NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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1 STATE OF NEW JERSEY, v. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Plaintiff-Respondent, LINDA M. SINUK, Defendant-Appellant. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Argued May 17, 2016 Decided May 26, 2016 PER CURIAM Before Judges Reisner and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No A. Bruce I. Afran argued the cause for appellant. James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Acting Somerset County Prosecutor, attorney; Mr. McConnell, of counsel and on the brief). Defendant Linda M. Sinuk appeals from a November 12, 2014 order of the Law Division, convicting her of driving while intoxicated, N.J.S.A. 39:4-50. Having reviewed the record, we find that the trial judge's factual findings are supported by

2 substantial credible evidence, and we find no basis to disturb his evaluation of witness credibility. See State v. Locurto, 157 N.J. 463, (1999). In light of the judge's factual findings, his legal conclusions are correct. Accordingly, we affirm substantially for the reasons stated by the trial judge in his written opinion issued on September 19, The essential facts, as the judge found them, are as follows. The police responded to a 911 call reporting that the caller had seen a black Cadillac hit a mail box and drive away. The caller told the police the license number of the car and the direction in which it was traveling. The police were initially unable to locate the Cadillac, but they found a black side mirror and a damaged mailbox at the accident scene. Shortly thereafter, a records search revealed the name and address of the Cadillac owner. The police went to that address, where defendant's fifteenyear-old nephew answered the door. In response to their questions, the nephew told them that his aunt, who had just arrived home, drove a black Cadillac. The teenager also invited the officers to come into the house to get out of the rain. Once inside the house, they encountered defendant, who spontaneously asked them if they were there "about that mailbox." She voluntarily showed the police the black Cadillac, which was 2

3 missing a side mirror. Defendant's breath smelled of alcohol, and when asked, she admitted that she had been drinking vodka while driving home. After the police administered sobriety tests, which defendant failed, they arrested her. On the way to police headquarters, defendant made spontaneous incriminating comments about her state of intoxication and the accident involving the mailbox. The trial judge found the police witness credible. However, like the municipal judge, he did not believe the testimony of defense witnesses, who asserted that the police forced their way into the house and intimidated defendant. The trial judge concluded that to the extent that the police visit to defendant's home could be analogized to the "stop" of a motor vehicle, there were reasonable and articulable grounds based on the 911 call and the evidence found at the accident scene. Crediting the police officer's version of events, the judge found that the entry to the house was through the voluntary consent of the nephew, who invited them in. He found that defendant spontaneously admitted she hit the mailbox, and she consented to the search of her car. 3

4 Based on the facts as he found them, the judge concluded that Miranda 1 warnings were not required, because defendant was not in custody while the police were interviewing her in her home. He found that defendant voluntarily admitted drinking while driving, being intoxicated, and hitting the mailbox. He concluded that the evidence supported a finding that she was guilty of driving while intoxicated. argument: On this appeal, defendant raises the following points of I. DEFENDANT WAS IN A STATE OF DE FACTO ARREST AT THE TIME POLICE QUESTIONED HER WITHOUT MIRANDA WARNINGS AND THE RESULTING ADMISSIONS SHOULD HAVE BEEN SUPPRESSED. II. THE FAILURE TO SUPPRESS THE ADMISSIONS OBTAINED WITHOUT MIRANDA WARNINGS WAS NOT HARMLESS ERROR. III. THE RECORD DOES NOT SUPPORT THE CLAIM THAT DEFENDANT'S 15-YEAR OLD NEPHEW CONSENTED VOLUNTARILY OR WAS AUTHORIZED TO CONSENT TO THE POLICE ENTRY INTO DEFENDANT'S HOME AND THE OBSERVATIONS MADE UPON SUCH ENTRY SHOULD HAVE BEEN SUPPRESSED. IV. THERE WAS NO LAWFUL BASIS FOR AN INVESTIGATORY STOP IN DEFENDANT'S HOME. Those arguments rely on testimony the trial judge did not find credible. We owe particular deference to his credibility 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4

5 determinations because they were the same as those of the municipal judge, who also did not believe defendant's witnesses. See Locurto, supra, 157 N.J. at 474. Based on our own review of the record, we find no basis to disturb the trial judge's factual findings. In light of those findings, defendant's legal arguments are without merit, for the reasons stated in the judge's written opinion, and they do not warrant discussion beyond the following comments. R. 2:11-3(e)(2). State v. Golotta, 178 N.J. 205, 209 (2003), holds that the police may conduct an investigatory stop of a motor vehicle based on a 911 call in which the caller provides specific information concerning an apparent drunk driver. However, this case does not even involve an investigatory stop. It only involves an investigation. At the time the police appeared at defendant's house, they had grounds to believe that someone living at that address may have been involved in an unreported auto accident. There was nothing improper in the police going to the house to seek the occupants' voluntary cooperation in providing them with information. Defendant's nephew voluntarily provided them with some information and voluntarily invited them into the house. He was a teenager, not a small child; he lived in the house, and he had either authority or apparent authority to invite the police to enter. See Illinois v. Rodriguez, 497 5

6 U.S. 177, 186, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148, 160 (1990); United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, (1974). As the trial judge found, defendant's incriminating statements to the police were made voluntarily at a time when she was not in custody and, therefore, Miranda warnings were not required. See State v. Hubbard, 222 N.J. 249, (2015); State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988). Moreover, several of her incriminating statements were made spontaneously and not in response to questioning. See State v. Cryan, 363 N.J. Super. 442, (App. Div. 2003). Affirmed. 6

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