On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 39-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Axelrad and Sapp-Peterson.
Defendant Josue Martinez appeals from his conviction for careless driving, N.J.S.A. 39:4-97, and driving with a fractured windshield, N.J.S.A. 39:3-75, after a trial de novo in the Law Division. See R. 3:23-8(a). Defendant was initially charged with reckless driving and driving with a fractured windshield and found guilty in the Vineland Municipal Court of the lesser- included offense of careless driving, as well as the fractured windshield offense, and ordered to pay fines and court costs. Following de novo review, the Law Division again convicted defendant of the two offenses and sentenced defendant just as he had been in the municipal court.
On appeal, defendant challenges the credibility of the testifying officer. Defendant also contends his visibility was not impaired by the crack in the windshield of his vehicle. Defendant attaches photographs that do not appear to have been presented to the trial court, which we will not consider. Defendant argues the State failed to sustain its burden of proof beyond a reasonable doubt. Based on our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm.
The testimony of Officer Louis Rivera, which was credited in Municipal Court and deferred to in the Law Division, was that at 5:50 a.m. on May 15, 2008, he observed defendant in his vehicle come to a screeching halt at a light on Landis Avenue in Vineland. Defendant then began beeping his horn, making gestures and shouting obscenities at another motorist. When the light turned green, defendant pulled away very quickly, his tires "peeled" and squealed, and he turned very quickly onto Wood Street. The officer noted that although it was early in the morning, the streets were "[p]retty crowded" with people going to work. The officer testified the speed limit was 25 m.p.h., and it appeared defendant was moving at a high rate of speed and his operation could not be described as safe.
When Officer Rivera turned onto Wood Street, defendant had already been pulled over by another officer and charged with careless driving.*fn1 When Officer Rivera stopped defendant's vehicle, he noticed defendant's windshield had an obvious crack that stretched the length of the passenger side.
Defendant claimed the police had a vendetta against him, denied he had been speeding or driving in an unsafe manner, and claimed the tires on his '85 Dodge truck were not able to squeal. Defendant acknowledged the windshield crack but contended it was in the upper right hand portion of the passenger side, extended only four to six inches long, and did not impair his vision.
Based on the testimony and evidence presented at trial, the municipal court judge expressly found the officer to be credible. Although he found the State was not able to prove the offense of reckless driving beyond a reasonable doubt, he was satisfied it had proved the charge of careless driving, namely that defendant had driven his vehicle "carelessly or without due caution and circumspection in a manner likely to endanger a person or property" under N.J.S.A. 39:4-97, and thus found him guilty of the lesser-included offense. The court further found the State had satisfied its burden of proving that defendant had driven the motor vehicle "equipped with unduly fractured, discolored or deteriorated safety glazing material" and found him guilty of driving with a fractured windshield under N.J.S.A. 39:3-75.
In the Law Division, Judge Geiger tried the case de novo based on the municipal court record. He gave due, though not controlling, deference to the municipal court judge's credibility assessment, explaining he had no reason to dispute the finding or not give it due deference, noting "the testimony of Officer Rivera was detailed, responsive, internally-consistent; withstood the rigors of whatever cross-examination took place." Then, making his own independent findings of fact and conclusions, the Law Division judge once again found defendant guilty, acknowledging this was a credibility determination between the testimony of the State's witness and defendant. The court was satisfied that many aspects of defendant's driving placed other individuals, including himself, at risk, such as: bringing the truck to a screeching halt, accelerating rapidly, squealing the tires and driving too fast for the area. Furthermore, the court did not find any evidence present in the record of selective prosecution. Judge Geiger was also satisfied the record supported finding, beyond a reasonable doubt, that defendant drove with a sizable crack in his windshield that should have been repaired and he did not provide competent credible evidence that the vehicle passed inspection after the windshield was cracked.
In its de novo review of municipal court convictions, the Law Division must make independent findings of fact and conclusions of law, although it is bound by the evidentiary record in the municipal court. State v. Thomas, 372 N.J. Super. 29, 31 (Law Div. 2002), aff'd, 372 N.J. Super. 1 (App. Div. 2004). The Law Division must also give due regard to the municipal court judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964).
On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. l995). However, as with the Law Division, we are not in a position to judge credibility and do not make credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence," State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then,  should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).
Defendant's arguments on appeal are substantially the same as those he placed in the Law Division. The Law Division judge's factual findings and legal conclusions are amply supported by the record, thus we affirm substantially for the ...