                                NOT FOR PUBLICATION WITHOUT THE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-2705-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELDER LEMUS-ROQUE,

     Defendant-Appellant.
________________________

                   Argued March 4, 2020 – Decided April 22, 2020

                   Before Judges Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Municipal Appeal No. 18-
                   026.

                   Jeffrey S. Katz argued the cause for appellant.

                   Tiffany M. Russo, Assistant Prosecutor, argued the
                   cause for respondent (Fredric M. Knapp, Morris County
                   Prosecutor, attorney; Tiffany M. Russo, of counsel and
                   on the brief).

PER CURIAM
      Following the denial of his suppression motion, defendant entered a

conditional guilty plea to driving while intoxicated, N.J.S.A. 39:4-50, in the

Mount Olive municipal court, preserving his right to appeal the denial in the

Law Division. R. 7:6-2(c); R. 7:5-2(c)(2). Defendant now appeals from the

January 17, 2019 Law Division order affirming the municipal court judge's

denial of his suppression motion on de novo review. We affirm.

      We glean the following facts from the municipal court suppression

hearing, during which Sergeant Paul Ottavinia was the sole witness for the State,

and Herbert Leckie, qualified as an expert in the administration of the horizontal

gaze nystagmus (HGN) test, 1 testified for the defense. Ottavinia, a ten-year

veteran of the Mount Olive Police Department, testified that on July 19, 2015,

at approximately 3:29 a.m., he observed a vehicle make an illegal left turn

despite clear markings and pull into the parking lot of a CVS.           Ottavinia


1
   An HGN test is a field test performed to discern sobriety. See State v.
Doriguzzi, 334 N.J. Super. 530, 534-35 (App. Div. 2000). "[N]ystagmus is
defined as the involuntary jerking of the eye," and "it is generally understood
that alcohol use, among other things, will cause nystagmus." Id. at 534. During
an HGN test, an officer will hold his or her "finger about twelve to fifteen inches
in front of a [test subject]'s eyes and move[] his [or her] finger side-to-side[,]"
and the test subject must "follow the finger with his [or her] eyes without moving
his [or her] head." Ibid. Each eye is individually evaluated for "lack of smooth
pursuit," or "jerking," to assess whether the test subject may be "under the
influence of alcohol." Id. at 534-35.


                                                                           A-2705-18T4
                                        2
promptly activated his overhead lights, engaging the motor vehicle recorder

(MVR) in his patrol vehicle, 2 and conducted a motor vehicle stop.

      When Ottavinia approached the vehicle, he "detected the odor of an

alcoholic beverage" emanating from inside the vehicle. However, Ottavinia

could not tell whether the odor "was coming from [the driver]," who was later

identified as defendant, "or . . . one of [the] passengers" in the car. Ottavinia

asked defendant if he had been drinking and defendant responded "that he had

not." Additionally, when a back-seat passenger was directed by a back-up

officer to exit the vehicle, an odor of alcohol was detected on the passenger.

Nonetheless, Ottavinia was still concerned that defendant may have been under

the influence. As a result, Ottavinia performed an abbreviated HGN test on

defendant while he was seated in his car and "immediately . . . noticed a lack of

smooth pursuit" on the part of defendant.

      Based on his training and experience, Ottavinia concluded from the HGN

test result that there was "[a]t least some alcohol consumption." As a result, to

further his investigation, Ottavinia ordered defendant to exit the vehicle. Once

defendant exited the vehicle, Ottavinia performed the standard field sobriety



2
   The MVR video depicting the encounter was admitted into evidence and
played during the hearing.
                                                                         A-2705-18T4
                                       3
tests, including the complete HGN, from which Ottavinia concluded there was

probable cause to arrest defendant on suspicion of DWI. After defendant exited

his vehicle to perform the tests, Ottavinia was also able to confirm that the odor

of alcohol was coming from defendant's "[b]reath." Additionally, contrary to

his earlier denial, defendant admitted to Ottavinia that he had "been drinking."

After being placed under arrest for DWI, defendant was transported back to

police headquarters.

      The defense expert testified that based on his review of the MVR and

Ottavinia's testimony, the partial HGN performed while defendant was still

seated in his vehicle was not "a proper administration of the [HGN] test."

