STATE OF NEW JERSEY v. BONNIE WILLNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3547-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BONNIE WILLNER,

Defendant-Appellant.

_

November 16, 2011

Argued October 25, 2011 - Decided

Before Judges Espinosa and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-031.

Mark R. Silber argued the cause for appellant.

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Bonnie Willner appeals her conviction for careless driving in the Law Division after a trial de novo pursuant to Rule 3:23-8. For the reasons that follow, we affirm.

At trial in the Morristown Municipal Court, Michelle Zeman testified that on June 28, 2010, she was traveling eastbound in the left lane of Madison Avenue in Morristown and stopped because the car ahead of her was waiting to make a left-hand turn onto Route 287 northbound. As she was stopped, Zeman was "rear-ended significantly" by a vehicle driven by Bonnie Willner. Zeman indicated that the impact was significant enough to completely disable her vehicle and to cause Zeman pain in the lower back for which she was taken to Morristown Memorial Hospital. Prior to leaving the scene by ambulance, however, she spoke with Ms. Willner who was "very upset" and was herself on her way to a medical appointment. When asked "what did [Willner] say to you?", Zeman stated, "I think that she confused the gas with the brake pedal." She was then asked, "she said that to you?" and Zeman replied "in the commotion that's what I remember hearing."

Brian McDonnell, a Morristown police officer, responded to the scene and saw three cars stopped in the left lane heading eastbound on Madison Avenue. The rear two cars, those of Zeman and defendant, had "significant damage to them." Officer McDonnell indicated that he spoke to the defendant and "she advised that . . . her foot had slipped off the brake and hit the gas causing it to accelerate and hit the vehicle in front of her." The trial judge found that Zeman was stopped in traffic "when there was an impact to the rear of her vehicle [which] caused significant damage . . . ." He also found that "Ms. Willner indicated that she confused the gas with the brake" in a conversation with Zeman after the accident. The judge found the witnesses to be "very credible" and found that "Willner's foot slipped off the brake onto the gas." He added, "your foot is not to slip off the brake onto the gas, plus you're supposed to remain attentive as you operate a motor vehicle."

On appeal, the Law Division judge noted that "testimony . . . was brought out . . . that the defendant had indicated that sometime after the incident that she was confused between the brake and the accelerator pedal. There is no evidence to refute that particular scenario, . . . ." He added that, on the evidence before the court, "defendant was confused between the brake pedal and the accelerator pedal. The court does find that that is sufficient evidence to establish carelessness . . . ."

On appeal, defendant claims that Zeman's testimony cannot constitute "sufficient evidence to find guilt beyond a reasonable doubt" and that "mere negligence does not constitute the offense of careless driving."

We review the record to determine if the conclusions reached in the Law Division were based upon sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). We accord substantial deference to the trial court's credibility determinations. State v. Barone, 147 N.J. 599, 615 (1997). In fact, "the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). We do "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." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

Zeman testified clearly and unequivocally that she was stopped waiting for a car ahead of her to make a left-hand turn when she was struck with a significant impact in the rear. The impact was so severe, that her car was totally disabled and Zeman was taken to Morristown Memorial Hospital as a consequence of her apparent injury. Defendant was "very upset" and said, according to Zeman, that she had confused the brake pedal and the accelerator pedal.

Accepting the municipal court judge's determination that Zeman's testimony was credible, the State has proven beyond a reasonable doubt that the defendant operated her motor vehicle "carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-97. To the officer, defendant said merely that her foot slipped from the brake pedal to the gas pedal causing her to accelerate. Under either scenario, the record provides ample support for the conviction of careless driving and defendant has not made any showing of error.

Defendant cites to State v. Lutz, 309 N.J. Super. 317 (App. Div. 1998), for the proposition that res ipsa loquitur has no application in determining whether a defendant is guilty of careless driving. Defendant adds that "the unexplained slipping of one's foot from the brake pedal to the gas pedal does not, in and of itself, describe any careless act . . . ." We disagree.

This case differs substantially from Lutz. Here, both the municipal court and the Law Division found that defendant admitted to pressing the accelerator pedal and causing an accident with significant vehicular damage and an injury to the occupant of the car ahead of her. In Lutz, by contrast, other than the accident itself, the State's only evidence was the defendant's statement that his vehicle began to slide on a wet roadway and continued to do so after he tapped his brakes. The court explained that statement was the only evidence presented by the State other than the obvious fact that the accident itself had happened. The court noted that res ipsa loquitur does not apply and that there was insufficient evidence to support the defendant's conviction of careless driving. Lutz has no application here.

Moreover, defendant claims that negligence itself, even if proved, cannot support a conviction under N.J.S.A. 39:4-97. However, in Eaton v. Eaton, 119 N.J. 628, 643 (1990), in a related context, the Supreme Court explained "the plain language of N.J.S.A. 39:4-97 prohibits negligent driving. Proof of the violation of the statute is proof of negligence itself. The reason is that N.J.S.A. 39:4-97 incorporates the common law standard of care." See also State v. Brown, 228 N.J. Super. 211, 225 (App. Div. 1988), rev'd on other grounds, 118 N.J. 595 (1990). The findings and conclusions of the Law Division are amply supported in the record.

Affirmed.