State v. Vozeh

• Docket Number: A-1558-21
• Decision Date: 07 July 2023
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY VOZEH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY VOZEH, Defendant-Appellant.

No. A-1558-21

Superior Court of New Jersey, Appellate Division

July 7, 2023

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.

Argued April 19, 2023

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Municipal Appeal No. 21-14.

Kenneth Ralph argued the cause for appellant (Bruno &amp Ferraro, attorneys; Kenneth Ralph, of counsel and on the briefs).

William P. Miller, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; William P. Miller, of counsel and on the brief).

Before Judges Currier, Mayer and Enright.

PER CURIAM

Defendant Gregory Vozeh appeals from the January 10, 2022 Law Division order denying his motion to suppress evidence obtained from his motor vehicle stop, arrest, and Alcotest readings. We affirm.

I.

Around 10:55 p.m. on the evening of November 25, 2020, Stephen White was driving on Route 208 North when he saw a dark-colored SUV driving erratically. He called the Franklin Lakes Police Department to report his observations. As the SUV exited the highway and continued down local roads, White followed the vehicle and relayed its movements and location to the police dispatcher. He told the dispatcher the SUV was "all over the road."

White also notified the dispatcher when the SUV reached Arapaho Trail in Franklin Lakes, and the dispatcher relayed this location to Officer Gerard Gansel. Shortly thereafter, Gansel spotted an SUV in the same area, matching the dispatcher's description. He followed the vehicle for approximately one block, activated his overhead lights and effectuated a stop.

Gansel approached the SUV and asked the driver for his license, registration, and insurance documents. Because Gansel noticed defendant's eyes were a "little watery," "[h]e had slurry speech," and defendant admitted he consumed "one drink" of vodka about "two, three hours ago," Gansel asked defendant to perform a series of Standardized Field Sobriety Tests (SFSTs). Based on defendant's poor performance on the SFSTs, Gansel arrested defendant and brought him to the police station.

At the police station, Gansel worked with Officer Christopher Heffner to complete the paperwork and observe defendant for a twenty-minute period, in anticipation of defendant submitting to an Alcotest. The results of the Alcotest revealed defendant's blood alcohol content (BAC) was 0.16, twice the legal limit set by N.J.S.A. 39:4-50(a). Accordingly, he was charged with driving while intoxicated (DWI).

II.

Defendant moved before the municipal court to suppress evidence from the stop, arrest, and Alcotest. In July 2021, the municipal court judge conducted a testimonial hearing on the suppression motions, during which the State produced three fact witnesses: White, Gansel, and Heffner. Defendant called an expert witness, Joseph Tafuni, to challenge the Alcotest readings.

At the commencement of the hearing, defendant's attorney objected to White taking the witness stand. Counsel argued that while White's testimony might be relevant at trial, it was irrelevant to the pending suppression motions because the judge needed to know "what knowledge [Officer Gansel] had at the time he made the stop." The judge overruled the objection and allowed White to testify.

White stated that on the evening of November 25, 2020, while he was driving behind a dark-colored SUV along Route 208 North, he saw the vehicle "move from one lane across onto the left shoulder[,] . . . almost hitting the guardrail." White also testified the SUV ran up onto a grass embankment and it "appeared like [defendant] was almost going to turn the . . . vehicle over." Additionally, White stated that as he and the SUV traveled into Franklin Lakes, he called the police and "talked to the dispatcher" to tell "them what was happening." The municipal prosecutor asked White: "Did you describe to the dispatcher what you just observed?" White replied, "Yes," without further elaboration.

White also testified that as he continued following the SUV on "back roads" he never lost sight of it. Further, he stated that "contemporaneous with the events" he was observing, he was "describing . . . to dispatch[] the names of the streets" he and the SUV driver were on "every time [he] saw a street sign." White also noted that "on some of the streets," the SUV "was driving on the left side of the road." White recounted that as he was on the phone with the dispatcher, he saw the police pull over the SUV so he "stopped and . . . waited for one of the officers to come to talk to [him]" before leaving the scene.^[1]

Officer Gansel subsequently testified that on the night of the incident, he received a report from a dispatcher about an "erratic driver" in "a dark-colored SUV" that was "all over the road" and "traveling . . . northbound" on Route 208. As Gansel "headed in that direction," the dispatcher informed him the suspect's vehicle had traveled to "the area of Arapaho Trail." Gansel "proceeded to the area" and saw an SUV matching the dispatcher's description. According to Gansel, after he activated his lights to stop the SUV, he saw the SUV driver "kind of jerk[] the car to the left" and bring "it back to the right," "hit up against the curb" and "c[o]me to a rest."

