CREAMMA Drug law did not prevent officer to demand his submission to a sobriety test State v Cooper

 NOT FOR PUBLICATION WITHOUT THE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-1806-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIE COOPER,

Defendant-Appellant.

_________________________

Submitted September 22, 2025 – Decided October 1, 2025

Before Judges Sabatino and Walcott-Henderson.

On appeal from the Superior Court of New Jersey, Law

Division, Sussex County, Municipal Appeal No. 08-08-

22.

Galantucci & Patuto, attorneys for appellant (Richard

G. Potter, of counsel and on the briefs).

Sahil K. Kabse, Acting Sussex County Prosecutor,

attorney for respondent (Shaina Brenner, Special

Deputy Attorney General/Acting Assistant Prosecutor,

of counsel and on the brief).PER CURIAM

The present appeal in this driving while intoxicated ("DWI") case stems

from a remand to the Law Division we had ordered in our December 19, 2024

opinion addressing defendant's original appeal. State v. Jamie Cooper, Docket

No. A-1727-23 (App. Div. Dec. 19, 2024). We incorporate by reference the

facts and procedural history recited in that opinion.

Briefly stated, defendant's prosecution arises out of State Trooper Andre

Almeida's stop of his motor vehicle at about 7:00 p.m. on April 28, 2021 on

Route 15 in Frankford Township. Trooper Almeida observed defendant's

vehicle speeding at 64 miles per hour in a 45 five mile per hour zone. When

defendant was stopped and opened his driver's side window, Almeida noticed

the odors of both alcohol and burnt marijuana. He testified there were

"approximately four" passengers in the vehicle.

In his municipal court testimony, Trooper Almeida noted how during his

initial encounter with defendant, defendant was "questioning everything" and

"debating the speed" of his vehicle. Defendant insisted "he wasn't going that

fast," which made Almeida believe defendant was "unaware of how fast he [was]

traveling," and further identified this as "a sign of impairment, as well."

2 A-1806-24Almeida instructed defendant to get out of the vehicle. According to

Almeida, he smelled the odor of burnt marijuana on defendant's breath, although

he did not recall smelling alcohol at that point. The officer did not perceive that

defendant was staggering, stuttering, slurring, crying, or laughing

inappropriately.

Almeida asked defendant to take a field sobriety test. Defendant refused

to take the field test and said he would rather be tested on a breathalyzer.

Almeida explained that defendant would be free to drive if the field test

demonstrated he was not impaired, but defendant again refused.

At that point, Almeida arrested defendant and read him a Miranda

warning.1 After arresting defendant, Almeida spoke with the other passengers

and did not notice the odor of alcohol or marijuana emanating from any of them.

He then took defendant to the police station.

At the station, defendant refused to submit to the breathalyzer.

Consequently, the officer issued five tickets, charging defendant with (1) DWI,

N.J.S.A. 39:4-50; (2) speeding, N.J.S.A. 39:4-98; (3) refusal to submit to

1 Miranda v. Arizona, 384 U.S. 436 (1966).

3 A-1806-24chemical test, N.J.S.A. 39:4-50.4a; (4) refusal to consent to take samples of

breath, N.J.S.A. 39:4-50.2; and (5) careless driving, N.J.S.A. 39:4-97.

Defendant moved to dismiss the charges, because, he argued, Trooper

Almeida had insufficient grounds to demand his submission to a sobriety test

and lacked probable cause to arrest him. The municipal judge denied the motion

and concluded that Almeida had sufficient basis to believe at the scene that

defendant had committed DWI. The judge noted:

I believe the Trooper took all of the correct action[s]

and he certainly had probable cause to stop the

defendant and that he had reasonable belief that a

violation took place, and under the totality of the

circumstances, the alcohol, odor of marijuana, the

speeding, refusal to take the roadside test, all of that led

the Trooper to believe that the defendant was, in fact,

under the influence of alcohol, and therefore, believes

he should continue the investigation because that's what

they're doing, which he did. Based on all of these facts,

I am going to deny the motion before the [c]ourt.

Thereafter, defendant pled guilty to DWI, speeding, and refusal to submit

to a chemical test. The other two motor vehicle tickets were dismissed pursuant

to a plea agreement. The municipal judge sentenced defendant to a one-year

suspension of his driver's license, forty-eight hours of confinement in the

Intoxicated Driver Resource Center, thirty days of community service, a two-

year use of an interlock device, plus various monetary sanctions and costs.

4 A-1806-24Defendant challenged his conviction in the Law Division. Upon de novo

review of the record, the Law Division judge issued an order on December 7,

2023 which rejected defendant's argument that the trooper lacked a reasonable

articulable suspicion that he had been driving while under the influence. The

Law Division judge identified the following articulable reasons that supported

a finding of reasonable suspicion: (1) speeding; (2) the odor of alcohol in the

vehicle; (3) the odor of burnt marijuana in the vehicle; (4) defendant's

confrontational demeanor; (5) the odor of marijuana from defendant's breath;

and (6) refusal to submit to field sobriety tests. The Law Division therefore

affirmed defendant's municipal convictions and reimposed the same sentence.

Defendant appealed to this court. As noted above, we remanded the case

to the Law Division to reconsider its analysis in light of the Cannabis

Regulatory, Enforcement Assistance, and Marketplace Modernization Act

("CREAMMA"), N.J.S.A. 24:6I-31 to -56. In particular, a provision within

CREAMMA declares that "[t]he odor of cannabis or burnt cannabis" shall not

"individually or collectively, constitute reasonable articulable suspicion of a

crime . . . ." N.J.S.A. 2C:35-10(c).

On remand, the Law Division judge again upheld defendant's convictions

in a January 31, 2025 oral ruling. In particular, the judge concluded that the

5 A-1806-24CREAMMA provision did not affect this case because a DWI offense is not a

"crime." The Law Division judge also noted that, even without relying on the

odor of marijuana, Trooper Almeida had multiple other sufficient grounds to

support the finding of reasonable suspicion.

In his present appeal, defendant presents the following arguments in his

brief:

POINT ONE

THE APPELLANT'S SUPPRESSION MOTION

SHOULD HAVE BEEN GRANTED BECAUSE

THERE WAS NO REASONABLE, ARTICULABLE

SUSPICION TO ASK THE APPELLANT TO

PERFORM STANDARDIZED FIELD SOBRIETY

TESTS, AND, THEREFORE, NO PROBABLE

CAUSE TO ARREST HIM.

POINT TWO

THE CANNABIS REGULATORY, ENFORCEMENT,

ASSISTANCE, AND MARKETPLACE

MODERNIZATION ACT ("CREAMMA"), N. J. S. A.

24:61-31 TO -56 AND N. J. S. A. 2C:35-10c WHICH

BECAME EFFECTIVE ON FEBRUARY 22, 2021

PROVIDED THAT THE ODOR OF CANNABIS OR

BURNT CANNABIS NO LONGER CONSTITUTE

REASONABLE SUSPICION OF A CRIME WHICH

ODOR WAS THE SOLE BASIS FOR ARRESTING

THE APPELLANT.

6 A-1806-24In considering these arguments, we apply what is known as the "two-court

principle" of appellate review for a Law Division ruling that affirms, de novo, a

municipal court's decision. State v. Locurto, 157 N.J. 463, 474 (1999). Under

that principle, "appellate courts ordinarily should not undertake to alter

concurrent findings of fact and credibility determinations made by two lower

courts absent a very obvious and exceptional showing of error." Ibid. (emphasis

added). No such "very obvious and exceptional" showing of error is presented

here.

As the Law Division judge aptly noted on remand, the CREAMMA

limitation on the evidential use of the odor of marijuana is confined to "crimes."

N.J.S.A. 2C:35-10(c). Our Criminal Code defines a "crime" as "[a]n offense

defined by this code or by any other statute of this State, for which a sentence

of imprisonment in excess of 6 months is authorized." N.J.S.A. 2C:1-4. A DWI

conviction is not a crime because even the most severe sentence for a third or

subsequent DWI offense "does not authorize a penalty of over six months'

confinement." State v. Denelsbeck, 225 N.J. 103, 120 (2016); see also N.J.S.A.

39:4-50(a)(3). Hence, CREAMMA does not, as a matter of law, preclude

reliance on the odor of marijuana as a ground for a finding of reasonable

articulable suspicion in this DWI case.

