On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 9-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges Ashrafi and Nugent.
Following a trial de novo in the Law Division, the court convicted defendant Marc Liebeskind of careless driving, N.J.S.A. 39:4-97; improper passing, N.J.S.A. 39:4-86; failure to have headlights on, N.J.S.A. 39:3-47(a); and excessive use of horn, N.J.S.A. 39:3-69. The court imposed fines of $206 for careless driving, $156 for improper passing, $56 for failure to use headlights, and $31 for excessive use of horn. The court also imposed appropriate court costs on each offense. Defendant appeals from the Law Division judgment of conviction and presents the following arguments:
THE STATE DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS AND FAILED TO MEET ITS BURDEN OF PROOF ON ALL CLAIMS. ACCORDINGLY ALL CONVICTIONS AGAINST THE DEFENDANT SHOULD BE REVERSED, AND ALL COMPLAINTS SHOULD BE DISMISSED WITH PREJUDICE.
A. The State Never Established Jurisdiction.
1. A Trial Notice Listing Additional Violations And Summonses That Were Not Properly Served On The Defendant Does Not Constitute "Process" That Could Subject The Defendant To Prosecution. Accordingly, The State Did Not Have Jurisdiction To Prosecute The Defendant, And Those Convictions Should Be Reversed, And The Complaints Dismissed With Prejudice.
2. Municipalities Are Not Authorized To Mail Summonses To Suspects Of Motor Vehicle Offenses.
3. The Summonses Are Too Vague To Be Enforceable And The State Never Attempted To Correct The Deficiencies.
4. There Is No Proof That The Alleged Offenses Occurred In Piscataway Township, And The Officer Was Outside His Jurisdiction.
B. The State Failed to Affirmatively Prove The Facts Necessary To Sustain A Careless Driving Conviction, Or Failure To Use Headlights Conviction, Or Improper Use Of Horn Conviction Against The Defendant, And Defendant Was Deprived Of The Constitutional Protection Against Double Jeopardy.
THE STATE DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT OF HAVING ACCESS TO EXCULPATORY EVIDENCE AND ACCORDINGLY, ALL THE CONVICTIONS AGAINST THE DEFENDANT SHOULD BE REVERSED, AND THE COMPLAINTS DISMISSED.
A. The State Failed To Preserve And Illegally Destroyed Exculpatory Evidence.
B. A Defendant Is Not Required To Make A Holup Motion Arising From The State's Failure To Produce Evidence and Witnesses.
C. A Notice In Lieu Of Subpoena Is An Approved Method For Summoning Witnesses And Documents To Trial.
D. The Lower Courts Erred By Denying Defendant The Right To Admit Relevant Evidence And Adjourn The Matter To Allow An Unavailable Witness To Testify.
THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO GIVE DEFERENCE TO THE MUNICIPAL COURT'S FACTUAL FINDINGS INCLUDING FINDING THE POLICE OFFICER CREDIBLE OR MORE CREDIBLE THAN THE DEFENDANT. NOT ONLY WAS THERE NO EVIDENCE WHATSOEVER TO SUPPORT THE OFFICER'S TESTIMONY, THE RECORDS CONTRADICT THE OFFICER'S TESTIMONY, INCLUDING THE RECORDS HE MADE.
SUPPLEMENTATION OF THE RECORD IS PERMISSIBLE AND COURTS CAN TAKE JUDICIAL NOTICE OF FACTS AND LAW. NOTWITHSTANDING DENIAL OF DEFENDANT'S MOTION TO SUPPLEMENT THE RECORD OR REQUEST TO TAKE JUDICIAL NOTICE, THE DOCUMENTS DEFENDANT RELIED UPON WERE ADMISSIBLE EVEN IF FOR THE FIRST TIME BEFORE THE DE NOVO COURT BECAUSE THEY WENT TO JURISDICTION AND THE CONSTITUTIONAL RIGHT TO PRODUCE EXCULPATORY EVIDENCE
We affirm in part and reverse in part.
We begin by summarizing the testimony presented during the municipal court trial. According to Piscataway Police Officer David Piro, on the overcast, rainy morning of September 26, 2008, at approximately 7:00 a.m., he was dispatched to assist a disabled vehicle on the shoulder of River Road just past Ross Hall Boulevard. River Road has two lanes, one northbound and one southbound. The disabled vehicle was on the shoulder adjacent to the northbound lane of traffic and partially protruded into the traffic lane. Piro parked behind the disabled vehicle, activated the overhead lights on his patrol car, and called for a tow truck. After the tow truck arrived and its operator secured the disabled vehicle onto the truck's flatbed, Piro positioned his patrol car to block northbound traffic to enable the tow truck to pull safely into the northbound traffic lane.
As the tow truck was pulling into traffic, Piro heard a horn blowing continuously and then observed defendant's silver Ford approaching in the northbound lane. Piro watched defendant's vehicle cross the double yellow lines into the southbound lane, pass Piro's patrol car and the tow truck, and re-enter the northbound lane. Piro pursued defendant's vehicle, activated the lights and siren on his police car, and stopped defendant on River Road near the Route 18 bridge. According to Piro, the area where he stopped defendant was a "hazardous location."
Piro testified that defendant was disgruntled and started to argue. Piro issued defendant a complaint-summons (summons or ticket), P-167771, for careless driving. After explaining to defendant the procedure for responding to the ticket, Piro returned to police headquarters and issued to defendant three additional tickets for improper passing, P-167772, failure to have headlights on, P-167773, and excessive use of horn, P-167774. Piro testified that because of the hazardous conditions that existed when he first stopped and ticketed defendant, he ...