According to the expert, Ottavinia failed to conduct a medical assessment of

defendant prior to administering the test and failed to complete each phase of

the test in its entirety. As a result, the expert opined that, although Ottavinia

"administered [the HGN test] appropriately" once defendant was removed from

his vehicle, the partial test administered inside the vehicle was not a reliable

indicator of "impairment."

      Based on the testimony, defendant argued there was no basis to order him

out of the vehicle following the motor vehicle stop. The municipal court judge

rejected the argument and denied defendant's suppression motion.            Judge


                                                                          A-2705-18T4
                                        4
Thomas J. Critchley, Jr., held a de novo hearing based on the record developed

in the municipal court, during which defendant renewed his argument that the

officer lacked reasonable articulable suspicion to order him to exit the vehicle .

In a bench opinion issued on January 17, 2019, Judge Critchley rejected

defendant's argument. The judge deferred to the municipal judge's finding that

"the officer's testimony [was] credible and reliable" but made his "own judgment

regarding the sufficiency of the evidence under the totality of the

circumstances." Based on defendant's "driving conduct," the officer's detection

of "the odor of alcohol . . . from the car generally," and the officer's

administration of "a partial [HGN] test," which indicated "a lack of smooth

pursuit," the judge concluded there was "a sufficient basis" to order defendant

to exit the vehicle.

      The judge explained:

             Almost all of the elements that would tend to be
             properly part of the totality of the circumstances to
             justify the police action are tempered by certain
             counter[vailing] considerations. Although there was a
             traffic violation, . . . the left-hand turn, it wasn't the type
             of motor vehicle action that necessarily goes along with
             driving while intoxicated. It could be someone who just
             hasn't been paying attention to how the road is laid out
             and where you're supposed to make turns or is
             unfamiliar with the area. It is also possible that
             intoxication can amplify that tendency to not . . . be
             cognizant of what the rules of the road are . . . .

                                                                               A-2705-18T4
                                           5
                  Secondly, . . . there was an odor of alcohol, but
            the officer took pains to say it wasn't necessarily
            coming from the driver, . . . it was coming more from
            the car.

                  Finally, there was a . . . partial [HGN] test that
            was administered, that consisted essentially of just one
            part of it, in which the officer testified . . . that there
            was not smooth following of the movement of the
            finger.

                  My conclusion is that under all these
            circumstances, although I find it to be a close case, that
            the action of the officer was justified.

                  I can't completely discount any of the elements
            that were presented: the improper driving, the odor of
            alcohol, and even the partial administration of the
            [HGN] test. . . .

      In addressing defendant's challenge to the officer's use of a partial HGN

test in assessing the sufficiency of the evidence, the judge noted:

                   To the extent that the HGN test was performed
            not consistent with a variety of standards that were laid
            out on the record, I think that undercuts the weight to
            be given it, but not necessarily its place in the overall
            totality of the circumstances.

                   ....

                   Assuming arguendo that it is improper to give
            any weight to the [HGN] test, I . . . find . . . that . . . the
            remaining balance of the record would also be
            sufficient to justify the actions of the officer. But it is
            a closer case . . . because you are pulling out one

                                                                              A-2705-18T4
                                          6
            element of the equation that the officer testified he
            relied on[. Y]ou would still have a situation where
            there was some improper driving and the presentation
            of an odor of alcohol in the vehicle[.] . . . [L]eaving
            aside any HGN at that point, it would probably be
            improper of the officer to not continue the investigation
            by removing the subject out of the car. One of the
            things that can then happen is he can find out if the odor
            of alcohol is associated with just the car and not the
            driver, or the driver himself. . . .

                  I think that is a reasonable sequence of events. It
            would have been in a sense improper for the officer . . .
            to have noticed some driving that was not perfect . . .
            and then pick up an odor of alcohol, but just send him
            on his way. I don't think that is a sensible way to
            administer his duties, in terms of making sure there is a
            reasonable level of safety in the community.

                   So . . . the driving conduct and the odor of alcohol
            coming from the vehicle generally in combination
            could justify the very limited Fourth Amendment
            intrusion of removing the subject from the vehicle.

      On appeal, defendant raises the following arguments for our

consideration.

            POINT ONE – DEFENDANT['S] . . . CONVICTION
            SHOULD BE REVERSED AS THE MOTION
            JUDGE'S DENIAL OF THE MOTION TO SUPPRESS
            WAS     EMINENTLY      INCORRECT      AND
            CONSTITUTED REVERSIBLE ERROR.

                  A. THE POLICE OFFICER DID NOT
                  HAVE SUFFICIENT BASIS TO ORDER
                  THE DEFENDANT OUT OF THE
                  VEHICLE.

                                                                          A-2705-18T4
                                        7
                    B. THE POLICE OFFICER SHOULD
                    NOT BE PERMITTED TO RELY ON AN
                    INCOMPLETE SCIENTIFIC TEST, A
                    TRUNCATED    [HGN]   TEST,   IN
                    DEVELOPING         REASONABLE
                    SUSPICION TO FURTHER A DRUNK
                    DRIVING INVESTIGATION.

      Following a de novo appeal to the Law Division, conducted on the record

developed in the municipal court, our standard of review is limited. State v.

Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005); see also R. 3:23-

8(a)(2). We "consider only the action of the Law Division and not that of the

municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).

The Law Division judge must make independent findings of fact and conclusions

of law based on the evidentiary record of the municipal court with deference to

the municipal court judge's ability to assess the witnesses' credibility. State v.

Johnson, 42 N.J. 146, 157 (1964). In turn, we focus our review on "whether

there is 'sufficient credible evidence . . . in the record' to support the trial court's

findings." State v. Robertson, 228 N.J. 138, 148 (2017) (alteration in original)

(quoting Johnson, 42 N.J. at 162). However, on legal determinations, our review

is plenary. See State v. Kuropchak, 221 N.J. 368, 383 (2015).

      When the only issue on appeal is the trial court's decision on a motion to

suppress, our review is similarly circumscribed. State v. Robinson, 200 N.J. 1,

                                                                                A-2705-18T4
                                           8
15 (2009). "An appellate court reviewing a motion to suppress evidence . . .

must uphold the factual findings underlying the trial court's decision, provided

that those findings are 'supported by sufficient credible evidence in the record.'"

State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J.

20, 40 (2016)). We owe no deference, however, to conclusions of law made by

trial court in suppression decisions, which we instead review de novo. State v.

Watts, 223 N.J. 503, 516 (2015).

      Our analysis begins with the foundational principle that a police stop of a

motor vehicle is a seizure of the vehicle's occupants and therefore falls within

the purview of the Fourth Amendment and Article I, Paragraph 7 of the New

Jersey Constitution. Whren v. United States, 517 U.S. 806, 809-10 (1996); State

v. Baum, 199 N.J. 407, 423 (2009). To justify a stop, "a police officer must

have a reasonable and articulable suspicion that the driver of a vehicle, or its

occupants, is committing a motor-vehicle violation or a criminal or disorderly

persons offense . . . ." Scriven, 226 N.J. at 33-34. See also Delaware v. Prouse,

440 U.S. 648, 663 (1979). "To establish reasonable suspicion, 'the officer must

be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant' the suspicion." State




                                                                           A-2705-18T4
                                        9
v. Pitcher, 379 N.J. Super. 308, 315 (App. Div. 2005) (quoting State v. Pineiro,

181 N.J. 13, 21 (2004)).

      Following a stop, "the resultant request of a motorist to exit the vehicle is

constitutionally permissible." State v. Bernokeits, 423 N.J. Super. 365, 370-71

(App. Div. 2011). "This is because once a vehicle is lawfully stopped, a law

enforcement officer may conduct an investigation reasonably related in scope to

the circumstances that justified the traffic stop." Id. at 371. "Where the police

have already lawfully decided that the driver shall be briefly detained, the

additional intrusion of requesting him to step out of his vehicle has been

described as 'de minimis.'" Ibid. (quoting Pennsylvania v. Mimms, 434 U.S.

106, 111 (1977)). See also State v. Smith, 134 N.J. 599, 610 (1994).

            Even though the initial stop was for a motor vehicle
            violation, a police officer is not precluded from
            broadening the inquiry of his stop [i]f, during the course
            of the stop or as a result of the reasonable inquiries
            initiated by the officer, the circumstances give rise to
            suspicions unrelated to the traffic offense. Thus, in
            order to continue to detain a motorist once he is asked
            to exit the vehicle, a police officer must have a
            reasonable, articulable suspicion that the person is
            involved in criminal or unlawful activity beyond that
            which initially justified the stop.

