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State v. Accardi-Adams


February 5, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-055.

Per curiam.


Argued December 8, 2008

Before Judges Carchman and R. B. Coleman.

This is an appeal from a trial de novo concluding that defendant Maria Accardi-Adams unlawfully (1) used a cell phone while driving, N.J.S.A. 39:4-97.3(a); (2) knowingly drove a vehicle on a closed road, N.J.S.A. 39:4-94.2b; (3) resisted arrest, N.J.S.A. 2C:29-2a; (4) created a public inconvenience, N.J.S.A. 2C:33-2; and (5) failed to produce a license, registration and insurance card, N.J.S.A. 39:3-2.*fn1 Except as modified as to the sentence, we affirm.

While the resolution of the underlying offenses is relatively simple and straightforward, the unusual circumstances created by defendant's conduct when confronted with the simple request to produce her driving credentials generated a factual scenario that requires a full exposition of the credible facts as determined by both the Municipal and Law Division judges.

On Thursday December 9, 2004, Morris Avenue in the Borough of Mountain Lakes was closed from Lake Drive to Rockaway Terrace. Notice of the road closure had been forwarded to the affected residents on at least two occasions and appropriate signage and police presence were readily apparent. In fact, Mountain Lakes advised its residents that Morris Avenue would be under construction "for this fall and most of 2005."

The relevant portion of Morris Avenue was closed at each end with trenches dug along the roadway together with various generators, machinery and hoses present in the road and workers moving back and forth. Starting at approximately 7:45 a.m., police and contractors placed cones across both ends of the road with eight-foot tall orange signs marking "Road Closed" and police vehicles with lights "rolling" parked at each end. Residents of Morris Avenue were permitted to proceed to their homes simply by stopping at the barriers and identifying themselves to the police officers. Sergeant James Nieusma and Officer Sam Trimble of the Mountain Lakes Police Department were on duty that day maintaining the road closure at the construction site. Sergeant Nieusma was in a marked police car with overhead lights flashing.

While the road work was in progress, defendant drove her automobile past the officer and cones onto Morris Avenue heading north while talking on her cell phone and without stopping. Defendant "zigzagg[ed] back and forth to both sides of the road dodging workers and equipment." Defendant also ran over the hoses and ditches at a rate in excess of the posted 25 mile an hour speed limit and nearly hit a worker in the roadway before pulling into her driveway.

Sergeant Nieusma then followed defendant in his police vehicle, with lights flashing and pulled in behind her in the driveway. Defendant, still on her cell phone, rolled the window down, and Sergeant Nieusma informed defendant that she "just drove into a construction zone." Defendant then slammed her phone shut, and Sergeant Nieusma asked for her license and registration. Sergeant Nieusma again stated "you just drove into a work zone" and defendant responded by saying "don't you know who I am, I'm a resident here, you can't talk to me that way." Defendant became uncooperative and told the officer, "don't you know who I am, I don't have to do that, I live here." For fifteen minutes, Sergeant Nieusma continued to ask defendant for her license and registration. During that time, defendant made several phone calls (including one to the State Police) and threatened to call Sergeant Nieusma's superior. Officer Trimble then approached. Sergeant Nieusma explained that he was performing a traffic stop because defendant drove through the construction zone, and she was not producing her license. Officer Trimble then asked defendant to produce her license, and defendant began yelling (out loud and to the person on the phone), "now you're ganging up on me, I'm scared, I'm afraid."

As found by the trier-of-fact, at no point did Sergeant Nieusma yell or use profanity towards defendant. However Officer Trimble took a different approach and said "hey, dude, listen, we don't have our summons books on us, you -- you're not even getting a ticket, give us your license and registration, and this whole thing's over." Defendant then responded, "dude, you can't call me dude, I'm a resident." Officer Trimble then commented: "I don't give a shit where you live, I'm not the postman, I'm not your garbage man, license and registration."

