On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5968.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2012 -
Before Judges Grall and Alvarez.
After de novo review of the proceedings before the Linden Municipal Court, the Law Division judge on December 10, 2010, found defendant Carlos Gutierrez guilty of careless driving, N.J.S.A. 39:4-97. Defendant appeals, asserting that the State failed to prove the elements of the offense, that the pedestrian whom defendant struck and killed was the actor who created the "risk of injury, a statutory element under the statute," and that the Law Division judge only concluded that defendant failed to exercise "due circumspection[,]" which is an "inadequate basis for the imposition of criminal liability." After review of the record and consideration of defendant's arguments, we affirm.
The following facts and circumstances were developed during the municipal court trial. On April 29, 2009, at approximately 9:17 p.m., Daniel Serpi, accompanied by a passenger, Danielle Klineman, was driving southbound on Roselle Street in Linden. Ninety-year-old Otis Jackson stepped off the curb in front of an establishment known as Mike's Tavern and proceeded across the street, headed in a west to east direction. Serpi saw Jackson from a distance of approximately 150 feet and slowed down from approximately thirty or thirty-five miles per hour to "[a]lmost a stop" in order to avoid Jackson, coming no closer than twenty-five to fifty feet from the pedestrian. Jackson then proceeded to cross the northbound lane and Serpi continued southbound, passing defendant's vehicle heading northbound. Moments later, Serpi heard defendant's tires screech, and saw the accident in his rearview mirror.
Defendant's vehicle struck Jackson at the passenger side of the car just beyond the grille's midpoint. Jackson's body dented the hood and roof, and crashed through the windshield. Defendant testified that it was a clear night and that he was driving between twenty-five to thirty miles per hour when the incident occurred. Defendant lived within three to four blocks of the location. He said he did not see any traffic in front of, or behind him, and, specifically, that he did not see the Serpi vehicle pass by. Defendant testified he saw nothing in the roadway until "I came to feel it when he landed on top of my windshield. I saw something that passed by, but I hit it and boom. . . . [I]t happened very fast, very quickly." Defendant insisted he was looking straight ahead at the time and was not distracted.
When interviewed at the scene, however, defendant told police that he saw Jackson "crossing the street, I saw him and it looked like he was going to stop, then he continued to cross and I hit him." When questioned during the municipal trial about his statement, defendant reiterated that he did not see Jackson before striking him, "I saw a shadow and that's when I impacted him and [he] landed on my windshield."
In its case-in-chief, the State qualified Linden Police Department Investigator Andrew John Haszko, Jr. as an expert accident investigator and reconstructionist. He arrived at the accident scene within fifteen minutes of the event. Haszko testified that the area where Jackson was crossing, although not an intersection, was well lit from street lights across from Mike's Tavern. Haszko opined that Jackson should have been visible to defendant, even though the street lights were physically located on the southbound side of Roselle Street. Haszko calculated that defendant's rate of travel was thirty miles per hour, exceeding the twenty-five mile per hour limit in the area.
In reaching his conclusions, the Law Division judge relied upon defendant's own statement that despite the clear conditions and the fact he was looking straight ahead, he saw neither the Serpi vehicle pass him nor the pedestrian as he crossed in front of that car. As the judge said, after noting the discrepancies between defendant's trial testimony and his statement at the scene, there's no reason where I can find in the facts of the case, why [defendant] didn't see the other vehicle coming. . . . He said he was looking straight ahead. . . .
This is not the kind of a case where you have some child darting out between two parked cars where it would not be anticipated that something was going to happen. It's not the kind of the case where the pedestrian went behind the vehicle that was just crossing the street, and then all of a sudden appeared in front of [defendant]. This is the kind of vehicle that [defendant] should have been able to see the victim.
And I say that because either of two things happened. Either he did see him, and he . . . testified that he didn't. If he did see him, then he should have been able to stop, because he could have seen him. . . . [I]f he didn't see him then he didn't look, which is what circumspection is about.
Under those circumstances, I find the defendant guilty of careless driving because he did not use proper care with due caution and circumspection to be able to see a person plainly crossing in front of another car, with its headlights on, with street lights on, in that area, until after that person crossed in front of him. He didn't even see the person, according to his own testimony, cross in front of him.
We agree and affirm essentially for the reasons stated by the Law Division judge subject to the ...