On appeal from the Superior Court, Law Division, Essex County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
The matter comes on before this court on defendant's appeal from his conviction at a trial de novo in the Law Division of a violation of N.J.S.A. 39:4-85 for improper passing. The principal question for our determination is whether the Law Division judge properly permitted a complaint filed in a municipal court under N.J.S.A. 39:4-88(a) for driving on the wrong side of the road to be amended to charge a violation of N.J.S.A. 39:4-85. In addition defendant was charged in the municipal court with speeding, going through a stop sign without stopping and failure to have his driver's license in his possession but we are not concerned with these complaints on this appeal.
The State's only witness at the municipal court trial was Donald Williams, a Montclair police officer. Williams testified that on June 22, 1983 he and Officer Powell were driving south on North Mountain Avenue, a street without marked lanes for traffic, when they observed defendant driving in the same direction at a high speed. The officers followed defendant and saw him go through the intersection of North Mountain and Watchung Avenues without stopping for a stop sign. Defendant then accelerated rapidly to a speed greatly exceeding the speed limit. He passed another southerly-bound vehicle forcing a vehicle coming north to pull to its right and almost go into a driveway to avoid colliding with defendant's vehicle. Defendant then pulled back to his right. The officers then stopped defendant. Though he later produced it, he did not have his driver's license in his possession when he was stopped.
Defendant testified that he stopped at Watchung Avenue and then went ahead along North Mountain Avenue passing vehicles illegally parked on his right side. These parked cars were the only ones defendant described seeing before he was stopped. Defendant specifically denied seeing any vehicle coming from the opposite direction. Defendant attempted to subpoena Officer Powell as a witness but the subpoena was not personally served on him and Powell did not appear. Defendant
asked the judge to procure Powell's appearance but the judge refused to do so because the subpoena had not been properly served. See R. 1:9-3.
The municipal judge dismissed the stop sign charge because he believed that it merged into the speeding violation. However, he convicted defendant on the remaining three complaints. The penalty for violation of N.J.S.A. 39:4-88(a) was a $50 fine and $10 costs. Defendant appealed from the three judgments of conviction to the Law Division.
In the Law Division defendant argued that inasmuch as North Mountain Avenue was not marked by lines he could not have violated N.J.S.A. 39:4-88(a). The State then moved to amend the complaint to substitute a charge of violation of N.J.S.A. 39:4-85 for that under N.J.S.A. 39:4-88(a). N.J.S.A. 39:4-85 requires that a driver overtaking a vehicle going in the same direction pass it at a safe distance on its left. The judge allowed the amendment and found defendant guilty on the amended charge under N.J.S.A. 39:4-85. He also found defendant guilty of speeding but acquitted him on the charge of not having the license in his possession. The same fine and costs were imposed for the violation of N.J.S.A. 39:4-85 as had been assessed for the conviction under N.J.S.A. 34:4-88(a).
Defendant has appealed to this court solely from the conviction under N.J.S.A. 39:4-85. He contends that the amendment should not have been allowed as it charged a completely new offense more serious than that under N.J.S.A. 39:4-88(a) and was not authorized by court rule. Additionally he asserts that his due process and double jeopardy protections were violated by the judge in allowing the amendment. Defendant further contends that the judge of the Law Division used an improper standard of review in adjudicating the case and the judge of the municipal court erred in failing to enforce the subpoena. Defendant does not, however, assert that the evidence does not support the conviction.
The amendment in this case was allowed pursuant to R. 3:23-8(c) which provides that an appeal to the Superior Court, Law Division, from a municipal court shall:
R. 3:23-8(c) authorizes an amendment of a complaint provided the violation charged in the amended complaint is related to the offense originally charged. State v. Henry, 56 N.J. Super. 1, 14 (App.Div.1959). However the rule cannot be used to permit the substitution of a more serious offense for that originally charged. Thus in State v. Koch, 161 N.J. Super. 63 (App.Div.1978), we held that on an appeal de novo from a conviction for violation of N.J.S.A. 39:4-92(a), a charge under the motor vehicle laws for failure of a driver to yield to a police vehicle, a defendant could not be convicted of the disorderly persons offense under N.J.S.A. 2A:170-25.8 of eluding a police vehicle after being signaled to stop. We there held that an amendment to convert a traffic offense into a disorderly persons offense was impermissible for two ...