7 A-1806-24Defendant's other point on appeal, claiming the totality of the

circumstances could not support a finding of reasonable suspicion, is likewise

unavailing. We recognize that "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." State v. Bernokeits, 423 N.J. Super. 365, 371–

72 (App. Div. 2011) (citing State v. Davis, 104 N.J. 490, 504 (1986)) (emphasis

in original). Furthermore, the administration of a field sobriety test "may be

justified by a police officer's reasonable suspicion based on particularized,

articulable facts suggesting a driver's intoxication." Id. at 374. That same

principle extends beyond alcohol intoxication to a driver's impairment caused

by a substance such as marijuana. See State v. Bealor, 187 N.J. 574, 577-78

(2006).

As both the municipal judge and Law Division judge appropriately found,

the totality of circumstances here gave Trooper Almeida sufficient reasonable

suspicion to order a field sobriety test, and, when defendant refused, to arrest

him. Even if we were to ignore defendant's oppositional demeanor and his

insistence that he had not been speeding, the other factors cited by the two courts

provided ample justification for the officer's actions. Those factors included

8 A-1806-24defendant driving nearly twenty miles per hour over the speed limit, the odors

of both alcohol and marijuana emanating from the vehicle, the odor of marijuana

detected on defendant's breath, and his confrontational demeanor. We defer to

the municipal court's adoption of the trooper's narrative, as that court was best

suited to evaluate that witness's credibility. Locurto, 157 N.J. at 474-75.

Affirmed.

9 A-1806-24

Viol of restraining order reveresed where State did not establish that he purposely or knowingly State v GM

 

RECORD IMPOUNDED

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-3247-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.M.,

Defendant-Appellant.

________________________

Argued September 22, 2025 – Decided October 7, 2025

Before Judges Sabatino and Walcott-Henderson.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

Docket No. FO-02-0413-24.

Kenneth Ralph argued the cause for appellant (Bruno &

Ferraro, attorneys; Kenneth Ralph, of counsel and on

the brief).

Jaimee M. Chasmer, Assistant Prosecutor, argued the

cause for respondent (Mark Musella, Bergen County

Prosecutor, attorney; William P. Miller, Assistant

Prosecutor, of counsel and on the brief; Catherine A.

Foddai, Legal Assistant, on the brief).PER CURIAM

Defendant G.M. appeals from a May 29, 2024 order finding him guilty of

contempt, N.J.S.A. 2C:29-9(b)(2), a disorderly persons offense, for placing a

single phone call to his then-spouse, K.M., a victim under a Temporary

Restraining Order (TRO). G.M. argues the court erred in finding him guilty

because the State did not establish that he purposely or knowingly placed the

alleged call to K.M. in violation of the TRO, and did not meet its burden of proof

beyond a reasonable doubt that he committed the offense of contempt. We agree

and vacate and reverse.

We incorporate by reference the facts and procedural history recited in

our companion opinion K.M. v. G.M., No. A-3136-23 issued today for purposes

of this appeal. We repeat only those facts necessary to our disposition of the

court's finding of contempt.

On January 28, 2024, the court granted a TRO against G.M., which

included a provision barring G.M. from contacting his then-wife, K.M. The

TRO expressly prohibited G.M. from having "any oral, written, personal,

electronic, or other form of contact or communication with [K.M.]." (emphasis

in original). G.M. was served with a copy of the TRO on the same day.

2 A-3247-23Approximately five days later, K.M. contacted the police to report that

G.M. had called her cell phone. She did not answer the call but took a screenshot

using her cell phone. The incoming call showed the call was from a contact in

K.M.'s phone named "G." After reporting the call to police, K.M. advised that

"G." is the name associated with her then-estranged husband, G.M., in her cell

phone. The investigating officer, Officer Hyou Lee, confirmed the telephone

number belonged to G.M. and charged him with contempt under N.J.S.A. 2C:29-

9.

Trial on the contempt charge commenced on May 29, 2024 with K.M. and

two police officers testifying: Officer Daniel Munoz, who had previously

arrested G.M. on the assault and harassment charges contained in the TRO

complaint; and Officer Lee. Officer Munoz testified he served G.M. with the

TRO while he was at police headquarters on January 28, with the assistance of

a Russian interpreter. He further testified that G.M. acknowledged the

restrictions, signed after each statement, and acknowledged that he understood

the TRO.

