On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-35-10.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012 -
Before Judges Parrillo, Grall and Skillman.
The opinion of the court was delivered by GRALL, J.A.D.
Following trial de novo on the record of the Woodbury Heights Municipal Court, the Law Division judge found defendant Edward F. Sylvia, Jr. guilty of driving while under the influence, N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. For driving while under the influence, defendant was sentenced to 180 days' incarceration and ten years' loss of license and required to pay a $1000 fine, a $50 VCCB penalty, a $75 SNSF assessment, a $200 DWI surcharge and $33 for court costs. For refusal to submit to a breath test, the judge imposed a concurrent seven-month license suspension, forty-eight hours of attendance at the Intoxicated Driver Resource Center, a $306 fine, a $100 DWI surcharge and $33 for court costs.
Defendant appeals and presents one argument for our consideration. He contends that the State failed to establish at trial that the prosecution of the alleged motor vehicle offenses was for violations committed within the territorial jurisdiction of the Woodbury Heights Municipal Court.
The summonses and complaints charged defendant with committing these violations in Woodbury Heights, and defendant was tried in the Woodbury Heights Municipal Court, before a judge of that court. The arresting officer, Patrolman Jason Neely of the Woodbury Heights Police Department, testified, signed the summonses and indicated the intersection at which he first saw defendant driving was Route 45 and Elm Avenue. Defendant did not challenge the jurisdiction of the Woodbury Heights Municipal Court or raise any question about that court's territorial jurisdiction on cross-examination or during the defendant's case. He first raised the issue on trial de novo in the Law Division.
Neely was working on the night of January 11, 2010. When defendant's car came to his attention, Neely had just completed another traffic stop and was in his patrol car at the entrance to a jug handle for Route 45 and Elm Avenue. He noticed the car defendant was driving as it was leaving the parking lot of the Hollywood Cafe and entering into the jug handle. Although the address of the Cafe is Route 45 in Woodbury Heights, Neely did not mention that fact in his testimony, and as Neely described the jug handle, the municipal court judge advised the parties that they could assume he was "familiar with that area, very familiar." Defendant did not object to the judge's implicit assertion of his intention to take notice of the area, and courts properly take judicial notice of geographical facts that "are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned" or are "of such common notoriety within the area . . . that they cannot reasonably be the subject of dispute." N.J.R.E. 201(b)(2)-(3); see, e.g., N.J. Sports & Exposition Auth. v. McCrane, 119 N.J. Super. 457, 537 (1971) (taking judicial notice of the proximity of the Hackensack Meadowlands to highways and other states).
Neely noticed the car when it passed him on exiting the Cafe's parking lot because one of its headlights was out and its inspection sticker had expired. Defendant took the jug handle, and Neely followed. There were no cars between defendant's and his. Defendant made a "quick erratic turn into the left turn lane" and activated his directional signal, indicating that he was going to turn left onto Route 45, which he did. Neely followed defendant for a little more than a mile, and then stopped the car. When the prosecutor asked Neely where he made the stop, he said: "Actually in West Deptford Township, Beth's Hair Boutique, southbound 45."
Neely spoke to defendant and his passenger, who was the owner of the car. She could not produce a registration, and Neely detected a strong odor of alcohol in the vehicle and was not sure whether defendant or the passenger was the source. After having defendant perform field sobriety tests, the officer took him to the police station in Woodbury Heights. There defendant was observed for twenty minutes before he was read the standard form of advice and warnings addressing the Alcotest and refusal to submit. Defendant declined to take the test.
Defendant did not question the municipal court's jurisdiction prior to or during that proceeding or ask Patrolman Neely to identify the municipality in which he observed defendant driving. Defendant's attorney first questioned the territorial jurisdiction of the municipal court on de novo appeal in the Law Division. Defense counsel did not offer to demonstrate or assert that his client was not driving in Woodbury Heights. He simply contended that the State did not prove he was and, consequently, failed to prove that the Woodbury Heights Municipal Court had jurisdiction.
Although the Law Division ruled on numerous arguments defense counsel raised on de novo appeal, the judge did not address territorial jurisdiction. Defendant's failure to raise the objection in municipal court was not fatal to his claim, because an objection based on territorial jurisdiction may be raised at any time. State v. Streater, 233 N.J. Super. 537, 541 (App. Div. 1989). Because the question does not turn on the credibility of any ...