February 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTONIOS STAMOS, DEFENDANT-APPELLANT,
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 57-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 12, 2009
Before Judges Reisner and Alvarez.
Defendant Antonios Stamos appeals from a Law Division order dated December 10, 2007, finding him guilty of a traffic offense, on a de novo appeal from the municipal court, and finding him guilty of contempt of court. We reverse.
Defendant was originally ticketed on August 26, 2006, at approximately 10:30 p.m., for creating a risk of an accident, N.J.S.A. 39:4-56. He was convicted of that offense in municipal court. However, on his Law Division appeal, defendant was convicted of making an illegal U-turn, N.J.S.A. 39:4-125. The municipal court also fined defendant $150 for what it characterized as "contempt of court," a penalty also imposed by the Law Division on defendant's appeal.
The original traffic ticket advised defendant of a September 12, 2006 court date. On August 28, 2006, defendant submitted a written adjournment request due to his college schedule and asked for a Friday hearing. The Municipal court clerk wrote back to defendant on September 11, 2006, explaining that court only met on Tuesdays and asking defendant to contact the court to obtain a new hearing date. However, on September 22, 2006, the court sent defendant a notice for failure to appear. Defendant responded on October 19, 2006, indicating that he was still waiting for a new trial date. The trial was rescheduled for November 28, 2006. By letter dated October 27, 2006, defendant announced that "I am adjourning the above case" until the court allowed him to depose Trooper James Dolan, the officer who had ticketed him, and until the court responded to several additional requests.*fn1
The hearing was later rescheduled to January 9, 2007. On January 8, 2007, defendant faxed the court a letter confirming an earlier conversation with "Chris" at the clerk's office, that defendant was requesting an adjournment because he was ill. He sent a follow-up letter on January 12, 2007. However, on January 22, 2007, the court issued defendant a notice that an arrest warrant had been issued for contempt of court as the result of an unanswered traffic summons. On January 23, 2007, defendant faxed the court a long letter explaining why he had not appeared and asking that the warrant be recalled. He also filed an appeal to the Law Division from the issuance of the warrant.
The court hearing was rescheduled to March 6, 2007. It was sent to defendant with a letter from the municipal court administrator advising that the warrant had been recalled but defendant must appear on March 6. Although the State has provided us with an illegible copy, there seems no dispute that when defendant did not appear on March 6, another warrant issued on March 7, 2007. On March 28, 2007, defendant sent the court a letter advising that he "did not forget about the pending traffic case" and "I am temporarily adjourning this case" because he was attending college and had not yet received a decision on his earlier appeal to the Law Division.
The municipal trial finally took place on June 26, 2007. Trooper James Dolan testified that on August 26, 2006, he was on routine patrol in Bordentown. He was traveling behind a silver Acura on Route 130 southbound. Both vehicles stopped for a red light at the intersection of Route 130 and Crosswicks Avenue. Trooper Dolan saw the Acura turn right onto Crosswicks and "make an illegal U-turn in order to catch the green light to go up to 130 northbound instead of going around the jug-handle, which is what you needed to do." Dolan stopped the Acura, which defendant was driving. After explaining the offense to defendant and observing that defendant's car had New York plates, Dolan "figured he may be unfamiliar with the area." Defendant also indicated that he did not know what he had done wrong. Dolan therefore decided to give defendant "a break" by citing him for creating a risk of an accident, a "no-point violation," instead of for making an illegal U-turn, which was a "two-point violation."
According to Dolan, there were no other vehicles traveling on the roadway at the time. He testified that there was a "jughandle" available about fifty feet after the traffic light at Crosswicks, and that defendant should have used the jughandle instead of turning right onto Crosswicks, making an immediate U-turn in the roadway, and proceeding through the green light to make a left turn onto Route 130 northbound. Although Dolan testified that defendant made a right turn while the light was red, he agreed this was lawful, and he only stopped defendant after observing him making the U-turn on Crosswicks. On cross-examination, Dolan clarified that he stopped defendant's car after defendant had turned left at the light from Crosswicks onto Route 130 northbound. Dolan "noticed that there was no oncoming traffic coming from northbound or coming out of Crosswicks and I made a U-turn to . . . pull [defendant] over."
