STATE OF NEW JERSEY v. CHARLES ASHJIAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6528-03T56528-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES ASHJIAN,

Defendant-Appellant.

_______________________________

 

Submitted September 12, 2005 - Decided

Before Judges Alley and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County (Municipal Appeal 52-03).

Charles Ashjian, appellant pro se.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Karyn M. Pizzelanti, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was found guilty of driving forty-five miles per hour in a twenty-five-mile-per-hour zone. He challenges the admission into evidence of his recorded speed by a radar speed-measuring device called the "Python," and the lawfulness of the twenty-five-mile-per-hour posted speed limit.

We agree that the court erred in admitting into evidence the Python's recording, but we nonetheless affirm because other evidence in the record supports a finding of guilt. We also conclude that the twenty-five-mile-per-hour speed limit was lawful.

On October 21, 2001, East Newark Police Officer Edward Negron was on road patrol in the area of 900 Passaic Avenue, East Newark, a business district. He parked his vehicle facing southbound on Passaic Avenue, and across the street was posted a speed limit of twenty-five miles per hour.

Negron had a speed-detecting device in his vehicle, called the "Python." He had tested the instrument for accuracy at the beginning of his shift, and it was pointed southbound. Neither of the State's witnesses, Negron and Police Chief Kenneth Sheehan, testified as to the exact name of the machine. The owner's manual, produced by the State in discovery, provided that it was applicable to both the Python Series II and the Python Series II FS. Sheehan did not know which model his department had.

When Negron saw defendant on October 21, defendant was traveling southbound on Passaic Avenue. Based on his observations, experience and training, Negron determined that defendant was speeding. The Python recorded defendant's speed at forty-five miles per hour.

A few seconds after defendant's vehicle had gone past, Negron stopped defendant and issued him a summons for driving forty-five miles per hour in a twenty-five-mile-per-hour zone, N.J.S.A. 39:4-98. Defendant pled not guilty and moved to dismiss the complaint, asserting, as he does on appeal, that the Python was not authorized for use in New Jersey, the twenty-five-mile-per-hour speed limit was improper, the State failed to establish the Python's scientific reliability, and the Python failed to comply with federal use and licensing requirements. On April 9, 2002, the municipal court issued an oral opinion denying the motion.

In February 2003, the parties tried the matter in municipal court. Thereafter, the court issued a written decision finding defendant guilty of driving forty-five miles per hour in a twenty-five-mile-per-hour zone, N.J.S.A. 39:4-98. The court imposed a $100 fine and court costs. After defendant appealed the municipal court's decision on June 14, 2004, the Law Division held a trial de novo on the record. Relying upon the factual findings of the municipal court, the Law Division also found defendant guilty of speeding, N.J.S.A. 39:4-98. The court entered its resulting order on June 14, 2004, and defendant commenced this appeal by filing a notice of appeal.

Criminal and quasi-criminal cases tried in municipal court by a municipal court judge are first appealed to the Law Division. R. 7:13-1. With limited exceptions, not applicable here, the Law Division reviews the case de novo on the record, pursuant to R. 3:23-8(a), and renders a new decision giving "due regard to the municipal judge's opportunity to view the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Because the municipal court observed the witnesses first hand, the Law Division should defer to its findings of witness credibility. State v. Locurto, 157 N.J. 463, 472-74 (1999).

After the Law Division renders its decision, on appeal to us we review the Law Division's decision to determine whether there is sufficient credible evidence in the record to properly undergird that decision. Like the Law Division, we do not make witness credibility findings, and we defer to the municipal court's findings. Locurto, supra, 157 N.J. at 470. Our function is to appraise the record from inception and make our own findings and conclusions only if we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

Defendant asserts that the trial court erred in admitting the Python recording into evidence, because he claims the Python did not meet the requirements of N.J.A.C. 13:47B-1.5(a). That regulation provides, in relevant part:

(a) All new types of weighing and measuring devices of any description whatsoever and all devices of older types to which may be added any alteration or new feature intended or designed as an improvement to such equipment shall, before distribution or installation thereof in the State of New Jersey, be submitted by the manufacturer thereof to the State Superintendent of Weights and Measures for inspection and approval of type and operation . . . .

[N.J.A.C. 13:47B-1.5(a).]

Subsection (c) of N.J.A.C. 13:47B-1.5, argues defendant, mandates that equipment that does not comply with subsection (a) "shall be subject to condemnation." N.J.A.C. 13:47B-1.5(c). Because the East Newark Police Department did not have authorization for the Python from the Division of Weights and Measurers, reasons defendant, the Python should have been "subject to condemnation."

The Law Division rejected defendant's argument. It held that the accuracy of radar devices can be judicially noticed under State v. Dantonio, 18 N.J. 570 (1955), so long as the State satisfies the State v. Readding, 160 N.J. Super. 238 (Law Div. 1978), four-prong test for reliability. The Readding court said:

As a general rule, in order for the reading [of a] speedmeter to be admissible into evidence, it should be established that:

1. The device is scientifically reliable;

2. The particular speedmeter used in the case being tried is accurate;

3. The operator was qualified;

4. The device was operated properly in the case being tried.

The scientific reliability of radar devices has been generally established and need not be re-proven in every case.

