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State v. Ramirez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OLGA RAMIREZ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 05-123.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 6, 2006

Before Judges A. A. Rodriguez and Collester.

Defendant Olga Ramirez appeals from her conviction on March 17, 2006 on trial de novo for violating N.J.S.A. 39:4-34, which reads in pertinent part as follows:

Where traffic is not controlled and directed either by a police officer or a traffic control signal, pedestrians shall cross the roadway within a crosswalk or, in the absence of a crosswalk, and where not otherwise prohibited, at right angles to the roadway. It shall be unlawful for a pedestrian to cross any highway having roadways separated by a medial barrier, except where provision is made of pedestrian crossing. On all highways where there are no sidewalks or paths provided for pedestrian use, pedestrians shall, when practicable, walk only on the extreme left side of the roadway or its shoulder facing approaching traffic.

At about 11 p.m. on December 17, 2004, defendant left work at Damon's Grill Restaurant located on the north side of Route 9. Plaintiff was crossing Route 9 to reach a New Jersey Transit bus stop directly across from the restaurant. While walking in the left lane on the northbound side, she was struck by a car. The driver, Fabio Rodriguez, testified in the Marlboro Municipal Court that he first saw defendant at a distance of only five feet. He said he tried to avoid her by turning the steering wheel to the left. However, "the car hit a median and I lost control. . . ." Rodriguez immediately stopped his car, told his wife to call 9-1-1, and got out to find help. The accident was witnessed by Orion Speicher, a manager of Damon's Grill, who was outside the restaurant smoking a cigarette when he saw defendant walk across the highway into the left lane where she was struck by the car.

Marlboro Township Patrolman Scott Feirstein investigated the accident. After speaking to Rodriguez and Speicher he issued a summons to defendant on January 2, 2005 for violation of N.J.S.A. 39:4-34. He testified that in the area of the accident there are no traffic lights, crosswalks or sidewalks on Route 9 at that point. He said that the nearest crosswalk was about a half a mile through a shopping mall and by overpass to the southbound side. An alternative was to walk north to a tram light approximately 1.2 miles away.

The sole defense witness was Maurice Rached, a licensed professional traffic operations engineer, who was qualified as a expert in traffic engineering and pedestrian safety. Contrary to the estimate of Patrolman Feirstein, Mr. Rached stated the distance from Damon's Grill to the nearest crosswalk was over a mile while walking south. Although he admitted it was not an engineering standard, he gave his opinion it was unreasonable for a pedestrian to walk more than 300 to 400 feet to a crosswalk. Moreover, he said that to walk southbound to reach the nearest cross walk, a pedestrian would be going against northbound traffic, which would be both unsafe and unreasonable. In his opinion, the only way to remedy this unsafe condition would be to provide a crosswalk at that point, preventing a person from crossing, or move the bus stop, all actions subject to review and determination by the Department of Transportation.

At the conclusion of the trial in the Marlboro Township Municipal Court, defendant was adjudged guilty of violating N.J.S.A. 39:4-34 and received the minimum fine of $56 and court costs. The Law Division upon de novo review of the record also found defendant guilty of N.J.S.A. 39:4-34 and imposed the same sentence. This appeal followed.

Defendant raises three points on appeal:

POINT I -- THE TRIAL COURT ERRONEOUSLY REFUSED TO EXPAND THE RECORD TO INCORPORATE THE STATE'S STIPULATION.

POINT II -- THE COURT ERRED IN FINDING THAT THE DEFENDANT COULD HAVE WALKED WITH TRAFFIC NORTHBOUND ALONG ROUTE 9.

POINT III -- IN THE ABSENCE OF A CROSSWALK A PEDESTRIAN IS PERMITTED TO CROSS A ROADWAY AS LONG AS THAT CROSSING OCCURS AT A RIGHT ANGLE.

Defendant's first argument is that the Law Division judge misapplied discretion by denying her motion to expand the record to include a stipulation between her attorney and the municipal prosecutor that a "median" as opposed to a "medial barrier" divided the north and southbound lanes of Route 9. Her attorney represented to the Law Division judge that the stipulation was made in open court prior to testimony but does not appear in the transcript. He said he became aware of this omission only when he was preparing his reply brief to respond to the State's argument on appeal that defendant could not cross the highway at a right angle because a medial barrier separated the north and south lanes. Therefore, he sought to expand the record and included a certification of the municipal prosecutor that, prior to trial, it was stipulated that the area dividing the north and southbound lanes was a "median" and not a "medial barrier," and that therefore it was not necessary for Mr. Rached during his testimony.

The Law Division judge denied the application to expand the record and affirmed defendant's conviction. She interpreted the statutory finding that "medial barrier" to mean "something material in the middle of a highway that blocks or is intended to block passage" to the other side. She found that the defendant crossed Route 9, which was separated by a medial barrier without provision for pedestrian crossing and was therefore guilty of the charge. In doing so, she relied upon the testimony of Rodriguez that his car hit "the median" in the highway and held that defendant violated N.J.S.A. 39:4-34 when she attempted to cross the highway.

On the trial de novo, the central question addressed by the judge was whether Rodriguez hit a "medial barrier" within the statutory meaning. The only testimony on the issue in the municipal court was the fleeting reference by Rodriguez. The fact that no witnesses descended the area dividing Route 9 together with the certification by the municipal prosecutor leads us to conclude that the issue was not raised and not considered at the municipal court level. Therefore, in the interest of justice, we reverse and remand to the municipal court for a new trial which is to include testimonial and other proof as to whether the area in question constituted a "median barrier" within the meaning of N.J.S.A. 39:4-34, or simply a grassy median, as stipulated by the defense and the municipal prosecutor.

Reversed and remanded.

20070718

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