STATE OF NEW JERSEY v. ADRIANA PEREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3273-07T43273-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADRIANA PEREZ,

Defendant-Appellant.

_____________________________

 

Submitted March 17, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5847.

Hugo Villalobos, attorney for appellant.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Adriana Perez appeals from the February 1, 2008 judgment of the Law Division which, upon de novo review, found her guilty of careless driving in violation of N.J.S.A. 39:4-97, and upheld the $200 fine and $33 in court costs imposed by the municipal court. For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows. On March 12, 2007, Officer Thomas A. Pryor of the Elizabeth Police Department was involved in a motor vehicle accident with defendant. Pryor testified that he was traveling westbound on Rahway Avenue on his police motorcycle; Officer Eric V. Shaffer was riding directly behind Pryor, also on a police motorcycle.

As Pryor approached the intersection at Burnett Street, he was behind defendant's vehicle. Pryor testified that Rahway Avenue is a one-way street in this area, and described the accident as follows:

[Defendant] was in front of me. . . . [S]he slowed down. We were behind her and she pulled over to the right side of the road. It appeared as if she was trying to park. She pulled over towards the curb. And as . . . I went by, she made a left turn. It appeared like she was going down Burnett Street without signaling right in front of me and I couldn't stop in time.

Pryor's motorcycle then struck the rear of defendant's vehicle. The officer estimated that he was driving approximately twenty miles per hour at the point of impact; however, the force of the impact threw him to the ground. Pryor testified that defendant gave "no signal to the left[,]" and "made a turn to the left directly across [his] path[.]"

Officer Shaffer testified that he was "about 50 to 60 feet behind Officer Pryor . . . traveling the same direction on Rahway Avenue." He described the accident as follows:

I saw the vehicle in front of Officer Pryor . . . pull over to the right side of the road and slow [down] as if they were parking. Officer Pryor continued to go straight when the vehicle suddenly made a left turn with no signal on, as to go to Burnett Street. Officer Pryor couldn't stop and unfortunately struck the vehicle.

Shaffer stated that he was "in a position where[,] had [defendant] signaled a turn, [he] would have been able to see it[.]" Shaffer prepared an accident report, in which defendant "reported that she was traveling west on Rahway Avenue. She reported that she signaled the left turn and made the left turn and then was struck by . . . [Officer Pryor]." Shaffer issued a summons to defendant for careless driving.

Defendant testified:

I was going about 20 miles an hour. I looked in my rearview mirror and I saw the two officers having a talk. I put [on] my left-turn signal because I was going to find a parking spot on the left side. And because they kept on talking, they didn't see me and they just kept going straight. I have the picture here of my pickup truck where he hit me and . . . the picture and . . . the police report do not coincide. They're in conflict.

I went to the insurance company that same day. The body shop person said I would have to go get another report because it wasn't congruent with the photograph. The doors don't have any bumps or any damage to them.

Defendant introduced her photographs into evidence; however, she did not produce any witness to testify as to the nature of the damage of her vehicle.

Defendant also offered Shaffer's accident report into evidence. That report contains a "[c]rash [d]iagram" showing defendant's vehicle turning left onto Burnett Street and Pryor's motorcycle colliding with defendant's vehicle on the driver's side. Defendant argued that her photographs showed that Pryor "hit with his handlebar . . . on the right[] [a]nd then he scratched it up . . . with his rearview mirror. . . ." Defendant contended that her photos also "showed where [the motorcycle] hit on the back part."

The municipal judge reviewed the evidence and concluded:

Basically, this comes down to a question as to credibility. Do I believe the officers or do I believe [the defendant]? Quite frankly, I believe the officers. Here's a situation where [defendant], according to what . . . both officers . . . testified to pulled to the right-hand side of travel and then made a left-hand turn in front of the officer and did not signal. I'm not an accident expert reconstructionist. I'm not here to testify as to whether or not this should have occurred at the driver's side door and whether some evasive action that was taken, and the impact was done at the rear because . . . Pryor was trying to avoid an accident. . . .

What I do believe is . . . that the officers had a good vantage point. The officers testified to what they saw. According to what the officer's testimony was that the speed was not so great that they were distracted during that period of time, seeing what [defendant] did, I believe that both of them fairly saw [defendant] pull to the right and then pull to the left in front of them and did not see a turn signal. I believe that that falls squarely under the terms and conditions of careless driving, and I find [defendant] guilty.

Defendant appealed, and following a de novo review of the record, Judge John S. Triarsi rendered the following decision:

I have reviewed the record anew and make the following findings. The municipal court judge clearly . . . found the officers who testified before him to be credible and specifically disbelieved the testimony of the defendant . . . .

Now . . . I have to give findings of credibility substantial deference, the reason being of course is that the judge has seen and listened to the people and making an impression of their being believable or not. And absent a major error that is clear in placing credibility in one party by the [c]ourt, I have to give that consideration to the judge who made it.

With th[e] particular case law being quite clear and a fair reading of the testimony, . . . it seems to me that there is no basis for me to set aside that finding of credibility and there's no major mistake by the [c]ourt in doing it and there's no basis for me to put my own view of credibility on the record . . . different than the trial judge's.

Having made the determination to give deference to the trial court for viewing the witness[es], I find on a trial anew, this is what is before me, that the defendant was operating her vehicle in the area of Rahway Avenue and that she did attempt to park her car and move to the right. The officers, two of them, were on motorcycles behind her. As she moved to the right they determined that she was attempting to park, but rather than parking she made an abrupt left-hand turn in front of them . . . into a street and did not exercise due careful and controlled movement of her car, did not use a directional to warn them that she was about to turn, but rather[,] in my view[,] operated her car in a careless way without caution and circumspection in a manner that was likely to endanger person and property and is therefore in my view . . . guilty of the charge of careless driving.

It's not merely making a left[-]hand turn, it's the fact that she made it after she had moved to the right, showing that she was intending to park, and that she knew they were behind her because she says that she knew they were behind her. And rather than exercise control and carefulness by using a signal -- it could have been a hand signal, it could have been by the electrical signal in her car, she made a turn without signaling to them. And I deem that indeed was careless and without caution and in a manner likely to endanger those two people, the people behind her riding those motorcycles.

Now as to the issue raised by [defense counsel] without any reference today in his brief, the [c]ourt told her of the rights again she had to a trial but with the use of an attorney and specifically told her that he would not be considering any type of incarceration and asked her anew did she want to proceed on her own without her own personal attorney and she said yes to him. There is nothing in front of me to show that she didn't understand because they used an interpreter on that date and time.

Therefore, on a trial de novo, giv[ing] . . . the judge below me[] due consideration of his finding of credibility on behalf of the two people on their motorcycles, on a trial de novo again with that particular credibility call being made and there's a solid basis of it in the record, I find the [defendant] anew guilty of the charge of careless driving.

On appeal, defendant raises the following issues for our consideration:

POINT ONE

THE STATE FAILED TO PROVE THE ELEMENTS OF THE OFFENSE UNDER N.J.S.A. 39:4-97 AND THE LAW DIVISION SHOULD BE REVERSED.

POINT TWO

CAN A CRIMINAL COURT FIND A DEFENDANT GUILTY OF CARELESS DRIVING FOR GETTING REAR ENDED UNDER THE SAME CIRCUMSTANCES THAT THE SUPREME COURT IN DOLSON V. ANASTASIA FOUND THAT A DEFENDANT COULD NOT BE FOUND GUILTY IN THE CIVIL CONTEXT UNDER THE VERY MUCH LOWER STANDARD OF PROOF BY A PREPONDERANCE OF THE EVIDENCE.

POINT THREE

CAN CARELESS DRIVING N.J.S.A. 39:4-97 BE ESTABLISHED ONLY BY PROVING THE VIOLATION OF ANOTHER STATUTE THAT MORE PRECISELY DEFINES THE VIOLATION TESTIFIED TO.

IS CARELESS DRIVING PROVED BY MERE PROOF OF VIOLATION OF N.J.S.A. 39:4-123 (IMPROPER TURN)?

IS CARELESS DRIVING PROVED BY MERE PROOF OF VIOLATION OF N.J.S.A. 39:4-126 (FAILURE TO SIGNAL)?

POINT FOUR

THE COURT SHOULD REMAND FOR A NEW TRIAL AS THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN SHE WAS NOT AFFORDED A PUBLIC DEFENDER AS SHE WAS ENTITLED CONSTITUTIONALLY AND BY STATUTE, BECAUSE SHE WAS NOT INDIVIDUALLY ADVISED THAT SHE HAD THE RIGHT NOT TO TESTIFY.

Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied that they are without merit. We affirm substantially for the reasons set forth by Judge Triarsi in his decision rendered from the bench on February 1, 2008. We add only the following comments.

N.J.S.A. 39:4-97 provides: "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving." Defendant appears to argue that Officer Pryor should have been charged with careless driving instead of her because, she claims, "the conduct which endangered person or property was the police officer's `determination' that defendant was parking coupled with the illegal conduct of passing on a one[-]lane street in an unsafe manner leading to the complainant striking the defendant in the rear." By contrast, defendant asserts, "[t]here is no proof in the record that [her] conduct endangered person or property."

We are satisfied that this argument completely ignores the evidence of record as found by both the municipal and Law Division judges.

Defendant contends that she is guilty, at most, of making an improper turn, in violation of N.J.S.A. 39:4-123, or failing to signal a turn, in violation of N.J.S.A. 39:4-126. Defendant argues that "neither failure to signal nor improper turn alone or clustered were proof of the essential elements of the offense charged."

This argument is without merit. As Judge Triarsi found, defendant's failure to signal a left turn "after she had moved to the right, showing that she was intending to park," and knowing, by her own admission, that the police officers were behind her on motorcycles, constituted driving in a manner that was "careless and without caution and . . . likely to endanger . . . the people behind her riding those motorcycles." This finding, which is supported by the record, clearly establishes the statutory requirement of "endanger[ing], or be[ing] likely to endanger, a person or property" in N.J.S.A. 39:4-97. See State v. Dorko, 298 N.J. Super. 54, 60 (App. Div.), certif. denied, 150 N.J. 28 (1997).

Defendant's argument that she cannot be guilty of careless driving because she was struck in the rear, relying upon Dolson v. Anastasia, 55 N.J. 2, 10 (1969), is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Suffice it to say, the principles of tort liability articulated in that case have no relevancy to defendant's conduct when determining her criminal liability under the careless driving statute.

Finally, we address defendant's argument that she was entitled to assignment of counsel and was not "individually advised that she had the right not to testify." At the outset of the municipal court proceedings on August 27, 2007, the following colloquy occurred between the judge and defendant:

THE COURT: Okay. Ms. Gonzalez [(interpreter)], was sworn in for the previous case. There's no reason for her to be re-sworn.

Ma'am, have a seat for one second. Ms. Perez, this is how the matter is going to proceed. The [p]rosecutor is going to call his . . . witnesses. At the conclusion of . . . the testimony of the witness[es], you have the right to ask the witness[es] questions. At the conclusion of the State's case, you have the right to call whatever witnesses you wish to call. And if you wish to testify, I will allow you the opportunity to do so. Do you understand?

[DEFENDANT]: Yes, I do.

THE COURT: Now, you're proceeding without an attorney and it looks like you were before Judge Russell on April 9th , 2007[,] where he had told you, you had your right to an attorney. If you couldn't afford one, you may have one appointed here. Do you understand that?

[DEFENDANT]: Well, I asked for one and they told [me] that from this case, I couldn't get one.

THE COURT: Okay. Well, it's a careless driving and for a the record - or actually not for the record, but just for your own understanding, careless driving carries with it under 4-97, a 50 to 200-dollar fine or up to 15 days in jail, or both. And there was no . . . death was there in this?

[PROSECUTOR]: No.

THE COURT: Okay. So, I mean, unless there was severe personal injury or death, you're not going to be getting any jail time, so they're correct on that. But you wish to proceed without your own personal attorney. Am I correct on that?

[DEFENDANT]: Yes, sir.

At the conclusion of Pryor's testimony, the judge asked defendant if she wished to ask the officer any questions. The defendant responded, "I want to testify." At the conclusion of Shaffer's testimony, the judge stated: "All right. Ms. Perez, the State rests. Do you wish to testify?" The defendant responded, "Yes, I do." The court then permitted defendant to testify and to introduce her photographs and the police report into evidence.

Judge Triarsi addressed this issue in his decision, finding that the municipal judge advised defendant of her rights, and "specifically told her that he would not be considering any type of incarceration and asked her anew did she want to proceed on her own without her own personal attorney and she said yes to him."

Under the circumstances, we conclude that defendant was not

deprived of her right to counsel. She had the right to retain counsel in the municipal court, as she did later in the Law Division. Moreover, as our Supreme Court has recognized, even an indigent defendant has no right to assigned counsel unless he or she is at risk of "be[ing] subjected to a conviction entailing imprisonment in fact or other consequence of magnitude . . . ." Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971). We note that the record is devoid of any information respecting defendant's financial status.

Defendant did not face the risk of incarceration upon conviction; moreover, she was advised of her right to have an attorney represent her at the municipal court trial if she so desired. She asserted her right to testify throughout the proceedings and, therefore, suffered no violation of constitutional or statutory rights.

Affirmed.

 

Defendant's photographs, although in evidence at the municipal court trial, have not been included in the record before us.

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A-3273-07T4

July 29, 2009