STATE OF NEW JERSEY v. JERROL CUTLER

 

OT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6223-04T16223-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERROL CUTLER,

Defendant-Appellant.

_________________________________

 

Submitted January 30, 2006 - Decided March 30, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, 05-A-00010.

Frederick C. Norton, attorney for appellant.

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Robin M. Lawrie, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction for operating a motor vehicle at sixty-five miles per hour (m.p.h.) in a fifty m.p.h. highway zone, contrary to N.J.S.A. 39:4-98c. We affirm.

The matter was tried before Judge Devine in the Frankford-Layfayette-Branchville-Sandyston joint municipal court on February 10, 2005. The only witness who testified was New Jersey State Police Officer Yevgeniy Redko (trooper) who issued the summons to defendant. The trooper testified as follows.

Trooper Redko is a certified moving radar operator. At 6:00 p.m. on June 19, 2004, prior to going on patrol, he tested the K-55 radar unit for the police car he was operating that evening with a thirty-five m.p.h. and an eighty m.p.h. tuning fork, and found the unit in proper working order. Upon completion of patrol, the following morning, June 20, 2004, at 6:00 a.m., he repeated the test with the same result. Shortly after midnight on June 20, 2004, Trooper Redko was operating his police vehicle southbound on Route 206, Sandyston Township, in a fifty m.p.h. zone when he observed defendant's vehicle approaching in the opposite direction at an "excessive rate of speed." The trooper activated his K-55 radar unit, observed a reading for defendant's motor vehicle on the radar unit of sixty-five m.p.h., turned around, and stopped defendant.

Introduced at trial, without objection, were: 1) a copy of the trooper's moving radar certification card showing him qualified to operate the unit; 2) certificates of accuracy from the State Division of Weights and Measures for the two tuning forks used to test the unit; 3) a copy of the radar test chart completed by the trooper when he tested the unit, both before and after going on patrol; and 4) two speedometer test charts dated March 27, 2004, and September 17, 2004, for the police vehicle driven by the trooper, showing the vehicle's speedometer was tested by use of a fifth wheel, and finding it accurate at speeds ranging from 30 to 80 m.p.h.

At the conclusion of the trial, defendant moved for judgment of acquittal, arguing the trooper failed to testify concerning the manner in which he tested the radar unit with the tuning forks before and after patrol, and that the State failed to introduce evidence that the lawful speed on the highway was fifty m.p.h. Judge Devine rejected the arguments, found defendant guilty, and imposed a fine of $125, together with $39 in costs.

Defendant appealed to the Law Division de novo arguing the State failed to prove that: 1) the lawful speed limit on the highway was fifty m.p.h.; 2) the trooper properly tested the radar unit before and after the motor vehicle stop, by tapping the tuning forks on a non-metallic object, and by using them in combination, as well as singly, in both the stationary and moving modes; and, 3) the speedometer test charts admitted into evidence were for the same vehicle the trooper was operating the evening of the motor vehicle stop. Judge Conforti affirmed the conviction below, concluding the trooper's testimony that the incident occurred in a fifty m.p.h. highway zone was sufficient to establish the speed limit charged, and that the documentary evidence, together with the trooper's testimony, was sufficient to infer that the trooper properly tested the radar unit. Judge Conforti imposed the same sentence as below.

On appeal, defendant raises the following issues: 1) the Law Division judge's factual findings and conclusions are not supported by "substantial, reliable evidence" in the record; 2) the State failed to prove the charge of speeding at sixty-five m.p.h. in a fifty m.p.h. zone beyond a reasonable doubt because the trooper failed to testify that: a) the area of Route 206 where the offense occurred was posted as a fifty m.p.h. zone; b) the speedometer test charts were for the same vehicle he was operating at the time of the offense; c) he activated the tuning forks by tapping them on a non-metallic surface when testing the unit; and d) he used the tuning forks both individually and in combination with each other when he tested the radar unit. Also, for the first time on appeal, defendant argues that the Law Division judge never determined whether the trooper was operating the K-55 radar unit in the manual "mode".

The scope of appellate review is this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). In the Law Division, review is de novo on the record, except for some situations governed by Rule 3:23-8(a). The Law Division judge makes a new decision on his or her own, giving due regard to the municipal court judge's opportunity to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). Because the Law Division judge is not in a position to assess the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). Deference, however, does not mean adherence, and the Law Division judge may reach a different result.

The standard for our review is whether there is sufficient, credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 162. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471.

We have reviewed the record below against the arguments presented, and are satisfied that Judge Conforti properly determined the matter.

Defendant argues that the State failed to offer evidence that the area of the roadway where the offense occurred is a fifty m.p.h. zone. We disagree. The trooper testified that the speed limit on the roadway in the area of the violation was fifty m.p.h. Although he did not testify that the roadway was posted for 50 m.p.h., the speeding statute establishes a presumption for that speed on all roadways except for designated school zones, certain business or residential districts, N.J.S.A. 39:4-98a, and b, and except as "otherwise provided in the 'Sixty-Five MPH Speed Limit Implementation Act,' . . . [N.J.S.A. 39:4-98.3-98.9.]" Concerning defendant's argument that the State failed to prove that the radar unit was properly tested and operated, we are satisfied that the proofs conform with the requirements of Wojtkowiak, supra, 174 N.J. Super. at 463. Under Wojtkowiak, the State is required to prove that: 1) the officer who operated the radar unit was trained and experienced in the use of the device; 2) the unit was calibrated or tested by use of at least two external tuning forks, both singly and in combination; 3) the speedometer of the patrol car was calibrated or tested when the unit was operated in the moving mode; and 4) the unit was operating in the manual position when the officer received the speed reading from defendant's vehicle. Ibid.

The trooper testified that he is a certified moving radar operator, and his qualifications are not questioned by defendant. He used a thirty-five m.p.h. and an eighty m.p.h. tuning fork to test the radar unit, before and after patrol. The radar test chart references the two tuning forks and discloses that the trooper received proper readings for each tuning fork separately, and that the tuning forks were used in combination with each other. We also reject defendant's argument that the State failed to establish that the two speedometer test charts introduced into evidence referenced the vehicle that the trooper operated that evening. The speedometer test charts show that they are for Car No. 954. The radar test chart completed by the trooper that evening indicates that he was operating Car No. 954. This is sufficient evidence that the speedometer test charts are for the same vehicle the trooper operated that evening.

Defendant next contends that the State failed to prove that the trooper operated the radar unit in the manual position. The evidence is to the contrary. Although the trooper did not testify that he was operating the radar unit in the manual position, his testimony infers that he was. "While I was operating my vehicle on 206 southbound, I observed the vehicle in an excessive rate of speed towards me. I activated the radar and observed the reading sixty-five miles an hour." (emphasis added). Activation of the radar is only required when the unit is being operated in the manual position, not the automatic position. Id. at 52-63.

Lastly, defendant contends that the State failed to establish that the radar unit was in proper working order because the trooper never offered testimony he struck the tuning forks on a non-metallic surface when he tested the unit. The record is devoid of any evidence that the tuning forks must be struck on a non-metallic object when activated by the operator. We assume that this challenge is based on State v. Overton, 135 N.J. Super. 443, 447 (Cty. Ct. 1975), where the judge, on a trial de novo of a speeding violation, in describing the method used to test the radar unit, stated "[t]he fork was then struck upon a wooden mallet, thereby emanating a 'tone' or sound wave." Notwithstanding the judge's comment, we are unaware of any case that requires when a radar unit is being tested with use of external tuning forks that the operator limit the activation of the tuning forks to striking them on non-metallic objects in order to emanate the proper tone or sound wave. We are aware, however, that both the police radar instructor training course approved by the United States Department of Transportation and the manufacturer's instructions for operation of the K-55 moving radar state that the external tuning forks should be activated by lightly striking the forks on a non-metallic object. Accordingly, we determine that when a radar operator tests a radar unit with external tuning forks that the operator should activate the tuning forks by striking them on a non-metallic object. Although the trooper never testified to the manner in which he activated the two tuning forks, the omission of that evidence does not require reversal because the argument was not raised during trial. State v. Dantonio, 18 N.J. 570, 580-81 (1955); State v. Van Syoc, 235 N.J. Super. 463, 466 (Law. Div. 1988), aff'd, 235 N.J. Super. 409 (App. Div. 1989); State v. Dickens, 130 N.J. Super. 73, 77-78 (App. Div. 1974).

 
Affirmed.

Defendant argues that the State failed to establish that the trooper was operating the radar unit in the manual "mode." This appears to be a misstatement. What defendant meant to refer to is the manual "position." The mode of operation refers to what the patrol car does. In a stationary mode, the car is parked with the radar generally facing the oncoming traffic. In the moving mode, the patrol car operates in traffic, and tracks vehicles approaching the opposite direction. Each mode, however, may be operated or controlled in a manual or automatic position. The manufacturer of the device does not recommend the use of the automatic position, only that the unit be used in the manual position. If the unit is used in the automatic position, it will lock onto the first echo it receives, and process that echo to a readout. A trained operator makes independent decisions concerning whether he or she is receiving a proper signal or perhaps a "ghost" before the operator locks onto the vehicle. See State v. Wojtkowiak, 170 N.J. Super. 44, 48-63 (Law Div. 1979), rev'd on other grounds, 174 N.J. Super. 460 (App. Div. 1980).

As stated previously, the function of a Law Division judge on an appeal from a municipal court conviction is not to merely affirm or reverse the decision below, but to conduct a de novo trial on the record established below, and make independent findings of fact derived from the record. R. 3:23-8(a); State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). Upon conclusion of his or her fact-finding function, the Law Division judge then renders a judgment of conviction or acquittal. Although the Law Division judge failed to render a judgment of conviction and affirmed the municipal court decision below, we are satisfied that the record contains sufficient findings to sustain the conviction of speeding beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 95 (2005); State v. Bucich, 134 N.J. Super. 111, 113-14 (App. Div.), certif. denied, 68 N.J. 280 (1975).

U.S. Dep't of Transp., Nat'l Highway Traffic Safety Admin., Police Radar Instructor Training Course, ch. 4B, p. 44, ch. 4C, p. 64 (Mar. 1, 1995) (tuning fork should be "tapped on a non-metallic object"); U.S. Dep't of Transp., Nat'l Highway Traffic Safety Admin., Model Minimum Performance Specifications for Police Traffic Radar Devices, 1221.72 (Jan. 1, 1994) ("Activate the tuning fork by striking it on a nonmetallic object . . . ."). See also PB Electronics, MPH K-55 Moving Radar Instructions, http://www.pbelectronics.com/K-55_directions.htm (last visited Mar. 9, 2006); PB Electronics, Radar Tuning Fork, http://www.pbelectronics.com/radar_tuning_fork.htm (last visited Mar. 9, 2006) ("Lightly strike the lower speed fork on a hard non-metallic surface . . . .").

(continued)

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A-6223-04T1

March 30, 2006