                        NOT FOR PUBLICATION WITHOUT THE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-2647-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LISA D. WARD,

     Defendant-Appellant.
___________________________

              Argued January 25, 2017 – Decided July 31, 2017

              Before Judges Simonelli and Carroll.

              On appeal from the Superior Court of New
              Jersey, Law Division, Bergen County, Municipal
              Appeal No. 009-24-14.

              Matthew W. Reisig argued the cause for
              appellant (Reisig Criminal Defense & DWI Law,
              LLC, attorneys; Mr. Reisig, on the brief).

              Suzanne E. Cevasco, Assistant Prosecutor,
              argued the cause for respondent (Gurbir S.
              Grewal, Bergen County Prosecutor, attorney;
              Ms. Cevasco, of counsel and on the brief).

PER CURIAM

        Following the denial of her motion to suppress, defendant

Lisa D. Ward entered a conditional guilty plea to driving while
intoxicated (DWI), N.J.S.A. 39:4-50.1             Defendant was sentenced to

a   seven-month    driver's     license     suspension        and     ordered    to

participate in the Intoxicated Driver Resource Center Program for

a period of twelve hours.       The court also imposed the appropriate

fines, assessments, surcharges, and costs.

     On appeal, defendant challenges the denial of her motion to

suppress and the admission of the arresting officer's narrative

incident report and a jail log.        Defendant also contends that the

entire proceedings were tainted because her blood alcohol content

(BAC)   reading    of   0.12%   was   typewritten      onto     the    order    and

certification of intoxicated driving form (order form) prior to

her pleading guilty.      We affirm.

                                      I.

     We   derive    the   following       facts    from   the       record.      At

approximately 10:00 p.m. on July 27, 2010, Officer Timothy Letavish

of the Township of Mahwah Police Department (MPD) was parked in

his marked patrol vehicle on the right hand side of Moffat Road

at the intersection with Route 17 North monitoring traffic.                     From

his position, Letavish had an unobstructed view of the traffic

moving northbound on Route 17 and could see a far distance away

from where he was positioned.


1
   In exchange for defendant's guilty plea, the State dismissed
the summons charging her with speeding, N.J.S.A. 39:4-98.

                                      2                                   A-2647-14T2
       While    monitoring       the    traffic,     Letavish     saw    a   vehicle

traveling at a high rate of speed in the left northbound lane of

Route 17 where the posted speed limit was fifty-five miles per

hour. The vehicle was approximately twenty feet away from Letavish

when   he    first   observed     it,    and    he   believed    the    vehicle   was

traveling approximately seventy miles per hour.                   He testified he

was trained to detect speed through observation without the use

of any electronic equipment.2

       Letavish began following the vehicle.                  As he came within a

few car lengths, he activated his overhead emergency lights and

attempted to stop it.           The driver, later identified as defendant,

signaled, moved into the center lane, and continued traveling

north.      There was no traffic in the right lane that would have

prevented her from entering it.                 Letavish continued to follow

behind      defendant    with    his    overhead     lights    activated.      After

traveling a fair distance and seeing that defendant was not

stopping, Letavish activated his siren.                 Defendant did not stop

and    continued        traveling      north.         She     eventually     stopped

approximately one mile from where Letavish had activated his

emergency lights.


2
   Letavish used a handheld laser device, which showed that the
vehicle was traveling seventy-five miles per hour. However, the
municipal court judge ruled the results were inadmissible because
the laser device was not scientifically approved.

                                           3                                 A-2647-14T2
      Letavish did not measure defendant's speed as he followed

behind her, and did not see her drive erratically.               She used her

directional signals to move from the left lane to the center lane

and   eventually     to     the    right    shoulder,    and     also    parked

appropriately.

      Letavish     parked    his      patrol   vehicle    directly       behind

defendant's   vehicle,      exited    his   vehicle,    and    walked   to   the

passenger's side of defendant's vehicle.           He asked defendant for

her license, registration, and proof of insurance.             Defendant gave

him her registration and insurance, but did not produce her

driver's license until approximately one minute later and after

Letavish requested it a second time.

