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State v. Allen

Decided: May 11, 1989.


Haines, A.j.s.c.


[236 NJSuper Page 59] Our municipal courts may be our most important courts. They decide more disputes, and therefore, engage more of our citizens than any other court. Their decisions very significantly

affect the lives and livelihoods of hundreds of thousands of defendants. The issues they entertain frequently involve novel and complex questions of law, many of which are of constitutional dimension. Informal procedures, once acceptable in these courts, are so no longer. Lawyers, as well as pro se defendants, appearing in them must be as vigilant in observing the rules of evidence and the rules of procedure as they are in any other court. Only then can the rights of all parties be protected. Defendants who choose to appear without counsel risk the unfortunate consequences attending a lack of knowledge of the law. The same rules apply to them as apply to those who are represented. This opinion underlines the need to make objections and raise issues during trial proceedings at the municipal court level. It holds that the failure to object to otherwise inadmissible hearsay evidence cannot be cured by taking an appeal to be heard "de novo on the record."

John G. Allen was charged with following too closely, N.J.S.A. 39:4-89, and leaving the scene of an accident, N.J.S.A. 39:4-129. The charges stem from an accident which occurred on the New Jersey Turnpike when a tractor trailer, allegedly driven by Allen, changed lanes, struck an automobile in the rear and knocked it into a ditch. Allen's defense was that he had not been involved in the accident and had no knowledge or reason to know of its occurrence (a proper defense to the charge of leaving the scene). He was found guilty of both charges in the municipal court and now appeals. The court below found that Allen knew or should have known that he was involved in an accident. The evidence was sufficient to support that factual conclusion and it will not be disturbed here, particularly since weight must be given to the ability of the municipal court judge to see the witnesses and hear the testimony. State v. Johnson, 42 N.J. 146, 157 (1964).

A second issue, however, must be addressed. Allen was identified as the tractor-trailer driver on the basis of hearsay evidence alone. No objection was made to its admission until the close of the State's case. It is argued, nevertheless, that

the objection was timely and, in any event, must be considered by this appellate court since appeals provide a trial "de novo on the record." R. 3:23-8 provides that appeals from municipal courts shall "be heard de novo on the record." Our cases have not clarified the meaning of that language.

The principal witness for the State was a trooper who identified Allen as the driver of the Royal tractor trailer in the course of the following exchange:

Q. Okay. And the defendant, Mr. John Allen, was he the operator of the Royal (phonetic) truck?

A. From investigation, yes. Ah, the Royal truck did not stop. At the accident scene I did not get a chance to, ah, take any statements from Mr. Allen. What I did get was a license plate number from the truck, from a, ah, witness that did not give his name. I contacted . . . or looked up the, ah, license plate through the Division of Motor Vehicles, the computer, and, ah, it came back to the same Royal (phonetic) truck that I observed or at least a Royal (phonetic) truck that I observed. I then contacted Royal Foods and they stated that, ah, it was Mr. Allen driving that vehicle that day.

No objection was made to the admission of this evidence by defense counsel until the State had rested. He then moved to dismiss the complaint on the ground that the State had failed to carry its burden of proof, since it had not identified defendant as the driver except by hearsay. The municipal court denied the motion stating that "the hearsay evidence did get in without objection so it's now part of the record and the court will rule that a prima facie case has been made out."

Defendant now raises the hearsay objection on appeal. It is the State's position that the objection below was made too late and cannot be raised in the course of this appeal. R. 3:23-8 (incorporated in the municipal court rules by R. 7:8-1) provides in pertinent part as follows:

This language might be read, in its reference to "on the record," as limiting the record to the ...

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