Opinion
DOCKET NO. A-5584-13T2
01-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN P. HADDAD, Defendant-Appellant.
John Menzel argued the cause for appellant. Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 68-2013. John Menzel argued the cause for appellant. Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). PER CURIAM
After a de novo review of the municipal court record in the Law Division, defendant Steven P. Haddad appeals from his conviction for speeding, N.J.S.A. 39:4-98. We affirm for the reasons set forth by Judge Michael A. Toto in his written decisions.
A New Jersey State trooper was patrolling the northbound lanes of the Garden State Parkway near the Driscoll Bridge in a Dodge Charger when he observed a vehicle closing in behind him at a high rate of speed. After the trooper increased his speed to ninety-five miles per hour to keep pace for approximately a mile and then slowed to ninety miles per hour, the other vehicle, which was driven by defendant, passed him. Defendant was stopped and issued a motor vehicle summons for speeding by traveling ninety-five miles per hour in a forty-five mile per hour zone.
When the matter came before the municipal court for trial, defendant requested an adjournment because he sought additional discovery. He represented he had received "the calibration documents." On the new trial date, defendant, who now was represented by counsel, unsuccessfully sought a further postponement for more discovery. The trial commenced with testimony from the trooper who had arrested defendant. Defendant objected when a certification regarding calibration of the trooper's speedometer was marked for identification by the State because the certification had not been provided in discovery. The prosecutor then marked a second certification, which was the calibration certification relating to a test of the speedometer's accuracy that was made before defendant's arrest. The municipal judge permitted this as "just an administerial thing," but defendant's attorney objected, noting he had received only the "bottom half of this [second] document" in discovery. The prosecutor thought the entire second certification had been provided to defendant but acknowledged, because it was double-sided, the certification may not have been copied correctly by the State Police, who had sent it directly to defense counsel. To permit the defense the opportunity to review the entire second certification and over the objection of defense counsel, the municipal court judge sua sponte continued the trial to another date. On the new trial date, defendant pled guilty to speeding, N.J.S.A. 39:4-98, conditioned on his ability to appeal.
Judge Michael A. Toto heard the matter de novo in the Law Division based on the municipal court record. In his initial written decision dated April 11, 2014, the judge rejected defendant's double jeopardy claim because defendant "was not tried more than once for the same offense." He found the municipal court had continued the case "in order to give the defense time to review an updated certification, the prior version of which was inadvertently provided as discovery to the defense. This was not a type of discovery that defense alleged was not produced prior to commencement of trial." He noted "the State possessed all of the evidence it needed to prosecute defendant and that the State believed that it had turned over all relevant discovery to the defense."
Judge Toto thereafter denied defendant's request for reconsideration in a written decision dated June 30, 2014. After clarifying his factual findings, the judge rejected the double jeopardy claim because "the State did not attempt a second municipal court prosecution of an offense." Rather, in this case, "the State was ready to proceed on the day of trial, had both troopers available to testify, and believed that it had supplied the necessary documentation to the defendant."
In this appeal, defendant raises the following issues:
The Municipal Court's Sua Sponte Adjournment Mid-Trial Without a Request by the State and Despite Prompt and Fair Notice of the Constitutional Implications of the Adjournment Violated Defendant's Rights to Be Free from Double Jeopardy
I. Double Jeopardy Principles Are Implicated Here
II. Adjournment Violated Double Jeopardy Principles
III. Law Division Findings of Inadvertence as a Justification for Adjournment Are Not Supported by the Record and Cannot Justify the Adjournment Here
IV. Adjournment Constituted an Abuse of Judicial Discretion
On appeal, 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) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Under Rule 3:23-8(a)(2), the Law Division makes independent findings of fact and conclusions of law de novo, based on the record from the municipal court. See State v. States, 44 N.J. 285, 293 (1965). On appeal, we determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, defendant contends the Law Division judge erred in finding the continuance by the municipal court did not violate principles of double jeopardy. The U.S. Constitution provides that "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const., amend V. The New Jersey Constitution also addresses double jeopardy providing, that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const., art. I, ¶ 11. The State constitutional provision consistently has been interpreted to provide the same protection as the federal constitution. State v. Salter, 425 N.J. Super. 504, 517-18 (App. Div. 2012). As generally stated, the Double Jeopardy Clause "protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense." Monge v. Cal., 524 U.S. 721, 728, 118 S. Ct. 2246, 2250, 141 L. Ed. 2d 615, 623 (1998). It has been interpreted to apply to "Motor Vehicle violations tried in [the] municipal courts." State v. Dively, 92 N.J. 573, 586 (1982). In a non-jury trial, double jeopardy attaches when the first witness is sworn. State v. Travers, 229 N.J. Super. 144, 149 (App. Div. 1988). In some circumstances a continuance of a trial in progress may raise double jeopardy issues where the postponement should have been "regarded as a mistrial that was not 'required by sufficient legal reason and a manifest or absolute or overriding necessity.'" State v. Gallegan, 117 N.J. 345, 353 (1989) (quoting N.J.S.A. 2C:1-9(d)(3)).
In Gallegan, the issue was whether principles of double jeopardy barred the continuation of a trial that had been commenced in municipal court but adjourned because the prosecutor, who had tried the earlier portion of the case, was not available. In holding that principles of double jeopardy were not violated, the Court found there had been no adjudication on the merits. The continuance was due to a simple scheduling conflict and was not granted "to allow the prosecution to obtain a tactical advantage." Id. at 357. The Court recognized that "ordinarily adjournments are within the discretion of the trial court." Id. at 354. "[A]mong the obligations of any court in conducting a trial in the interest of public justice is the consideration of whether an adjournment is an available alternative to achieve justice." Ibid. A court's discretion in this regard should not be disturbed "unless it is manifestly necessary." Ibid.
We find no error in Judge Toto's conclusion that the principles of double jeopardy were not violated here when the municipal court judge granted a brief continuance. The continuance was not to provide the prosecution with a tactical advantage. Defendant relies on State v. O'Keefe, 135 N.J. Super. 430 (Law Div. 1975). In O'Keefe, the municipal court granted a continuance on its own initiative and over the objection of the defendant so that the prosecution could investigate and then prove a required element of the criminal offense. O'Keefe, supra, 135 N.J. Super. at 434. The Law Division judge held a resumption of the trial would constitute double jeopardy because the continuance was "an unreasonable break in [the] continuity [of the trial,] because it was caused by the inexcusable neglect of the State . . . ." Id. at 442. The court indicated, however, that neglect could be excusable where "the State failed to offer readily available evidence inadvertently overlooked or innocently not produced in the bustle of trial and trial preparation as opposed to evidence whose existence had not even been investigated." Id. at 440.
In contrast to O'Keefe, the trial court here found the prosecution "did not act in bad faith" because the State believed it had turned over the entire second certification in discovery only to learn the contrary at trial. The adjournment was to give the defense more time to inspect the second certification. The State was ready to proceed at trial because both the arresting trooper and the trooper who had prepared the calibration certification were present in court to testify. Under these circumstances, there was no error by Judge Toto in finding the continuance was within the discretion of the municipal court judge. This allowed the defense additional time to review the entire second certification to develop its defense. The continuance was not to provide a tactical advantage to the prosecution, which was ready to proceed. It did not prejudice the defense to allow a brief amount of time to review the full certification. The continuance in this case was, as Gallegan endorses, "an available alternative to achieve justice." Gallegan, supra, 117 N.J. at 354.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION