Opinion
DOCKET NO. A-2656-10T3
03-27-2013
STATE OF NEW JERSEY, Plaintiff—Respondent, v. EMIL M. MARIN, Defendant-Appellant.
Agostino & Associates, attorneys for appellant (Jeremy M. Klausner, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-16-10.
Agostino & Associates, attorneys for appellant (Jeremy M. Klausner, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial de novo in the Law Division, defendant Emil Marin appeals from the December 10, 2010 order finding him guilty of driving with a suspended license in violation of N.J.S.A. 39:3-40. For the reasons that follow, we affirm.
We discern the following facts from the record. On May 16, 2006, defendant's driving privileges were suspended indefinitely because he failed to comply with the terms of an installment order in payment of fines by the Newark Municipal Court. On May 17, 2006, the Motor Vehicle Commission issued a confirmation of suspension notifying defendant of the suspension and the reason. On June 19, 2008, a Borough of Ridgefield police officer issued defendant a summons for driving while suspended.
On September 8, 2008, Paramus Police Officer Anthony Liggio noticed that the right rear tail light of defendant's car was not working properly and that the right brake light was also malfunctioning. After the officer stopped defendant's car, he asked for his license, registration and insurance.
When Liggio checked Marin's driver's license through the police computer network, he found that it had been suspended. Liggio then told defendant about the suspension, who replied that "it must be a mistake", and that "this had happened before." Defendant knew the agency had suspended his license due to a returned check but he felt the license should not have been suspended and had filed an appeal. The police officer issued defendant summonses for driving while suspended, N.J.S.A. 39:3-40; fraudulent display of an inspection sticker, N.J.S.A. 39:8-9(c); and failure to maintain lamps, N.J.S.A. 39:3-66.
On July 15, 2010, Municipal Judge Roy McGeady of the Paramus Municipal Court presided over the trial on defendant's traffic tickets. The State offered into evidence a September 17, 2008 judgment of conviction concerning defendant from the Tenafly Municipal Court ("Tenafly JOC") for driving while suspended in the Borough of Ridgefield on June 19, 2008. The State explained that the document showed that defendant had notice of his license suspension prior to the date in question. Over defendant's objection, the judge admitted the Tenafly JOC.
The State also introduced defendant's certified driver's abstract from the Motor Vehicle Commission, dated September 4, 2009. The abstract showed that on May 16, 2006, defendant's license was suspended for failure to comply with a court order. According to the abstract, defendant was cited for operating a vehicle while suspended or revoked on October 9, 2007, and June 19, September 17, and October 19, 2008. Defendant objected to the introduction of this evidence because it did not appear to be a certified copy. Citing State v. Colley, 397 N.J. Super. 214 (App. Div. 2007), Judge McGeady noted that a New Jersey public document is not required to have a seal and admitted the driver's abstract into evidence.
At trial, defendant admitted that he knew he was on a suspended list and maintained that he was in the middle of appealing his suspension. He also acknowledged that, several months before the date in question, a Ridgefield police officer told him his license was suspended and issued him a summons for driving while suspended.
Judge McGeady found defendant guilty of driving while suspended and failure to maintain lamps, but dismissed the fraudulent inspection sticker charge. He determined that defendant had sufficient notice of his suspension. The judge highlighted that defendant was given prior notice several months prior by a Ridgefield police officer, and that defendant did not file for a stay of his suspension, thereby rendering it still effective. Because this was defendant's fourth conviction for driving while suspended, the judge imposed a fine of $1006, suspended his driving privileges for 120 days, and imposed a ten-day jail sentence. The sentence was stayed pending this appeal.
Judge Lois Lipton presided over the trial de novo on defendant's municipal appeal on December 10, 2010. Defendant first argued that the motor vehicle stop was invalid because it was not dark outside, and his lights did not need to be on. The State countered that the taillight was not working properly no matter what time of day it was, and thus, the stop was proper. The State was unable to produce the previously admitted Tenafly JOC for the court's consideration but introduced, over defendant's objection, the June 18, 2008 Ridgefield municipal court summons that was the basis of the Tenafly JOC. Additionally, defendant argued that he never had a written notice of suspension.
Judge Lipton found that, in failing to provide the Tenafly JOC, the State had not comply with Rule 1:2-3, which required the proponent of evidence to preserve it pending appeal. However, the judge found that such error was harmless and did not prejudice defendant. Additionally, the judge determined that defendant's driver's abstract was relevant and was an admissible self-authenticating public record. Moreover, the judge found credible Liggio's testimony that defendant's lights were on at the time of the stop. Finally, the judge found that defendant knew, prior to the citation at issue, that his license was suspended, particularly in light of the traffic stop by the Ridgefield police officer. Consequently, Judge Lipton found defendant guilty beyond a reasonable doubt of driving with a suspended license. This appeal followed.
Defendant raises the following contentions for our consideration:
POINT II: THE LOWER COURT'S EVIDENTIARY RULINGS ARE PLAINLY ERRONEOUS AND PRODUCED UNJUST RESULTS.
POINT III: THE SUPERIOR COURT'S FACTUAL FINDINGS WERE NOT BASED ON SUFFICIENT CREDIBLE EVIDENCE.
POINT IV: RESPONDENT DID NOT CARRY ITS BURDEN OF PROOF ON ALL ELEMENTS OF THE OFFENSE CHARGED.
In Point I defendant merely sets forth the legal standards.
Having considered defendant's arguments in light of the record and the applicable law, we conclude that they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Initially, we observe that in an appeal such as this our role is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). In making his or her determination "de novo on the record from the municipal court," the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 157 (1964)), certif. denied, 209 N.J. 430 (2012). Our role is to determine whether the Law Division's de novo finding could reasonably have been reached on sufficient credible evidence present in the record. Ibid. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 39:3-40 provides that "[n]o person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition." Here, defendant admitted both that he knew his license had been suspended and that, since in his opinion the suspension was incorrect, he continued to drive without getting a stay of the suspension order.
Defendant objects to the introduction of his certified driver's abstract for purposes of proving that he was suspended. We agree that that it was a self-authenticating document under N.J.R.E. 902 and that the State properly introduced the document pursuant to N.J.R.E. 803(c)(6), State v. Zalta, 217 N.J. Super. 209, 214 (App. Div. 1987); See also N.J.R.E. 803(c)(8). As we have previously observed, "DMV records of drivers' license suspensions are deemed sufficiently reliable to be admissible as prima facie evidence of the fact." State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005). The record clearly establishes that defendant's driver's license was suspended on May 17, 2006 and had not been restored prior to the issuance of the ticket in question.
Nevertheless, defendant argues that he did not have written notice that his license had been suspended. However, defendant admitted to the arresting officer that he knew about the suspension and testified that he disagreed with the suspension but was appealing it. The abstract showed that defendant had been cited twice for operating while suspended before the police stopped him on September 8, 2008. Accordingly, we are satisfied that defendant had sufficient notice that his license had been suspended.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION