We recite only the pertinent facts, which are gleaned primarily from the

testimony elicited from the arresting trooper and defendant, the only witnesses

who testified at the suppression hearing. On the evening of March 2, 2016, a

New Jersey State Police trooper was on routine patrol in Millville. He observed

defendant's vehicle traveling east on Route 49 when it crossed the center line

prior to the intersection at Route 47, and crossed back over the center line before

continuing east on Route 49. The trooper began to follow defendant's vehicle

and witnessed it crossings over the center line several more times. Further, the

trooper noticed the lamp used to illuminate defendant's vehicle tag was not

working. He activated the marked police vehicle's overhead lights to effectuate

a motor vehicle stop and observed defendant's car cross the center line again

before it came to a complete stop.

      After defendant provided the trooper with certain documentation, the

trooper discovered an active traffic warrant pending against defendant. The

trooper arrested defendant and during a search of the defendant incident to his

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                                        2
arrest, the trooper discovered a large glass vial with fluid, which later testified

positive for phenylcyclohexyl piperidine (PCP).              Defendant received

summonses for failure to maintain lane, N.J.S.A. 39:4-88(b) and maintenance of

lamps, N.J.S.A. 39:3-61.

      Defendant moved to suppress the evidence recovered during the search.

At the suppression hearing, the State produced and played the trooper's dash

cam video of the stop. Additionally, defendant played a video showing traffic

heading east on Route 49 at the intersection of 3rd Street. Defendant argued his

video demonstrated he was unfairly targeted for a motor vehicle stop because

every driver on the video crossed over the center line at 3rd Street due to

insufficient space in that area.

      The motion judge credited the trooper's testimony and found his dash cam

recording of the incident corroborated the trooper's version of the stop.

Conversely, the judge did not find defendant's testimony believable. Although

the judge acknowledged defendant's video showed "every single car would cross

the center line at the intersection of Route 49 and 3[rd] Street," the judge

specifically found the trooper's car was "facing north on Route 47 at the

intersection of Route 49" when he initially observed defendant's vehicle cross




                                                                           A-4249-17T2
                                        3
the center lane. The judge added defendant "was pulled over . . . because of the

infractions which [the trooper] personally observed."

      On appeal, defendant raises the following argument:

            BECAUSE THE COURT ERRED IN FAILING TO
            CONSIDER NECESSITY AS A DEFENSE UNDER
            N.J.S.A. 2C:3-2 IN RELATION TO [DEFENDANT'S]
            CROSSING ON THE CENTER LINE AT THE 3 rd
            STREET INTERSECTION, AND THAT INSTANCE
            MAY HAVE BEEN THE BASIS FOR A FINDING OF
            REASONABLE SUSPICION, THIS MATTER MUST
            BE REMANDED FOR A NEW ANALYSIS OF
            REASONABLE         SUSPICION       ABSENT THE
            IMPROPER         CONSIDERATION        OF  THE
            NECESSARY CONDUCT. U.S. CONST., AMENDS.
            IV, XIV; N.J. CONST., ART. I, ¶ 7.

      This argument lacks merit. As our Supreme Court noted, "[c]onduct that

would otherwise be criminal is justified if the evil avoided is greater than that

sought to be avoided by the law defining the offense committed, or, conversely,

if the conduct promotes some value higher than the value of compliance with

the law." State v. Tate, 102 N.J. 64, 73 (1986) (citing Arnolds & Garland, The

Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil , 65

J. Crim. L. C. & P.S. 289 (1974)); see State v. Romano, 355 N.J. Super. 21, 29

(App. Div. 2002).

      "Necessity" is a recognized affirmative defense to alleged criminal

conduct under the Code. N.J.S.A. 2C:3-2(a). But motor vehicle offenses, such

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                                       4
as those for which defendant received summonses, "are not offenses under New

Jersey's Criminal Code." State v. Fogarty, 128 N.J. 59, 64 (1992). Accordingly,

we construe defendant's argument under the elements of the common-law

defense of necessity:

            (1) There must be a situation of emergency arising
            without fault on the part of the actor concerned;

            (2) This emergency must be so imminent and
            compelling as to raise a reasonable expectation of harm,
            either directly to the actor or upon those he was
            protecting;

            (3) This emergency must present no reasonable
            opportunity to avoid the injury without doing the
            criminal act; and

            (4) The injury impending from the emergency must be
            of sufficient seriousness to outmeasure the criminal
            wrong.

            [State v. Romano, 355 N.J. Super. 21, 29 (App. Div.
            2002) (citation omitted).]

      A defendant must present some evidence to support the affirmative

defense of necessity, but the burden ultimately rests on the State to "disprove

the defense beyond a reasonable doubt." Id. at 36. Here, defendant is not entitled

to the common-law defense of necessity because contrary to his assertion, the

motion judge did not rely "upon one instance of [defendant] crossing the center

line as a basis to justify the stop." Instead, the judge found the trooper pulled

                                                                          A-4249-17T2
                                        5
defendant's vehicle over "because of the infractions which he personally

observed." In other words, the arresting trooper effectuated the motor vehicle

stop only after he saw defendant commit multiple motor vehicle violations.

Defendant does not contend that each of his multiple infractions was committed

out of necessity, so his challenge to the motor vehicle stop based on this

affirmative defense is unpersuasive. Defendant's necessity argument also fails

because the motion judge specifically rejected the notion that the arresting

trooper was located at the intersection of Route 49 and 3rd Street when he saw

defendant cross a center line. Instead, the judge found defendant's car was "on

Route 49 when it crossed the center lane prior to the intersection with Route 47."

      Appellate courts reviewing a grant or denial of a motion to suppress must

defer to a trial court's factual findings so long as those findings are supported by

sufficient evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014);

State v. Elders, 192 N.J. 224, 243 (2007). We defer to those findings of fact

because they "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. Johnson, 42 N.J. 146, 161 (1964). An appellate court should

disregard those findings only when a trial court's findings of fact are clearly

mistaken and "the interests of justice demand intervention and correction." Id.


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                                         6
at 162. However, we review a trial court's legal conclusions de novo. State v.

Gandhi, 201 N.J. 161, 176 (2010). Guided by these standards, we are satisfied

defendant's motion to suppress was properly denied.

      To conduct a lawful investigatory stop, an officer needs a reasonable and

articulable suspicion that an offense has occurred, even if that offense is only a

minor traffic offense. State v. Amelio, 197 N.J. 207, 211 (2008). Based on the

motion judge's factual and credibility findings, it is evident the trooper's

observations of defendant's multiple traffic offenses plainly met the reasonable

and articulable suspicion threshold.

      Finally, we note that a search incident to a lawful arrest is one of many

recognized exceptions which justifies a warrantless search of a suspect's person.

State v. Oyenusi, 387 N.J. Super. 146, 153 (App. Div. 2006) (citing Chimel v.

California, 395 U.S. 752, 762-63 (1969)).        Although defendant does not

challenge the lawfulness of his search, we agree with the motion judge's

conclusion that the search "did not exceed the legally allowable scope and the

search of the defendant . . . was legal."

      Affirmed.




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