Dolan also admitted that there was no solid double yellow line on Crosswicks where defendant made his U-turn. The weather was dry and clear, the street lighting was good, and the officer did not see any "no U-turns" signs on Crosswicks Avenue. The municipal judge precluded defendant from asking Dolan whether there were any signs on Route 130 advising drivers of an upcoming jughandle or a legal U-turn opportunity beyond the intersection, and the State presented no evidence of such a sign. Nor did Dolan present any testimony as to how defendant's U-turn created a risk of an accident, in the apparent absence of other traffic on Crosswicks Avenue.
Defendant, who was representing himself, testified that he and his fiancé were "lost and . . . were just driving around to find a hotel or motel room." They saw a motel across the street on northbound Route 130 and decided to stop there. He turned right at the light at Crosswicks and drove to where the "double yellow line broke" before turning around. Defendant observed that "[t]here [were] no vehicles around." He "pulled far to the right side of the road, waited for a couple of seconds, looked, no vehicle was behind, coming, whatsoever. I made what's called a three-point K-turn." When the light turned green, he turned left onto Route 130 northbound.
Defendant testified that the next day he returned to the scene and took pictures of the roadway to document that there was "no sign indicating where or when you can make a legal U-turn." The judge sustained the State's objection to the pictures on the grounds that they were irrelevant to the charge of creating a risk, and defendant "didn't get cited for [an] illegal U-turn." Defendant's fiancé, Maritza Couto, gave testimony consistent with that of defendant.
The municipal judge made the following findings:
The officer indicates he was . . . on routine patrol . . . [in] the vicinity of Route 130 and Crosswicks. He indicated he noted the operation of a vehicle. He noticed that there was, in fact, a turn onto Crosswicks with an accompanying U-turn. He noted that there was, in fact, a jug-handle available to, in fact, effect a U-turn which was approximately 50 feet away.
He indicated that the defendant probably should've used a jug-handle. He indicates after . . . his view of what he perceived to be an illegal U-turn, he did, in fact, follow the vehicle, activate the overheads, and he stopped the defendant in a parking lot [off] of Route 130 northbound at approximately 10:30. . . .
He indicated that the traffic was real light on that date, and he . . . observed that there was . . . a New York registered vehicle with a New York license. It appeared that the defendant may have, in fact, been lost. He indicated that he felt there was sufficient grounds to issue a ticket for an illegal U-turn, but instead he used his professional discretion to issue a ticket of a lesser magnitude, not that a ticket for an illegal U-turn would constitute in and of itself a consequence of magnitude . . . but he did, in fact . . . write a ticket for creating a risk of an accident, creating a risk of a hazard due to the operation of a vehicle for which he cited the defendant under 39:4-56.
The passenger indicates . . . that a three-point K-turn was made. And that's what Mr. Stamos indicated that he did, as well.
I'm satisfied that the trooper was in a good position to observe the Stamos vehicle. He noticed a vehicle late a night on a sparsely traveled roadway at that time. They did . . . make a right on red, which was permitted there.
He also indicated in his position to observe, that the Stamos vehicle did . . . then make a U-turn which maneuvered for risk in traffic could've been just as successfully accomplished by using the jug-handle which was only approximately 50 feet further up the road.
That being the case, the officer . . . wrote him the less invasive ticket using his professional discretion, creating a risk of an accident. . . .
For all the above reasons, I render my decision as a finding of guilty.
The judge imposed a fifty-six dollar fine, and court costs of thirty-three dollars. The judge also imposed "[a] hundred and fifty dollars for contempt for your prior failure to appear." The judge refused to hear any oral argument or testimony from defendant with respect to the contempt issue.
Defendant's appeal to the Law Division was heard on December 10, 2007. The judge explained to defendant that "if I find you guilty of some motor vehicle offense, it doesn't have to be the one with which you were charged." Defendant argued that the municipal court erred in refusing to allow him to introduce in evidence his photographs showing that at the time of the incident, there were no signs alerting motorists to the upcoming jughandle. The Law Division judge also refused to consider the proffered evidence. Defendant also contended that there were mitigating circumstances that should be reviewed with respect to the fine for contempt of court.
The State argued that defendant's exhibits demonstrated that he "chose, on several dates, not to come to court." The prosecutor candidly admitted that "I will say, whether there are . . . substantial enough proofs before this Court for . . . the risk of causing an accident, I'm not sure that charge was proved beyond a reasonable doubt." She then argued that the court had authority to "amend" the charge to making an illegal U-turn.*fn2 She argued that the State proved the U-turn charge because "[i]t's undisputed that a red light was made on a road with one lane of travel each way. And that's not permissible circumstances . . . for making a [U]-turn on a public highway."
In response to the contempt of court charge, defendant contended that he did not receive some of the court notices. He also contended that he did not receive a speedy trial.
In his decision the Law Division judge concluded that Dolan was a credible witness and that he did not, as defendant contended, misidentify defendant's car. He also concluded that the photographs were "not relevant to the issue before the Court." He found as fact that defendant "did a k-turn" on Crosswicks in order to accomplish his objective of turning onto northbound Route 130. Addressing the defendant, the judge found you made the right turn on Crosswicks and then executed a k-turn . . . where you shouldn't have and you could have continued down that road, probably an unknown distance, made a legal turn, but did not.
The fact that there was no road sign telling you how to get from southbound to northbound Route 130, frankly, I don't see how that, in any way, is helpful to your case.
The judge continued:
Interestingly [the prosecutor] does make a compelling argument that there may not be enough evidence to convict you of the ticket which you actually received. I am, however, authorized to find you guilty if I find the facts sufficient of making an illegal u-turn. Candidly, I'm satisfied that those facts do exist. I'm satisfied that in the presence of the credible officer, you . . . executed a k-turn in an area where it was prohibited so that you could get back onto Route 130 northbound and that carries with it probably economic penalties in about the same range that you were assessed.
The judge accepted the prosecutor's argument that although the illegal U-turn conviction carried motor vehicles points, that was a collateral consequence, and he found defendant guilty of making an illegal U-turn. Defendant, in argument after the court's finding, insisted that "the double yellow line was broken. . . . five to ten feet from the intersection." The judge responded that he was glad defendant was "not testifying" because he would not find that assertion credible.
The Law Division imposed the same fines as did the municipal judge. He concluded, without further discussion, that "the circumstances do warrant me to find Mr. Stamos guilty of the contempt of court charge" for which he imposed a $150 fine.
On this appeal defendant, who is pro se, contends that he was unfairly denied an adjournment resulting in sanctions for contempt when he had valid reasons for failing to appear; that he was improperly denied discovery; and that he was erroneously barred from introducing photographs in evidence. In response, the State contends that the court's discovery and evidence rulings were correct and that there was sufficient credible evidence to support the conviction and the finding of contempt of court.
Turning first to defendant's conviction for making an improper U-turn, we conclude that the record requires reversal. On an appeal from the municipal court, the Law Division makes a de novo determination based on the record made in the municipal court, "giving due, although not necessarily controlling, regard" to the credibility findings of the municipal judge. State v. Johnson, 42 N.J. 146, 157 (1964). In reviewing the determination of the Law Division, we must defer to that court's findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470 (1999); Johnson, supra, 42 N.J. at 162.
We will only disturb the Law Division's findings if they are clearly erroneous, either because they are not supported by sufficient evidence or because they are inconsistent with applicable law:
But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others. [Johnson, supra, 42 N.J. at 162 (citations omitted).]
In this case, we conclude that the evidence cannot support defendant's conviction for making an improper U-turn. The applicable statute provides:
The driver of a vehicle shall not turn such vehicle around so as to proceed in the opposite direction upon any curve or upon the approach to or near the crest of a grade or at any place upon a highway as defined in R.S. 39:1-1 where the view of such vehicle is obstructed within a distance of 500 feet along the highway in either direction; and no such vehicle shall be turned around so as to proceed in the opposite direction on a highway which shall be conspicuously marked with signs stating "no U turn." [N.J.S.A. 39:4-125.]
Having reviewed the record, we are satisfied that it will not support a conviction for this offense. There is simply no evidence that defendant committed any of the acts prohibited by section 125. Defendant, an out-of-state motorist traveling on Route 130 southbound and apparently unfamiliar with New Jersey's "jug-handle turn" approach to the making of U or left turns on major highways, turned right onto a side street and then made a K-turn in order to reach the traffic light where he could make a legal left turn onto Route 130 northbound. There is no proof that defendant made his K-turn on a curve, near the crest of a grade, or at a place where his view was obstructed within 500 feet along the roadway. Nor did the State present any proof that Crosswicks Avenue was posted with any signs prohibiting the making of a U-turn.*fn3 Consequently, defendant's conviction must be reversed.
Although the evidence cannot support defendant's conviction, we also comment on the impropriety of the State's effort in this case to convict defendant in the Law Division of an offense with which he was not charged in municipal court. State v. Kashi, 180 N.J. 45 (2004), on which the State relies, does not stand for the proposition that a defendant may be convicted by the Law Division of an entirely different offense than the one charged in the municipal court. Rather, the Court held that a DUI charge could be proven with breathalyzer evidence in municipal court or with the observations of a police officer in the Law Division: "[W]e agree with the Appellate Division that N.J.S.A. 39:4-50(a) creates one offense that may be proved by alternative evidential methods." Id. at 48 (emphasis added).
Likewise, the State's reliance on State v. DeBonis, 58 N.J. 182 (1971), is misplaced. In that case, the Court held that on a municipal appeal, the Law Division may not impose a greater penalty than that imposed by the municipal court:
[A]s a matter of policy and apart from constitutional compulsion, a defendant who appeals from a municipal court should not risk a greater sentence. . . . [T]he need remains to afford the litigant, frequently a stranger to the locality, the opportunity to seek a redetermination by a court at a higher level without the risk of a larger penalty. [Id. at 188-89.]
The facts of this case further illustrate the unfairness inherent in trying defendant on a charge of making an illegal U-turn when he was convicted of a different offense, creating a risk of an accident, N.J.S.A. 39:4-56, in the municipal court. Section 56 provides: "No person shall drive or conduct a vehicle in such condition, so constructed or so loaded, as to be likely to cause delay in traffic or accident to man, beast or property." The State candidly conceded in the Law Division that there was insufficient evidence to support defendant's conviction of this offense. That was an understatement; there was absolutely no evidence to support a conclusion that defendant created a risk of an accident, and the Law Division appeal should have ended there, with an acquittal.
However, after conceding it had insufficient evidence to support the municipal court conviction, the State insisted on proceeding against defendant on a charge of making an illegal U-turn. Not only did the State lack record evidence to support the charge, but the municipal court had precluded defendant from presenting a defense to making an illegal U-turn, because he was not then accused of that offense. In addition to lacking record support for the conviction, the resulting Law Division proceeding was a clear violation of due process.
We turn next to defendant's conviction for contempt of court. This conviction, as to which the municipal judge did not permit defendant to present a defense and as to which the Law Division judge made no findings, was based on defendant's failure to appear for his scheduled municipal court trial. Although we have recognized a court's power to charge a defendant with contempt in some circumstances for failure to appear, we have also noted that imposition of civil sanctions under Rule 1:2-4 may be more appropriate: "While defendant was subjected to no greater sanction than would have been appropriate under R. 1:2-4 for failure to appear, we are persuaded that the best practice would have been to proceed under this administrative rule, rather than direct contempt." State v. Kordower, 229 N.J. Super. 566, 585 (App. Div. 1989). More importantly, the proceeding here in no way conformed to the requirements of Rule 1:10-2 concerning the adjudication of a charge of contempt of court, and defendant was not even permitted to present a defense to the charge in the municipal court. See State v. Quintana, 270 N.J. Super. 676, 684-85 (App. Div. 1994).
Further, while defendant should understand that he had no authority to "adjourn" any of his scheduled hearings without the court's permission, the imposition of a $150 sanction in these circumstances would be unjustified. Defendant was required to travel at least twice to Burlington County from his home in Yonkers, New York, to answer charges for which there was insufficient evidence. Although some of his letters to the court were disrespectful, whether or not defendant intended them to be, we reverse the contempt conviction, vacate the $150 fine, and conclude that no monetary civil sanction is warranted. See Quintana, supra, 270 N.J. Super. at 686; R. 2:10-5.