Officer Lee testified that he responded to a call from K.M. regarding a

possible violation of a TRO. He met K.M. in her apartment and discussed the

missed call alleged to be from G.M.'s number and K.M. provided him with a

3 A-3247-23screenshot of the call. Officer Lee called into police headquarters to verify the

owner of the phone behind the call, and following confirmation the number

belonged to G.M., Officer Lee filed the putative complaint charging G.M. with

contempt.

K.M. testified that following the issuance of the TRO on January 28, G.M.

called her from his cell phone "[o]n February 2, towards the evening." She knew

it was his cell phone number because they had lived together for thirty-five years

and "that's the way [his number was] saved in [her] cell phone." K.M. did not

answer the call. Instead, she took a screenshot of the call log with her cell phone

and showed that to Officer Lee.

Following trial, the court summarized the evidence and made specific

factual findings, including that G.M. was advised of the prohibitions in the TRO

against having any written, or other contact with his wife.1 In addressing the

applicable purposeful and knowing standard, the court reasoned "it is not

necessary that the State prove or produce witnesses to testify that an accused

said that he had a certain state of mind when he engaged in a particular act."

The court explained that it had the authority "to find that such proof has been

1 The court correctly noted G.M. asserted his Fifth Amendment right and did

not testify, and no negative inferences could be made from his decision.

4 A-3247-23furnished beyond a reasonable doubt by inference, which may arise from the

nature of the defendant's acts or conduct and all the surrounding circumstances."

The court determined G.M. was guilty of the offense by virtue of G.M.

having been served with the TRO, knowledge of its no-contact provision, and

its conclusion it was G.M. who had called K.M. The court stated it declined to

"speculate about all kinds of scenarios where [G.M.] didn't make the call

himself." The court noted it was firmly convinced G.M. had called K.M. and on

that basis it found G.M. guilty of the offense beyond a reasonable doubt.

This appeal followed.

Our review of a court's finding of guilt in a contempt proceeding is limited

to determining "whether the record contains sufficient [credible] evidence to

support the judge's conclusion[,]" of guilt beyond a reasonable doubt. State v.

J.T., 294 N.J. Super. 540, 544 (App. Div. 1996) (citing State v. Johnson, 42 N.J.

146, 161 (1964)). A court's factual findings will not be disturbed unless we are

convinced "'they are so manifestly unsupported by or inconsistent with the

competent, relevant[,] and reasonably credible evidence as to offend the

interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins., 65 N.J. 474, 484

(1974) (quoting Fagliarone v. N. Bergen, 78 N.J. Super. 154, 155 (App. Div.

1963)). However, we do not defer to a court's legal conclusions if "'based upon

5 A-3247-23a misunderstanding of the applicable legal principles.'" T.M.S. v. W.C.P., 450

N.J. Super. 499, 502 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 442 N.J.

Super. 205, 215 (App. Div. 2015)).

Under N.J.S.A. 2C:29-9(a), a person is guilty of a contempt charge if:

[T]he person purposely or knowingly disobeys a

judicial order or protective order, pursuant to section 1

of P.L.1985, c.250 (C.2C:28-5.1), or hinders, obstructs,

or impedes the effectuation of a judicial order or the

exercise of jurisdiction over any person, thing, or

controversy by a court, administrative body, or

investigative entity, or purposely or knowingly violates

a condition to avoid all contact with an alleged victim

or a condition of home detention.

[N.J.S.A. 2C:29-9(a) (emphasis added).]

Our Supreme Court has emphasized the necessity of proving the element

of intent in criminal contempt cases, holding that the State has the burden of

proving that contact was knowing and purposeful. State v. Gandhi, 201 N.J.

161, 187 (2010). A person acts "purposely" where it is "his conscious object to

engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-

2(b)(1). A person acts "knowingly"

with respect to the nature of his conduct or the attendant

circumstances if he is aware that his conduct is of that

nature, or that such circumstances exist, or he is aware

of a high probability of their existence. A person acts

knowingly with respect to a result of his conduct if he

6 A-3247-23is aware that it is practically certain that his conduct

will cause such a result.

[N.J.S.A. 2C:2-2(b)(2).]

For the State to meet its burden of proof on the fourth-degree contempt

charge, it must prove beyond a reasonable doubt that G.M. was conscious of his

actions and their consequences, or at the very least aware of the high probability

that the conduct would violate the order. State v. D.G.M., 439 N.J. Super. 630,

642 (App. Div. 2015) (citing State v. L.C., 283 N.J. Super. 441, 447 (App. Div.

