On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal Docket No. 5941.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Payne and Reisner.
Defendant, Lorraine M. Selecky, appeals from a Law Division order following a trial de novo on the record below, finding defendant guilty of parking in a handicapped parking spot, in violation of N.J.S.A. 39:4-138o, and imposing a fine of $250 and $6 in court costs. On appeal, she raises the following arguments:
Point I The Municipal Court Judge's Grant of Special Inferences to the State and The Testimony of Officer Cantrell Violates Fundamental Fairness Standards Thereby Rendering His Credibility Findings Unworthy of Any Deference.
Point II The State Has Not Proved the Charge of Unlawfully Parking in a Space Reserved For the Physically Handicapped Beyond a Reasonable Doubt.
We reverse and remand for a new trial before a different municipal court judge.
The record discloses that on September 19, 2009, at approximately 9:40 p.m., defendant drove with her thirteen-year-old daughter to a 7-Eleven store in Roselle Park to rent a video from an automated Redbox video vending machine located outside the store. As they approached the Redbox, defendant and the daughter were engaged in an intense argument. Once there, they encountered off-duty police officer James Cantrell, who was renting a video with his children. At this point, a heated argument occurred between defendant and Cantrell, either because defendant thought Cantrell's children were taking too long in making their choice or because Cantrell interjected himself in defendant's mother-daughter dispute. In any case, the exchange escalated to the point that defendant threatened to call the police, but she did not do so, nor did Cantrell disclose that he was a police officer. Two days later, defendant received in the mail a summons, issued by Cantrell, for parking in the handicapped parking spot located next to the Redbox vending machine.
Defendant, appearing pro se, contested the ticket in municipal court. At the trial held in the matter, Cantrell testified that he had observed defendant parking illegally and that he notified dispatch of the violation. However, he did not personally raise the subject of defendant's allegedly illegal conduct with her at the time.
On cross-examination, defendant asked Cantrell why, if she had parked in a handicapped spot, Cantrell did not ask her to move her vehicle. Her question was as follows:
Officer, since you took an oath that it is your honor to[,] you know[,] protect the public and dispatch anything that you see [as] wrongdoing, why would you not have approached me at that time if you in fact say this is what I did, parked in the handicapped spot right next to this red box, having seen I made this violation, why would you not interject and say to me, Ma'am, why are you parking there, you don't have the handicapped sticker?
When directed to rephrase her question, defendant asked: Let's say I'm parked in the handicap spot such as Officer Cantrell is saying here that I'm parked there, and you see me coming out of the car and I approach the red box, why would you not stop me then and say, Ma'am, you shouldn't park there, move your car. Why would you not do that if that were the case as you're suggesting?
Cantrell responded that defendant was deemed to know the law, so there was no need on his part to inform her of her violation. In the circumstances presented, he could nonetheless do so, or he ...