Before Judges Petrella and Conley.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2000
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
Defendant appeals his Municipal Court and, on de novo appeal, Superior Court, Law Division, speeding conviction and resulting $107 fine. Among the variety of issues raised, he contends that the State did not establish beyond a reasonable doubt the necessary basis for his conviction of speeding pursuant to N.J.S.A. 39:4-98a. We agree and for that reason alone, we reverse the conviction and fine. We need not, therefore, address the other issues raised. We do, however, comment on the discovery problems encountered by defendant as we are concerned they may reflect an erroneous understanding by the municipal judge of the scope of discovery a defendant charged with speeding is entitled to and an unsupported conclusion by the Superior Court judge that the municipal prosecutor's insistence upon a fee of $25 for the discovery was reasonable.
The facts are not complex. On January 14, 1997, at 12:56 p.m., the Frenchtown Chief of Police was parked "alongside the road in the Plessi parking lot." His patrol vehicle had a K-55 device which was in a stationary mode. The Chief was originally trained and certified to operate the K-55 device during his initial police academy training in 1968 and, since then has been recertified as an operator every five years. His most recent certification was issued in May 1996 and expired in May 1999, subsequent to the speeding infraction and subsequent to the Chief's municipal court testimony. In addition to providing this certification, the State produced an April 27, 1995, certificate of calibration for the K-55 device the Chief used and certificates, dated September 27, 1996, of the two tuning forks used by the Chief the day of the infraction. In this respect, the Chief testified that, using the tuning forks both when he first started his patrol and after he issued defendant's summons, he determined that the K-55 device was operating accurately. See State v. Wojkowiak, 174 N.J. Super. 460, 463 (App. Div. 1980).
When the Chief first observed defendant's vehicle, he was driving northbound on Harrison Street and appeared to be exceeding the twenty-five mile per hour speed limit. The Chief thought he was driving 45 to 50 miles per hour. There were no other cars in the area; when he locked the K-55 onto defendant's vehicle, he got a reading of 51 miles per hour. He proceeded after him, and stopped him on Route 619. The transcript does not reflect how long it took to stop defendant or to issue the summons.
After the stop and issuance of the summons, the Chief said he returned to where he had originally been parked, advising the Court that "I think Your Honor should know the reason I was there, is that is the time that kindergarten class lets out and this is directly across from the Elementary School. And it's been a habit of mine personally as an officer, to be there when the school changes classes, when they come and they go." At no point, however, did the Chief say that at the time he clocked defendant's speed the kindergarten class had "let out" or that children were in fact changing classes.
We are convinced this is fatal to the State's case. To be sure, the State established the reliability of the K-55 reading beyond any reasonable doubt. And the Chief did refer to posted speed signs that indicated the zone was a twenty-five mile per hour speed zone. But during defendant's several pretrial efforts to obtain discovery, the State expressly waived any attempt to establish a twenty-five mile per hour speed zone other than as a school zone within the meaning of N.J.S.A. 39:4-98a. *fn1
Pursuant thereto, a motorist must not exceed "[t]wenty-five miles per hour, when passing through a school zone during recess, when the presence of children is clearly visible from the roadway, or while children are going to or leaving school, during opening or closing hours. . . . " We have recently construed this statutory speed limit provision and, in doing so, rejected the contention that N.J.S.A. 39:4-98a establishes "the special speed at all times in a school zone." State v. Beierle, 325 N.J. Super. 395, 401 (App. Div. 1999). We held that N.J.S.A. 39:4-98a is applicable only "(1) during school hours, but only during recess, when children are clearly visible from the roadway, or (2) when children are going to or leaving school during opening or closing hours of school." Id. at 400.
The State has the burden of showing that the twenty-five mile per hour speed limit applies. State v. Tropea, 78 N.J. 309, 312-13 (1978). During the municipal court trial, the Chief testified that, at the time he stopped defendant, he was stationed directly across from the elementary school at the time of the stop because that ordinarily is the time that kindergarten class lets out. There was no testimony, however, that the school was actually in session, and, if so, it was recess time, with children visible from the road. Neither was there any evidence that children were going to or leaving the school during its opening or closing hours. Without such evidence, the State cannot establish beyond a reasonable doubt that at the time of the stop, defendant was subject to the school zone speed limit of twenty-five miles per hour.
In so concluding, we observe that our determination has nothing whatsoever to do with the credibility of the Chief, accepted by both the Municipal and Superior Court judges. We have no reason not to defer to the lower courts' credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999). But the difficulty is that what the Chief said was not enough - that it may be his usual habit to set up radar across from the school at around 12:56 p.m. because that is when the classes usually let out or change does not establish that those were the circumstances extant at the time of defendant's stop. At best, they may have been, but a maybe does not "firmly convince" us of defendant's guilt, as required under the reasonable doubt standard. State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997).
Given this conclusion, we need not address defendant's other contentions. We do, however, comment upon the discovery problems that developed below. In addition to the materials relating to the speed limit which we have set forth in footnote 1, defendant sought from the municipal prosecutor copies of the arresting officer's log book for January 14, 1997, copies of both sides of the summons, a description of the K-55 device, its calibration, and its maintenance and repair history, a copy of the calibration certification for tuning forks, a copy of the calibration of the police car's speedometer, and the officer's K-55 training and his employment history. The prosecutor refused to respond at all to this request until defendant paid a $25 "fee."
Finding no authority for such a "fee," defendant refused to pay it and moved to compel the discovery. During argument on the motion, the prosecutor also took the position that defendant's discovery rights extended only to what the State was going to rely upon to prove its case and further refused to agree to the court's making copies of the document for ...