1995)).

Before us, G.M. argues his conviction must be vacated because the State

did not prove him guilty of the offense beyond a reasonable doubt. He contends

the State failed to produce any evidence that he called K.M., arguing: that the

police "never took any investigative steps to look into the circumstances of the

alleged call;" K.M. could not definitively identify who called her because she

did not answer the call that she alleges came from her husband's phone; and the

caller did not leave a voicemail message. He further contends, "the record does

not establish that [G.M.] made the call," and the court merely relied on the

screenshot from K.M.'s phone as evidence. G.M. also maintains he was under

no obligation to prove that he did not make the call, and "[e]ven if a call came

from [his] phone to his estranged wife's phone, there is no proof that the call

7 A-3247-23was made by him." In further support of this argument, G.M. posits that the call

"could have occurred by accident, mistake, or inadvertence in the handling of

the phone" as evidenced by the fact there was one call only, no voicemail and

no text message. Lastly, G.M. argues the State also failed to establish, beyond

a reasonable doubt that he purposely or knowingly engaged in conduct that

violated the statute as required under N.J.S.A. 2C:2-2(b)(1) to (2).

Given these arguments, we address the following two questions: whether

the State proved it was G.M. who made the call to K.M. in violation of the TRO,

and if so, whether the State established his actions were purposeful and

knowingly committed, as required to establish mens rea. D.G.M., 439 N.J.

Super. at 642.

As a preliminary matter, we have no quarrel with the court's finding G.M.

was properly served with the TRO and understood the provisions prohibiting

him from having any contact with K.M. The court's findings on these points are

well-supported by the record, including the testimony of Officer Munoz, and are

thus entitled to deference. Rova Farms, 65 N.J. at 484. We, however, part ways

with the court's legal reasoning and conclusion the State proved G.M. had the

requisite intent to purposely and knowingly contact K.M. in violation of the

TRO. It is settled law that the State must prove a contempt charge beyond a

8 A-3247-23reasonable doubt. State v. Finamore, 338 N.J. Super. 130, 138-39 (App. Div.

2001).

We reach this conclusion because the record is devoid of any evidence

regarding the caller beyond K.M.'s testimony the call was made from G.M.'s

phone, and we decline to infer from the mere call itself, the identity of the person

behind the call, and purposeful intent to make the call rather than an inadvertent

"pocket dial" to a previously stored phone number. We do not reach this

conclusion lightly, nor do we intend to suggest that a single telephone call to a

victim of domestic violence is inconsequential as a matter of law. To the

contrary, we recognize that the TRO prohibited "any" contact with K.M., which

is sacrosanct as victims of domestic violence have a legal right to be left alone.

See State v. Hoffman, 149 N.J. 564, 584 (1997) ("To be left alone is, in essence,

the basic protection the law seeks to assure [domestic violence] victims."). See

also In re E.F.G., 398 N.J. Super. 539, 546 (App. Div. 2008).

However, on these limited facts, involving a single phone call, which the

victim did not answer, there is insufficient evidence to establish that the caller

was G.M. or identify the caller as G.M, or purposeful intent to make the call

rather than an accidental dial.

9 A-3247-23Moreover, guided by the above legal principles, we conclude there is

nothing in this record to have persuaded the court that the caller purposely or

knowingly intended to disobey a judicial or protective order, or violate a

condition to avoid all contact with an alleged victim. Thus, although we have

no doubt K.M. received a call from G.M.'s phone, the lone call, without

explanation, is insufficient to establish the requisite intent to violate the

contempt statute on the part of G.M. See State v. S.K., 423 N.J. Super. 540, 547

(App. Div. 2012) ("[T]he evidence must allow at least a reasonable inference

that a defendant charged with violating a restraining order knew his conduct

would bring about a prohibited result."). Absent a showing of intent, there was

insufficient evidence adduced at trial to "firmly convince" the court G.M. was

in fact the person who made the putative call or find beyond a reasonable doubt

that G.M. had the requisite intent to be guilty of contempt. Accordingly, the

order finding G.M. guilty of contempt for violating the TRO against him is

vacated and reversed.

Vacated and reversed.

10 A-3247-23