            [Bernokeits, 423 N.J. Super. at 371-72 (alteration in
            original) (citations and quotation marks omitted).]



                                                                           A-2705-18T4
                                       10
      "In evaluating the sufficiency of the basis for a stop or arrest, courts

consider the totality of the information available to the officer at the time of the

conduct." Pitcher, 379 N.J. Super. at 315. "[C]ourts give weight to 'the officer's

knowledge and experience' as well as 'rational inferences that could be drawn

from the facts objectively and reasonably viewed in light of the officer's

expertise.'" Bernokeits, 423 N.J. Super. at 372 (quoting State v. Citarella, 154

N.J. 272, 279 (1998)). "It is well-settled that the touchstone of the Fourth

Amendment is reasonableness," and "[i]n any given case, the reasonableness of

the investigatory detention is a function of the degree and kind of intrusion upon

the individual's privacy balanced against the need to promote governmental

interests." Ibid. (first citing Terry v. Ohio, 392 U.S. 1, 37-38 (1968)), then citing

State v. Davis, 104 N.J. 490, 504 (1986)).

      Here, as a threshold matter, defendant does not dispute the legitimacy of

the initial motor vehicle stop based on Ottavinia's observation of a motor vehicle

violation, or the subsequent DWI arrest based on the evidence developed after

defendant exited the vehicle. Defendant only challenges the basis for ordering

him to exit the vehicle to undergo field sobriety tests. However, we agree with

Judge Critchley that based on the totality of the circumstances, Ottavinia had a

reasonable articulable suspicion that defendant was driving while intoxicated in


                                                                             A-2705-18T4
                                        11
order to expand the scope of the initial traffic stop and order him to exit his

vehicle to perform field sobriety tests. Indeed, defendant was stopped at 3:29

a.m. after making an illegal left turn with the odor of an alcoholic beverage

emanating from his vehicle and the administration of a partial HGN test

indicating "[a]t least some alcohol consumption."

      Relying on State v. Jones, 326 N.J. Super. 234 (App. Div. 1999),

defendant argues "the mere odor of an alcoholic beverage even if coming from

the operator's breath does not in and of itself provide sufficient reasonable

suspicion to require a motorist to exit a vehicle for the performance of field

sobriety tests." Defendant's reliance on Jones is misplaced. In Jones, we ruled

that "the odor of alcohol [on a driver's breath], combined with [his] admission

of consumption of one bottle of beer," was not "sufficient to establish probable

cause to search the vehicle for open containers of alcohol" without a warrant.

Id. at 237, 244-45. Here, we are not concerned with a warrantless vehicle search.

Moreover, there was more evidence in this case than "the mere odor of an

alcoholic beverage."

      Defendant also argues that the officer's reliance on an "adulterated version

of an already questionably reliable [HGN] test" was improper because "the

administration of a partial test . . . was not designed to permit . . . any opinion


                                                                           A-2705-18T4
                                       12
about a subject's ingestion of alcohol." However, while we have held that HGN

testing is not admissible to "prove[] defendant's guilt of driving under the

influence of alcohol," we noted "[t]his is qualitatively different from use of the

HGN test only to establish probable cause to arrest or only in conjunction with

breathalyzer results." State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div.

2000). Here, the partial HGN test was used in conjunction with other evidence

to establish a reasonable and articulable suspicion to extend the stop to conduct

field sobriety tests. As the judge noted, the fact that it was a partial HGN test

"undercuts the weight to be given it, but not necessarily its place in the overall

totality of the circumstances."

      Further, we agree with Judge Critchley that even without the partial HGN

test, the totality of the remaining circumstances justified the officer's limited

intrusion. As the judge noted, it would have been improper for the officer to

"send [defendant] on his way" after observing the illegal left turn and detecting

the odor of alcohol emanating from the vehicle. "The reality of dangers on our

highways imposes a duty on law enforcement officers to take appropriate steps

within constitutional and statutory boundaries to maintain the safety of New

Jersey's roads." Pitcher, 379 N.J. Super. at 315. Here, Ottavinia performed his

duty in a constitutionally permissible fashion.


                                                                          A-2705-18T4
                                       13
Affirmed.




                 A-2705-18T4
            14
