Opinion
DOCKET NO. A-5467-12T4
07-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT BARRETT, Defendant-Appellant.
Robert Barrett, appellant, argued the cause pro se. Thomas N. Zuppa, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Zuppa, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 45-12.
Robert Barrett, appellant, argued the cause pro se.
Thomas N. Zuppa, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Zuppa, on the brief). PER CURIAM
A "red-light camera" photographed defendant Robert Barrett failing to stop at a red light. He appeals his conviction for failure to obey a traffic signal, claiming a defense can arise if the municipality has not certified that the yellow light is properly timed. We agree, but nonetheless affirm.
I.
On August 26, 2012, at 8:15 p.m., a red-light camera at the intersection of Merseles and Montgomery Streets in Jersey City photographed two vehicles proceeding southbound on Merseles. The second vehicle was defendant's Volkswagen. Sensors on Merseles measured defendant's speed at twenty miles per hour. The speed limit was twenty-five miles per hour. The first vehicle reached the intersection just before the light turned red, and it turned right onto Montgomery going westbound. At 8:15:43.5, the traffic light had been red for approximately 0.2 seconds when defendant reached the white line marking the intersection. The light was still red at 8:15:45.0 when defendant completed his right turn onto Montgomery.
The Jersey City Municipal Court heard testimony from defendant and Officer Joseph Caparino, a sheriff's officer assigned to the red light traffic unit who reviewed the camera footage and issued the notice of violation and summons. The court also viewed a video of the incident and several still pictures from the video. The Municipal Court found that when defendant's vehicle "hit the line, the light was clearly red." The court found defendant guilty of violating N.J.S.A. 39:4-81(a), and imposed the minimum fine of $85, plus $33 in court costs.
Defendant appealed for a trial de novo in the Criminal Part. The court received briefs, reviewed the transcript, heard argument, and watched the video extensively. On June 13, 2013, the court issued a written opinion and order, finding defendant guilty de novo and imposing the same fines.
II.
Defendant appeals. He concedes that the light turned red 0.25 seconds before he reached the line of the intersection, but raises the following arguments:
PRIMARY ARGUMENT
The timing of the yellow light at the intersection of Merseles Street and Montgomery Street in Jersey City does not comply with the State of New Jersey law (R.12.3.3) for proper control of Traffic Signal Timing and Operation, or National Standards (R.12.2).
SECONDARY ARGUMENT
The Jersey City Municipal Court and the Superior Court of NJ Hudson County are misinterpreting existing law.
THIRD ARGUMENT
The current system as designed and implemented is unethical.
We must hew to our "exceedingly narrow" standard of review in non-jury cases. State v. Locurto, 157 N.J. 463, 470 (1999). We must determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Stas, 212 N.J. 37, 49 (2012) (quotation marks omitted). We consider "'the proofs as a whole,'" not just the State's evidence, and will reverse only if "'the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We owe particular "deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Stas, supra, 212 N.J. at 49 (quotation marks omitted). The need for deference is even "'more compelling'" when the Municipal Court and the Law Division have agreed on a factual finding or credibility determination; we "'ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.'" Id. at 49 n.2.
However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "Because statutory interpretation involves the examination of legal issues," we apply "a de novo standard of review." State ex rel. K.O., 217 N.J. 83, 91 (2014).
III.
Defendant claims that mistiming of the yellow light is a defense to his conviction for violating N.J.S.A. 39:4-81. Under that statute, "[t]he driver of every vehicle . . . shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer." N.J.S.A. 39:4-81(a). "'Official traffic control devices' means all signs, signals, markings, and devices not inconsistent with this subtitle placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning, or guiding traffic." N.J.S.A. 39:1-1.
Because N.J.S.A. 39:4-81(a) requires the traffic control device to be "placed in accordance with the provisions of this chapter," it references the other provisions of Chapter Four. Chapter Four includes the five-year pilot program for traffic control signal monitoring systems, commonly known as red light cameras. See N.J.S.A. 39:4-8.12 to -8.20. Under N.J.S.A. 39:4-8.14(a), "[a] municipality desiring to participate in the program shall submit an application to the Commissioner of Transportation" that lists "[t]he intersection or intersections in the municipality at which it is desired to install and utilize a traffic control signal monitoring system." The application must also include:
A certification by the municipal engineer that (a) the intersection or intersections in question have a minimum duration of the amber light at the traffic control signal of three seconds if at least 85 percent of the vehicular traffic approaching the signal is traveling 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) of this paragraph above 30 miles per hour this minimum duration of the amber light shall be increased by one-half second[.]Thus, a red light camera cannot be installed absent a certification that the yellow light has a duration of at least three seconds.
[N.J.S.A. 39:4-8.14(a)(3).]
At trial, defendant cited a similar engineering formula for timing yellow lights from the Institute for Transportation Engineers Roadway Design Manual. On appeal, defendant cites a similar formula from the New Jersey Department of Transportation Roadway Design Manual. Even had these engineering documents been presented at trial, with expert testimony, they would have been of dubious value because they do not purport to establish a legal standard. See State v. Buckley, 216 N.J. 249, 268-69 & n.5 (2013). The legal standard for placement of red light cameras is set in N.J.S.A. 39:4-8.14.
Defendant contends it was the State's burden to submit a certification that the amber light lasted at least three seconds. We have held that the "essential elements" of N.J.S.A. 39:4-81(a) include that the traffic light "was placed pursuant to the applicable statutes." State v. Cooper, 129 N.J. Super. 229, 231 (App. Div.), certif. denied, 66 N.J. 329 (1974). Here, the applicable statute makes a certification a prerequisite for proper placement.
However, in Cooper we also held "that the alleged invalidity of the signaling device was an affirmative defense and that the burden of establishing it rested upon the proponent." Ibid. "'Once the State has proved . . . that a traffic control device does exist in a specific location, it is to be presumed official and properly placed there. The burden of going forward and adducing evidence to rebut the presumption then falls upon defendant.'" State v. Smith, 408 N.J. Super. 484, 494 (App. Div.) (quoting Cooper, supra, 129 N.J. Super. at 234), certif. denied, 200 N.J. 477 (2009). The ultimate burden of proving that the light was properly placed then rests with the State. Cooper, 129 N.J. Super. at 234.
Here, "[d]efendant did not present any evidence to rebut the presumption of proper placement." Smith, supra, 408 N.J. Super. at 494. Specifically, defendant did not present any evidence that Jersey City had installed the red light camera without first applying and including the certification required under N.J.S.A. 39:4-8.14(a)(3). The court "could therefore properly determine that the State met its burden of proof beyond a reasonable doubt without having to present any evidence of" the certification. See Smith, supra, 408 N.J. Super. at 494.
Defendant testified he had used a stopwatch to time the yellow light on the video and its duration was less than three seconds, but he did not have his stopwatch in court. He also offered still shots of the video showing the light was green at twelve seconds before the end of the video, yellow at ten and eight seconds, and red at seven seconds before the end of the video. From this, he calculated that the yellow light lasted two seconds, or more than two seconds, but "definitely" not three seconds. However, he admitted the video processing software only allowed him to take still shots at one second intervals, and he failed to offer still shots for all of the pertinent intervals.
On appeal, defendant states that his stopwatch timings of the video shows the light was yellow averaged 2.93 seconds.
--------
We will assume that such evidence suggests that the traffic control device was not placed in accordance with N.J.S.A. 39:4-8.14(a)(3), or inspected and certified every six months as required by N.J.S.A. 39:4-8.14(e). Even if this weak evidence was sufficient to carry defendant's burden of going forward, the State's evidence was sufficient to rebut it. The State introduced still shots, which were included on the Notice of Violation, that indicated the "Amber" light was "3.0" seconds. Officer Caparino testified on direct and cross examination that the traffic light had been yellow for three seconds, leading to this cross examination:
Q. Three seconds exactly?Although the officer admitted he did not currently "know what the actual duration of the yellow light is down to a fraction of a second," that did not render the officer's prior testimony insufficient. We therefore find that the State rebutted defendant's attempt to raise the affirmative defense that the yellow light did not have the duration required by State law.
A. Yes.
Q. Is that based on the video timing of when you start —
A. Right, that's right, exactly, that's when we get the certification.
Q. So you go based on video time?
A. The actual shots, yes.
IV.
Defendant argues that the courts misinterpreted the law about right turns on red. However, under N.J.S.A. 39:4-115, a driver may turn right on red only "after coming to a full stop." Defendant concededly did not come to a full stop.
