On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 29-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Alvarez and Nugent.
Defendant Chayim Goodman appeals his convictions in the Law Division after a trial de novo pursuant to Rule 3:23-8, of the motor vehicle offenses of careless driving, N.J.S.A. 39:4-97, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f).*fn1
For the reasons that follow, we affirm.
On appeal, defendant contends only that his convictions were not supported by sufficient credible evidence and should therefore be reversed. At trial, the State proffered the testimony of Patrolman Joseph Prebish of the Lakewood Township Police Department. On April 27, 2010, he observed defendant operating his tow truck and noticed that defendant was not wearing his seatbelt. Defendant was proceeding eastbound on East Fourth Street, approaching the East Fourth Street and Dewey Avenue intersection. A vehicle was stopped on East Fourth Street while pedestrians were crossing the street, waiting to make a right-hand turn onto Dewey Avenue. A second vehicle came to a stop behind the first. Defendant passed both without using his turn signal. After the first car made the right-hand turn, the second vehicle proceeded eastbound, straight through the intersection, parallel to defendant's tow truck, which, as a result, was entirely in the oncoming lane.
Prebish attempted to pull defendant over by activating his overhead lights. Defendant, however, was traveling at a speed which Prebish estimated to be between thirty-five and forty miles per hour in a twenty-five mile per hour zone. By the time Prebish stopped defendant, he had made two turns without signaling and "rolled through" a stop sign without pausing. As a result, Prebish issued the motor vehicle summonses for careless driving and failure to use a seatbelt.
Defendant's testimony was to the contrary. He said that he used his turn signals when appropriate, stopped at the stop sign, and was not speeding.
The municipal judge found that Prebish testified in a straightforward, detailed, and credible fashion. He further found that defendant's testimony was "equivocal." The municipal judge specifically said: "It appeared to me that [defendant's] verbal and non-verbal behavior were such that he was, to a great extent, equivocating and speculating as to what happened." Hence he concluded defendant's testimony lacked credibility and Prebish was the more believable witness.
The Law Division judge gave appropriate deference to the municipal court judge's determination as to credibility, see State v. Johnson, 42 N.J. 146, 157 (1964), but independently reached the same conclusions after reviewing the record.
We also review the record to determine if the conclusions reached in the Law Division were based on sufficient credible evidence. Johnson, supra, 42 N.J. at 162. In the process, we accord substantial deference to the trial court's credibility determinations. State v. Barone, 147 N.J. 599, 615 (1997).
In fact, "the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). We do "not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
If Prebish's testimony is credited, the State has proven beyond a reasonable doubt that defendant operated his motor vehicle "carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-97. He passed two stopped vehicles at an intersection shaped by a curve which made visibility poor for oncoming traffic. Defendant turned without signaling. He drove his tow truck at a higher rate of speed than the posted limit for that residential area. Defendant did not yield at a stop sign, but merely, as the officer put it, rolled through it. The officer could have written defendant a number of different summonses for these motor vehicle infractions. His decision not to do so does not undercut the validity of the charges he did issue. Violation of a number of motor vehicle laws adds up to the operation of a motor ...