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State of New Jersey v. Elliott Malone

July 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELLIOTT MALONE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-10-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 12, 2011

Before Judges Payne and Baxter.

Following a trial de novo in the Law Division, defendant Elliott Malone appeals from his conviction on a charge of improper use of a cell phone while driving, N.J.S.A. 39:4-97.3. Although the Law Division judge found that defendant's cell phone was equipped with a hands-free device, she also found that defendant was "pressing buttons" on the cell phone, thereby violating the statute. We disagree with the judge's conclusion that such conduct necessarily constitutes a violation of N.J.S.A. 39:4-97.3, and therefore reverse defendant's conviction.

I. On April 7, 2010, Lieutenant Daniel Siegel of the Tenafly Police Department was on duty driving southbound on a county road when he observed defendant driving in the opposite direction. From a distance of eight feet, Lieutenant Siegel was able to observe defendant holding a cell phone in his hand, and "pushing buttons." Believing such conduct to be a violation of the statute, Siegel effected a motor vehicle stop. There was not "any question in [his] mind" that defendant "had a cell phone and . . . was using it."

On cross-examination, Siegel was asked whether, when he saw defendant "pressing buttons," he "assumed that [defendant] was dialing," to which he answered "[n]ot necessarily." Defendant could have been "doing anything else" on the cell phone, such as "sending a text." When asked whether defendant was using "a hands-free device . . . on [his] ear," Siegel answered, "I have no idea."

Defendant testified, asserting that at the time in question, he "was not using the phone for sending text messages, receiving text messages, [or] activating any function of the phone." He offered his cell phone records in evidence, which the judge declined to accept because the cell phone record had not been authenticated, as required by N.J.R.E. 901. Defendant also contended that even if he had been "pressing buttons," as Lieutenant Siegel testified, this would not be a violation of the statute, because the statute permits a driver to hold the phone in one hand to activate, deactivate or initiate a function of the telephone.

The municipal court judge denied defendant's motion to dismiss. The judge accepted as credible the Lieutenant's testimony that he saw defendant holding the cell phone in his hand and "pushing buttons." In rejecting defendant's claim that his cell phone was equipped with a hands-free device, the judge observed that "if that had been the case, [defendant] would have been pushing it in the Lieutenant's face and showing it to him." Having rejected defendant's contention that his cell phone was equipped with a hands-free device, the municipal court judge found defendant guilty of violating N.J.S.A. 39:4-97.3. The judge imposed a $106 fine and $33 in court costs.

In the de novo trial in the Law Division, the judge assessed the record made in the municipal court, but reached a different conclusion on the question of whether defendant had been using a hands-free device, concluding that he had. However, the judge concluded that a hands-free device "is for listening." The judge observed that the statute prohibits a driver from holding a cell phone while driving, but does permit the driver to use one hand "to activate, deactivate, or initiate a function of the telephone." The judge noted that "[i]t should not take the pressing of buttons to activate a cell phone." She concluded that none of the exceptions contained in the statute was applicable because activating or deactivating the phone "would take [only] one touch of a button," rather than pressing multiple buttons.

The judge also reasoned that "it's counter-intuitive to the statute to believe that someone dialing a phone would be driving safely, because they'd have to be concentrating on either looking at . . . the numbers or pressing the right numbers." Based on this interpretation of the statute, the judge concluded that defendant was guilty of holding his cell phone while driving, observing that the State was only required to show that defendant was "'using' a wireless telephone and that he was on a public road or highway," and the State proved those elements beyond a reasonable doubt.

On appeal, defendant argues: 1) the exclusion of his cell phone records was error; 2) the State's failure to provide him with a copy of Lieutenant Siegel's handwritten notes prior to trial in the municipal court entitled him to the dismissal of the charge; 3) N.J.S.A. 39:4-97.3 is unconstitutionally vague; 4) the judge's analysis of the statute was incorrect; and 5) because the State failed to prove all elements of the offense beyond a reasonable doubt, his conviction must be reversed.

II. We begin our analysis with point four, in which defendant maintains that his conviction must be reversed because the Law Division judge's analysis of the statute was incorrect. In particular, defendant maintains that even if, as the judge found, he was pressing buttons on his cell phone to initiate a call, such conduct is permitted by the statute.

A "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference' on appeal." State v. Ugrovics, 410 N.J. Super. ...


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