[Id. at 243.]

In our view, the Law Division applied the correct standard in determining whether the Python recording was admissible in evidence. It is well established that our courts will take judicial notice of the general accuracy of radar speed-measuring devices, Dantonio, supra, 18 N.J. at 582-83, and will admit the machine's recording into evidence upon proof of the machine's scientific reliability, accuracy, and proper operation by a qualified operator. Johnson, supra, 42 N.J. at 171; State v. Finkle, 128 N.J. Super. 199, 207 (App. Div.), aff'd o.b., 66 N.J. 139 (1974).

While a certification of correctness from the Division of Weights and Measurers is presumptive evidence of conformity with state standards, N.J.S.A. 51:1-102, it is not necessary to prove reliability of a device. State v. Haskins, 131 N.J. 643, 650-51 (1993).

Defendant further argues that the State failed to satisfy the Readding four-prong test. We agree with this contention, but we nonetheless conclude, though the State does not so argue, that the conviction should be affirmed. We are of that view because, even without evidence as to the Python reading, there is sufficient evidence in the record to find defendant guilty, namely, Negron's observations that defendant was speeding. See Locurto, supra, 157 N.J. at 471-72 (affirming a conviction for careless driving, based on the police officer's testimony that in his opinion the defendant was speeding).

The municipal court based its finding of guilt on the Python recording and on Negron's personal observations that defendant was speeding. The Law Division accepted those findings. Taking into account the municipal court's written opinion and the comments during trial, discussed below, we interpret those findings to mean that either type of evidence, the Python recording or Negron's testimony, standing alone, would have been sufficient as a basis for determining guilt.

In its written opinion, the municipal court said that the Python recorded defendant's speed of forty-five miles per hour, and Negron confirmed that recording with his observation. The court found no merit in any of defendant's challenges to the accuracy of the Python, and it said, "I am further convinced based upon the Officer's observations that the Defendant's vehicle was in fact traveling at 45 miles per hour and find the Defendant guilty as charged."

During trial, the municipal court allowed Negron to testify regarding the Python but ruled that it would strike the testimony if the State did not lay a proper foundation, stating that striking the testimony "does not necessarily result in the dismissal of the case because there is other evidence on the record." Later, before defendant began his cross-examination of Negron, the court asked whether the State could lay the foundation because if it could not the court would strike the testimony and streamline cross-examination. Such a ruling, said the court, "would not eliminate the proceeding because there is other evidence."

Because we conclude that the evidence of Negron's observation of defendant's speed was sufficient proof in the record, and was a sufficient predicate in and of itself on which to base a finding of guilt, it is not necessary for us to address defendant's arguments concerning the Readding four-prong test. We thus affirm the speeding contention. We add the following, however, with regard to defendant's contention that the State failed to present sufficient evidence to establish that officer Negron received appropriate training, testing, or certification for operation of the Python.

Negron became a police officer in July 1998, and while in the police academy he had received two days of "basic" training on the use of radar devices. He was also trained on visually detecting the speed of vehicles.

While working in East Newark, in September or October 2001, Negron also received two to three days of training on radar equipment from an East Newark police sergeant. Although he did not remember the type of equipment on which he was trained, Negron believed that the sergeant was certified to conduct radar training.

The training included written materials, road-side training on visual detection of speed and training on how to use tuning forks. At the end of the training Negron passed a multiple choice test and a practical exam, which earned him certification as a "radar operator." The exam did not include questions specific to the Python.

In operating the Python, Negron relied on the training that he received from the sergeant, and he never read the Python operator's manual.

The Law Division found that the State "clearly adduced enough evidence" to sustain a finding that Negron was qualified to operate the radar device. Pursuant to Readding, supra, 160 N.J. Super. at 243, said the court, "qualification of [a radar gun] operator 'may be shown by his completion of a training program given by qualified instructors.'"

In our view, the finding that Negron was qualified to operate the Python is unsupported by the record. The record contains no evidence on how one properly operates the Python. Without that information, one does not have a basis with which to compare Negron's training and determine whether it was sufficient. See Dantonio, supra, 18 N.J. at 574 citing Kopper, The Scientific Reliability of Radar Speedometers, 33 N.C.L. Rev. 343, 353 (1955), (stating that the average person could learn to operate the radar speed meter "after about one and one-half to two hours of instruction"); State v. Boyington, 159 N.J. Super. 426, 431 (Law Div. 1978) (stating that a minimum of thirty minutes of instruction was needed to properly operate the Ra-Gun). Additionally, while the evidence shows that Negron received training on an unknown device in radar-speed detection, it does not show that Negron was qualified to operate the Python.

In sum, we agree with defendant that it was error to admit the Python recording into evidence. Notwithstanding this conclusion, we affirm the conviction because Negron's testimony, based on his observations, experience and training, that he believed defendant was speeding, independently provides a sufficient basis on which to find defendant guilty.

