STATE OF NEW JERSEY v. JOHN R. CARTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4420-07T44420-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN R. CARTER,

Defendant-Appellant.

_________________________________________________

 

Argued January 22, 2009 - Decided

Before Judges Payne and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Municipal Appeal No. APP-10-08.

Logan M. Terry argued the cause for

appellant (Mark J. Molz, attorney; Mr.

Terry, on the brief).

Jennifer Stonerod, Assistant Prosecutor,

argued the cause for respondent (Robert

D. Bernardi, Burlington County Prosecutor,,

attorney; Rebecca Berger, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Following trial in the Bordentown Township Municipal Court, defendant, John R. Carter, was convicted of speeding, N.J.S.A. 39:4-98, and driving with an expired motor vehicle registration, N.J.S.A. 39:3-4. Defendant appealed his speeding conviction to the Law Division, and upon de novo consideration of the matter, his conviction on that charge was affirmed. Defendant has appealed from the Law Division judge's order, raising the following arguments:

POINT I.

IT WAS ERROR TO ADMIT INTO EVIDENCE THE K55 RADAR READING AND TO RELY ON THAT READING WITHOUT ANY INDICIA THAT THE POLICE CAR SPEEDOMETER WAS CALIBRATED.

POINT II.

IT WAS ERROR FOR THE COURT TO ADMIT INTO EVIDENCE THE K55 RADAR READING WITHOUT ANY INDICIA THAT OFFICER NUCERA HAD LOOKED AT HIS OWN SPEEDOMETER.

POINT III.

IT WAS ERROR FOR THE COURT TO ADMIT TESTIMONY BY OFFICER NUCERA WITHOUT QUALIFYING HIS TRAINING AND EXPERTISE.

Following our review of the record in light of applicable precedent, we affirm.

The trial transcript discloses that on October 31, 2007, Officer Nucera, a patrolman with the Bordentown Township Police force, observed Carter driving a Dodge pick-up truck in the opposite direction at a speed of thirty-six miles per hour in a twenty-five mile per hour zone. Because it was Halloween, there were numerous children present, and the street lacked sidewalks. Nucera activated his lights and siren, made a U-turn, and proceeded to follow Carter, who did not immediately stop, but instead continued for approximately one-half mile, eventually pulling into his own driveway. Although he exceeded the speed limit, Nucera was unable to catch up to Carter until shortly before he reached his home.

Nucera subsequently determined that the registration for the truck driven by Carter had expired in June 2007. As a consequence Nucera charged Carter with driving an unregistered vehicle, as well as speeding and reckless driving. Carter was acquitted in municipal court on the charge of reckless driving and convicted on the remaining charges. As we have stated, he appealed the speeding conviction to the Law Division, where the conviction was affirmed.

On appeal, Carter has raised a number of technical challenges to the reliability of the K-55 radar speed detection device utilized by Nucera to determine Carter's speed, and he has challenged Nucera's qualifications to use that device. In support of his arguments, Carter relies on the opinion of Judge Harold Wells in State v. Wojtkowiak, 170 N.J. Super. 44 (Law Div. 1979), aff'd in part, rev'd in part, 174 N.J. Super. 460 (App. Div. 1980), in which he affirmed the reliability of the K-55 radar device as a speed measuring device, if properly calibrated and utilized by an experienced operator, and he set forth the procedures required to insure proper functioning of the device.

It is Carter's position that evidence at trial did not establish that the speedometer of the vehicle driven by Nucera was properly calibrated, that the accuracy of the radar device had been checked by comparing its reading to that of the vehicle's speedometer, and that Nucera possessed the training and experience necessary to operate the device. The State contends that the evidence was sufficient to support Carter's conviction for speeding. It argues additionally that Carter should be barred from raising any issue as to the admissibility of the K-55 radar reading because he failed to raise the issue at trial.

We are satisfied that there was sufficient credible evidence in the municipal court record, apart from the radar readings, to support the determination of the Law Division judge upon de novo review that Carter was guilty of speeding, State v. Locurto, 157 N.J. 463, 470-71 (1999) (standard of review); State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd o.b., 180 N.J. 45, 47 (2004) (permitting conviction on different basis from that found by municipal judge). In that regard, we note Nucera's testimony that he exceeded the speed limit in his attempt to catch up to Carter, but that Carter remained well ahead until shortly before he reached his home. Nucera testified on cross-examination: "I had to cover ground because your client was also, I believe, increasing his speed limit because when I got to the corner of Groveville Road and East Drive, for him to be already onto Klein Drive, he's covered some ground pretty quickly." This evidence of a speedometer pace, extending for a distance of approximately one-half mile, was sufficient to sustain Carter's conviction. State v. Ball, 381 N.J. Super. 545, 551 (App. Div. 2005).

We are also satisfied that Carter's argument that the State failed to present evidence that the speedometer in Carter's vehicle was properly calibrated and that it failed to present evidence that Nucera correlated his radar reading of thirty-six miles per hour with his speedometer reading should be barred. See State v. Van Syoc, 235 N.J. Super. 463, 465 (Law Div. 1988), aff'd o.b., 235 N.J. Super. 409 (App. Div. 1989). In VanSyoc, defendant, an attorney appearing pro se, failed to object to the introduction of K-55 radar unit evidence of excessive speed until the trial had been concluded, and he then argued that the charge against him should be dismissed because the State had failed to demonstrate that the K-55 unit was being operated in the manual mode, as required. VanSyoc, supra, 235 N.J. Super. at 465. Upon de novo review, Judge Steinberg found that defendant, an experienced trial attorney, failed to object to the introduction of the radar evidence because he perceived a tactical advantage in withholding his objection. Ibid. The judge then held that defendant had waived his right to object, noting that if an objection had been interposed in a timely fashion, the State would have been in a position to supply the missing evidence. Id. at 466. In sustaining the conviction, the judge observed that "[t]rial errors which are induced, encouraged or acquiesced in, or consented to by defense counsel ordinarily are not a basis for a reversal on appeal." Id. at 465.

Similarly, here, defense counsel entered objections to the admissibility of Nucera's radar operator's card and the checklist utilized by Nucera to test the operability of the radar before and after his shift. However, he did not otherwise object specifically to the introduction of the radar evidence. In moving for dismissal at the conclusion of the State's case, defense counsel merely stated "I would make a motion to dismiss the speeding charge for failure of the State to make out its case in connection with the K55 radar." Even after the prosecutor asserted that the State had "laid out the proper foundation with regard to the operation and the training on the Stalker [K-55] radar unit," counsel did not specify the defects in the evidence that were asserted before the Law Division judge and before us. As a consequence, we find defendant's objection to the admissibility of the radar evidence to have been waived.

As a final matter, we find the evidence adduced at trial to have been sufficient to demonstrate that Nucera was qualified to operate the K-55 radar unit. In that regard, he testified that he had taken courses at the police academy regarding the radar device. Additionally, he stated that he had been trained for forty hours locally prior to his certification as a radar operator. Thereafter, Nucera had used the device in fulfilling his duties as a patrolman for the past two years. In the absence of any evidence requiring greater training, we find the level of training to which Nucera testified to have been sufficient to qualify him as a K-55 radar operator.

Affirmed.

Although we affirmed the reliability of the K-55 radar device and the methods of calibration specified by Judge Wells, we reversed the defendant's conviction.

(continued)

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A-4420-07T4

March 27, 2009