Opinion
DOCKET NO. A-0363-13T4
03-18-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ABRAHAM M. ABRAMSON, Defendant-Respondent.
Abraham M. Abramson, appellant, argued the cause pro se. Meghan M. O'Neill, Assistant Prosecutor, argued the cause for respondent (Joseph Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief; Ms. O'Neill, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 11-13.
Abraham M. Abramson, appellant, argued the cause pro se.
Meghan M. O'Neill, Assistant Prosecutor, argued the cause for respondent (Joseph Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief; Ms. O'Neill, on the brief). PER CURIUM
The State appeals from a Law Division judgment finding defendant Abraham M. Abramson not guilty following a trial de novo from his municipal court conviction for failing to stop at a red light at an intersection equipped with an automated traffic control signal monitoring system. We affirm.
The underlying material facts are not in dispute. On September 10, 2012, at 7:38 p.m., defendant made a left turn from Route 70 westbound onto Brick Boulevard in Brick Township. Defendant's vehicle passed through a left-turn signal that had just turned to red. On October 3, 2012, Patrolman Scott Dierking of the Brick Township Police Department issued a summons to defendant, the owner of the vehicle, for failure to observe the traffic signal, in violation of N.J.S.A. 39:4-81.
Defendant pled not guilty. A trial was held in the Brick Township Municipal Court on February 27, 2013. Officer Dierking was the State's only witness. He testified that he was trained to evaluate pictures and videos as part of the red light camera program, and that he viewed the video recording of defendant's vehicle on the evening in question. According to Officer Dierking, the video and digital photographs showed that the signal was amber for four seconds before turning red. It further showed "defendant's speed as [thirty] miles an hour as he's hitting the stop bar," and that the light was "red for .8 seconds, almost a full second." At the time the light turned red, defendant's vehicle was "[a]pproximately [twenty] feet behind the white stop bar."
On cross-examination, Officer Dierking initially testified that the speed limit on Route 70 in that location was forty miles an hour. However, when shown a photograph of a fifty mile per hour speed limit sign, he conceded that the speed limit may have been higher. He also conceded that had the amber light cycle been set at five seconds, which defendant argued was applicable in a fifty mile per hour speed zone, defendant would have been clear of the intersection when the light turned red. Additionally, when questioned why the duration of the amber light for traffic proceeding on Route 70 was 4.8 seconds while that for traffic turning onto Brick Boulevard was only 3.9 seconds, the officer explained that the timing of the light was based on the eighty-fifth percentile standard set by statute.
Pursuant to N.J.S.A. 39:4-8.14(a)(3), a municipality desiring to participate in the State traffic control signal monitoring system is required to submit an application which must include, among other things, a "certification by the municipal engineer that (a) the intersection . . . in question [has] a minimum duration of the amber light . . . of three seconds if at least 85 percent of the vehicular traffic approaching the signal is travelling at a speed of 25 miles per hour or less; and (b) for each five mile increase in the speed of vehicular traffic referred to in subparagraph (a) . . . above 30 miles per hour this minimum duration of the amber light shall be increased by one-half second."
After viewing the video, the municipal court concluded that the traffic signal turned from amber to red before defendant's vehicle entered the intersection, and that the vehicle was approximately twenty feet from the stop line when the light turned red. The municipal judge found that defendant's actions violated N.J.S.A. 39:4-81, and imposed a fine of $91 and court costs of $32.
Defendant appealed and a trial de novo took place in the Law Division on June 20, 2013. Defendant did not dispute operating the vehicle, or the accuracy of the picture showing his vehicle twenty feet before the white line when the light turned red. Rather, he renewed his argument that the speed limit on Route 70 was fifty miles per hour, and accordingly the duration of the amber light should have been five rather than 3.9 seconds, in which event there would have been no violation.
Defendant did not submit a trial brief to the Law Division. However, given his pro se status, the judge afforded defendant an exhaustive opportunity to orally argue his position. Additionally, having reviewed the transcript of the municipal court proceedings, the judge expressed concern that defendant had not been provided a full and fair opportunity to present his evidence there. Accordingly, when argument by both sides concluded, the judge afforded defendant an additional thirty days to supplement the record with documentation as to the posted speed limit, and any applicable regulations that he relied upon. The State was similarly provided a thirty-day period from receipt of defendant's documents to respond. Also, the judge expressed concern that he had not received the exhibits from the municipal court proceedings, and the court and the prosecutor indicated that they would follow up in an effort to obtain them.
Following receipt of the additional submissions from the parties, the Law Division found defendant not guilty of the red light violation. In an oral decision on August 6, 2013, the judge reasoned:
The State in this case relied upon the testimony of Officer S. [Dierking], a traffic control expert for the Brick Township Police Department. [The municipal judge] found that the State had proven its case because the State produced certifications that based upon a formula of 85 percentile tracking produced a number identified by the officer as being 42 miles per hour. Extending that formula would then require the addition of one second to the base of three seconds to the required amber light sequence. Therefore, that would be four seconds that the light would have to remain amber in order to qualify as being certified under the State requirements. The Defendant, Pro Se disagreed and felt the speed should be 50 miles an hour, which is the posted speed limit at that area on Route 70 westbound.