Defendant also argues that the courts misinterpreted the law about stopping safely. He testified that when the light turned red, he was only a car length from the white line, and he could not have come to a complete stop without entering the intersection. This argument ignores N.J.S.A. 39:4-105, which requires a driver to stop on red, and permits a driver to proceed if he cannot safely stop only when the light turns yellow:
Red means traffic to stop before entering the intersection or crosswalk and remain standing until green is shown alone, unless otherwise specifically directed to go by an officer, official sign or special signal. Amber, or yellow, when shown alone following green means traffic to stop before entering the intersection or nearest crosswalk, unless when the amber appears the vehicle or street car is so close to the intersection that with suitable brakes it cannot be stopped in safety. A distance of fifty feet from the intersection is considered a safe stopping distance for a speed of twenty miles per hour, and vehicles and street cars if within that distance when the amber appears alone, and which cannot be stopped with safety, may proceed across the intersection or make a right or left turn unless the turning movement is specifically limited.
Defendant did not testify that there was inadequate time for him to stop safely after the light turned yellow. Instead, he testified that the light was yellow as he approached the intersection, and he decided to go through it because he "felt [he] could make it through that yellow light without issue." His own still shots show that the light was yellow before the vehicle in front of defendant's car had even entered the picture, and at least three seconds before defendant's car entered the picture. By then, the light was red and the vehicle in front had time to slow, make a right turn, and clear the intersection. Thus, both courts properly found defendant had sufficient time to stop during the yellow light.
To support his arguments, defendant invoked the New Jersey Driver Manual. The Criminal Part ruled the Driver Manual was inadmissible hearsay. We need not resolve that issue, however, because defendant's arguments fail under the statutory standards set forth above. He referenced the Driver Manual's stopping distance chart, but similarly that "is not a 'safety code.'" See McDonald v. Mulvihill, 84 N.J. Super. 382, 388 (App. Div. 1964).
Defendant testified that if he had come to a complete stop when the light turned red, "had there been a car behind me they would have rear ended me." However, defendant did not claim there was a car behind him, and the video and defendant's still photos showed that the next car southbound on Merseles was not in the same lane as defendant and did not approach the intersection until five seconds after defendant had cleared the intersection. The Criminal Part thus properly found there was no car behind defendant. Indeed, the Criminal Part found that it was defendant who was "nearly tailgating" the car in front of him. In any event, no statute creates such a defense to driving into an intersection against a red light.
V.
Defendant lastly argues that the red light camera pilot program is unethical, in part because it results in financial payment to municipalities as set forth in N.J.S.A. 39:4-8.20. However, the Legislature found that "[t]he disregard of traffic control devices at intersections impedes the efficient flow of traffic, and more importantly, dramatically increases the likelihood of accidents that endanger the safety and well being of motor vehicle occupants and pedestrians." N.J.S.A. 39:48.12. The Legislature also found that "[t]he installation and use of a traffic control signal monitoring system, which complements the efforts of local law enforcement, could serve as an effective tool in encouraging drivers to strictly obey traffic control devices at intersections, facilitating the flow of traffic and protecting the safety and well being of motor vehicle occupants and pedestrians." Ibid. Municipalities must report annually, "detailing increases or decreases in violations and accidents at intersections where traffic control signal monitoring systems have been installed." N.J.S.A. 39:4-8.17.
"[T]he wisdom, good sense, policy and prudence (or otherwise) of a statute are matters within the province of the Legislature and not of the [c]ourt[s]." White v. Twp. of N. Bergen, 77 N.J. 538, 554 (1978). Courts "do not pass on the wisdom of statutes or substitute our preferences for the policy choices made by the Legislature." Malinowski v. Jacobs, 189 N.J. 345, 354 (2007). "'If the statute does not violate the Constitution but is merely unwise or based on bad policy, then . . . it is for the Legislature rather than this Court to deliver a finishing blow to it.'" Roman Check Cashing v. N.J. Dep't of Banking & Ins., 169 N.J. 105, 111 (2001).
Defendant also complains that prosecutors offer a lower fine to defendants who plead guilty to red light offenses. However, it is well-established that "the government 'may encourage a guilty plea by offering substantial benefits in return for the plea,'" including a lesser sentence. United States v. Mezzanatto, 513 U.S. 196, 210, 115 S. Ct. 797, 806, 130 L. Ed. 2d 697, 709 (1995) (quoting Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 497, 58 L. Ed. 2d 466, 474 (1978)); see State v. Thomas, 392 N.J. Super. 169, 182 (App. Div.), certif. denied, 192 N.J. 597 (2007). In any event, defendant went to trial, was properly convicted, and received the minimum fine.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION