On appeal from Superior Court of New Jersey, Law Division, Morris County.
Pressler, Baime and A.m. Stein. The opinion of the court was delivered by Baime, J.A.D.
[250 NJSuper Page 452] Defendant Frederick F. VanRiper appeals from a conviction of careless driving (N.J.S.A. 39:4-97). He was originally charged with improperly entering an intersection controlled by a stop or yield sign following a collision between the tractor trailer he was driving and an automobile. However, in the proceedings before the Roxbury Municipal Court it became apparent that the intersection in which the accident occurred was not controlled by a stop or yield sign. The municipal court judge sua sponte and over defendant's vigorous objection amended the complaint to charge careless driving. Defendant, who was not apprised of his right to retain an attorney or his
right not to take the stand, was thereafter convicted of careless driving based largely on his own testimony. The Law Division later found defendant guilty of the same offense at a de novo trial on the municipal court record. Defendant was fined $50 and ordered to pay $25 in court costs. We reverse.
We need not recount the facts at length. At approximately 9:00 a.m. on June 27, 1989, defendant was driving his tractor trailer on Midland Road towards its intersection with Righter Road. The meeting point between Midland and Righter Roads is a T intersection, with Righter Road the through street. The intersection is not controlled by a stop or yield sign. Nevertheless, defendant stopped his vehicle and thereafter gradually proceeded to make a right turn. As he made this maneuver, the left front bumper of the tractor trailer was struck by the right side of an automobile proceeding along Righter Road. After the accident, a police officer issued defendant a summons for improperly entering an intersection controlled by a stop or yield sign. The officer had not witnessed the collision, but had issued the summons based upon his observations of the placement of the vehicles following the accident.
In the course of the officer's testimony, the municipal court judge noted that the Midland-Righter Roads intersection was not controlled by a stop or yield sign. On his own motion, the judge amended the complaint to charge careless driving. Defendant, who appeared pro se, strenuously objected to the amendment, but his objection was summarily denied. As we noted, defendant was not advised of his right not to testify. Apparently unaware of that right, defendant, in the course of his testimony, noted that he had briefly looked backwards while entering the intersection in an attempt to avoid having the trailer strike the right curbing of the intersection. Both the municipal court and the Law Division found defendant guilty of careless driving.
It is against this factual backdrop that we consider defendant's arguments. Defendant asserts that (1) careless driving
is not a lesser-included offense of improperly entering an intersection controlled by a stop or yield sign, (2) he should have been granted a continuance when the judge sua sponte amended the complaint, (3) the evidence presented was insufficient to convict him of careless driving and (4) the municipal court failed to apprise him of his right to retain an attorney and his right not to testify.
We agree with defendant's argument that careless driving is not a lesser-included offense of improperly entering an intersection controlled by a stop or yield sign. N.J.S.A. 39:4-97, the careless driving statute, reads as follows:
[a] person who drives a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
N.J.S.A. 39:4-144, the offense for which defendant was originally charged, provides:
[n]o driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a "stop" sign unless he has first brought his vehicle or street car to a complete stop at a point within 5 feet of the nearest cross walk or stop line marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard. No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a "yield right of way" sign without slowing to a reasonable speed for existing conditions and visibility, stopping if necessary, and the driver shall yield the right of way to all traffic on the intersecting street which is so close as ...