                                NOT FOR PUBLICATION WITHOUT THE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-2113-18T2

ROSTISLAV VILSHTEYN,

          Plaintiff-Appellant,

v.

POLICE OFFICER MININO
GOROSPE, in his individual
capacity,

     Defendant-Respondent.
__________________________

                    Argued January 21, 2020 – Decided February 4, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-4417-16.

                    Shay S. Deshpande argued the cause for appellant
                    (Franzblau Dratch, PC, attorneys; Shay S. Deshpande,
                    of counsel and on the briefs).

                    Philip G. George argued the cause for respondent (Eric
                    M. Bernstein & Associates, LLC, attorneys; Eric
                    Martin Bernstein, of counsel and on the brief; Philip G.
                    George, on the brief).
PER CURIAM

      In his complaint, plaintiff alleged that defendant violated his civil rights

by falsely arresting and charging him with driving while intoxicated (DWI),

N.J.S.A. 39:4-50, and fourth-degree assault by automobile, N.J.S.A. 2C:12-

1(c)(2). A municipal court judge found probable cause existed to charge him

with DWI, and a grand jury later indicted and charged him with the criminal

offense. The judge granted summary judgment to defendant after finding that—

based on the facts known to defendant at the time he arrived at the scene of the

accident—probable cause existed to charge plaintiff with committing these

offenses.

      Plaintiff appeals arguing:

            POINT I

            DEFENDANT'S   MOTION    FOR    SUMMARY
            JUDGMENT SHOULD HAVE BEEN DENIED
            BECAUSE THERE IS A DISPUTED ISSUE OF
            MATERIAL FACT AS TO PROBABLE CAUSE TO
            CHARGE PLAINTIFF WITH A CRIME.

            POINT II

            THE [JUDGE] ERRED IN DETERMINING THERE
            WAS NO CAUSATION AS A MATTER OF LAW
            BETWEEN PLAINTIFF'S INCARCERATION AND
            DEFENDANT'S ACTION.



                                                                          A-2113-18T2
                                        2
            POINT III

            PLAINTIFF'S ATTORNEY'S INDICATIONS AS TO
            "PROBABLE CAUSE" IN THE UNDERLYING
            PROCEEDINGS DO NOT ESTABLISH PROBABLE
            CAUSE FOR PURPOSES OF THIS ACTION.

We disagree and affirm.

      When reviewing an order granting summary judgment, we apply the same

standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburg, 224 N.J. 189, 199 (2016). A court should grant summary

judgment when the record reveals "no genuine issue as to any material fact" and

"the moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). We owe no special deference to the motion judge's conclusions on issues

of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995). We therefore consider—as the judge did—the facts in a light most

favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523

(1995).

      Plaintiff ran a red light causing a serious accident. Defendant arrived at

the scene and interviewed the drivers and passengers of the vehicles. Defendant

learned that plaintiff was swerving prior to the accident. Defendant observed

that "[p]laintiff's eyes were glassy, that his pupils were constricted despite the

fact that they were outdoors and that [p]laintiff was swaying from side -to-side

                                                                          A-2113-18T2
                                        3
in order to maintain his balance."     Plaintiff denied that he was under the

influence of alcohol or drugs, but he consented to field sobriety tests, which he

failed. Defendant observed further that plaintiff had difficulty balancing, his

hand movements were "unusually slow and deliberate," and he slurred his words.

      Because plaintiff failed the tests, and as a result of the observations by

defendant and two other officers, they arrested and charged him with DWI. As

police transported plaintiff to headquarters, he began shouting and rambling that

police mistreat people, bend the law, and manhandle people. At headquarters,

plaintiff admitted that he was taking prescription Oxycodone, Methadone,

Xanax, and Ambien, which was verified by his urine samples.1 Following

instructions from a lieutenant, defendant also charged plaintiff with the criminal

offense.

      Unrelated to the accident, plaintiff had been enrolled in the Intensive

Supervision Program (ISP). That is so because he had a prior conviction. These

charges led to an ISP violation and incarceration.




1
   Plaintiff took an Alcotest, which returned a "0.00" reading. He was then
administered a Drug Recognition Exam (DRE) by a certified DRE officer. The
DRE officer concluded⸻approximately four hours after the initial arrest⸺that
plaintiff was not "under the influence" of any drugs.
                                                                          A-2113-18T2
                                        4
      The State dismissed the DWI charge and resolved the criminal charge on

remand to the municipal court, where plaintiff pled guilty to careless driving.

