October 22, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRELL CROW, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-16-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2010
Before Judges Rodríguez and Grall.
Defendant Darrell Crow was convicted in the Municipal Court of Mahwah and again, after a trial de novo in the Law Division, of driving while his license was suspended, N.J.S.A. 39:3-40.
He was sentenced by the Law Division judge to pay: a $1,000 fine; an enhanced $500 fine; SNSF $75; VCCB $50; and $33 court costs. The judge also imposed: a one-year driver's license suspension to be served consecutively to any suspension being served; and twenty days in the Bergen County Jail. We reverse the conviction.
This is a summary of the proofs presented to the municipal court. Mahwah Police Officer McCombs testified that on December 3, 2008, at approximately 11:30 a.m., he was involved in a motor vehicle stop on Mountainside Avenue in Mahwah. While McCombs was standing next to his vehicle, he saw an adult male driving defendant's pickup truck towards him in the opposite lane. The vehicle was traveling at approximately twenty-five miles per hour. McCombs noticed that the driver looked at him and then "appeared to sharply" look away as he passed. McCombs returned to his patrol car and entered the license plate into his mobile data terminal (MDT). The MDT revealed that defendant was the registered owner of the pickup, and that the owner's license was suspended. McCombs attempted to locate the pickup truck on the road but was unsuccessful. He returned to headquarters and issued the summons to defendant by mail.
The State offered a copy of the MDT printout into evidence. Defendant objected because this document had not been provided in discovery. The judge overruled the objection. McCombs identified defendant at trial as the person he saw driving the pickup truck on December 3, 2008. The State rested without introducing a certified motor vehicle abstract.
Defendant did not testify. He presented James Balaz as a witness. Balaz testified that on December 3, 2008, he was working for defendant, who is a construction contractor, at the Sheraton Crossroads Hotel in Mahwah. Shortly after 11:00 a.m., defendant asked Balaz to drive to the Home Depot to buy caulk. As he was driving defendant's pickup truck, he saw a police officer who had pulled over a dark minivan.
Balaz testified that he has known defendant for more than ten years--ever since defendant moved to a house across the street from Balaz's father's house. Balaz has worked for defendant on and off for ten years. On the day defendant got the traffic summons in the mail, Balaz had driven defendant home. There was no explanation why Balaz was driving defendant's truck.
Nathan Mzhen, an employee of the Office Division of Garden Homes, owners of the Sheraton Crossroads, testified that on December 3, 2008, he brought paint to defendant at his worksite, but forgot the caulk. According to him, defendant then "sent one of his guys to Home Depot on Route 17 to find caulk."
Defendant's final witness was Greg Seman, who worked for defendant. He testified that on December 3, 2008, sometime after 11:00 a.m., defendant sent "Jimmy" [Balaz] to Home Depot to get some caulk for the job.
The municipal judge found that the State had proven all elements of the offense. Defendant appealed to the Law Division. Following a trial de novo based on the evidence presented in the municipal court, the judge found defendant guilty of the offense.
On appeal, defendant contends that the State failed to prove beyond a reasonable doubt every element of the charged crime of driving with a suspended license. These elements are that defendant: (1) was driving the vehicle, (2) during the period of suspension. N.J.S.A. 39:3-40. We agree with respect to the second element.
Defendant argues that the MDT printout is inadmissible because it "is not a public record and its use is limited internally by law enforcement in establishing reasonable suspicion for a motor vehicle stop." Therefore, it could not prove that defendant's license was suspended at the time the summons was issued. We agree.
In State v. Donis, 157 N.J. 44, 55 (1998), the Supreme Court limited law enforcement's initial use of MDT data to information that would allow an officer to determine whether there is probable cause to stop a vehicle. We are mindful of dicta to the effect that "DMV [Division of Motor Vehicles*fn1 ] records of drivers' license suspensions are deemed sufficiently reliable to be admissible as prima facie evidence of the fact." State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). However, Pitcher held that, for purposes of considering the legality of a warrantless motor vehicle search, a police officer could rely on DMV records of driver's license suspension. Id. at 320. We do not construe that dicta to mean that uncertified DMV records can be admitted as substantive evidence of the facts contained in such record.
In Pitcher, we cited to State v. Zalta, 217 N.J. Super. 209, 214 (App. Div. 1987). This reference is significant, because there, the document admitted into evidence was a certified copy of driving records. Id. at 211. Therefore, given the Donis holding and this reference, we conclude the MDT printout, although properly admitted as support for McCombs subsequent action, was inadmissible hearsay and not competent evidence of defendant's driving privilege suspension. Satisfactory competent evidence would be a certified DMV record.
Defendant raises other arguments. For the sake of completeness we address these arguments and reject them. Defendant argues that the element that defendant was driving the vehicle was not proven beyond a reasonable doubt because defense witnesses were sufficiently credible, or as credible as the prosecution witness. Therefore, their testimony raised reasonable doubt that defendant was driving his vehicle at the time the summons was issued.
It is not our function to assess credibility. Credibility is always for the fact finder to determine. State v. Locurto, 157 N.J. 463, 474 (1999). Our review of a municipal conviction is "exceedingly narrow." Id. at 470. We will only determine whether the findings made by the trial court "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, this court should defer to the Municipal Court's credibility findings that are "often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474 (citing State v. Jamerson, 153 N.J. 318, 341 (1998)); Johnson, supra, 42 N.J. at 161). "[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." Ibid.
Here, the element that defendant was driving was proven by McCombs's testimony. He identified defendant in court as the person he saw driving the pickup truck on December 3, 2008. The judge credited McCombs's testimony.
We also reject defendant's contention that the Law Division judge erred by finding that defendant's due process rights to a fair trial were violated. Specifically, he argues that, due to a discovery violation, the municipal court judge should not have admitted into evidence a copy of the MDT printout.
Defendant had appeared in court twice with counsel and witnesses. Although the defense was ready to proceed, the State asked and received adjournments. At trial, defendant objected to the admission of the MDT printout because a copy of the printout had not been provided in discovery. Defendant argues that because he suffered these inconveniences due to the prosecutor's failure to be ready for trial, the MDT printout should have been excluded. Defendant also argues that he was prejudiced by the delay, and that "[p]rejudice is also shown by the fact that double jeopardy had already attached at the time the MDT report was offered into evidence." We disagree.
We note that the judge offered defendant the opportunity to adjourn the trial in order to allow the defense an opportunity to challenge the admission of the printout. Defendant declined this offer. The judge admitted the printout and proceeded with the trial.
"Ordinarily adjournments are within the discretion of the trial court." State in Interest of D.P., 232 N.J. Super. 8, 19 (App. Div. 1989) (citing State v. Kyles, 132 N.J. Super. 397, 402 (App. Div. 1975)). We will not interfere unless the trial judge has "'pursue[d] a manifestly unjust course.'" Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-2 (2010) (quoting Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996)).
Moreover, Rule 3:13-3(g), governing failure to turn over evidence in compliance with the discovery rules provides in relevant part that: the court "may order such party to permit the discovery or inspection of materials not previously disclosed; grant a continuance or delay during trial; or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g).
Reversed. The judgment is vacated.