On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Sussex County, Docket No. 46-08-05.
The opinion of the court was delivered by: Messano, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, C.S. Fisher and Messano.
Defendant Robert Morgan appeals from a judgment of conviction entered on June 30, 2006, after de novo review by the Law Division, finding him guilty of speeding, in violation of N.J.S.A. 39:4-98. The testimony before the Montague Township Municipal Court revealed the following salient facts.
On the afternoon of May 19, 2005, Sussex County Sheriff's Officer Samantha Shpiruk was on patrol driving northbound on Route 23 in Montague Township. She observed a black Corvette proceeding southbound at a high rate of speed. Shpiruk estimated, and then confirmed through her Doppler radar unit, that it was traveling at sixty-six miles per hour.
Shpiruk was asked on direct examination,
Q: What is the speed limit?
Q: Is there any stretch of that area that you saw him operating that -- in which that speed is permitted?
Q: (cont'd.) 66 miles an hour?
Shpiruk turned her vehicle around in order to stop the Corvette, and, in doing so, lost sight of it temporarily. When she next saw the car, she estimated it was going 45 miles per hour and confirmed this speed on her radar unit. Shpiruk activated her car lights and stopped defendant's vehicle. She issued a summons to him for a violation of N.J.S.A. 39:4-98, specifically driving sixty-six miles per hour in a forty miles per hour zone. She was again asked by the prosecutor,
Q: All right, and what was the speed limit at that area?
Q: All right. So he was still in excess of the speed. Is that correct?
On cross-examination, Shpiruk admitted that she lost sight of the black Corvette for some thirty seconds. She also acknowledged that she did not know if any property owner along that particular stretch of Route 23 also owned a black Corvette. Shpiruk nevertheless was sure the car she stopped was the car she initially clocked traveling at sixty-six miles per hour because it was the "only black Corvette on that stretch of roadway" and because there were "no turn-offs" on that part of the road, which Shpiruk knew because she was "from around there."
The State rested after Shpiruk's testimony and defendant produced no witnesses. In summation, relying upon State v. Miller, 58 N.J. Super. 538 (Law Div. 1959), defendant sought a judgment of acquittal contending the State had failed to establish what was the lawful rate of speed on that particular portion of Route 23. Noting "[t]here was testimony as to the speed [limit] on the highway," the judge found defendant was "in fact traveling at 66 miles per hour in a 40 mile an hour zone" and was guilty of violating N.J.S.A. 39:4-98. After reviewing the defendant's driving record, which included a ...