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State v. Lesmes


August 22, 2008


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 54-07.

Per curiam.


Submitted August 12, 2008

Before Judges Sapp-Peterson and Baxter.

Defendant Eduardo Lesmes appeals from his November 13, 2007 conviction at a trial de novo in which the Law Division found him guilty of failure to observe a traffic signal, N.J.S.A. 39:4-81. The municipal court judge imposed a fine of $126 and appropriate court costs. We reverse.


Hudson County sheriff's officer Bruce Miller was on routine patrol in Jersey City on November 26, 2006, at 8:55 p.m., when he observed a 2006 four-door black Chrysler, which was driving at an excessive rate of speed, run a red light. By the time Miller caught up with the Chrysler, the Chrysler was approaching another traffic light. Miller activated his overhead lights. He observed the vehicle as it "went around traffic on the sidewalk through two other red lights." The Chrysler proceeded at a high rate of speed over the Lincoln Highway bridge into Kearny. Miller was still unable to catch up to the Chrysler, but decided to give up the chase because the high-speed vehicle pursuit was becoming unreasonably dangerous.

Miller testified that he was unable to see the driver of the vehicle because the windows were tinted and it was dark outside. He was, however, able to write down the vehicle's license plate number, which "came back" to the DeFeo used car dealership on Communipaw Avenue in Jersey City. The next morning, Miller and his supervisor, Captain Conte, went to the dealership to investigate because they believed the car was likely stolen.

When they arrived at the dealership, Conte was in uniform and Miller was in plain clothes, but his official badge was suspended from a chain around his neck. Once they pulled into the parking lot of the dealership, to their surprise, the car was "sitting there" on the lot. Miller approached the general manager who "said the car was his." When Miller asked him whether he "had it last night," the manager answered "yes." At that point, Miller and Conte identified themselves as sheriff's officers and asked the man to step into his office at the used car lot. Once he did so, they gave him a Miranda warning,*fn1

handcuffed him and took him to headquarters where they questioned him further. Miller testified that once the Miranda warnings were administered, defendant said he had "no problem answering [Miller's] questions."

According to Miller's testimony, once they arrived at headquarters, defendant acknowledged that he was driving the car the previous night, but claimed "he didn't realize [Miller] was behind him or trying to stop him at any point." When Miller was asked whether defendant provided an explanation for why he was driving so erratically, Miller explained that defendant said he was "late getting home."

Defendant made an oral motion to the municipal court judge to suppress the statements he had allegedly made to Miller. The municipal court judge denied the motion for the following reasons: 1) defendant's admission that he was the driver of the car on the night in question was made at the car dealership while defendant was not in custody and therefore the admission was not made during the course of a custodial interrogation; and 2) defendant waived his right to object to such testimony by failing to file a pretrial motion seeking a Miranda hearing.

At the conclusion of Miller's testimony, defendant made a motion for a judgment of acquittal, which the municipal court denied. Defendant testified that when Miller and Conte, whom he knew, came to the dealership and began asking him questions, he told them that he was "not in the vehicle" and "not in the area on the previous night." He testified that he was at a party in "Newark or Harrison" at the time in question. He denied ever telling Miller that he had been driving the car and insisted that he had never apologized to Miller for driving erratically.

During his testimony, defendant acknowledged having told Miller that he did not realize Miller was behind him; however, shortly thereafter he insisted that he also told Miller that he was never in the area in question. At another point during cross-examination, defendant claimed that "someone else could have took the car." When the prosecutor said, "I thought you were at a party," defendant answered "[y]eah, I was at the party, but I left my car. . . . [T]hat's the only thing I can figure. Someone else took the key for my car."

The State recalled Miller on rebuttal. Miller testified that he gave defendant Miranda warnings both in defendant's own office and again when defendant was brought into headquarters. Miller also testified that at no time did defendant say that somebody else was driving the car on the night in question. He added that had defendant done so, "I would have tried to ascertain who was driving."

After considering closing arguments from both sides, the municipal court judge made the following findings: 1) defendant was properly given his Miranda warnings; 2) defendant's testimony that he told Officer Miller he "wasn't even in the area" was not credible; 3) "Officer Miller is a credible witness" and "has no reason to testify that defendant would apologize unless defendant did, in fact apologize, [and state] that he was in a hurry and was on his way home"; and 4) defendant's admission that he was the driver of the car and was speeding in order to get home constitutes "proof of driving" by defendant. Accordingly, the judge found the State proved beyond a reasonable doubt that defendant was guilty of disregarding a traffic signal on the date in question. The judge therefore found defendant guilty and imposed the fines and costs we have discussed.