Finally, we reject defendant's contention that the twenty-five-mile-per-hour posted speed limit was not enforceable, and that the only enforceable speed limit, pursuant to N.J.S.A. 39:4-98, was fifty miles per hour.

The Law Division found that the twenty-five-mile-per-hour speed limit was proper pursuant to N.J.S.A. 39:4-98, which provides:

Subject to the provisions of R.S.39:4-96 and R.S.39:4-97 and except in those instances where a lower speed is specified in this chapter, it shall be prima facie lawful for the driver of a vehicle to drive it at a speed not exceeding the following:

a. Twenty-five miles per hour, when passing through a school zone during recess, when the presence of children is clearly visible from the roadway, or while children are going to or leaving school, during opening or closing hours;

b. (1) Twenty-five miles per hour in any business or residential district;

(2) Thirty-five miles per hour in any suburban business or residential district;

c. Fifty miles per hour in all other locations, except as otherwise provided in the "Sixty-Five MPH Speed Limit Implementation Act," P.L.1997, c.415 (C.39:4-98.3 et al.).

The Law Division ruled that the Borough of East Newark designated 900 Passaic Avenue as a "business district," in which the lawful speed limit is twenty-five miles per hour, under N.J.S.A. 39:4-98(b)(1). Business district is defined

in N.J.S.A. 39:1-1 as

that portion of a highway and the territory contiguous thereto, where within any 600 feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks, office buildings, railroad stations, and public buildings which occupy at least 300 feet of frontage on one side or 300 feet collectively on both sides of the roadway.

Defendant insists that the area was not a business district, but a suburban business district, defined as

that portion of highway and the territory contiguous thereto, where within any 1,320 feet along that highway there is land in use for business or residential purposes and that land occupies more than 660 feet of frontage on one side or collectively more than 660 feet of frontage on both sides of that roadway.

[N.J.S.A. 39:1-1.]

According to defendant, there were chemical factories and industrial parks on both sides of Passaic Avenue, and there was more than 660 feet of frontage on both sides. Thus, he concludes, thirty-five miles per hour should have been the posted speed limit, pursuant to N.J.S.A. 39:4-98(b)(2).

Defendant contends, without explanation, that a municipality must obtain permission from the Department of Transportation if it wishes to deviate from the speed limits mandated by N.J.S.A. 39:4-98. According to a certification he received from the Bureau of Traffic Engineering and Investigations, East Newark never obtained such approval. Thus, he reasons, the only speed limit that could have been posted lawfully in the area was thirty-five miles per hour.

Defendant does not correctly state the law, however, because a municipality may set a speed limit different from that stated in N.J.S.A. 39:4-98(a) to (c) for a roadway within its jurisdiction whenever an engineering or traffic investigation shows that a different speed limit is reasonable or safe under the circumstances. N.J.S.A. 39:4-8(b); N.J.S.A. 39:4-98. Only when a local government seeks to regulate a road that is not within its exclusive jurisdiction must it obtain approval from the Commissioner of Transportation. N.J.S.A. 39:4-8(b).

Here, defendant fails to present any evidence showing that Passaic Avenue was not within East Newark's exclusive jurisdiction. Thus it was free to set a speed limit lower than that provided in N.J.S.A. 39:4-98.

Next, defendant reasons that because the twenty-five-miles-per-hour posted speed limit was illegal, the legally enforceable speed limit "is solely contained in the Certification" from the Bureau of Traffic Engineering and Investigations. The certification to which he refers provided that the Bureau's records revealed no "record of approval altering the Speed Limits" along 900 Passaic Avenue, and in the Bureau's view, "the basic statutory Speed Limits" of N.J.S.A. 39:4-98 applied to the area. The relevant basic speed limits under N.J.S.A. 39:4-98, are: twenty-five miles per hour in a "business or residential district," thirty-five in a "suburban business or residential district" and fifty in "all other locations," except as provided in N.J.S.A. 39:4-98.3 to -104, which is inapplicable to this case. As we understand it, defendant is relying on N.J.S.A. 39:4-98(c), quoted above, inasmuch as he contends that only a fifty-mile-per-hour speed limit was applicable in the area.

As we have indicated, however, in our view defendant's position is based on an inaccurate premise; namely, that the municipality did not have the authority to set the speed limit at twenty-five miles per hour. Even if the twenty-five-mile-per-hour sign was illegal, defendant's argument would be meritless because N.J.S.A. 39:4-98(c) does not provide that fifty miles per hour shall be the enforceable speed limit in an area having an illegally posted speed limit. Rather, if the area were a suburban business district and the municipality did not have authority to deviate from the basic limits in N.J.S.A. 39:4-98, as defendant argues, then the speed limit pursuant to N.J.S.A. 39:4-98(b)(2) would be thirty-five miles per hour, not fifty.

Thus, defendant's contention that fifty miles per hour was the only enforceable speed limit in the area of 900 Passaic Avenue is, while creative, entirely without merit.

 
Affirmed.

(continued)

(continued)

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A-6528-03T5

October 11, 2005