On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 42-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
Defendant Timothy Stubbs was found guilty in the municipal court of driving on the revoked list, N.J.S.A. 39:3-40. On appeal to the Law Division, R. 3:23-2, he was again found guilty of the same offense after a trial de novo. R. 3:23-8(a). Defendant appeals, and we affirm.
In the late afternoon of March 26, 2011, Officer Mathew Parrish of the Medford Lakes Police Department was on patrol duty and stopped at the intersection of McKendinen and Tabernacle Roads, when he saw a 2001 blue Saturn*fn1 driven by defendant pass in front of him, traveling at about twenty-five miles per hour. Officer Parrish, who was only fifteen feet from defendant's vehicle, recognized defendant "[o]nce he passed" from his "[p]ast contacts" with him.
Parrish followed defendant until the Saturn turned into a driveway on Tabernacle Road, at which time the officer drove past the house, executed a U-turn, and returned to the residence. By then, however, the driver was no longer in or by the vehicle, which at the time Parrish had no reason to stop because he did not yet know that defendant's driver license had been suspended. Subsequently, Parrish ran the license plate of a second vehicle parked in the driveway and discovered that it was registered to defendant's brother, Kenneth Stubbs, whose driver's license had been suspended. Consequently, on March 26, 2011, Parrish wrote out two summonses for Kenneth, charging him with violating N.J.S.A. 39:3-40, driving on the revoked list, and N.J.S.A. 39:3-36, failure to notify of change of address. Parrish realized his error in writing these summonses five days later when he knocked on the door of the Tabernacle Road residence and spoke to defendant's mother, who advised him that "Kenneth" no longer lived there but "Timothy" did. Having confirmed that defendant's driver's license was also suspended, Parrish voided the summonses for Kenneth before ever being served and instead reissued them on March 31, 2011 to defendant, charging him with the very same violations.
The matter proceeded to trial in the municipal court, where defendant's driving abstract and notice of suspension were admitted into evidence over defendant's objection. Parrish explained the mix-up and testified that it was defendant who was operating the 2001 Saturn in Medford Lakes Borough on March 26, 2011 and that there were no passengers in the car. Defendant testified on his own behalf and denied driving the vehicle on the date in question. He did acknowledge, however, that his driver's license had been suspended for a few different reasons, including convictions for driving while intoxicated (DWI), the most recent of which was in 2004. His brother Kenneth was called to the stand, but exercised his right not to testify.
After dismissing the N.J.S.A. 39:3-36 charge, the municipal court judge found defendant guilty of violating N.J.S.A. 39:3- 40, crediting Officer Parrish's account that he saw defendant, whom he knew from prior contacts, driving the vehicle in daylight and within fifteen feet. Finding the DWI enhancements applicable as this was defendant's fifth conviction, the judge sentenced defendant to a $1,506 fine, driver's license suspension for twenty-four months and thirty days in the Burlington County jail.
On trial de novo, the Law Division judge affirmed the conviction and the sentence imposed, finding (1) that the driving abstract was not testimonial in nature and therefore did not violate Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); (2) the notice of suspension attached to the driving abstract was not applicable to this case and therefore there was no Crawford violation; and (3) defendant operated the motor vehicle on the date in question in violation of N.J.S.A. 2C:39:3-40. As to the identification issue, the judge reasoned:
Now, the question really is of two parts here. One is the identification of the operator. The judge below heard the testimony of an officer by the name of Parrish. . . .
Parrish testified that the defendant operated the motor vehicle. He saw it. There was nobody else in the car with him that he had operated through the jurisdiction of the Medford Lakes Borough, and that he issued the summons for driving while suspended, because the information that he had received electronically, I think, first, and later supported by the abstract in question, was that . . . his license was suspended by the Court. And the defendant later on, when he did testify, acknowledged that he was suspended. . . .
The Court finds the testimony of . . . Officer Parrish to be quite credible for a variety of reasons. Number one, he was in a position to see what he saw, and testified he was within 15 feet or so. And he was close enough to see what he saw. It was daylight, and it simply makes sense.
He knew the defendant from previous contacts, and he knew that the person operating the vehicle was Timothy Stubbs, and I believe him. The credibility is bolstered by a good, accurate recollection of Officer Parrish withstanding rather difficult, ...