      During Letavish's interaction with defendant, he detected a

strong odor of alcoholic beverage emanating from her vehicle.                  He

asked defendant if she had consumed any alcoholic beverages that

evening and she replied, "just one."           Based on his observations

and interaction with defendant, the odor of alcoholic beverages,

and defendant's admission to having consumed alcohol, Letavish

believed she was impaired.           Thus, he returned to his vehicle to

check her credentials and requested backup.

      After backup arrived, Letavish asked defendant to exit her

vehicle.   As she exited, she briefly stumbled and grabbed the top

half of the driver's side door to assist in balance.             As she walked

                                        4                               A-2647-14T2
toward the back of her vehicle, she leaned on the vehicle with her

left hand.

     Letavish advised defendant that he was going to administer

field sobriety tests. As he stood approximately twenty-four inches

away from her, he detected a strong odor of alcoholic beverage

emanating from her breath.   He administered the one-leg-stand test

and walk-and-turn test, both of which she did not successfully

perform.3

     Based on his observations of defendant, her performance on

the field sobriety tests, and the odor of alcoholic beverage,

Letavish concluded she was under the influence of alcohol and

placed her under arrest for DWI.     Letavish transported defendant

police headquarters, where she gave breath samples to determine

her blood alcohol content (BAC).      Within twenty-four hours of

defendant's arrest, Letavish completed an arrest packet.         The

packet included his narrative incident report, which indicated

that defendant had a BAC of 0.12%.    Municipal Court Judge Roy F.

McGeady4 admitted the narrative incident report into evidence over

defendant's objection.


3
   Defendant does not challenge the administration or performance
of the field sobriety tests.
4
    Judge McGeady is the municipal court judge in Vicinage 2
Municipal Court for Bergen County. The matter was transferred to


                                 5                          A-2647-14T2
     Defendant's        testimony       contradicted      most      of   Letavish's

testimony.    Defendant admitted she did not pull over immediately

when Letavish activated his emergency lights because she thought

he was attempting to get past her.                 She further admitted to

traveling    in   the   left     lane    when   driving      past   Letavish,    and

acknowledged that the left lane is for drivers traveling faster

than those in the right lane.             She testified there was moderate

to heavy traffic on Route 17 that evening, with approximately four

or five vehicles within 100 feet of her vehicle.                          She also

testified    that   she    was    not    speeding,     but    was    traveling     at

approximately fifty miles per hour according to her speedometer.

However, she admitted she never had her speedometer calibrated.

     In denying defendant's motion to suppress, Judge McGeady

found that Letavish's observations of defendant speeding provided

a reasonable and articulable suspicion to stop her for committing

a motor vehicle violation. The judge also found there was probable

cause to arrest defendant for DWI.

     Judge McGeady then conducted a N.J.R.E. 104 hearing on the

admissibility of defendant's Alcotest results because defendant

challenged the twenty-minute observation period.                    Sergeant Harry

Hunt of the MPD, who administered the Alcotest, testified that he


that court after the Mahwah Municipal Court judge recused himself
following a defense request.

                                          6                                 A-2647-14T2
observed defendant for twenty minutes before he began the Alcotest.

The prosecutor then showed Hunt the jail log to refresh his

recollection     as    to   the   exact       time   he   began   and   ended    the

observation period.         Defense counsel objected because the State

did not produce the document during discovery.               The judge afforded

defense counsel an approximately ten-minute break to review the

document with defendant.          The judge then overruled the objection,

finding as follows:

                I could accept [Hunt's] testimony.     I
           have the right to choose to accept his
           testimony that he watched for twenty minutes.
           Whether that twenty minutes was 11:30 to
           [12:00], -- whether it was [12:00] to 12:30,
           may not be relevant. I could choose to accept
           that [Hunt] watched for twenty minutes period
           without knowing the exact time. He's trying
           to corroborate the exact time. I find that
           to be reasonable.     The fact the [defense
           counsel] . . . can cross-examine[]. I don't
           see how it's going to change.        [Defense
           counsel] came into this case knowing twenty
           minutes would be an issue so that's my
           ruling[.]


     Hunt never testified about the time periods on the jail log

and Judge McGeady never ruled on the admissibility of the Alcotest

results because, prior to completion of the N.J.R.E. 104 hearing,

defendant entered a conditional guilty plea to DWI.                     Defendant

preserved her right to appeal from the denial of her motion to

suppress   and   the    State's     failure      to   produce     the   jail    log.


                                          7                                A-2647-14T2
Defendant    admitted   to   driving    her   vehicle   after   consuming

approximately four beers, and that the consumption of the beers

influenced her operation of her vehicle.

       After defendant pled guilty but before sentencing, Judge

McGeady asked if there was a BAC reading.         The State represented

to the judge, without objection, that defendant's BAC reading was

0.12%.      The judge then accepted defendant's guilty plea and

sentenced her.

       After Judge McGeady imposed sentence, defense counsel took

issue with the order form, arguing that defendant's BAC reading

was typewritten onto the order form prior to her pleading guilty.

The judge stated this was the first time saw the form and did not

know anything about it.      The judge also stated he did not know the

case involved an Alcotest reading until the Rule 104 hearing.

       On appeal to the Law Division, defendant raised the same

issues she raises in this appeal. In a comprehensive oral opinion,

Judge James J. Guida rejected defendant's argument that the entire

proceedings were tainted because her BAC reading was typewritten

on the order form prior to her pleading guilty.         Judge Guida found

that Judge McGeady said in certain and specific terms that he

never saw the order form prior to defendant's guilty plea and, in

fact, had asked if there was a BAC reading prior to sentencing

her.     Judge Guida also found that even if Judge McGeady saw the

                                    8                             A-2647-14T2
order form before defendant pled guilty, this fact did not taint

the proceedings or preclude Judge McGeady from deciding the pre-

trial motions.

      Judge Guida found that Letavish's narrative incident report

was properly admitted into evidence.             The judge determined the

document was admitted at a N.J.R.E. 104 hearing where the rules

of evidence did not necessarily apply pursuant to N.J.R.E. 104(a),

and there was no N.J.R.E. 403 issue or claim of privilege.                 The

judge found no authority prohibiting a trial judge from knowing a

defendant's BAC reading prior to a guilty plea, or requiring the

case to be transferred to a different judge if the BAC reading was

revealed.     The judge noted that seeing the BAC reading does not

mean the judge is going to be tainted or cannot sit as the trier

of fact.     He compared this situation to a Miranda5 hearing, where

the trial judge rules on the admissibility of a confession and

that ruling does not preclude the judge from sitting as the trier

of   fact.     Lastly,   Judge   Guida   found    there   was   no   Crawford6

violation because Letavish testified and was subject to cross-

examination.



5
   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
   Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004).

                                     9                                A-2647-14T2
     Judge Guida found the motion to suppress was properly denied,

reasoning as follows:

          Bottom line is, Judge McGeady found [Letavish]
          to be credible in his observations.        Now
          defense counsel over several pages does set
          forth various mathematical calculations to
          make a determination that, for the [c]ourt
          rather, to determine that it was impossible
          for the officer to judge such speed. In that
          regard this [c]ourt does not find that the
          calculations are such that . . . it's
          impossible, that it is physically through the
          laws of science or any other way, impossible
          for [] defendant to have been speeding based
          upon the observations of [Letavish].

               [Letavish's] observations, while he did
          set forth particular feet and distance are not
          necessarily deemed to be gospel, if he says
          687 feet doesn't mean it couldn't be 690 feet
          or 600 feet and likewise. And that wasn't the
          decision, the basis of the decision, Judge
          McGeady didn't base his decision on any
          calculation of distance times speed or rate
          or use any formula. He based it upon human
          experience.

               And in that regard this [c]ourt finds
          that . . . [Letavish] did have a reasonable
          and articulable reason to stop.     Namely in
          [Letavish's] opinion, which the [j]udge found
          to be credible, the defendant was exceeding
          the speed limit. That of itself was the basis
          for the stop.      Once the stop was made
          [Letavish] noted and detected an odor of
          alcohol.   And that then allowed the officer
          to continue with the stop.

     Lastly, Judge Guida found defendant suffered no prejudice as

a result of the State's failure to produce the jail log, reasoning

as follows:

                               10                          A-2647-14T2
         There shall be a continuing duty to provide
         discovery pursuant to [Rule 7:7-7(j)]. If at
         anytime during the course of the proceedings
         it is brought to the attention of the [c]ourt
         that a party has failed to comply with this
         rule or with an order issued pursuant to this
         rule the [c]ourt may, and the operative term
         is may, order that party to provide the
         discovery   of   materials   not   previously
         disclosed, grant a continuance, prohibit the
         party from introducing it in evidence or such
         other relief as it deems appropriate.

              And I am just, I note that the Municipal
         Court does have broad discretion to decide
         what sanction, if any, is appropriate if there
         is a violation of discovery, a failure to
         provide discovery.     And that's [State v.
         Wolfe, 431 N.J. Super. 356 (2013).] In that
         case the [c]ourt actually allowed the State
         to cure at trial deficiencies that were
         necessary to support a foundation for an
         alcohol    influence    report,    when    the
         deficiencies caused no prejudice and were not
         the result of any intent to mislead.

              . . . .

              In that regard the [c]ourt does not find
         that there is any prejudice to the defendant.
         And that the appropriate remedy at the time
         was to provide a short break for defense
         counsel to review with . . . his client, the
         report. But I find that it did not prejudice
         the defendant in this instance on that
         particular issue.

                              II.

    We first address defendant's argument that both trial courts

erred in denying her motion to suppress.   Defendant argues that

Judge Guida based his ruling on his erroneous belief that Judge


                              11                          A-2647-14T2
McGeady made credibility determinations regarding the testimony

of Letavish and defendant.        Defendant also argues that Judge

McGeady never answered the dispositive factual question as to how

a police officer could ever observe an alleged motor vehicle

violation from a distance that was so great it could not even be

estimated.

     On appeal from a municipal court to the Law Division, the

review is de novo on the record.           R. 3:23-8(a)(2).      The Law

Division   judge   must   make   independent   findings   of    fact   and

conclusions of law based upon the evidentiary record of the

municipal court and must give due regard to the opportunity of the

municipal court judge to assess the witnesses' credibility.         State

v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division

decision, the issue is whether there is "sufficient credible

evidence present in the record" to uphold the findings of the Law

Division, not the municipal court.       Id. at 162.   However, as with

the Law Division, we are not in as good a position as the municipal

court judge to determine credibility, and should not make new

credibility findings.      State v. Locurto, 157 N.J. 463, 470-71

(1999) (citing Johnson, supra, 42 N.J. at 161-62).             We "do not

weigh the evidence, assess the credibility of witnesses, or make

conclusions about the evidence."        State v. Barone, 147 N.J. 599,

615 (1997).   We give due regard to the trial court's credibility

                                   12                             A-2647-14T2
findings.    State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div.

2000).   Applying these standards, we discern no reason to reverse

any of Judge Guida's rulings.

    Contrary     to   defendant's    argument,   Judge   McGeady   made

credibility findings when he found as follows:

                 In examining the testimony[,] the first
            thing the [c]ourt has to decide is whether
            . . . Letavish has reasonable, articulable
            suspicion to stop [defendant] in the first
            place . . . [Delaware v. Prouse, 440 U.S. 648,
            99 S. Ct. 1391, 59 L. Ed. 660 (1979)] is the
            key United States Supreme Court case. [State
            v. Zapata, 297 N.J. Super. 160 (1997), certif.
            denied, 156 N.J. 405 (1998)] is the key New
            Jersey case.    Both hold that a vehicle is
            subject to seizure if the [o]fficer has a
            reasonable, articulable suspicion to believe
            that either the vehicle is unregistered, the
            operator is unlicensed or either the operator
            or a passenger in the vehicle is subject to
            seizure for some violation of the law. And
            it's clear the State is basing the seizure
            upon speeding.

                 . . . .

                 I'm satisfied that . . . Letavish is a
            certified radar operator separate and apart
            from the laser operator. He has testified to
            that as to his training. He said that he had
            as part of that radar operator training, he
            had to visually estimate speed and then
            compare it to the radar reading and he has a
            supervisor who observed this and he had to be
            accurate as to what the actual speed was
            compared to the radar, his observations of the
            radar.

                 [Letavish] said he had an opportunity to
            observe [defendant's] vehicle by more than 487

                                    13                         A-2647-14T2
feet away and from that distance, whatever
that was, we don't know, we know it was more
than 487 feet until she passed him and until
a mile after he put on the overhead lights.
He testified that the speed limit is [fifty-
five] miles per hour. I find as a fact that
that is true.    [Defendant] confirmed that.
There's no contest as to the actual speed
limit.

     At    different   times,    the   [c]ourt
interpreted [Letavish's] testimony as being
that   [defendant]    was   traveling   either
[seventy] or [seventy-five] miles per hour.
So either [fifteen] or [twenty] miles per hour
over the speed limit.     I'm satisfied that
through his training, despite [defendant]
testifying that she observed her speedometer
and the needle was exactly on [fifty-five] the
whole time from Paramus through Mahwah the
time of the stop, as pointed out by [the
State], there was no evidence that her
speedometer is calibrated so even if that's
true, we don't know if that means she was
actually going [fifty-five] miles per hour.

     I'm satisfied that . . . Letavish has a
higher degree of skill in determining the
speed based on the distinction I've just made
and that his estimate is accurate and I accept
it, at least by a preponderance of the
evidence standard and I'm satisfied that while
[defense counsel] argued that maybe there was
speculating as to how fast he could operate
the laser device after he first saw the
vehicle, that we didn't measure that from 487
feet away until the time that she passes him
because he observed her way before that and
it appears the only reason he noticed she was
487 feet away because at that point he was
using the laser and the laser told him that.

     So I'm satisfied that [Letavish] did
observe [defendant] more than 487 feet away
when he made his speed estimate.        I'm

                     14                          A-2647-14T2
            satisfied that that is reasonable, especially
            for a trained radar operator.         So I'm
            satisfied there's reasonable, articulable
            suspicion that he had to stop [defendant] for
            a violation of [N.J.S.A. 39:4-98 or N.J.S.A.
            39:4-99] which is probably the proper section
            for speeding in excess of [fifty-five] miles
            per hour.

            [(Emphasis added).]

The    words    "I'm   satisfied"        and   "I   accept"     are    undoubtedly

credibility determinations.

       In any event, Judge McGeady was not required to articulate

detailed credibility findings.             See Locurto, supra, 157 N.J. at

474.    The reasons supporting his determinations may be inferred

from, and are well-supported by, the facts and the testimony of

both   witnesses.         See   ibid.      Judge    McGeady   found     Letavish's

testimony      credible    and    defendant's       testimony    not    credible.

Accordingly, Judge Guida's reliance on Judge McGeady's credibility

determinations was proper.              See Johnson, supra, 42 N.J. at 157

(holding that the Law Division judge must give due regard to the

opportunity of the municipal court judge to assess the witnesses'

credibility).

       That being said, we now address defendant's challenge to the

motor vehicle stop.        "[A] police officer is justified in stopping

a motor vehicle when he has an articulable and reasonable suspicion

that the driver has committed a motor vehicle offense."                   Locurto,


                                         15                                A-2647-14T2
supra, 157 N.J. at 470 (citations omitted). "Reasonable suspicion"

means that "the police officer must be able to point to specific

and   articulable       facts   which,    taken   together   with   rational

inferences from those facts, reasonably warrant that intrusion."

Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d

889, 906 (1968).         "Reasonable suspicion" is "less than proof

. . . by a preponderance of the evidence," and "[a] less demanding

[standard] than that for probable cause," but must be something

greater    "than   an   'inchoate   and   unparticularized    suspicion     or

hunch.'"    U.S. v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,

104 L. Ed. 2d 1, 10 (1989).

      "The fact that the officer does not have the state of mind

hypothesized by the reasons which provide the legal justification

for the search and seizure [or investigatory stop] does not

invalidate the action taken, so long as the circumstances, viewed

objectively, support the police conduct."           State v. Kennedy, 247

N.J. Super. 21, 28 (App. Div. 1991).         A Fourth Amendment violation

is assessed based upon an objective viewing of the officer's

actions considering the circumstances confronting him at that

time, not his actual state of mind.           Maryland v. Macon, 472 U.S.

463, 470-71, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985).

      Ultimately, "courts will not inquire into the motivation of

a police officer whose stop of an automobile is based upon a

                                     16                              A-2647-14T2
traffic violation committed in his presence."                  Kennedy, supra, 247

N.J. Super. at 28.        "The fact that the justification for the stop

was pretextual . . . [is] irrelevant."             Id. at 29.          Investigatory

stops are valid in situations where the objective basis for the

stop was a minor traffic violation.              Locurto, supra, 157 N.J. at

466   (finding     the    stop   was   justified       based    on   the     officer's

observations of the defendant driving at a high rate of speed in

excess of the posted speed limit).             The State need not prove that

the suspected motor vehicle violation had in fact occurred.                         Id.

at 470.

      The    record      amply   supports      Judge     Guida's       finding     that

Letavish's     observation       of    defendant's       vehicle       speeding     was

sufficient to prove the officer had a reasonable and articulable

suspicion that defendant committed a motor vehicle violation,

justifying the stop. See id. at 474-75.                  Our Supreme Court has

recognized that "[i]ntoxicated drivers generally do not recall

with precision the exact speed they were driving when first

observed by a police officer.                A police officer, on the other

hand, has been trained to estimate the speed of a moving vehicle."

Id.   at    472.   Letavish      testified,    credibly,        that    he   observed

defendant's vehicle traveling at approximately seventy miles per

hour in a fifty-five mile–per-hour zone.                Accordingly, the denial

of defendant's motion to suppress was proper. Defendant's argument

                                        17                                     A-2647-14T2
about how a police officer can observe an alleged motor vehicle

violation from a great distance has no merit whatsoever.

                                III.

     We have considered defendant's remaining contentions in light

of the record and applicable legal principles and conclude they

are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

Judge Guida expressed in his comprehensive and cogent oral opinion.

We add the following brief comments.

     Admission of Letavish's narrative incident report was not an

abuse of discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015).

The rules of evidence, other than N.J.R.E. 403, did not apply to

a motion to suppress hearing.        N.J.R.E. 104(a).   There was no

N.J.R.E. 403 issue.   In fact, defense counsel used the document

on cross-examination to attack Letavish's credibility.

     Further, the inclusion of defendant's BAC reading on the

narrative incident report and order form caused her no prejudice.

The record is clear that Judge McGeady never saw defendant's BAC

reading until after she pled guilty, and even if he had seen it

beforehand, nothing precluded him from sitting as the factfinder.

We have held that "[a] judge sitting as the factfinder is certainly

capable of sorting through admissible and inadmissible evidence

without resultant detriment to the decision[-]making process."

                                18                           A-2647-14T2
State v. Medina, 349 N.J. Super. 108, 130 (App. Div.) (citations

omitted), certif. denied, 174 N.J. 193 (2002).       We emphasized that

judges are presumed to "have the ability 'to exclude from their

consideration irrelevant or improper evidence and materials which

have come to their attention.'"        Ibid. (citation omitted).

     Lastly, the State's failure to provide the jail log prior to

the Rule 104 hearing did not deprive defendant of due process.             A

municipal court judge has broad discretion to decide an appropriate

sanction for a discovery violation pursuant to Rule 7:7-7(j).

Judge   McGeady   appropriately   remedied     the   State's   discovery

violation by granting a recess to allow defense counsel to review

the document and cross-examine Hunt.       Nonetheless, as both judges

properly found, Hunt's testimony alone established the twenty-

minute observation period without the jail log.

     Affirmed.




                                  19                               A-2647-14T2
