STATE OF NEW JERSEY v. DAVID T. FRIEDMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0272-05T20272-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID T. FRIEDMAN,

Defendant-Appellant.

 

Argued September 20, 2006 - Decided October 4, 2006

Before Judges Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 51-2005.

Larry S. Loigman argued the cause for appellant.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

On June 16, 2005, a municipal court judge convicted defendant David Friedman of careless driving, N.J.S.A. 39:4-97, and leaving the scene of an accident, N.J.S.A. 39:4-129(b). On appeal to the Law Division, Judge Paley acquitted defendant of careless driving but found him guilty of the latter offense. The court imposed appropriate fines and court costs and a six-month driver's license suspension. On appeal, defendant makes the following legal argument:

THE EVIDENCE OF AN "ACCIDENT" WAS INSUFFICIENT TO SUSTAIN DEFENDANT'S HIT-AND-RUN CONVICTION.

We affirm.

The evidence shows that on December 7, 2004, Beata Gil was operating her automobile on the ramp from Ernston Road to Route 9 North in Middlesex County when her car was stopped due to traffic. According to Gil, her car was struck in the rear by a blue Jaguar driven by a man whom Gil identified in court as defendant. Gil, who testified through a Polish interpreter, described the accident as follows:

The traffic was very big. I put my car into parking. And after awhile I heard, I felt a bang hitting from the back and my car moved somewhat to the front. It was a little bit, it was in the beginning of the impact. And I looked into the mirror who that was,

Q. Okay.

A. I stepped out of the car in order to see what happened to me. I looked to the car that was standing behind mine -- behind me, my car in the back. And I saw a car sitting there. A gentleman who was speaking on the telephone and was very angry. He closed the window and he was maneuvering with his hands making movements with his hands.

When Gil got out of her car and looked at its rear bumper, she noticed "a small indentation" and that "the lacquer was cracked." She testified that the damage was not there before the accident and that she had not had it fixed. The municipal court judge viewed the damage to the car and described it as "a small indentation on the back of her car on the bumper . . . smaller than a dime sized circle."

At the scene, Gil wrote down the license plate number of the car that struck her; the car was later identified as belonging to defendant. Defendant drove from the scene without providing Gil with his name and address, operator's license or vehicle registration. After briefly returning to her home, Gil went to the police station and reported the accident that same afternoon.

At trial, defendant did not deny that he was operating the vehicle or that it struck Gil's car. He described the incident as follows:

And the cars were packed like sardines when they're not moving. And I was coming (sic) the ramp and a car in front of me was standing and I literally, not even, I felt I touched her just like you touch somebody who you just open your door, park car. . . .

. . . .

Q. Okay. Now, you say that you came up to that car and your car touched that car. Is that correct?

A. Yes.

Defendant claims the touching of the vehicles did not constitute an accident, which is a prerequisite for a guilty verdict for leaving the scene of an accident. We reject that argument.

The statute under which defendant was convicted, says, in pertinent part:

(b) The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section. . . .

. . . .

(c) The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged . . . .

. . . .

(e) The driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property shall be presumed to have knowledge that he was involved in such accident, and such presumption shall be rebuttable in nature.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.

[N.J.S.A. 39:4-129(b), (c), (e).]

In addressing defendant's argument, the Law Division judge concluded that defendant knew he was in an accident, satisfying the requirements of N.J.S.A. 39:4-129(b). We agree. No dispute exists that the car defendant was operating physically "touched" Gil's car. Gil testified that when she got out of the car and looked, she saw damage to her vehicle where it was struck by defendant's car. She attempted to convey her observations to defendant; but defendant closed his window and drove from the scene. We conclude, as did the Law Division judge, that under these facts, defendant knew that he was in an accident.

Defendant claims the contact between his car and Gil's was minimal. Even if true, that is not a defense to the charge. N.J.S.A. 39:4-129(e) provides that it is no defense "that the operator of a motor vehicle was unaware of the existence or extent of . . . property damage caused by the accident as long as the operator was aware that he was involved in an accident." Thus, the minimal impact, even if there had been no damage, would not mean that an accident did not occur. Applying the facts to a reasonable reading of the statute, the impact constituted an accident, and defendant was aware of the accident when it happened.

Accordingly, the record contains sufficient credible evidence to support the findings of the Law Division. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). We affirm substantially for the reasons expressed by Judge Paley.

Affirmed.

 

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A-0272-05T2

October 4, 2006