While I find that the State is within its legal rights to rely on the 85 percentile tracking standard, I find in this case that the testimony did not clearly identify the area of Route 70 and Brick Boulevard. I note that there are actually two separate traffic control devices at that
cutoff. I also find that the record sent to the Superior Court from the Municipal Court was devoid of exhibits. This Court adjourned the matter after my de novo hearing to obtain those exhibits and allow Defendant to supplement the record. The Township Court and Clerk was called by my office and asked to send the missing exhibits. They have not done that and more than 30 days has passed since that call and nothing has been provided by the Municipal Court. Therefore, based on the lack of a complete record from the municipal hearing, I find the State has not sustained its burden of proving its case in this trial de novo. Therefore, I'm reversing the finding of [the municipal court judge] for the reasons stated previously. The Defendant, therefore, is found not guilty as a result of this de novo hearing. Any fines should be returned to him. Any cost should be returned to him that had been previously paid to the municipality . . . . I will submit an Order to that effect.
After the State appealed, the judge supplemented his decision on October 3, 2013, stating in relevant part as follows:
In accordance with [] Rule 2:5-1(b), the Court would like to amplify the fact that the decision to dismiss this matter was based on the lack of proof provided by the State as part of the trial de novo.
It is clearly the burden of the State to produce the proper evidence at a trial de novo. The assistant prosecutor arguing this appeal attempted to procure the necessary exhibits to prove the alleged violation but was not provided with those exhibits. As the Court indicated in its decision placed verbally on the record, the matter was adjourned for 30 days to allow for those
records to be supplied to the State and/or the Court. Even after my office called the Township Court Clerk's Office, those requested documents and exhibits were never supplied. Not only were there documents and/or exhibits used at the trial in municipal court that were not supplied, but also some of the documents that were supplied were copies that were, in some cases, indecipherable and useless. In this trial de novo, based on the inadequate proofs presented by the State and the credible testimony of the defendant, I found that the State had not sustained its burden of proving the allegations beyond a reasonable doubt against the defendant.
Further, there evidently was a video relied upon, played and referred to by the municipal prosecutor that was not produced at the trial de novo. (Municipal Court Transcript of February 27, 2013, Page 9).
. . .
Without those exhibits and because of the confusion during the testimony below as to the multiple lights which appear to operate separately, with slightly different elapsed times for the amber lights, and in different sequence, the Court found the testimony of the credible, mature defendant who appeared pro se to have provided a reasonable doubt as to the guilt of the defendant.
The issue we must determine is whether double jeopardy principles bar the State from appealing defendant's acquittal by the Law Division. The State argues that the court erroneously dismissed the charge based on the failure to perfect the record with the evidence adduced during the municipal court trial. It contends that such a dismissal based on procedural deficiencies does not operate as an acquittal, thus entitling the State to appeal.
The Double Jeopardy Clause of the United States Constitution guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. This protection is extended to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969). In addition, the New Jersey Constitution provides that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, ¶ 11.
Rule 2:3-1(b)(1) allows the State to appeal from a judgment in a criminal case provided the United States Constitution or New Jersey Constitution do not preclude it from doing so. "Under both the state and federal double jeopardy clauses, an appeal from an acquittal is impermissible if 'the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" State v. Widmaier, 157 N.J. 475, 490 (1999) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L. Ed. 2d 642, 651 (1977)). Double jeopardy principles bar the State from appealing a final verdict of acquittal even if the trial court's determination rests upon an "'egregiously erroneous foundation.'" Ibid. (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962)).
It is well-settled that the State may not appeal a final judgment in a criminal or quasi-criminal case when a charge has been dismissed on evidentiary grounds. Widmaier, supra, 157 N.J. at 491. "Generally, courts have limited the government's right to appeal to situations in which the trial court declared a mistrial or ordered a judgment notwithstanding the verdict, a pretrial dismissal, or a dismissal based on procedural, not evidentiary grounds." Ibid.
Some support for the State's position may be found in State v. Emmett, 108 N.J. Super. 322, 326-27 (App. Div. 1970). In Emmett, defendant was convicted in municipal court for driving while impaired. He appealed to the Burlington County Court. At the hearing de novo and shortly after direct examination of the State's first witness, a police officer, had begun, the trial judge noted that the municipal court complaint and judgment had not been forwarded, contrary to the Rules of Court. While finding that neither of the parties was to blame for the municipal court clerk's failure to send the record, the judge nonetheless granted the defense motion for a judgment of acquittal. We reversed, finding that a dismissal on this basis was unwarranted, and that ordering a retrial would not place defendant in double jeopardy. Ibid.
We find the facts in Emmett distinguishable and not controlling in the present case. Here, unlike Emmett, the trial de novo was completed. We acknowledge that the Law Division judge's factual findings are not a model of clarity. Nonetheless, we find them sufficient to establish that his decision to acquit defendant was not solely grounded on the municipal court's failure to forward the complete record. Rather, the judge's decision, as supplemented, found defendant's testimony to be credible. That testimony focused on the speed limit at the subject intersection, and the timing of the amber signals there. When coupled with "the confusion during the testimony below as to the multiple lights which appear to operate separately, with slightly different elapsed times for the amber lights, and in different sequence," the court was left with a reasonable doubt as to defendant's guilt. Because the Law Division's determination is related to factual guilt, we conclude that double jeopardy bars the State's appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION