July 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOMENICO GALLUZZO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 30-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 29, 2011
Before Judges Payne and Koblitz.
Defendant, Domenico Galluzzo, appeals his conviction for careless driving, N.J.S.A. 39:4-97, entered following an appeal to the Law Division and a trial de novo on the Municipal Court record. On appeal, he argues:
Appellant feels that he was wrongfully convicted due to the officer's Word being in question, and the Superior Court's Judge not having all the Documents at his disposal.
At the municipal trial in this matter, Trooper Thomas Boesch testified that at 9:30 p.m. on December 13, 2008, he was patrolling on the New Jersey Turnpike, driving on the south to north outer roadway in Woodbridge Township. While doing so, he observed a black Chrysler traveling in the south to north inner roadway at a high rate of speed, tailgating, failing to keep right, and crossing back and forth between the left and the center lane. After observing the Chrysler, the trooper crossed to the inner roadway and paced the vehicle for approximately one and one-half miles. As he paced the Chrysler, he observed the driver of the vehicle proceeding in the left lane and tailgating vehicles aggressively to push them out of the lane. At the time, the Chrysler was traveling at a speed of ninety miles per hour.
The trooper then stopped the vehicle and administered roadside sobriety tests on the driver, Galluzzo, who successfully performed the tests. Thereafter, the trooper cited defendant for speeding, N.J.S.A. 39:4-98, and careless driving.
At trial, defendant produced a videotape of the stop that disclosed no cars in front of defendant in the left lane.
However, it was also established that the videotape recorder was not activated until the trooper had made the decision to stop defendant and had activated his lights and siren. Defendant did not testify on his own behalf.
At the conclusion of the municipal trial, the judge dismissed the speeding charge, determining that the State had failed to prove that the trooper's speedometer was properly calibrated. However, the judge convicted defendant of careless driving, basing that determination on the trooper's testimony that defendant was traveling at a speed greater than the posted sixty-five miles per hour, he was tailgating and forced four or five cars to get out of his way in that fashion, and he did not maintain his lane.
On appeal, the Law Division judge also found defendant guilty of careless driving. A timely appeal to the Appellate Division was then filed.
Defendant argues before us that the Law Division judge did not have "any of the documentation" in his case. According to defendant, if the judge "had all the documents they would have showed that the Officer was not being truthful in his testimony." Defendant also claims that the judge improperly applied State v. Johnson, 42 N.J. 146 (1964) when he gave due, but not controlling deference to the municipal judge's credibility findings in reaching his decision.
Defendant argues that the trooper changed his testimony after viewing the videotape in the matter, and that if the Law Division judge had recognized that fact, he would not have ruled as he did. However, the record reflects that the trooper offered no testimony after the videotape was played, and that his testimony regarding defendant's conduct was essentially consistent. Further, it is clear from the record that the Law Division judge had received a copy of the Municipal Court transcript and had reviewed it prior to conducting the trial in the matter. We therefore reject defendant's factual arguments.
We likewise reject defendant's argument that the Law Division judge misapplied State v. Johnson. In that decision, the Court stated that when reviewing a trial record the appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witness and to have the "feel" of the case which a reviewing court cannot enjoy. [Id. at 161.]
That is precisely what the judge did in this matter.
N.J.S.A. 39:4-97, the careless driving statute, states:
A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
We are satisfied that the evidence adduced in this proceeding, consisting of the testimony of Trooper Boesch, demonstrated beyond a reasonable doubt that defendant was guilty of that charge.
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