On appeal to the Law Division, the judge began by specifying the standard of proof that is applicable in a de novo trial in the Law Division. The judge stated:

Pursuant to Rule 3:23-8(a), municipal appeals should be heard de novo on the record. In such an appeal, the function of the judge is to determine the case completely anew, which is State v. Johnson. . . . The judge should give deference to those findings of the [municipal court] judge which are substantially influenced by the opportunity [of that judge] to hear and see the witness and to have a feel for the case which a reviewing court cannot enjoy. State v. [Locurto], 157 N.J. 463.

A reviewing court should determine whether findings could reasonably have been reached by sufficient credible evidence presented on the record and should not disturb the original result simply because there is a feeling that the reviewing court may have reached a different conclusion.

The Law Division judge then proceeded to make findings of fact. He found that defendant admitted to Officer Miller that he was in fact operating the subject vehicle on the night in question and that defendant failed to stop at a red light. The judge also noted that the municipal court judge had specifically found Officer Miller to be a credible witness.

Next, the Law Division rejected defendant's Miranda argument. The judge found that because defendant was at the used car lot where he worked and was not in custody when he made the statements in question, no Miranda warnings were required. The judge reasoned:

Miranda warnings are required when a suspect is subject to a custodial interrogation. As to the issue of custody, a suspect is in custody when the actions of the officer coupled with the surrounding circumstances would lead a suspect to believe that he was not free to leave. State v. McLaughlin, 310 N.J. Super. 242. [The] factors to be considered . . . are the length of the questioning, the place and time of the questioning and the status of the person being questioned.

In this case, Officer Miller asked [defendant] a few select questions lasting a relatively short period of time. Additionally, the questioning was done at [defendant's] place of business which should not be an intimidating location for him. Finally, [defendant] was not under arrest nor detained in any way during Officer Miller's initial questioning.

Based on these facts, there is nothing to indicate that the municipal court erred in its determination that [defendant] was not in custody during questioning at the dealership.

Similarly, there is no evidence [defendant] was subject to an interrogation as defined by Miranda and its progeny. Interrogation is not only direct questioning, but also any activities that police should know is reasonably likely to elicit an incriminating response. . . . Rhode Island v. Innis, 446 U.S. 291, a 1980 case.

The municipal court obviously found that none of the activities engaged in by [Officer] Miller was reasonably likely to elicit an incriminating statement from [defendant] and this court sees no reason to reverse [that] determination.

Next, the Law Division concluded that defendant was guilty of failing to observe a traffic signal. The judge stated:

Officer Miller's testimony, which [the municipal judge] found credible, in conjunction with [defendant's] own admission was sufficient for [the municipal court] to have determined that the State proved its case beyond a reasonable doubt.

In the case at bar, Officer Miller testified that he saw the subject vehicle drive through a red light. The proof that [defendant] was driving the vehicle at the time comes from [defendant's] own admissions.

While [defendant] asserts that he was not even in the area of the alleged violation the night in question, this fact is absent from Officer Miller's report. [The municipal court] judge found the testimony of Officer Miller credible and in fact found his testimony more credible than that of [defendant]. Giving all favorable inferences to the State as is required, a jury could reasonably . . . have found [defendant] guilty beyond a reasonable doubt. Because [defendant] has failed to prove the evidence against him was insufficient to establish guilt and because [defendant] has failed to prove that [his] Fifth Amendment right was violated in this case, the decision of the municipal court is upheld.

On appeal, defendant presents the following arguments for our consideration:





In a trial de novo, the Law Division is obliged to "determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In the context of a trial de novo, the Law Division: does not affirm or reverse what occurred in the municipal court. Rather, the . . . judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments that the municipal court judge may have made. . . . A trial de novo by definition requires the trier to make his own findings of fact.

[State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004).]

Moreover, the Law Division proceeding is not an appellate one. The judge "does not affirm or reverse what occurred in the municipal court," but instead determines anew, based on the municipal court record, whether the State proved the defendant guilty beyond a reasonable doubt. Ibid.

Our own standard of review on appeal from a trial de novo in the Law Division is markedly different standard from that applied by the Law Division judge. Unlike the Law Division, we do not make our own findings of fact and our standard of review is a deferential one. State v. Locurto, 157 N.J. 463, 474 (1999). As the Court observed, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

When we review the findings of the Law Division, our task is "restricted to the test of 'whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1998)). With these principles in mind, we turn to a review of the proceedings in the Law Division.


Although defendant has not raised this issue on appeal, we are constrained to reverse defendant's conviction because the Law Division judge articulated and applied an incorrect standard of review. In his recitation of the appropriate standard governing trials de novo, he recited both the de novo standard that applies to the Law Division as well as the standard of review that applies to the Appellate Division. Further, in his findings at the conclusion of the trial, he observed that "because [defendant] has failed to prove the evidence against him was insufficient to establish guilt, . . . the decision of the municipal court is upheld." That approach was incorrect for two reasons.

First, a defendant has no burden of proof in a de novo proceeding. Instead, the burden of proof is entirely on the State to prove beyond a reasonable doubt that defendant violated the statute in question. State v. Wenzel, 113 N.J. Super. 215, 218 (App. Div. 1971). The judge's comment that defendant's appeal must be rejected because defendant "failed to prove the evidence against him was insufficient to establish guilt" was consequently incorrect. If the evidence adduced is insufficient to prove a defendant's guilt, the judge must acquit him. A defendant has no obligation to establish that the evidence was insufficient. The de novo "proceeding is not an appellate one; the Superior Court judge does not affirm or reverse what occurred in the municipal court." Kashi, supra, 360 N.J. Super. at 545.

Second, the judge stated that as a "reviewing court," his function was to "determine whether the findings could reasonably have been reached by sufficient credible evidence in the record" without "disturb[ing] the original results simply because there is a feeling that the reviewing court might have reached a different result." That is not the Law Division's role in a trial de novo; it is the Appellate Division's standard of review on appeal. See Locurto, supra, 157 N.J. at 470-71.

The Law Division judge is required to function in the de novo capacity that the judge here correctly described in one portion of his oral decision as "determin[ing] the case completely anew." However, the judge appears ultimately to have incorrectly combined the Law Division and Appellate Division's roles. Because the judge applied the incorrect standard of review and also held defendant to a burden of proof that he does not have, the conviction cannot stand. We reverse the conviction and remand the matter to the Law Division where the judge should apply the standard demanded by Johnson, Locurto and Kashi. The judge should: 1) decide the case anew on the record made in the municipal court; 2) give due, but not necessarily controlling, effect to the municipal judge's findings on credibility; and 3) refrain from imposing any burden of proof on defendant.


We do, however, reject defendant's argument in Point II that the Law Division erred when it rejected his Miranda argument. Defendant's contentions lack sufficient merit to warrant discussion in a written opinion. We affirm the judge's determination on the Miranda issue substantially for the reasons expressed by the Law Division in its oral opinion of November 1, 2007. R. 2:11-3(e)(2). We add only the following comments.

As the judge correctly stated, Miranda warnings are required only when a suspect is subjected to custodial interrogation by a law enforcement officer. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed. 2d 297, 308 (1980). A defendant is deemed to be in custody "if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." State v. McLaughlin, 310 N.J. Super. 242, 252 (App. Div. 1998)(quoting State v. O'Loughlin, 270 N.J. Super. 472, 477 (App. Div. 1994)). In deciding whether a defendant is in custody, a court should consider the "length of the interrogation, the place and time [where it occurred], the nature of the questions, the conduct of the police, [and] the status of the suspect. . . ." Ibid.

Finally, courts have consistently distinguished between the brief police investigation here and the type of custodial interrogation for which Miranda warnings are required. See State v. Coburn, 221 N.J. Super. 586, 596-97 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988). Finally, the United States Supreme Court's decision in Missouri v. Siebert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed. 2d 643 (2004), upon which defendant relies, is distinguishable on its facts. We have been presented with no meritorious basis upon which to disturb the Law Division's finding that Miranda warnings were not required here.


In Point I, defendant argues that the evidence in the record was insufficient to demonstrate beyond a reasonable doubt that he was guilty of the offense in question. In light of our determination that this matter must be reversed and remanded, there is no need for us to reach this issue.


Last, we address defendant's argument in Point III that the municipal court abused its discretion when it denied his motion for a judgment of acquittal at the end of the State's case. Defendant's argument misperceives the role of this court. We review only the action of the Law Division, not the municipal court. State v. Joas, 34 N.J. 179, 184 (1961). The "judgment on such a trial de novo nullifies the judgment of the municipal court." Id. at 189. Consequently, the judgment of the Law Division supersedes and nullifies the action of the municipal court judge. Thus, we do not review the municipal court judge's decision to deny defendant's motion for a judgment of acquittal.

Reversed and remanded. We do not retain jurisdiction.

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