January 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIMOTHY J. EVANS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-0109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2010 - Decided Before Judges Fuentes, Ashrafi and Nugent.
Defendant Timothy Evans appeals from a judgment of the Law Division finding him guilty on de novo review of violation of two traffic offenses: backing his car in a street and thus interfering with other vehicles, N.J.S.A. 39:4-127, and failing to have in his possession an insurance identification card, N.J.S.A. 39:3-29. We affirm.
Two law enforcement officers and defendant testified at the municipal court trial, and the court took judicial notice of the condition of the street near the Morris County Courthouse where the charges arose.
Sheriff's Officer Zienowicz testified that he was assigned to perimeter foot patrol in the vicinity of the courthouse on August 1, 2008. At about 1:00 p.m., he observed a car moving in reverse on Schuyler Place for approximately 200 feet until it double-parked near the Sushi Lounge. He described Schuyler Place as a one-way street with one lane for traffic. The officer testified that other vehicles had to drive around the car moving in reverse.
The officer ordered the driver to pull into a parking space. As defendant stepped out of the car, his door struck a parked car, and the driver of that car complained that defendant had dented her car. Officer Zienowicz called a Morristown police officer to take an accident report. Defendant produced his driver's license and registration for examination, but he said he did not have his insurance identification card.
Defendant testified he had recently returned from overseas, his automobile insurance had just been renewed, and he thought he had not received his identification card at the time of the incident. He stated he showed the officers an envelope containing his renewal insurance policy and later learned the insurance identification card was in that envelope.
Regarding the moving violation, defendant testified that he was unable to find a parking space, and he circled the block. He then stopped on Schuyler Place and backed his car carefully and "incrementally" because he saw an open parking space behind him. He testified on cross-examination that a "lorry" and two or three cars went past him as he moved in reverse, but that he did not obstruct traffic. He admitted that the distance he backed his car was from the area near the intersection of Schuyler Place and Ann Street to the area of the Sushi Lounge, which he described as "one-third of the street."
Defendant called as his witness Officer Sylvin of the Morristown Police Department, who testified he came to take a report of defendant denting another car. He did not recall asking to see an insurance identification card or being given other insurance papers by defendant because it was a minor incident.
In making his decision, the judge of the municipal court summarized the testimony of the witnesses and also took judicial notice "of the activity of the streets within its vicinage."
The court stated: "This is 1 o'clock in the afternoon behind the courthouse. That street's going to be well used at that time of day. And there's no dispute that there were other vehicles on - on the road." The court found defendant guilty of both charges and fined him $156 for each, suspending the fine on the insurance card violation, and it added costs of $33 on each charge.
On trial de novo based on the municipal court record, the judge of the Law Division found the testimony of Officer Zienowicz credible and not disputed by defendant, whom he also found to be credible. The judge also noted his familiarity with the streets near the courthouse and described Schuyler Place as "very busy during the lunch hour." He found defendant guilty and re-imposed the same penalties on the two charges as the municipal court.
On appeal, defendant makes the following arguments:
POINT I A THRESHOLD TEST OF JUDICIAL NOTICE, NAMELY, KNOWLEDGE THAT IS COMMONLY AVAILABLE AS PART OF SHARED HUMAN EXPERIENCE, WAS NOT MET BY THE LOWER COURTS IN THIS CASE.
POINT II TO BE PROCEDURALLY MEANINGFUL, JUDICIAL NOTICE MUST NOT BE ISOLATED FROM THE "PLAIN MEANING" OF THE STATUTE CITED.
POINT III IN ITS 82-YEAR LIFETIME, THE "COMMON KNOWLEDGE" LANGUAGE OF NJSA 39:4-127 HAS NOT BEEN ASSUMED TO PROHIBIT REVERSING FOR THE COMMON ACT OF PARKING A VEHICLE.
POINT IV UNDER CRIMINAL RULES OF PROCEDURE, NJ 39:4-127, THE IMPROPER JUDICIAL NOTICE, AND THE EVIDENCE ITSELF HAVE ALL FAILED TO QUANTIFY AN UNACCEPTABLE LEVEL OF INTERFERENCE WITH OTHER VEHICLES WITH SUFFICIENT CLARITY TO RESULT IN A CONVICTION.
POINT V NJSA 39:4-127, WHEN STRIPPED OF UNWARRANTED, UNLIKELY, AND EVEN ABSURD APPLICATIONS, HAS NO BEARING ON THE FACT SITUATION AS IT EMERGED IN THIS CASE.
POINT VI JUDGE DANGLER, IN HIS DEFERENCE TO THE MUNICIPAL COURT, MISSED ALTOGETHER THE FLAWS AND INCONSISTENCIES IN THE STATE'S EVIDENCE AND FAILED TO ADDRESS THE INHERENT DIFFICULTIES ASSOCIATED WITH CITING NJ 39:4-127 FOR THE EVERYDAY PHENOMENON OF CITY PARKING.
POINT VII WHAT IS CALLED THE "INSURANCE CARD" WAS, IN FACT, OFFERED TO OFFICER ZIENOWICZ AS PART OF THE APPELLANT'S RENEWAL PACKAGE.
We conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion except as follows. R. 2:11-3(e)(2).
Our standard of review of the findings of fact and, in particular, the credibility determinations of the trial courts is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Moreover, when the Municipal Court and the Superior Court 'have entered concurrent judgments on purely factual issues,' we will not disturb those findings 'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Locurto, supra, 157 N.J. at 474).
The statute, N.J.S.A. 39:4-127, states:
No vehicle shall back or make a turn in a street, if by so doing it interferes with other vehicles, but shall go around a block or to a street sufficiently wide to turn in without backing.
Contrary to defendant's primary factual argument, backing up for at least one-third of a block is not the same as backing into a parking spot. Moreover, the evidence was sufficient to demonstrate interference with other vehicles, since defendant admitted that a "lorry" and two or three cars had to drive around his car on a street that normally accommodated a single lane of traffic.
In addition, we find no abuse of discretion in the court's taking judicial notice of traffic conditions on Schuyler Place, a street adjacent to the courthouse. N.J.R.E. 201(b)(2) allows a court to take judicial notice of "such facts as . . . are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute." Judges must be cautious not to substitute their personal knowledge of facts for facts of common notoriety. See Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960). Here, the traffic condition of a local street well-known to the public can be the subject of judicial notice because it was not reasonably subject to dispute. Defendant does not allege that he had inadequate opportunity to be heard on the matter of traffic conditions on Schuyler Place. See N.J.R.E. 201(e). Furthermore, judicial notice was not necessary to find defendant guilty because he admitted that vehicles had to drive around his car while he was moving in reverse.
With respect to the insurance identification card, N.J.S.A. 39:3-29 provides:
The driver's license, the registration certificate of a motor vehicle and an insurance identification card shall be in the possession of the driver or operator at all times when he is in charge of a motor vehicle on the highways of this State.
Defendant admitted he did not show an insurance identification card to the officers. His later claim that an envelope with his automobile insurance policy also contained the identification card does not refute violation of the statute.
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