Opinion
DOCKET NO. A-4416-14T1
07-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIELLE M. MANGIONE, Defendant-Appellant.
Diego F. Navas, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Rothstadt. On appeal from the Superior Court of New Jersey, Morris County, Municipal Appeal No. 14-045. Diego F. Navas, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief). PER CURIAM
Defendant Danielle Mangione was convicted of making an illegal U-turn, N.J.S.A. 39:4-125, and using a hand-held cell phone while driving, N.J.S.A. 39:4-97.3, after a trial de novo in the Law Division. On appeal, defendant argues that the evidence did not establish a U-turn violation, and that she should be given the opportunity to introduce certified copies of her cell phone records. Having considered these arguments in light of the record and applicable legal standards, we affirm.
The only witnesses at defendant's trial in the Boonton Municipal Court were Officer Anthony Limandri, who issued the traffic summonses, and defendant. Limandri testified:
I was traveling eastbound on Main Street . . . and off to my left I observed in the . . . post office parking lot right at Main Street a silver Jeep attempting to do a U-turn. The vehicle pulled in, tried to swing around and do a U-turn, was unable to but had to back up and almost do some sort of a K-turn, which was partially on Main Street and partially in the post office parking lot. And I further observed that the driver of the vehicle had a cell phone in her left hand up towards her ear.According to the officer, there was not a clear sight line for at least 500 feet where defendant executed the U-turn, and the turn obstructed the flow of traffic on Main Street.
Defendant testified that she had an appointment at a hair salon on Cornelia Street, where she initially parked in a metered parking space. She then decided to move to an unmetered parking space that was available on Main Street. On cross-examination, she detailed her movement of the vehicle as follows:
Q. All right. So if I understand your testimony, you left Cornelia Street, made a left down to the post office, and then turned in the post office parking lot at Main Street to come back up Main Street.
A. I turned left . . . into the post office, stopped, backed out to park in the spot, the parking spot on Main Street.
Q. Between the post office and Cornelia, like — —
A. Yes.
Q. — — going back up the hill?
A. Yes. Yes. So I was trying to park in that spot there. So I wasn't attempting to do a U-turn or proceed in the opposite direction. I was attempting to park my car so I didn't violate your guy's meter — —
Q. All right.
A. — — and get a meter — —
Q. You were traveling down the hill. Now from Cornelia to the post office is down and eastbound.
A. That's down. Right.
Q. But you wanted to park on the westbound side.
A. Right.
Q. All right. So you changed — —
A. But I didn't — —
Q. — — direction from when you — —
A. I turned left into the post office parking lot, stopped, backed out a small bit to turn into the [] spot directly in front of the post office.
Q. Okay. So you did do a turn though.
A. I turned left into the post office parking lot — —
Q. Okay.
A. — — yes, to adequately park [in] the spot on Main Street.
Defendant testified that her cell phone was in a zippered pocketbook and she was not using it when she moved the car. She explained that her vehicle is equipped with a Bluetooth device that automatically answers her cell phone if it rings in the car. Defendant also stated she had cell phone records showing she was not on the phone at the time. However, the municipal judge sustained the State's objection to the admission of the records because there was no representative from the phone company present to authenticate them.
The municipal judge found defendant guilty of both charges. With respect to the U-turn violation, the judge reasoned:
[Y]ou weren't going to the post office. That would have been perfectly fine. You were using that area between that and Main Street to turn around so that you could have your car pointed in the opposite direction. That's a U-turn.Regarding the cell phone charge, the judge stated:
It would be the same as if you never turned into the parking lot of the post office, if you had just done a U-turn on Main Street to get into that parking space, it's the same thing.
The officer also testified clearly, and I find his testimony credible that his first observation was that you had your cell phone in your hand up to your ear, and that was [] the initial reason that he was pulling you over. And then he observed you do this turn . . . . [T]he [cell phone] law . . . doesn't permit you to hold the phone for the operation of the phone. You have to use your Bluetooth or you have to use hands free. And I know you say you have Bluetooth, but it has to be activated, it has to be [] used at the time, and if you have a cell phone that you're holding up to your ear, the officer had reason to observe that and did observe that.The court imposed a fine of $200 and court costs of $33 for the cell phone violation, and a $100 fine and $33 in court costs for the U-turn offense.
So I'm going to find you guilty of that as well.
Defendant appealed and a trial de novo took place in the Law Division on April 24, 2015. The trial judge found:
There is no dispute that while traveling eastbound on Main Street that [] defendant turned her vehicle to the left with the purpose of positioning her vehicle so that it faced westbound on Main Street.
[] [D]efendant has not disputed the officer's testimony that at the time of the turn . . . defendant did not have a clear line of sight for 500 feet in both directions.
Moreover, the [S]tate has not challenged [] defendant's claim that she made the turn with the intent to park her
vehicle, rather than proceed westbound on Main Street.Relying on our holding in State v. Smith, 408 N.J. Super. 484, 492 (App. Div.), certif. denied, 200 N.J. 477 (2009), that "an endeavor to proceed in the opposite direction . . . is all that is required," the court again found defendant guilty of violating N.J.S.A. 39:4-125. The court also deferred to the credibility findings of the municipal judge "that the officer saw [defendant] with the phone up against her ear," and found defendant guilty of violating N.J.S.A. 39:4-97.3. The court imposed the same fines and costs assessed by the municipal court. This appeal followed.
Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, he should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts 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." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
In this case, the Law Division judge clearly understood that his role was to make independent findings; findings that, ultimately, were reflected in his thorough oral opinion. However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) (stating "appellate review of legal determinations is plenary").
Guided by these standards, we first address defendant's contention that the purpose of her turn was to park her car rather than to proceed in the opposite direction following her turn. In this regard, N.J.S.A. 39:4-125 provides in pertinent part that "[t]he driver of a vehicle shall not turn such vehicle around so as to proceed in the opposite direction . . . where the view of such vehicle is obstructed within a distance of [five hundred] feet along the highway in either direction . . . ." Defendant argues that there is no evidence that she turned her vehicle "so as to proceed in the opposite direction." We disagree.
We construed N.J.S.A. 39:4-125 in Smith, supra, where we held that "the statute prohibits the turning around of a vehicle to proceed in the opposite direction, as opposed to a 180-degree turn[.]" 408 N.J. Super. at 492. We found that the defendant had effectuated an illegal U-turn within the meaning of the statute when, traveling south, he made a left-hand turn into a driveway, backed out, and proceeded north on the same road. Id. at 489. The defendant in Smith made the turn into the driveway with the intent to turn around and proceed in the opposite direction. Ibid.
As she did before the trial court, defendant attempts to distinguish the result reached in Smith by relying on our unpublished opinion in State v. Bandler, No. A-1498-12 (App. Div. Oct. 28, 2013). In Bandler, the defendant made a left-hand turn across a double yellow line to pull into an angled parking space on the opposite side of the street, in an area where U- turns were prohibited. Bandler, supra, slip op. at 2. In finding no statutory violation, the panel concluded:
Defendant made a sharp left-handed turn, went completely across the other lane, and would have pulled into an angled parking space had his car not been struck by another driver. Defendant did not intend to, and did not, proceed south . . . for even a short distance before attempting to pull into the parking space. Although defendant's car turned slightly diagonally to the southwest, it never proceeded in the opposite direction of travel. Thus, within the plain meaning of the statutory language, defendant did not effectuate a turn "so as to proceed in the opposite direction on a highway."
[Bandler, supra, slip op. at 6.]
Initially, we note that unpublished opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); 1:36-3. Although citing an unpublished opinion is generally forbidden, see Rule 1:36-3, we do so here to provide a full understanding of the issue presented, and because defendant cited Bandler to the trial court as persuasive authority. See, e.g., National Union Fire Ins. Co. of Pittsburgh v. Jeffers, 381 N.J. Super. 13, 18 (App. Div. 2005) ("the rule permits an unpublished opinion to be called to a trial court's attention as secondary research").
Here, the trial court found that Bandler was not persuasive. In distinguishing the present case from Bandler, the court reasoned:
Based on the case law, the undisputed facts support a finding in this case that [] defendant is guilty of violating the statute. [] Defendant emphasizes, like the defendant in Bandler, that she intended to enter a parking space through her actions.
However, the panel in Bandler noted, if completed as the defendant intended, it would not have resulted in traveling in any way in the opposite direction. In fact, the defendant would have entered the angled spot without proceeding in the opposite direction, even for a short distance. That is not the case here.
Instead, in order to reach the parking space, [ ] defendant was required to turn a full 180 degrees switching from the eastbound lane to the westbound lane before traveling into the parking space, and did travel not a great distance, but some distance in the oncoming direction. In the meantime, pulling into the parking lot which was across the street some distance.
While the distance between the turn and the parking spot may have been very short, the defendant's actions were sufficient to constitute an illegal [U]-turn.
We agree with the trial court's analysis. We deem defendant's actions in turning into the driveway, backing out, and proceeding into a parking space in the opposite direction, to be more akin to the circumstances we deemed sufficient in Smith to establish a violation of N.J.S.A. 39:4-125.
In challenging her cell-phone conviction, defendant argues that she should be given the opportunity to present certified cell phone records in her defense. She further contends that the trial court erred in discounting such evidence, and improperly took judicial notice that individuals can have multiple cell phone accounts. These arguments warrant little discussion.
In rejecting these arguments, the trial court noted that defendant never sought an adjournment to procure a witness to authenticate the cell phone records. "[D]efendant never indicated a desire to delay the proceedings in order to pursue that avenue. Consequently, the [c]ourt cannot find that the municipal court judge abused his discretion by failing to grant an adjournment in that regard." The court added: "It does not appear that the exchange between the [municipal] court and [] defendant was equivalent to taking judicial notice of that comment that people might have multiple accounts. Rather, the record demonstrates the judge was merely commenting on the potential weight of excluded evidence."
Ultimately, the court concluded that the case "really boils down to credibility." The court gave due weight to the municipal judge's finding that the officer testified credibly that he observed defendant turning while holding a cell phone by her ear.
Applying our highly deferential standard of review, we conclude the trial court's findings of fact and legal conclusions are amply supported by the credible evidence in the record. Johnson, supra, 42 N.J. at 162. Accordingly, we have no occasion to interfere with those findings.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION