Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Mosner

May 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID MOSNER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-05-00190.

The opinion of the court was delivered by: Simonelli, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 9, 2009

Before Judges R. B. Coleman, Sabatino and Simonelli.

The State charged defendant with two criminal offenses stemming from a hit-and-run snowmobile accident that left a teenage boy seriously injured: fourth-degree assault by motor vehicle (snowmobile), N.J.S.A. 2C:12-1c(1) (count one); and fourth-degree leaving the scene of a motor vehicle accident, N.J.S.A. 2C:12-1.1 (count two). Defendant was also charged with five motor vehicle offenses: operating a snowmobile on a public street or highway, N.J.S.A. 39:3C-17b; operating an unregistered snowmobile, N.J.S.A. 39:3C-3 and N.J.S.A. 39:3C-5; failure to report an accident resulting in injury to or death of any person, or damage to property, N.J.S.A. 39:4-130 and N.J.S.A. 39:3C-21; leaving the scene of an accident resulting in injury or death to any person, N.J.S.A. 39:4-129(a) and N.J.S.A. 39:3C-21; and reckless driving, N.J.S.A. 39:4-96.

Defendant applied for admission to the Sussex County Pre-Trial Intervention Program (PTI). The Sussex County prosecutor consented to defendant's admission conditioned on, among other things, his guilty plea to the five motor vehicle charges. Defendant agreed to plead guilty to all motor vehicle offenses except leaving the scene of an accident resulting in injuries of any person, which carried a mandatory 180-day term of imprisonment. Defendant appealed the prosecutor's decision to a Law Division judge, who denied the appeal.

A jury subsequently convicted defendant on the criminal counts. The trial judge convicted defendant on all five motor vehicle charges. The judge sentenced defendant to a 270-day term of imprisonment in the Keough-Dwyer Correctional Facility on count two; to a consecutive two-year term of probation with a 60-day term of imprisonment on count one to be satisfied by his participation in the Sheriff's Labor Assistance Program; to a concurrent 60-day term of imprisonment on the reckless driving charge; and to a concurrent 180-day term of imprisonment and a concurrent two-year driver's license suspension on the leaving the scene of an accident charge. The judge also imposed the appropriate assessments, fines and penalties, ordered restitution to the victim, and suspended defendant's driver's license for thirty months.

On appeal, defendant raises the following contentions:

POINT ONE DEFENDANT SHOULD BE ADMITTED INTO THE PTI PROGRAM BECAUSE THE PROSECUTOR ABUSED HIS DISCRETION AND VIOLATED GUIDELINE 4 OF RULE 3:28 BY CONDITIONING DEFENDANT'S ENTRY INTO PTI ON A GUILTY PLEA TO THE UNDERLYING MOTOR VEHICLE OFFENSES.

POINT TWO THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S REQUEST TO ADMIT THE PHOTOGRAPHS TAKEN BY THE STATE INTO EVIDENCE.

POINT THREE THE TRIAL JUDGE ERRED BY NOT GRANTING THE DEFENDANT'S RENEWAL OF THE MOTION TO SUPPRESS AT TRIAL BECAUSE THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT WAS BASED ON AN ILLEGAL SEARCH.

POINT FOUR THE TRIAL JUDGE ERRED BY NOT GRANTING THE DEFENDANT'S RENEWAL OF THE MOTION TO SUPPRESS AT TRIAL BECAUSE THERE WAS NO PROBABLE CAUSE TO ISSUE THE SEARCH WARRANT.

POINT FIVE THE TRIAL COURT ERRED BY ADMITTING THE PANTS ALLEGEDLY WORN BY DAVID MCINNIS INTO EVIDENCE.

We reject these contentions and affirm.

The following facts are summarized from the record. On March 6, 2003, at approximately 7:00 p.m., David McInnis left his home on Goodale Road in Andover Township to walk his dog. Having snowed that day, there was approximately six inches of snow on the road that had not yet been plowed. McInnis wore a pair of waterproof snow pants over a pair of jeans, a t-shirt and sweatshirt and snow boots, and carried a flashlight. He and his dog exited his driveway and walked onto Goodale Road near its intersection with Iliff Road, facing oncoming traffic approaching from the south.

After proceeding approximately 400 feet on Goodale Road, McInnis saw the light of a snowmobile and heard its engine. The vehicle was traveling toward him at approximately forty or fifty miles per hour. McInnis stopped walking and began waving his flashlight at the snowmobile; however, the driver of the snowmobile did not slow down or change direction. The snowmobile struck McInnis and continued north on Goodale Road toward the intersection of Lake Iliff Road. The collision knocked the teenager to the ground, injuring his right leg. In severe pain and bleeding, and unable to stand or walk, McInnis dragged himself, yelling for help.

McInnis was eventually spotted by a snowplow truck driver, who called the police. The snowplow driver also observed a left front rudder snowmobile track in the center of the road in the vicinity where McInnis lay, and snowmobile tracks on Goodale Road that continued to a soccer field off that road.

An ambulance subsequently brought McInnis to the hospital where x-rays revealed a serious compound fracture of his right tibia and fibula requiring surgery and the insertion of two titanium pins. A doctor indicated that the injury "usually would be associated with a high impact, high force injury."

At approximately 7:25 p.m., Lieutenant Alan Monaco of the Andover Township Police Department arrived at the scene and spoke to McInnis and the snowplow driver. The officer saw two twenty to twenty-five foot snowmobile tracks in the roadway, facing north. While investigating the incident, Monaco received a radio transmission that a resident of Goodale Road had reported seeing someone erratically operating a snowmobile in the soccer field area directly across from her house. Monaco responded to that location and observed "[c]risp[,] [c]lean pristine [snowmobile] tracks, which were just made[,]" in the soccer field area and an adjacent parking lot, which appeared to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.