On certification to the Superior Court, Appellate Division, whose opinion is reported at 142 N.J. Super. 288 (1976).
For modification and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. Opposed -- None. The opinion of the court was delivered by Clifford, J.
Defendant was convicted in Ocean City Municipal Court of operating his automobile at 44 miles per hour in a 25 mile-per-hour zone, in violation of N.J.S.A. 39:4-98. He appealed to the Cape May County Court where, after a trial de novo on the record below, the conviction was affirmed. The Appellate Division reversed on the ground that the State had failed to prove that the speed limit in the area of the alleged infraction was indeed 25 miles per hour. State v. Tropea, 142 N.J. Super. 288, 290 (1976) However, despite this crucial deficiency in the State's case, the Appellate Division held that defendant was not entitled to a dismissal of the charges but merely to a new trial on all issues. Hence, the case was remanded to the county court. Id.
We granted the defendant's petition for certification, 71 N.J. 502 (1976), and the State's cross-petition, 73 N.J. 50 (1977), to review the Appellate Division's determinations (a) that there was insufficient evidence presented to sustain the conviction, and (b) that there should be a remand for a new trial.
We first address the sufficiency-of-evidence question. The proofs demonstrated that on March 6, 1975, two police officers operating a speed radar unit issued defendant a summons charging him with speeding. Only one of these officers testified at the municipal court trial and he offered no direct testimony of the speed limit in the area where defendant was apprehended. At the conclusion of the State's case defendant moved for an acquittal on the ground, among others, that no evidence as to the speed limit had been introduced.
The trial judge denied the motion. Defendant then testified that he was an experienced driver; that from the time he entered Ocean City, he was "trying to keep the car at twenty five miles per hour"; and that he estimated his speed to be twenty five miles per hour at the time of his encounter with the police officers. At the conclusion of his testimony defendant renewed his motion for acquittal, which was again denied. The trial judge then found him guilty.
At defendant's trial de novo before the county court, the State argued that proof of the speed limit could be inferred from defendant's insistence that he was travelling 25 miles per hour. In addition, the State urged that the court could take judicial notice that the 25 mile per hour speed limit in "residential areas" is mandated by statute, N.J.S.A. 39:4-98(b); that the area in question fits the statutory description of a "residence district," N.J.S.A. 39:1-1; and that "the speed zone throughout the city is classified and posted as 25 miles per hour." Although the county court gave no indication that it was taking judicial notice of the area or its alleged residential nature, it stated that defendant's effort to maintain a speed of 25 miles per hour was "indicative of his knowledge of the speed limit in the area" and found "from the record" that defendant had exceeded that limit.
As the Appellate Division observed, these proofs fell far short of discharging the State's obligation to establish the applicable speed limit. So insubstantial is the State's argument on this point that we need dwell on it only long enough to observe that there is nothing in defendant's assertion that he was making a conscious effort to maintain his speed at 25 miles per hour which in any way served to establish the speed limit. Furthermore, nothing in the record suggests that either the municipal court or county court judge took judicial notice -- or, indeed, any other kind
of notice -- of any facts indicating that the area in question was residential in character.*fn1
By virtue of the State's failure to have offered any evidence of the applicable speed limit, the Appellate Division's reversal of defendant's conviction must be affirmed. See State v. Ring, 85 N.J. Super. 341, 343 (App. Div. 1964), certif. den., 44 N.J. 407, cert. den., 382 U.S. 812, 86 S. Ct. 24, 15 L. Ed. 2d 60, reh. den., 382 U.S. 933, 86 S. Ct. 306, 15 L. Ed. 2d 344 (1965). In light of this disposition of the sufficiency-of-evidence question, we need not consider defendant's alternative argument that the State failed to offer adequate proof that the speed radar device was properly calibrated.
The second issue is the propriety of the Appellate Division's remand of the case for a new trial on all issues. Defendant urges that the protection against being twice put in jeopardy for the same offense*fn2 precludes a second trial once an appellate court has found insufficient evidence to sustain a conviction. In support of this assertion he relies on the decisions of the United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), and Greene v. ...