      When a plaintiff claims that he was unlawfully arrested, an officer—like

here—can assert qualified immunity by establishing that there existed probable

cause or that a reasonable officer would have believed that probable cause

existed. Morillo v. Torres, 222 N.J. 104, 118-19 (2015).

            Qualified immunity is an entitlement not to stand trial
            or face the other burdens of litigation. The privilege is
            an immunity from suit rather than a mere defense to
            liability; and like an absolute immunity, [qualified
            immunity] is effectively lost if a case is erroneously
            permitted to go to trial.

            [Saucier v. Katz 533 U.S. 194, 200-01 (2001) (internal
            quotation marks and citations omitted).]

"The doctrine of qualified immunity shields law enforcement officers from

personal liability for civil rights violations when the officers are acting under

color of law in the performance of official duties." Morillo, 222 N.J. at 107. It

protects officers who performed their duties in an "objectively reasonable"

manner, regardless of whether they made a mistake of fact. Id. at 108.

      In deciding whether an officer is entitled to qualified immunity, New

Jersey courts apply the two-prong test set forth in Saucier, 533 U.S. at 199;

accord Morillo, 222 N.J. at 115. A court must determine: (1) whether the


                                                                         A-2113-18T2
                                       5
officer's actions violated a constitutional or statutory right that was clearly

established at the time of incident; and (2) whether reasonable officers in the

same situation would have believed plaintiff's conduct was unlawful and that the

officer's responsive actions were reasonable. Saucier, 533 U.S. at 199; accord

Morillo, 222 N.J. at 114.

      As to the first prong, "the clearly established law must be 'particularized'

to the facts of the case." White v. Pauly, 580 U.S. ___, 137 S. Ct. 548, 552

(2017) (citation omitted). "In other words, 'existing precedent must have placed

the statutory or constitutional question' confronted by the official 'beyond

debate.'" Morillo, 222 N.J. at 118 (citations omitted). If the right was not clearly

established at the time, the inquiry ends there, and the officer is entitled to

qualified immunity. Saucier, 533 U.S. at 199.

      As to the second prong, the officer's actions are assessed under an

objectively reasonable test, considering all relevant facts and circumstances

from an "on-scene perspective." Id. at 205. Courts should not apply "'20/20

vision of hindsight,'" but rather should give "deference to the judgment of

reasonable officers on the scene." Ibid. (quoting Graham v. Connor, 490 U.S.

386, 396 (1989)). Courts may only consider facts that were known to the

officers at the time. White, 580 U.S. at ___.


                                                                            A-2113-18T2
                                         6
      "[P]robable cause is an absolute defense to an allegation of malicious

prosecution or false arrest[.]" Tarus v. Borough of Pine Hill, 189 N.J. 497, 521

(2007) (citing Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000)).

Probable cause is "'a well-grounded suspicion that a crime has been or is being

committed.'" State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v.

O'Neal, 190 N.J. 601, 612 (2007)). It exists "where the facts and circumstances

within . . . [the officers'] knowledge and of which they had reasonable

trustworthy information [are] sufficient in themselves to warrant a [person] of

reasonable caution in the belief that an offense has been or is being committed."

Ibid. (alterations in original) (quoting O'Neal, 190 N.J. at 612).

      Courts must consider the totality of the circumstances in determining

whether probable cause exists. Schneider v. Simonini, 163 N.J. 336, 361 (2000)

(citing Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). "[O]nly the probability,

and not a prima facie showing, of criminal activity is the standard of probable

cause."   Gates, 462 U.S. at 235 (citation omitted).      "[W]hether, under the

circumstances, a reasonable police officer could have believed that probable

cause existed . . . . is a standard of objective reasonableness, which is a lesser

standard than required for probable cause." Schneider, 163 N.J. at 365. "The

only time that standard is not satisfied is when, 'on an objective basis, it is


                                                                          A-2113-18T2
                                        7
obvious that no reasonably competent officer would have concluded that'"

probable cause existed. Id. at 366 (citation omitted).

      Defendant learned from two other drivers involved in the incident that

plaintiff failed to stop at a red light. Plaintiff's "speech was slurred," his words

were hard to understand, and he was having trouble following directions.

Plaintiff admitted that he was taking Oxycodone, Methadone, Xanax, and

Ambien, and he had the prescription bottles on his person at the time of the

accident. During the field sobriety tests, plaintiff "was swaying side[-]to[-]side

attempting to maintain his balance." Defendant noted plaintiff's hand movement

was slow, "he had droopy eyelids," and that his body was rigid, presumably to

keep him upright.

