STATE OF NEW JERSEY v. GEORGE SAXENMEYER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4390-06T44390-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE SAXENMEYER,

Defendant-Appellant.

___________________________________________

 

Argued August 26, 2008 - Decided

Before Judges Messano and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, MA-06-096.

George Saxenmeyer, appellant, argued the cause pro se.

Carey J. Huff, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel; Jacqueline A. Farrell, Legal Assistant, on the brief).

PER CURIAM

George Saxenmeyer appeals from his judgment of conviction for passing a stopped school bus in violation of N.J.S.A. 39:4-128.1. The conviction was entered by the Law Division following that court's de novo review of a conviction entered by the municipal court. Since the conviction was supported by adequate competent evidence, we affirm.

On April 27, 2006, defendant received a traffic ticket from Patrolman Jason Costantini of the Wall Township Police Department for passing a stopped school bus. The officer wrote on the ticket that the offense occurred near the intersection of Laurel Avenue and Route 35.

Contrary to the information on the ticket, Costantini testified in the hearing before the municipal court, that the incident occurred between Lakewood Road and Church Street on Route 35. Further, this location is reflected in Costantini's computer assisted dispatch (CAD) report. The recordation of the location as set forth in this report is done automatically and not by the officer. The ticket was amended prior to the trial to reflect the location stated on the CAD report.

Costantini testified that the reference to Laurel Avenue on the original ticket was a mistake on his part. He further testified that on the day in question, he saw a girl waiting for the bus, he saw the school bus stop and its red lights come on, and at that point, he saw defendant pass the school bus.

Defendant was the only other witness before the municipal court and he testified that he did not pass a school bus on the day in question.

The municipal court judge believed Costantini's testimony, finding him to be the more credible witness, and found defendant guilty of passing a stopped school bus. He imposed a $200 fine and assessed $33 in costs. He also revoked defendant's driving privileges for a period of thirty days and indicated that he would file a notice with the Division of Motor Vehicles that defendant be reexamined before his license is reinstated. Imposition of the sentence was stayed pending appeal.

In his appeal to the Law Division of the municipal judge's decision, defendant attempted to include in the appeal record correspondence from bus companies operating in the vicinity stating that there was no bus stop at the location set forth in the original ticket. That attempt was rejected by the Law Division judge as inadmissible hearsay. In his de novo review of the record, the Law Division judge affirmed the conviction by the municipal court judge, finding the officer to be the more credible witness. The Law Division judge modified defendant's sentence. He imposed a $100 fine and costs of $33, but did not revoke defendant's license nor require reexamination for licensure.

On appeal, defendant contends that the location of the incident was fraudulently changed in the records when the police learned that no school bus stopped at the location set forth in the ticket. He also makes numerous calculations dealing with distances and speed and highlights Costantini's testimony at various junctures, seeking to undermine the officer's credibility by establishing inconsistencies in his testimony. Appellate review of municipal court convictions is exceedingly narrow. State v. Locurto, 157 N.J. 463, 470 (1999). We do not weigh the evidence or assess the credibility of the witnesses, as the Law Division does in its de novo review. Id. at 472 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Rather, we must determine whether the findings by the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 471 (quoting State v. Johnson, supra, 42 N.J. at 162). Further, since the findings of guilt in this case have been made by both the municipal court and the Law Division, "[u]nder 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." Id. at 474.

Here the officer and defendant presented conflicting testimony. The municipal court judge, who was the trier of fact and who had the opportunity to observe the witnesses and hear their testimony, found the officer's version of the facts to be credible. The officer's testimony was sufficient to sustain the conviction. The trial judge in his de novo review of the record also found the officer's testimony credible and held defendant guilty of the offense. That finding is well-supported by the evidence. We find no error here, and affirm for substantially the reasons set forth in the trial judge's oral opinion.

Affirmed.

 

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A-4390-06T4

September 8, 2008