Gansel approached the driver and asked for his license, registration, and insurance. The driver - then identified as defendant - handed the officer his license but had "a little trouble" finding his registration and insurance before producing these documents. Gansel testified defendant's eyes were "a little" watery, his hand movements were "[a] little shaky," and "[h]e had slurry speech." Gansel asked defendant if he had been drinking and defendant admitted to consuming "one drink" of vodka.

Gansel directed defendant to exit the SUV and perform various SFSTs. According to the officer, defendant "kind of stumbled a little bit" while getting out of the SUV and "needed his car for support once he exited it." Gansel also testified he detected the odor of alcohol once defendant was out of the SUV.

The first test Gansel conducted was the Horizontal Gaze Nystagmus test. He admittedly "rushed it," so the results of that test were invalid. The officer then asked defendant to perform the "walk and turn" test. Gansel testified defendant made several errors on this test. For example, defendant was "unable to maintain the [designated] starting position," failed to touch heel-to-toe on certain steps, "fell off" the imaginary straight line he was instructed to walk, and took ten steps instead of the directed nine. During the final test, the "one leg stand," defendant "put his foot down" three times, at which point, Gansel placed him under arrest. Gansel testified he arrested defendant based on "the totality of circumstances," including: the "caller" (White) who "describ[ed] the erratic driver"; defendant's "admitted . . . drinking"; defendant's "hand movements"; his "watery eyes, little bit of slurred speech, and the [results of the] SFSTs."

After hearing argument from counsel, the municipal court judge found the stop was lawful and there was probable cause for defendant's arrest. Based on the State's proofs, the judge concluded that on the night of the incident: White was driving behind defendant's SUV when he contacted the dispatcher; defendant admitted he was drinking prior to the stop; and defendant had "some problems," but "most of the problems [were] when he exited the vehicle." Further, the judge found the "police may have been equivocal as to their initial thoughts as to the level of [defendant's] intoxication, but once the SFSTs were done . . . and . . . Officer [Gansel] got closer to the defendant and . . . smelled an odor of an alcoholic beverage[,] . . . there[] [was] probable cause . . . to arrest." Thus, he denied the suppression motions as to the stop and arrest.

Before addressing defendant's challenge to the admissibility of the Alcotest results, counsel advised the judge that defendant stipulated to the admission of the State's foundational documents, which included Gansel's certification card for conducting the Alcotest. Defense counsel also stipulated defendant's expert was "just [going to] challenge the [twenty-]minute observation period" preceding the Alcotest.

Gansel resumed the witness stand to testify about how he conducted the Alcotest. Heffner also testified about the Alcotest, essentially corroborating Gansel's statements. According to the officers' testimony, after they arrested defendant, they returned to the police station around 11:14 p.m. While Gansel removed his gear, Heffner remained with defendant. At 11:25 p.m., Heffner commenced observing defendant for the requisite twenty-minute observation period. A few minutes later, Gansel took over for Heffner and continued observing defendant so Heffner could remove his own gear. During this time, Gansel administered defendant's Miranda^[2] rights, and read him the Attorney General's Standard N.J.S.A. 39:4-50.2(e) form.^[3]

While Gansel was observing defendant, Heffner turned on the Alcotest machine and "began inputting [defendant's] information into the . . . Alcotest," and specifically "the arrest time," which he obtained "from Officer Gansel." The officers then "wait[ed] for the ambient air check" and for "the machine to be ready for . . . defendant." Gansel testified that once the machine was ready, "Officer Heffner came back into the [detention] room" and Gansel "went back out to the Alcotest [room] and ....