Opinion
DOCKET NO. A-1175-11T1
06-19-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SANDRA MCNEIL, Defendant-Appellant.
Sergio D. Simões argued the cause for appellant (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; John J. DeLaney, Jr., and Mr. Simões, of counsel and on the brief). Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; John McNamara, Jr., Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Municipal Appeal No. 10-079.
Sergio D. Simões argued the cause for
appellant (Lindabury, McCormick, Estabrook &
Cooper, P.C., attorneys; John J. DeLaney,
Jr., and Mr. Simões, of counsel and on the
brief).
Paula C. Jordao, Assistant Prosecutor,
argued the cause for respondent (Robert A.
Bianchi, Morris County Prosecutor, attorney;
John McNamara, Jr., Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Sandra McNeil appeals from a careless driving conviction, N.J.S.A. 39:4-97, and sentence of a $52 fine and $33 in court costs. We affirm.
First convicted in the Morris Township Municipal Court, defendant appealed to the Law Division. After a trial de novo on the record, Rule 3:23, she was again convicted on September 23, 2011.
On April 30, 2010, at approximately 8:16 a.m., defendant was driving her daughter to school in the family's 2010 Toyota Highlander, a sport utility vehicle. The child had testing scheduled that morning and therefore needed to be prompt. As defendant pulled past a stationary school bus, the first of a line of buses parked in the fire lane, she struck the passenger side of her vehicle against the rear driver's side of the school bus causing $1800 in damage to her own vehicle. Defendant was familiar with the morning traffic pattern as she had other children in the school and participated in the design of the school's traffic flow plan. When he rendered his decision, the Law Division judge stated:
By her own statement, [defendant] looked and she saw that there were cars coming . . . . Notwithstanding, she pulled around the parked school bus.
. . . [I]t does appear despite the fact that the . . . buses seem to pull over as far right as possible, it does not leave a full lane available for the passage of traffic in each direction.
While the oncoming traffic for the defendant's lane would not be obstructed in
any way, the defendant's lane was, indeed, [obstructed] by the presence of the buses.
In this particular instance, we have a driver who is very familiar with the area, in fact, was involved in the creation of the traffic plan for the area by her own testimony. She viewed cars coming in her direction. [There] was a reasonable inference based on her testimony [that she was] desirous of getting to the school quickly[,] meaning that she perhaps was less patient than she would otherwise have been to get to the school.
She pulled around the . . . bus knowing that there were vehicles coming in her direction. She said she was sandwiched, but that wasn't accurate. She wasn't sandwiched because she didn't collide with a car on one side and the bus on the other which would perhaps have been more indicative of an accident . . . . But she is the one who did not make it around the bus. Knowing that a car was coming, . . . [s]he did not leave herself enough space.
This occurred so close to that particular bus that she should have at the very least waited for the cars to pass, but she should have seen the cars. If they were two bus lengths away, I can't understand why it would have taken her that long to get where she needed to be.
She pulled around this vehicle and struck it almost immediately in the rear corner . . . . She did not express the due caution necessary when making this maneuver. The testimony and the evidence would indicate that she did it because she was . . . desirous of getting to the school quickly, and she came into contact with the school bus. That's the first element.
The second element, whether it would [be] likely to endanger a person or property, well, that was eviden[t]. It did endanger property. No question. Beyond that, she herself said it was a very congested area.
She had her daughter in the car with her. That's her testimony. And, clearly, this was a place where children were being discharged from school buses. The failure to make this appropriate maneuver without giving due regard to the traffic that was heading in her direction and the juxtaposition of the . . . bus in relation to the roadway and her car did put . . . property in danger. In fact, it did cause damage, $1,800 damage to her car. I don't know what it was to the . . . school bus, but that's irrelevant really. But . . . [it] certainly put herself, her daughter, and those on the bus and the oncoming vehicles in a position of . . . danger.
Therefore, I find both elements were met by the sound evidence primarily from the defendant's own mouth only confirmed by the bus driver and the officer at the scene. As a result, I find the defendant guilty of violating [N.J.S.A.] 39:4-97.
On appeal, defendant raises the following point for our consideration:
POINT I.
THE CONVICTION OF THE DEFENDANT WAS AGAINST THE WEIGHT OF CREDIBLE EVIDENCE AND NOT ESTABLISHED BEYOND A REASONABLE DOUBT; THEREFORE, DEFENDANT'S CONVICTION SHOULD BE REVERSED ON APPEAL
The function of the Law Division on an appeal from the municipal court is not to search the record for error, or to decide if there was sufficient credible evidence to support a conviction. Rather, the Law Division determines the case completely anew on the record made before the trial judge, "giving due, although not necessarily controlling, regard to the opportunity of the judge" to evaluate witness credibility. State v. Johnson, 42 N.J. 146, 157 (1964); see also State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his own independent findings of fact. State v. Avena, 281 N.J. Super 327, 333 (App. Div. 1995) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
In contrast, we review the Law Division's decision employing the "substantial evidence rule . . . ." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). We ask whether the Law Division's findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J. Super. at 333. Once satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete[,]" and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a "close one . . . ." Ibid.
Indeed, the Supreme Court has stated that:
[D]eference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.
[State v. Locurto, 157 N.J. 463, 474 (1999).]
In this case, there was sufficient credible evidence to support the judge's conclusion that defendant did not exercise due caution and engaged in a driving maneuver likely to endanger a person or property. Despite the fact that oncoming traffic was at a distance, defendant did not accurately assess the space between the passenger side of her vehicle and a stationary bus. She should have been aware not only of oncoming traffic, but the distance between her vehicle and the bus she was passing. Defendant's own words established her lack of due circumspection and resulting hazards to persons and property from her driving maneuvers.
In any event, under the two-court rule, we defer to the factual findings that resulted in the legal determination that defendant was guilty of careless driving. We affirm essentially for the reasons stated by the Law Division judge.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION