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State of New Jersey v. Thomas Frain

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 3, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS FRAIN, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-040.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2012

Before Judges Graves and J. N. Harris.

Defendant Thomas Frain, Jr. appeals from his conviction in the Law Division for failure to pay a toll on the Garden State Parkway on October 16, 2009, contrary to N.J.A.C. 19:9-1.19, and from the imposition of a fine of $86 plus $33 in costs. After considering the record and reviewing Frain's arguments on appeal, we affirm.

We gather the facts from the trial conducted in the Borough of Freehold Municipal Court after the matter was transferred from the Borough of Tinton Falls Municipal Court.

On October 16, 2009, Linda M. Bell, an employee of the New Jersey Turnpike Authority (NJTA), was assigned to serve as a toll violation officer at the so-called Asbury Park Toll Plaza, located in Tinton Falls.*fn1 Bell testified that she was stationed behind a two-way mirror above the toll collection basket in Lane 5, which required a one-dollar toll for cars. She was able to observe passing traffic without obstruction and had a clear view of both the lane of travel and the toll collection basket. At approximately 8:16 a.m., Bell observed a Ford automobile enter the lane being driven by a male operator. She testified as follows:

I observed, I observed this . . . Ford . . . with a male driver [come] through the lane and the only thing deposited in the basket was two quarters and he opened the door.

At trial, Bell expressly identified the driver as Frain. She went on to testify that after Frain drove away, she left her position and checked the pavement. She found "no money on the ground." She further noted that Frain never blew his horn or otherwise signaled that he was having difficulty paying the toll. Bell added that she prepared a report detailing the events that she had just observed, and someone else prepared a complaint and summons for a state police officer's review and signature.

The State also presented the testimony of Sergeant Miguel Estrada, a state police officer for twenty-four years. Sergeant Estrada indicated that his involvement in the matter was limited to signing Frain's complaint and summons. He testified that "[t]he procedure is . . . they literally just give me a box of summonses with toll violators and I just sign them and that's my extent of the process." Sergeant Estrada estimated that on the date he signed Frain's complaint and summons, he probably signed "about 600" other similar pleadings. He was not responsible for the actual mailing of the complaint and summons, and he did not know how that was accomplished.

Frain moved to dismiss the complaint and summons on the ground that it originated from a private citizen -- toll violation officer Bell -- and pursuant to Rule 7:2-2(a)(1), a citizen complaint cannot result in the issuance of an arrest warrant or summons unless a judicial officer is involved. The municipal court denied the motion, finding that Sergeant Estrada's involvement in the process satisfied Rule 7:2-2(a)(2).

Next, the court analyzed the evidence adduced at trial. It found the following:

I am satisfied from the testimony presented to me -- first of all, let me say that I find that Ms. Bell who testified is more than credible. She testified about this. She gave us a detailed account what she did, how she does it. And as I said, I found her to be fairly interesting. I had no idea how it worked. But she has a system and a mechanism for doing this. She testified explicitly as to how she does everything everyday. She has the records that back that up.

She was quite honest in saying that she is certain, although obviously she can't be 100 percent certain that it [was] Mr. Frain, but that she is indeed -- she is certainly really [sic] that it was Mr. Frain.

I am satisfied beyond a reasonable doubt from listening to Ms. Bell, as I said, of how she does things, of her demeanor here on the stand. She is very, I guess almost meticulous in how she does her job and how she testifies and how she relates what happened. Because I'm sure it can be a tedious job. It can be one that can be challenged if she doesn't keep the appropriate notes, that she is not doing her job, that she is writing toll violators who aren't violators and missing others. So I'm satisfied that she is doing -- that she did her job absolutely correctly here and absolutely correctly identified Mr. Frain as the driver of the vehicle.

As I said, I am satisfied of that beyond a reasonable doubt. And accordingly, I must find the defendant guilty.

Frain appealed to the Law Division where he was tried de novo. The court remanded the matter to develop a factual record on two issues: (1) the method of service of the complaint and summons and (2) whether Frain was advised of his right to counsel.

On remand, the municipal court conducted a limited evidentiary hearing. It heard from Bell that Frain's complaint and summons was mailed to him "by someone" from her office using ordinary mail. Bell testified that she checked with her office and found no evidence that the complaint and summons mailed to Frain had been returned as undeliverable. Bell further confirmed that the complaint and summons was dated on October 29, 2009, and that from her understanding of the mailing process it was likely mailed out "[t]hat day or the next day."

The municipal court also fulfilled the Law Division's mandate by illuminating the question of whether Frain was advised of his right to counsel. The court stated that it had listened to the audiotapes of its "opening comments which are made to every defendant before [the court] start[s] each and every court session here in Freehold Borough and in every municipal court in which [the court] sit[s]." The court indicated that, indeed, it had advised all defendants of their right to counsel, and had discussed the matter at bar individually with Frain when he appeared twice before the court.

Several months later, the Law Division considered the matter again. It recognized that Frain raised several issues, including (1) improper and untimely service of process of the complaint and summons; (2) lack of jurisdiction; (3) lack of probable cause; (4) conflict of interest based upon Frain's filing a Notice of Tort Claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, against the municipal court judge and several municipal officials; (5) failure to advise Frain of his right to counsel; and (6) abuse of discretion in requiring Frain to stand, rather than sit, while making arguments to the municipal court. After explaining the de novo standard of review, the court found Frain's jurisdictional argument to be "without merit" and his abuse of discretion claim "equally frivolous."

Turning to the recusal contention, the Law Division found that "the mere filing of a notice of tort claim, which is nothing more than a procedural prerequisite to the . . . preservation of a future claim" failed to create a conflict of interest. The court noted that if such a ploy automatically warranted a recusal, "Mr. Frain could simply continue to file such notices in each municipality to which this case was

transferred and avoid any disposition of his summonses."

In considering Frain's argument regarding the validity and service of the complaint and summons, the court fully canvassed the applicable statutory law, decisional law, and rules of court. It concluded that in the absence of any competent evidence that Frain was not served by ordinary mail, even though he failed to appear at the initial court hearing scheduled in the Tinton Falls Municipal Court, there was substantial compliance with Rule 7:2-4(b)(1) and N.J.S.A. 39:5-3(a), and there were no grounds under State v. Buczkowski, 395 N.J. Super. 40 (App. Div. 2007) to dismiss the charge. Furthermore, Estrada's status as a law enforcement officer validated the complaint and summons under Rule 7:2-2(a)(2) regardless of whether he had personal knowledge of the alleged offense.

The Law Division also analyzed Frain's assertion that he was never advised of his right to obtain legal counsel. After reviewing the record, including the proceedings on remand, the court stated that it was satisfied not only that the defendant had more than adequate notice of his right to retain counsel if he so desired and that he knowingly and voluntarily decided to represent himself in this matter, and that he suffered no prejudice with respect to his [c]onstitutional rights as a result of that decision.

Lastly, the court addressed the substantive merits of Frain's appeal, focusing on whether the State had demonstrated beyond a reasonable doubt that it was Frain who was the driver of the vehicle on the day the violation occurred. Noting that Bell's testimony was characterized as credible and "was sufficient to meet the State's burden of proving its case beyond a reasonable doubt," the court found Frain guilty and imposed the same sanctions as the municipal court. This appeal followed.

On appeal, Frain raises the following points, which we repeat verbatim:

[POINT I:] JUDGE BASEN NOT ALLOWING ME TO SIT DOWN WHEN SPEAKING DURING TRIAL INTERFERED WITH MY RIGHT TO A FAIR TRIAL. [POINT II:] MY FILING OF A TORT CLAIM CREATED A FINANCIAL CONFLICT OF INTEREST FOR JUDGE BASEN AND THE PROSECUTOR, WHOM I INCLUDED IN THE CLAIM. THIS REQUIRED HIM TO RECUSE HIMSELF, THEREFORE THE CONVICTION SHOULD BE REVERSED. [POINT III:] BOTH TINTON FALLS AND THE BOROUGH OF FREEHOLD MUNICIPAL COURT HAD NO RIGHT TO PROSECUTE ME DUE TO LACK OF PROPER, TIMELY NOTICE REQUIRED UNDER N.J.S.A. 39:5-3(A), THE "30 DAY RULE" AND []R. 7:2-4(B)(1) AND []R. 7:2-4(B)(3). HENCE, THE CONVICTION MUST BE REVERSED. [POINT IV:] THE SUMMONS IS A CITIZEN COMPLAINT, AND THEREFORE, ITS SIGNING AND ISSUANCE BY A STATE TROOPER IS UNAUTHORIZED. CITIZEN COMPLAINTS CAN ONLY BE ISSUED BY A JUDGE OR JUDICIAL OFFICER. THEREFORE THE CHARGE IS INVALID AND MUST BE DISMISSED. [POINT V:] THE STATE TROOPER WHO SIGNED AND ISSUED MY COMPLAINT-SUMMONS ADMITTED ON THE WITNESS STAND UNDER BOTH DIRECT AND CROSS EXAMINATION THAT HE DIDN'T HAVE PROBABLE CAUSE. SINCE PROBABLE CAUSE IS A PREREQUISITE TO SIGNING AND ISSUING A COMPLAINT-SUMMONS, THE CHARGE AND PROSECUTION IS ILLEGAL, UNCONSTITUTIONAL, AND THE CHARGE MUST BE DISMISSED. [POINT VI:] THE RECORD CLEARLY DEMONSTRATES THAT NO IDENTIFICATION OF THE DRIVER WAS OBTAINED BY THE STATE, REQUIRING DISMISSAL OF THE CHARGE. [POINT VII:] MY ARGUMENT THAT THE COURT LACKED JURISDICTION TO HEAR THE CASE EVOLVED INTO A FAILURE TO PROVE JURISDICTION ARGUMENT. BOTH ARGUMENTS WERE NOT ADDRESSED FULLY BY THE COURT. THE CHARGE SHOULD BE DISMISSED TO LACK OF JURISDICTION AND FAILURE TO PROVE JURISDICTION. [POINT VIII:] JUDGE BASEN FAILED TO ASK IF I NEEDED AN ATTORNEY, UNDERSTOOD MY RIGHTS, THE NATURE OF THE CHARGE AGAINST ME OR HIS OPENING STATEMENT IN COURT. HE THEREFORE VIOLATED MY 6TH AND 14TH AMENDMENT RIGHTS AND THE CHARGE MUST BE DISMISSED. [POINT IX:] THE BURDEN OF PROOF FOR THE IDENTIFICATION OF THE DRIVER IS ILLEGALLY SHIFTED TO THE DEFENDANT IN THE 91-69-SP PROCEDURE USED TO ISSUE TOLL VIOLATOR SUMMONSES, INCLUDING MINE. THE CHARGE MUST THEREFORE BE DISMISSED.

We conclude from our review of the entire record that all of these arguments are clearly without merit. R. 2:11-3(e)(2).

We affirm Frain's conviction because there was substantial credible evidence to support the Law Division's finding that Frain failed to pay the toll required by the NJTA at the Asbury Park Toll Plaza located in Tinton Falls. N.J.A.C. 19:9-1.19. Furthermore, we affirm substantially for the reasons expressed by the Law Division in its May 10, 2011 oral opinion. We add only the following brief comments.

Our review of the Law Division's decision is limited. We are obliged to only determine whether there is sufficient credible evidence present in the record to uphold the law Division's findings, not those made by the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Unlike the Law Division, which conducts a de novo review of the record, Rule 3:23-8(a), we do not indulge in independent fact-finding. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We do not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Unless we are convinced that the Law Division's finding is "'clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Avena, supra, 281 N.J. Super. at 333 (quoting Johnson, supra, 42 N.J. at 162). We, nevertheless, exercise plenary review of legal conclusions that flow from established facts. State v. Handy, 206 N.J. 39, 45 (2011).

The record evidence fully supports the Law Division's legal conclusions. For example, Bell's testimony sufficed to demonstrate that the complaint and summons was sent to Frain by ordinary mail. This complied with Rule 7:2-4(a)(1). More importantly, this was accomplished within thirty days of the offense, thereby satisfying N.J.S.A. 39:5-3(a).

We find nothing amiss in the issuance of the complaint and summons by Estrada under Rule 7:2-2(a)(2). Moreover, given that the source of the information concerning Frain's alleged conduct emanated from an experienced toll violation officer, Frain's rights were not impaired in the least.

As for jurisdiction,

[a] municipal court may hear a case involving a violation of the motor vehicle or traffic laws "within the territorial jurisdiction of the court." N.J.S.A. 2B:12-17b. With exceptions not applicable here, the jurisdiction of "a municipal court of a single municipality [is] over cases arising within the territory of that municipality."

N.J.S.A. 2B:12-16. A municipal court is a court of limited jurisdiction established by statute. N.J. Const. art. VI, § I, ¶ 1; Kagan v. Caroselli, 30 N.J. 371, 377 (1959). [State v. Sylvia, ___ N.J. Super. ___, ___ (App. Div. 2012) (slip op. at 5-6)]

The evidence of jurisdiction was adequate to permit the finding that Frain's violation occurred within the territorial jurisdiction of the first venue, Tinton Falls. The uncontradicted evidence from Bell explaining the location of the Asbury Park Toll Plaza in Tinton Falls convinces us that Frain is not entitled to an order vacating the judgment for lack of territorial jurisdiction in the municipal court.

Affirmed.


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