On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 09-070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Payne and Koblitz.
Defendant, Kenneth Chucta, appeals his conviction for failure to yield to an emergency vehicle, N.J.S.A. 39:4-92(a). On appeal, he makes the following arguments:
I. THERE IS INSUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD TO UPHOLD THE FINDINGS OF THE LAW DIVISION, AS THE STATE FAILED TO DEMONSTRATE ALL NECESSARY ELEMENTS TO PROVE, BEYOND A REASONABLE DOUBT, A VIOLATION OF N.J.S.A. § 39:4-92(a)
II. THE LAW DIVISION ERRED IN GIVING DEFERENCE TO CREDIBILITY FINDINGS OF THE MUNICIPAL COURT WHEN ADMISSIONS BY THE STATE PLACED CREDIBILITY DIRECTLY AT ISSUE.
III. THE LAW DIVISION ERRED IN RULING THAT DEFENDANT-APPELLANT'S DUE PROCESS RIGHTS WERE NOT VIOLATED BASED ON THE NUMBER OF QUESTIONS ALLOWED AS OPPOSED TO THE AREAS OF INQUIRY PERMITTED BY THE MUNICIPAL COURT.
We reverse and remand for a new trial.
The governing statute provides:
Upon the immediate approach of an authorized emergency vehicle giving audible signal, and equipped, as required by section 39:4-91 of this Title, and unless otherwise directed by a police or traffic officer,
(a) The driver of every vehicle shall immediately drive to a position as near as possible and parallel to the right-hand edge or curb of the highway, clear of an intersection of highways, and shall stop and remain in that position until the authorized emergency vehicle has passed[.] [N.J.S.A. 39:4-92(a).]
As a factual matter, the State contends that, instead of complying with the statute, defendant turned left in front of an oncoming emergency vehicle, impeding its progress. Defendant argues that the scenario adopted by the State was an impossibility, and that his conviction should therefore be reversed.
The arresting officer, Sheriff's Detective Brian Armstrong, testified at the municipal trial of the matter. He stated on direct examination that, on September 9, 2008, while driving eastbound on Bloomfield Avenue in Verona, approaching Gould Avenue, he observed an ambulance with its lights flashing traveling westbound, and he heard the vehicle's emergency sirens. Armstrong yielded by moving from the middle lane to the right and stopping, as did the car in front of him. However, a smaller two-door vehicle then passed Armstrong and, upon reaching the ...