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State of New Jersey v. Emil Marin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EMIL MARIN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-19-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2011

Before Judges Graves and Waugh.

Following a trial de novo in the Law Division, defendant Emil Marin appeals from an order dated September 18, 2009, finding him guilty of driving with a suspended license on two separate occasions, in violation N.J.S.A. 39:3-40. For the first conviction, defendant was fined $500 and his driving privileges were suspended for thirty days. N.J.S.A. 39:3-40(a). Defendant's second conviction resulted in a three-day jail sentence to be served in the Sheriff's Labor Assistance Program, a $750 fine, and suspension of driving privileges for an additional six months. N.J.S.A. 39:3-40(b). Court costs and assessments were also imposed. The period of incarceration was stayed pending appeal to this court. For the reasons that follow, we affirm.

On October 9, 2007, Lieutenant Nicholas Corbiscello of the Ridgefield Police Department observed defendant operating a 1999 Volkswagen Beetle on Day Avenue. Corbiscello, who was familiar with defendant, "was aware that [defendant]'s driver's license was suspended." For that reason, he activated his siren and overhead lights, and defendant pulled over. Defendant produced his license, and Corbiscello entered the information into a computer in the police vehicle. According to Corbiscello, the results indicated "[defendant's] driving privileges in the State of New Jersey were suspended, and there was also an active warrant for [his] arrest for failure to appear in reference to a summons for the same type of violation issued in Palisades Park, New Jersey." Defendant was issued a summons for operating a motor vehicle with a suspended license. N.J.S.A. 39:3-40.

Eight months later, on June 19, 2008, Corbiscello again witnessed defendant driving a 1999 Volkswagen Beetle in Ridgefield, however, "this time it ha[d] a different license plate on it." Defendant complied with Corbiscello's order to stop the vehicle, but he subsequently failed to produce his license. Nonetheless, a computer search confirmed to Corbiscello that defendant's license was still suspended, and defendant was issued a second summons for violating N.J.S.A. 39:3-40.

The summonses were tried separately in the Tenafly Municipal Court on September 17, 2008.*fn1 Corbiscello was the only witness to testify in both trials. During each trial, the State introduced into evidence a current abstract of defendant's driving history, which was certified by the Chief Administrator of the MVC as "a true computerized abstract of [defendant]'s driver history record . . . includ[ing] accidents, suspensions and convictions for moving violations." According to the abstract, which defendant did not object to, defendant's license was suspended on May 16, 2006, for failure to comply with a court installment order. The municipal court concluded that the State met its burden of proof for each summons.

Defendant subsequently filed a notice of appeal with the Law Division. After a trial de novo, the Law Division issued a written opinion on September 18, 2009, upholding defendant's convictions and penalties:

The State introduced into the court record a certified copy of defendant's driver abstract affirming the two license suspensions. The abstract was entered into evidence under the business record exception to the hearsay rule. Taken with Lieutenant Corbiscello's testimony identifying defendant as the driver of the motor vehicle, this evidence [was] sufficient to find defendant guilty beyond a reasonable doubt of operating a motor vehicle contrary to N.J.S.A. 39:3-40.

On appeal, defendant raises the following arguments for our consideration:

POINT I

THE CONVICTION SHOULD BE REVERSED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT'S LICENSE WAS SUSPENDED.

A. A CRYPTIC AND UNAUTHENTICATED COMPUTER PRINTOUT IS INSUFFICIENT EVIDENCE TO PROVE THAT DEFENDANT'S LICENSE WAS SUSPENDED.

B. THE SUSPENSION IS INVALID BECAUSE THE STATE DID NOT PROVIDE ANY PROOF OF NOTICE TO THE COURT THAT DEFENDANT WAS NOTIFIED OF THE SUSPENSION.

After considering these arguments in light of the record and the applicable law, we conclude that they are clearly without merit, Rule 2:11-3(e)(2), and we affirm substantially for the reasons stated by Judge Patrick J. Roma on September 18, 2009. We add only the following comments.

N.J.S.A. 39:3-40 states: "No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition."

Pursuant to N.J.R.E. 803(c)(6), the State properly introduced into evidence defendant's certified driver's abstract to substantiate his violations of N.J.S.A. 39:3-40. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2011) (stating that "a conviction for operating a vehicle while on the suspended/revoked driver's list . . . may be predicated upon the admission into evidence of a certified copy of defendant's driving record," which is "properly admissible under [N.J.R.E.] 803(c)(6)") (citing State v. Zalta, 217 N.J. Super. 209, 214 (App. Div. 1987)). This document clearly established that defendant's license had been suspended on May 16, 2006, and it had not be reinstated prior to the issuance of either summons by Corbiscello. Moreover, defendant failed to introduce any testimony or evidence that the information contained in the driver's abstract was inaccurate. Therefore, we find that the Law Division's decision was "reached on sufficient credible evidence present in the record." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001) (citing State v. Locurto, 157 N.J. 463, 470 (1999)).

Defendant also argues that prior to October 9, 2007, he did not have notice that his license had been suspended. Corbiscello indicated that when he ran defendant's license on that date, the MVC computer indicated that defendant had been previously issued a summons for driving with a suspended license in Palisades Park. When asked by the municipal court if he was aware of that preceding summons, defendant responded: "[Y]eah. Actually, I was charged with driving while revoked." Accordingly, we are satisfied defendant had actual notice that his license had been suspended.

Affirmed.


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