      These common symptoms of intoxication established probable cause that

plaintiff was under the influence. Numerous cases have also identified that

probable cause exists based on some or all of these symptoms. See, eg., State

v. Bealor, 187 N.J. 574, 590 (2006) (driver engaged in "erratic and dangerous

driving" and had "slurred and slow" speech, "droopy eyelids," and trouble

standing straight); State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993)

(driver was "very agitated" and "yelling and screaming," was "very wobbly,"

and had slurred speech); State v. Cleverley, 348 N.J. Super. 455, 457 (App. Div.


                                                                            A-2113-18T2
                                         8
2002) (driver was unable to perform the leg raising test, had slurred speech, and

was argumentative); and State v. Monaco, 444 N.J. Super. 539, 543-44 (App.

Div. 2016) (driver drove through a stop sign and onto the curb deploying airbag,

staggered and swayed, slurred speech, and performed poorly on field sobriety

tests).

          The municipal court judge found that probable cause existed.

Additionally, the grand jury found that probable cause existed to charge plaintiff

with the fourth-degree offense, which is presumptive evidence that there was

probable cause to prosecute. See Zalewski v. Gallagher, 150 N.J. Super 360,

368 (App. Div. 1977) (emphasizing that the return of an indictment is "prima

facie or presumptive evidence that defendant has probable cause to prosecute").

          Therefore, there existed substantial evidence that defendant—at the time

he arrived at the scene of the accident—had probable cause to charge plaintiff

and arrest him. We emphasize that defendant, an experienced police officer,

determined plaintiff was under the influence based on his observations of

multiple signs of intoxication.          The other officers' observations also

substantiated defendant's belief that plaintiff was intoxicated.

          Thus, defendant was entitled to summary judgment as a matter of law.

Under the first prong of qualified immunity, defendant did not violate any


                                                                          A-2113-18T2
                                          9
constitutional right because he had probable cause to arrest. As to the second

prong, he observed multiple signs of intoxication, he solicited an admission from

plaintiff, his actions were corroborated by other officers, and the judge

dismissed plaintiff's charge.

      Furthermore, plaintiff's incarceration was not within defendant's control—

it was an ISP decision. Thus, we reject plaintiff's argument that the judge erred

in holding there was no proximate cause between defendant's actions and

plaintiff's imprisonment. Indeed, defendant did not arrest plaintiff for violating

the terms of his ISP. ISP's decision to incarcerate plaintiff—even after the

charges were resolved—was not within defendant's control.

      ISP is essentially a "post-sentence, post-incarceration program of judicial

intervention and diversion back to the community." State v. Clay, 230 N.J.

Super. 509, 512 (App. Div. 1989); see R. 3:21-10(e). The program enumerates

a very strict list of requirements that participants must adhere to in order to

partake in the program. See State v. Cannon, 128 N.J. 546, 554-55 (1992). This

court recognized ISP's ability to immediately re-incarcerate a participant

pending resentencing for an ISP violation. See State v. Adams, 436 N.J. Super.

106, 113 (App. Div. 2014).




                                                                          A-2113-18T2
                                       10
      In terms of proximate causation, an intervening cause destroys the causal

connection between defendant's conduct "where such an intervening cause

constitutes an unforeseeable independent act which constitutes the immediate

and sole cause" of the incident. Fink v. Ricoh Corp., 365 N.J. Super. 520, 575

(Law Div. 2003); see Davis v. Brooks, 280 N.J. Super. 406, 412 (App. Div.

1993). Only intervening causes that are reasonably foreseeable will not relieve

a defendant of liability. Cruz-Menendez v. ISU/Ins. Servs., 156 N.J. 556, 575

(1999).

      Defendant testified in his deposition—and it is undisputed—that prior to

plaintiff's arrest, he had no knowledge that plaintiff was a participant in ISP. It

wasn't until the arrest was processed and communicated to state police that

defendant could have learned of plaintiff's ISP status. And as the municipal

court judge noted, the ISP Board detained plaintiff even after discovering that

the charges were resolved.       Therefore, defendant's conduct was not the

proximate cause of plaintiff's detainment.

      Finally, plaintiff's counsel stipulated before the municipal court judge that

there existed probable cause to issue the summonses. The municipal court judge

further acknowledged this stipulation.       Although plaintiff argues that facts

conceded during a guilty plea are inadmissible, the stipulation did not occur


                                                                           A-2113-18T2
                                       11
during the guilty plea colloquy. And there is no evidence in the record that

plaintiff requested the stipulation be inadmissible in civil matters. See R. 7:6-

2(a)(1).

      Affirmed.




                                                                         A-2113-18T2
                                      12