Sergeant Nieusma did not have his summons book at the time, and as a result of defendant's lack of cooperation, he called headquarters to have a traffic ticket book brought to him. After Officer Gilberto Benitez arrived on the scene, he, too, observed defendant's lack of cooperation, describing "a lot of yelling" and that defendant was "very irate and -- and just flailing her arms inside the vehicle." After more than fifteen minutes of requesting defendant to produce her driving credentials, Sergeant Nieusma warned defendant that "if she didn't produce her driver's license and registration, she was going to be arrested for disorderly conduct." Sergeant Nieusma gave defendant a "couple of more minutes," yet defendant still refused to produce her credentials. Finally, Sergeant Nieusma placed defendant under arrest.

Sergeant Nieusma took hold of defendant's wrist and attempted to pull her from the car, however "[s]he grabbed hold of the steering wheel, jammed her feet up under the petals [sic] and threw her hips on top of the gear shift so that she was wedged behind the gear shift and the steering wheel." Sergeant Nieusma pulled defendant from the car by her arm, and before he could handcuff her, she attempted to slap the Sergeant over her back. Defendant alleged that during the arrest the officers twisted and injured her arm.

After arresting and retrieving defendant's license and registration from her pocketbook, Sergeant Nieusma and Officer Trimble had no further contact with defendant as they released defendant to Officer Benitez. Officer Benitez then escorted defendant to his police vehicle and took her to headquarters. Defendant was then fingerprinted, photographed, processed and handcuffed to a bench at police headquarters. Defendant claims she was handcuffed to the bench for an hour, however, Officer Peter Piombino, who processed defendant, stated that she was there for no more than 20 minutes and did not complain about her physical condition. Ultimately, defendant was charged and released.*fn2

As the earlier events were taking place on Morris Avenue, an independent witness, Todd Drugac, the foreman of the construction crew working at that section of Morris Avenue abutting defendant's residence, observed defendant driving on Morris Avenue. Drugac had placed the signs in the road on the morning in question. He and his crew had been working on this particular area of the roadway for two or three days prior to the incident and other than defendant, no other residents had gone through the construction zone. He observed defendant traveling on the roadway followed by a police vehicle with lights and siren operating. While he did not observe much of the interplay between the police officers and defendant, he did observe defendant drive down the roadway, through extensive construction including hosing and ditches and almost strike a construction worker.

Defendant's testimony contrasts markedly with that of the State's witnesses. Defendant stated she left her home at 8:15 a.m. to drive her children to school and returned at 8:25 a.m. and did not see construction on either leg of the trip. Defendant left her home again to go to the YMCA at 9:00 a.m., and again she saw no construction in the roadway on her way out. When she returned from the YMCA, she drove on Morris Avenue toward her home and saw a police car parked in the road "perpendicularly." Defendant asserts she did not see any police officers, workers, cones, sirens, lights or detour signs when she saw the police car. Upon seeing the police car, defendant decided to proceed on another street, which runs parallel to Morris Avenue, in order to enter Morris Avenue from the other end. After driving down the other end of Morris Avenue for about 150 yards, defendant said she saw a small orange cone in the middle of the road. Upon seeing the cone, defendant saw "something going on on the right-hand side" of the road ahead. Defendant then drove in the left lane of Morris Avenue to travel home.

Defendant stated that when she pulled into her driveway she was "suddenly alarmed" by Officer Nieusma "banging on [her] window yelling at [her] about bypassing the cones and construction." Defendant concedes that she was on the phone at this time but claims that she was using a headset and immediately hung up when the officer encountered her. Defendant asserts that Sergeant Nieusma spoke "very sternly" and "loudly" and that she was confused because she did not realize she was not allowed to drive on the road. Officer Trimble then approached, and defendant claimed that he was "completely out of control," "pacing back and forth screaming" that defendant thought she was better than him because she is "an F'ing Mountain Lakes resident" and that "all you F'ing Mountain Lakes residents are the same." Defendant said that Officer Nieusma then asked her to get out of the car, but she refused because she was "afraid." Defendant then made two calls on her cell phone including one to 9-1-1.

Defendant claimed that Sergeant Nieusma then opened the door, pulled her out, slammed her against the car and handcuffed her. Defendant said she told the officers that they were hurting her, but Officer Trimble laughed and called her a "lunatic." Officer Benitez then took her to the police station and defendant believes Sergeant Nieusma handcuffed her to a pole next to a metal bench for an hour until she was processed.

On June 14, 2005, defendant's attorney served subpoenas on the Chief of Police of Mountain Lakes Police Department requesting the "Personnel files of Patrolman Sam Trimbal [sic] and for Sgt. James Nieumsa [sic]." After a motion to quash the subpoena, the Municipal Court judge determined that defendant was not entitled to review the files. Defendant's motion for interlocutory relief was unsuccessful.

Defendant retained a private investigator who secured statements from individuals who had prior contact with Sergeant Nieusma and Officer Trimble. The first series of statements concerned Officer Trimble's December 2004 interaction with two young women who had been observed "stacking traffic cones" in a bird sanctuary. In the first statement taken by the private investigator, one of the young women involved, Laura Carlson, stated that Officer Trimble was "yelling and screaming at me and Nikki and using profanity." In the second statement, the other woman, Nikki Ziatyk, also alleged that Officer Trimble used profanity and was yelling. Defendant claimed, in support of her application, that Officer Trimble "threw" the boy who was with Laura and Nikki during the incident into his police car, however the two girls' accounts of the event conflict on this issue as one said "he put him in the back of his car" and the other said "he threw him into the back of his police car."

The third statement taken by the private investigator was from the mother of a boy who was arrested in June 1995 for spray painting a street with graffiti related to his high school class. She stated that Sergeant Nieusma and an Officer Shaves arrested and forcibly removed her son from their home while he was still in his underwear. The mother alleges that:

Officer Shaves, who she believes left the P.D. was verbally and physically abusive telling her son, "If you don't cooperate your going to the county jail where your gonna get fucked in the ass" as Officer Nieusma stood by watching this take place. Officer Nieusma wa supposedly [sic] the training officer at that time. Although Officer Nieusma did not participate in the verbal abuse he was present and made no attempt to stop it. [(Emphasis added).]

The mother then asked her son about the incident after being contacted by the private investigator, and the son stated that "he did not recall the incident."

Interestingly, defense counsel confronted Officer Trimble at trial with the Carlson and Ziatyk statements. The officer demonstrated a recollection of the incident offering that the women were not simply stacking cones but were with the unidentified driver of the vehicle, whose car was filled with "cones and people signs and realtor signs" that had been removed during the course of the evening. While not disputing his conduct, the officer noted that he had not charged the girls but after scolding them, albeit with profane language, he transported them home to their parents.*fn3

On appeal, defendant raises the following issues:





We first address Point III - the underlying convictions. Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the Municipal Court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [Municipal Court judge] to judge the credibility of the witnesses.'" Ibid. (citing State v. Johnson, 42 N.J. 146, 157 (1964)). In the case at bar, the Law Division affirmed the Municipal Court's conviction. Our review "is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the Municipal Court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 472-74 (1999)). Furthermore, when the Law Division agrees with the Municipal Court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

We have carefully reviewed this record and find the decision of both the Municipal and Law Division judges were well supported by the record. The officers' testimony as to both their conduct and that of defendant is credible; defendant's testimony is incredible.

Most significant is the testimony of the construction worker, Drugac. He appears to have no vested interest in the outcome of the case, the cross-examination to establish bias or prejudice in favor of the police was ineffective and unavailing and his testimony is at direct odds with defendant. Her denials of talking on the cell phone while driving are likewise inconsistent with her failure to observe the road closing signs and the various indicia of road construction in close proximity to her residence. Finally, her failure to produce her credentials, even in the face of an assurance that she would not be given a summons, set in motion a course of conduct that could have been avoided by minimal but lawful compliance. Even her calls for assistance advised her to produce her credentials.

Her various allegations of injury and other related circumstances will be adjudicated in a different forum, but as to the underlying offenses that gave rise to this unfortunate series of events, her explanation has twice been rejected and even on a "cold" record, presents little to support its being credible. Nothing offered by defendant on this appeal provides a significant challenge to the bona fides of the charges against her, and she was properly convicted of the charged offenses.

We now address defendant's Point II, and the refusal of the lower courts to order production of the police officers' personnel files. Defendant argues that she was denied her Sixth Amendment right of confrontation because the police personnel and internal affairs files of Sergeant Nieusma and Officer Trimble were not disclosed.

The Superior Court addressed this issue during the trial de novo from the Municipal Court and found:

Additionally, this Court does not find that the Municipal Court's failure to permit disclosure of police personnel and internal affairs records deprived Defendant of a fair trial and her 6th Amendment right to confront her accusers in cross examination. In State v. Harris, 316 N.J. Super. 384 ([App. Div.] 1998), the Court held that (1) the right to confrontation requires disclosure of police personnel records where defendant advances some factual predicate making it reasonably likely that the information in the file could affect the officer's credibility, and (2) defendant shoulders the burden of advancing some factual predicate that would make it reasonably likely that the information in the personnel file could affect credibility, such that the file should be disclosed pursuant to the confrontation clause.

While Defendant accurately cites the standard set forth in Harris, the decision to permit disclosure lies within the discretion of the trial court as the trial court must balance the public interest of maintaining the confidentiality of personnel files against the Defendant's right to confrontation. Here, Defendant presented two indictments that did not result in criminal adjudications against the officers, as well as other statements and accusations tending to support conduct unbecoming of a police officer. However, this Court finds no error in the trial court's determination that, while the use of profane language and the other accusations contained in the personnel records are not condoned by the Court and do constitute behavior unbecoming of a police officer, they do not rise to the level necessary to establish a factual predicate making it likely that the personnel files would contain information that might impact the officers' credibility. Additionally, Superior Court Judge Salem Vincent Ahto denied Defendant's interlocutory application seeking the release of these personnel files on substantive grounds well before the time of trial.

As noted by the Law Division judge and acknowledged by all parties, our consideration of this issue is informed by our decision in Harris.

In Harris, we described the delicate balance that must be engaged in by a trial judge in weighing the relative rights of the parties. We said:

The Confrontation Clause does not require disclosure of any and all information that might be useful in contradicting unfavorable testimony. The determination of whether police personnel records should be disclosed involves a balancing between the public interest in maintaining the confidentiality of police personnel records and a defendant's guarantee of cross-examination under the Confrontation Clause. State v. Kaszubinski, 177 N.J. Super. 136, 139 (Law Div. 1980). In balancing these considerations, the party seeking an in camera inspection must advance "some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw." [Harris, supra, 316 N.J. Super. at 397-98 (emphasis added) (quoting Kaszubinski, supra, 177 N.J. Super. at 141).]

The facts in Harris are particularly noteworthy. In Harris, we were confronted with a factual circumstance involving an armed robbery and a victim being shot by one of the two assailants. The investigating detective who apprehended defendant was well-known to defendant, and the attempted apprehension resulted in the detective being shot with his own weapon. Defendant was charged in an eighteen-count indictment with armed robbery as well as charges related to the altercation with the detective.

At trial, defendant maintained that the detective on prior occasions, "took money from defendant and his friends, and either planted drugs on them or harassed them." Id. at 391. Defendant also alleged an incident that detailed the detective planting drugs on his friend as well as wrongfully detaining him on another occasion. Lastly, defendant refuted the police department's account of the altercation between the detective and defendant. Defendant alleged that when the detective approached his car:

[T]he detective immediately placed a gun to his head, removed him from the car, and slammed him against the car. As [the detective] proceeded to conduct a pat-down, defendant asked him "what is the problem now." [The Detective] responded "don't worry about a problem, I will find a problem for you for your f-ing, I will find a f-ing problem for you." [The Detective] continued "I will find a f-ing problem for your ass." [Id. at 392.]

Defendant alleged that the detective was "up to his harassing game," that the detective "rough[ed] him up," that the detective said "I am sick of you, I am going to kill you" and pointed a gun at his head and that he was "scared for his life." Id. at 392-93. During the trial, defendant also alleged that the detective was a drug abuser. At the trial, detective testified that he never "shook down" the defendant. Id. at 394. The same day the detective's testimony concluded, the Newark Star Ledger reported that "the Newark Police Department was conducting an investigation regarding police officers and shake downs of people who were suspected of being narcotics dealers." Ibid. The next day, the detective was suspended by the police force.

The trial judge then ordered the Newark Police to appear in camera to inform the judge as to the basis for the suspension. A member of Internal Affairs at the Newark Police Department revealed that a citizen stated he had "on numerous occasions" purchased drugs, specifically crack cocaine, for the detective. Id. at 395-96. The Department also described additional improprieties allegedly engaged in by the detective.

The Department also requested that the detective submit to a urinalysis. The detective then faked a heart attack before he could give a sample. Then at the hospital when they asked for a urine sample, he claimed that he had a second heart attack or chest pains. Tests revealed he had no heart attack at the time. The detective eventually submitted a sample, but this sample was taken "under a sheet" and not in accordance with the Attorney general guidelines. Id. at 596. When the police asked for another sample he refused and was then suspended. Ibid.

As a result of these revelations, defense counsel requested a review of the detective's personnel files. The trial judge denied this request stating that defendant "had not shown a 'factual predicate that it is reasonably likely that an examination of his personnel file as opposed to the reason for the suspension contains relevant evidence or relevant information.'" Id. at 395. Defendant was ultimately acquitted of all charges relating to the armed robbery and convicted of the charges regarding the altercation with the detective.

On appeal, we reversed, observing:

Defendant has more than shouldered his burden of advancing some factual predicate that would make it reasonably likely that the information in the file could affect the detectives' credibility; namely, the detective's suspension, in conjunction with the police department's investigation of shakedowns by narcotics' officers, and defendant's accusations that the detective is a drug user, has planted drugs on his friend, and has shaken defendant down in the past. [Id. at 399.]

"Courts have permitted the disclosure of police personnel records where they may reveal prior bad acts that bear 'peculiar relevance' to the issues at trial." Id. at 398.

We have applied Harris in other circumstances. See, e.g. State v. Van Dyke, 361 N.J. Super. 403 (App. Div.), certif. denied, 178 N.J. 35, (2003), (granting access to a juvenile's school records upon a showing that the records were directly relevant to a particular issue in the case).

In State v. Krivacska, 341 N.J. Super. 1, 35 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510, (2002), we found the denial of a "pretrial motion to examine the alleged victims' school records was not violative of the right of confrontation."

Defendant, a clinical director at a children's center, was accused of various acts of sexual misconduct with two thirteen year old special needs males during sessions. Before the trial, defendant made a motion to examine the alleged victims' school records, but this motion was denied. Defendant appealed this decision and argued that this denial violated defendant's right of confrontation.

We assumed "that school records relevant to the issue of competency of a child witness should be disclosed to a defendant upon a showing of particularized need." Id. at 35. We held "the trial judge properly balanced the alleged victims' right to privacy with defendant's right of confrontation by examining the school records in camera" and affirmed the denial. Id. at 35. We also noted that "'allowing a defendant to forage for evidence is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws.'" Ibid. (quoting State v. R.W. 104 N.J. 14, 28 (1986)). And further "[i]t does not require disclosure of any and all information that perhaps might be useful in contradicting unfavorable testimony." Ibid. (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52-53, 107 S.Ct. 989, 999, 94 L.Ed. 40, 54 (1987); Harris, supra, 316 N.J. Super. at 397-98)).

In contrast, Officers Nieusma and Trimble testified specifically about the arrest of the defendant, yet defendant sought their personnel files to inquire about unrelated events in order to impeach their testimony about the current incident. The only probative value of those prior incidents is that Trimble used foul or abusive language in the past. However, he already conceded that he used foul language during defendant's arrest when he testified that he said: "I don't give a shit where you live, I'm not the postman, I'm not your garbage man, license and registration." With regard to Sergeant Nieusma, nothing in the thirteen-year-old incident suggests that he engaged in any misconduct.

At oral argument, counsel suggested that if the files were available, he would have offered the testimony of Carlson and Ziatyk. We fail to perceive the basis for the proffer as their testimony would be collateral to the issues in dispute. "If a collateral inquiry is pursued upon cross-examination, the answer given may not be disputed by extrinsic evidence unless such extrinsic evidence would be independently admissible upon a substantive issue in the case." State v. Terrell, 359 N.J. Super. 241, 246 (App. Div.), certif. denied, 177 N.J. 577 (2003) (quoting State v. Mathis, 47 N.J. 455, 471 (1960)). See also State v. Weeks, 107 N.J. 396, 406 (1987) (taking the premise in Mathis and stating that "collateral impeachment should not become a discursive excursion into extraneous matters"); State v. Hutchins, 241 N.J. Super. 353, 360 (App. Div. 1990) (stating "[i]f the collateral fact sought to be contradicted is elicited on cross-examination, this safeguarding rule is often expressed by saying that the answer is conclusive or that the cross-examiner must 'take the answer'") (quoting McCormick on Evidence, (3d ed. 1984), § 47 at 110); State v. Coruzzi, 189 N.J. Super. 273, 307 (App. Div.), certif. denied, 94 N.J. 531 (1983) (quoting Mathis, supra, 47 N.J. at 471) (stating the "answer must be accepted, lest the trial become the pursuit of sundry extraneous and distracting subjects which to boot, the parties are probably unprepared to litigate"). See also N.J.R.E. 608 (noting that a "trait of character cannot be proved by specific instances of conduct.").

The fragmented and anecdotal incidents relied on by defendant here do not rise to the level necessary to "tip the balance" in favor of disgorging the personnel files of these officers. We will not compromise a defendant's constitutional right of confrontation, but we must appreciate, as well, the significance of protecting the integrity of confidential personnel files unless such protection impairs that constitutional right. We find that considering all of the relevant facts, the balance falls in favor of declining exposure of the files. The trial judge did not abuse his discretion in quashing the subpoena and denying defendant access to those files.

As to defendant's claim that the trial judge's comments regarding the two girls' and their statements warranted recusal, we conclude that the argument is without merit. R. 2:11-3(e)(1)(E). We note that the issue was not what the judge thought of the girls or the use of profanity, but whether the incident was relevant to impact on Officer Trimble's credibility. As we previously noted, he acknowledged that he used profanity; that he had used it before is of little moment. Ultimately, his explanation of that incident put the comments in some context. We do not condone the officer's use of profanity in either the present case or the earlier incident, but concede the judge properly denied defendant access to the files.

Lastly, defendant argues, without citation, that the fines imposed were excessive. We conclude that with the exception of the fine imposed on defendant's conviction for causing a public inconvenience, N.J.S.A. 2C:33-2, defendant's arguments are without merit.

As to the violation of N.J.S.A. 2C:33-2, the judge imposed a find of $850 together with statutory penalties and costs. The offense is a petty disorderly persons offense and the maximum fine that may be imposed is $500. N.J.S.A. 2C:43-3(a)(2)(d). Accordingly, we amend the judgment on Complaint-Summons 2004-000094-1425 and reduce the fine to $500 together with the previously imposed statutory fines and costs.

Except as modified, the judgment of the Law Division is affirmed.

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