April 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH F. CHUCTA, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 intersection, made a left turn onto Gould Avenue less than three car lengths in front of the emergency vehicle. As a result, the ambulance had to slow down.
Once the ambulance had passed, Armstrong followed the car onto Gould Avenue, observed defendant pull into a parking space near the intersection and saw him exit his vehicle. Armstrong asked defendant what was the hurry, to which defendant replied that he had to return a movie to the library. When asked by Armstrong whether he had seen the ambulance, defendant stated that he had, but "he thought in his judgment that he had enough time to turn onto that street." Armstrong thereupon issued defendant a ticket.
After Detective Armstrong's testimony was complete and the State rested, defendant, appearing pro se, called Police Officer Anthony Condarelli as a witness with the stated purpose of establishing that the ambulance "was nowhere near where I was." To assist in that endeavor, defendant utilized a Verona Police Department CAD Incident Report numbered 8008949 that provided information regarding the incident that generated the ambulance call and the timing of police and rescue squad responses to it, along with other information. However, the judge refused to examine the report, stating that it had not been properly authenticated.
Defendant's direct examination of Condarelli was marked by frequent objections by the prosecutor and considerable impatience on the part of the judge, who was of the view that defendant should not have represented himself in the proceeding. In answer to defendant's questions, Condarelli testified that, on the evening in question, he responded at 19:24 hours*fn1 and 52 seconds to a rescue squad call at 548 Bloomfield Avenue, a location directly across the street from Lakeview Avenue, arriving there about twelve seconds later. Condarelli stated that he reached the scene prior to the arrival of the Verona rescue squad, which, it was later established, was probably dispatched from its Church Street headquarters a few blocks east of 548 Bloomfield Avenue at the same time as Officer Condarelli. The rescue squad arrived at the location at 19:26 hours and 20 seconds, and departed at some point between 19:32 and 19:45 hours.*fn2
Because the judge stated that defendant's ticket was issued at 19:25 hours,*fn3 and because defendant repeatedly sought testimony regarding the status of the ambulance in the time period after the ticket was allegedly issued that the judge deemed irrelevant, the judge excused the witness, thereby cutting short defendant's direct examination.
After Officer Condarelli was excused, defendant testified on his own behalf. He stated that, as he approached Gould Avenue, traffic was heavy in the eastbound direction, but that it was nonexistent westbound because, one block further east, at Lakeview Avenue, two vehicles, which he presumed to be the squad car and the ambulance, were blocking traffic in that direction. Both were stopped, and no sirens could be heard. Although defendant admitted turning left onto Gould Avenue and to seeing the lights of emergency vehicles, he stated that the emergency vehicles were stopped one block away. However, defendant then contradicted his version of what had occurred by stating:
And I would never have a turn in front of an emergency vehicle when all I had to do is wait a few more seconds if he was just three car lengths away from me. The vehicle was stationary. And that is evidenced by the fact of this CAD incident report, that the vehicle did not even get to the location until 1926 hours and 20 seconds. And according to the ticket that was issued to me, I was stopped at 1925 hours. So I was stopped before the vehicle even got to the location.
At the conclusion of defendant's testimony, the judge summarized the evidence and then found defendant guilty, stating:
With regard to this matter, forgetting about even the detective's testimony, it's clear from Mr. Chucta's testimony that he observed the lights of an emergency vehicle [u]pon the immediate approach of that vehicle. . . .
I find as a matter of fact from the testimony that the detective was there on Bloomfield Avenue. He made an observation of Mr. Chucta's vehicle make a left turn right in front of the ambulance, that the ambulance had to slow down. And I find that clearly there was a violation of the statute.
On appeal to the Superior Court, Law Division, defendant, represented by counsel, argued that the scenario depicted by the State was not possible. Defendant's ticket was issued at 7:25 p.m. as the result of his left turn onto Gould Avenue. One minute earlier, an ambulance had been dispatched to 548 Bloomfield Avenue, a location one block east of Gould Avenue, arriving there at 7:26 and leaving sometime between 7:32 and 7:45 p.m. As a consequence, Detective Armstrong could not have seen an ambulance traveling west at 7:25 p.m. if it was responding to the scene. Although he could have seen the ambulance leaving the scene, evidence established that it did not leave until at least seven minutes after the ticket was issued to defendant. Thus, the State failed to factually support its case against defendant. Counsel for defendant further argued that if, as the State now contended, the ambulance was leaving the scene when it encountered defendant, then the matter should be remanded to the municipal court to permit defendant to elicit the testimony regarding the period of time after 7:25 that the judge precluded on grounds of relevance. Failure to do so would result in a denial of due process. As a final matter, counsel argued that the fine of $268 imposed upon defendant exceeded the statutory maximum of $200 and must be reduced.
The prosecutor argued that "we can't say for sure where the ambulance was going," but nonetheless, Detective Armstrong's testimony was credible when he stated that it was traveling westbound on Bloomfield Avenue at the time he noticed defendant's turn. Perhaps, he speculated, the detective had the time wrong on the ticket. With respect to the municipal judge's dismissal of defendant's witness, the prosecutor noted that defendant had been repeatedly warned not to elicit testimony regarding the time period after his ticket was issued, and that he nonetheless persisted. Thus, no denial of due process occurred as the result of the dismissal of that witness.
Following argument, the Law Division judge, while recognizing that in municipal appeals to the Law Division, the evidence is reviewed de novo on the record below pursuant to Rule 3:23-8(a), nonetheless adopted the standards set forth in State v. Locurto, 157 N.J. 463, 471 (1999), and held that the municipal judge's findings could reasonably have been reached on sufficient credible evidence in the record. After reviewing the evidence, the judge held that he would not "disturb the municipal court's rulings pursuant to Locurto."*fn4 He therefore "affirmed" defendant's conviction. The judge did not address the timing issue raised by the defense. With respect to the argument that defendant was denied due process as the result of the premature dismissal of his exculpatory witness, the judge held:
Mr. Chucta asked Officer Condarelli over 47 questions on direct examination during the course of the trial. It's clear to this court that the appellant was clearly given ample opportunity to question Officer Condarelli and that his due process rights were not violated.
The fine imposed on defendant was reduced to $85.
On appeal to us, defendant raises the same factual arguments that were presented in the Law Division. The State relies, as a factual matter, upon Detective Armstrong's testimony, including his report of defendant's admission that he saw the ambulance and thought he had sufficient time to turn in front of it. The State also notes that the time that the ticket was issued was not legible on the copy supplied to it, and no testimony with respect to the time of issuance was presented at the trial. Further, the State argues, Officer Condarelli could not testify where the ambulance went upon departure from the scene, since he left before the ambulance did, and that the CAD incident report did not specify where it had gone. Thus, the ambulance could have been seen, as Detective Armstrong testified, traveling west upon departure from the scene.
After reviewing the record in this matter, it is evident to us that, contrary to the State's position at trial before the municipal judge, the ambulance could not have been responding to 548 Bloomfield Avenue at the time of its encounter with defendant. That location is east of Gould Street, and Detective Armstrong testified that the ambulance was traveling west. The State, confronted with that evidence, has revised its position, and now contends that the ambulance must have been leaving the scene, and that the time that defendant's ticket was issued either cannot be determined or it was wrongly recorded. Detective Armstrong's testimony appears to be consistent with the State's revised position.
However, if the ambulance did not proceed west on Bloomfield Avenue upon leaving the scene, the State's proofs fail. At trial, defendant sought through the testimony of Officer Condarelli to determine what had occurred in the time period after 7:25 p.m., but was precluded from doing so by the municipal judge. He was thereby improperly denied his due process right to present potentially exculpatory evidence on his own behalf. State v. Dimitrov, 325 N.J. Super. 506 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As we said in Dimitrov,
The demands of due process are never more seriously tested than when a defendant in a criminal case is, for any reason, denied an opportunity to present a witness whose testimony has ostensible exculpatory value. See State v. Sanchez, 143 N.J. 273, 290 (1996) ("Indeed, 'few rights are more fundamental than that of an accused to present witnesses in his own defense.'") (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 312 (1973)). Countervailing considerations used to deny defendant that opportunity must be weighty indeed. See State v. Gonzalez, 223 N.J. Super. 377, 386-87 (App. Div.), certif. denied, 111 N.J. 589, 546 (1988) (citing Taylor v. Illinois, 484 U.S. 400, 410-11, 108 S. Ct. 646, 654, 98 L. Ed. 2d 798, 810-11 (1988)). [Dimitrov, supra, 325 N.J. Super. at 510.]
The State argues that the examination that defendant sought to undertake would not have disclosed exculpatory information, because the officer left the scene before the ambulance did. However, that is not necessarily correct. The officer stated that he left the scene at 19:32 and that the ambulance returned to headquarters at 19:45. It is unclear when the ambulance left the scene. Further, it is possible that the officer could have determined, through his personal knowledge or by review of the CAD Report, whether the person for whom the ambulance was called was transported, and if so, the likely destination. Alternatively, he could have determined whether the ambulance returned directly to headquarters, in which case it would have traveled eastward. Because defendant was precluded from eliciting these crucial facts, we reverse the judgment against him and remand the matter for a new trial.
Reversed and remanded.