On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and King.
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.
After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement. [Emphasis added.]
See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).
We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.
Remanded with instructions; we do not retain jurisdiction.
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