Opinion
DOCKET NO. A-3354-09T2
09-08-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID C . ORDEN, Defendant-Appellant.
David C. Orden, appellant pro se. Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Kestin.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-002.
David C. Orden, appellant pro se.
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Defendant, David C. Orden, appeals from a judgment of conviction entered in the Law Division after a trial de novo on the record, Rule 3:23-8, finding him guilty of careless driving, N.J.S.A. 39:4-97. The court stated its reasons for the decision orally on the record, and ordered a fine of $81 and assessed $33 in court costs, both of which, the court noted in the judgment, had been "previously paid." The judgment also vacated "[a]ny other fines and/or penalties inconsistent with this order."
On appeal, defendant, pro se, advances the following arguments for our consideration:
Point 1
MY RIGHTS HAVE BEEN DENIED AND VIOLATED REPEATEDLY THROUGHOUT THE PROCEEDINGS.
Point 2
INEFFECTIVE DEFENSE ATTORNEY[.]
Point 3
THE OFFICER'S CREDIBILITY WAS NOT SUFFICIENT TO BASE A CONVICTION ON.
Point 4
THE PROSECUTION HAS FAILED TO PROVE THE ELEMENTS OF THE CASE WHICH THEY CLAIM ARE THE BASIS OF THE SUMMONS, NAMELY IMPROPER LANE CHANGE AND FAILURE TO SIGNAL.
Point 5
THE OFFICER'S INTERPRETATION OF THE ACTIONS HE OBSERVED WAS NOT NECESSARILY CORRECT OR APPROPRIATE.
Point 6
MY CREDIBILITY WAS UNJUSTLY DISMISSED, IGNORED AND DENIED.
Point 7
THE ACTIONS THAT I TOOK WERE THOSE WHICH A "REASONABLE" PERSON WOULD HAVE TAKEN IN MY SITUATION.
In considering the matter on appeal from the Pequannock Municipal Court, the Law Division was obliged to evaluate anew the evidence developed in the municipal court, while according appropriate deference to the municipal judge's credibility determinations as the trier of fact who had seen and heard the witnesses. See State v. Johnson, 42 N.J. 146, 157 (1964). Applying this standard, and based upon the evidence, the Law Division judge found that, despite defendant's contention that he had driven skillfully, "defendant's driving was careless" in that he "jeopardized [the] safety" of others in making the vehicular movements found to have occurred: "passing one [slow-moving] vehicle, moving back to the center and then over to the left and back all the way to the right. No signals were used."
Once the trial courts have made their findings and reached their conclusions, the standard of review on further appeal precludes us from "engag[ing] in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Id. at 472 (quoting State v. Barone, 147 N.J. 599 (1997)). We are "restricted to the test of[] 'whether the findings made []by the trial court[] could reasonably have been reached on sufficient credible evidence present in the record.'" Ibid.
Governed by this standard of review, our detailed examination of the record in the light of the arguments advanced by the parties discloses that none of the issues raised by defendant in this appeal have sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
The findings and conclusions of the Law Division were well supported by the record. The credibility determinations were unremarkable. We discern no invalidating procedural flaws or misapplications of discretion on either level of trial court. And, no adequate basis is presented in the arguments made for determining that the conduct of defense counsel was ineffective or deficient when measured by prevailing standards. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); United States v. Cronic, 466 U.S. 648, 658, 194 S. Ct. 2039, 2946, 80 L. Ed. 2d 657, 667 (1984); State v. Fritz, 105 N.J. 42 (1987); State v. Miller, 420 N.J. Super. 75 (App. Div. 2011).
In deciding this appeal on the merits, we have overlooked defendant's failure to comply fully with the Rules of Court. He has omitted to provide a transcript of the municipal court trial that led to his initial conviction. That transcript was part of the record before the Law Division and, therefore, was a mandated component of the record on this appeal. See R. 2:5-4. Normally, the absence of critical documents results in dismissal of the appeal. See, e.g., Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282 (1984). In the circumstances, however, we have been able — from the documents before us and depicted elements of the testimony in the municipal court trial the existence of which is undisputed — to evaluate defendant's arguments even without the benefit of that transcript, and we have done so.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION