STATE OF NEW JERSEY v. EDWARD P. HAWLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2299-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD P. HAWLEY,

Defendant-Appellant.

_____________________________

 

Argued October 25, 2005 - Decided

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 10-A-2004.

John Lanza argued the cause for appellant (Thatcher & Lanza, attorneys; Mr. Lanza,

on the brief).

Harvey B. Lester argued the cause for respondent (J. Patrick Barnes, Hunterdon County Prosecutor, attorney; Mr. Lester, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Edward P. Hawley, was convicted in municipal court on charges of careless driving and driving with a rear view obstruction, after he backed his truck into a young woman resulting in her death. On de novo appeal to the Law Division, he was convicted of careless driving, N.J.S.A. 39:4-97, but acquitted of the driving with obstruction charge. N.J.S.A. 39:4-58. He was fined two hundred dollars plus thirty dollars court costs and ordered to have a mandatory retest of his driving privileges.

Defendant appeals from the Law Division conviction, contending that "[t]he State did not prove the elements of careless driving." We find his contentions to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated in Judge Mahon's oral opinion placed on the record on December 16, 2004. We add the following comments.

The accident took place at the West Amwell Township waste disposal facility, where township residents brought their garbage. They would back their vehicles up to a large commercial garbage truck and then dump their garbage into the truck. Two eyewitnesses testified that defendant's pickup truck was thirty feet away from the garage truck, when they heard a loud roar from his truck and saw it backing up toward the garbage truck. Neither witness saw or heard anything to suggest that defendant was applying his brakes. One of the witnesses, Timothy Lavery, testified that he saw defendant turn to look behind him while he was backing up. In response to a question as to whether he saw where defendant was looking "during" the incident, Lavery testified:

A: During, as I recall I saw him quickly turn to look behind him.

Q: Before the reverse move?

A: This is during. Before I was looking down.

Q: Where was he looking as he -- when -

A: He was turning -

Q: --you say behind him?

A: -- to look out his rear window.

At the time that defendant was backing up his pickup truck, a young woman named Greta Schmidt was in the process of emptying her garbage into the back of the garbage truck. Defendant's truck struck and killed her. Immediately after the accident, defendant claimed that the accelerator on his truck had stuck and caused the accident, despite his efforts to apply the brakes. He also claimed that he had not seen the victim. The State produced evidence that there were acceleration marks, not skid marks, on the roadway in the path the truck traveled.

The State also produced an expert witness who examined defendant's 1993 F150 model Ford pickup truck after the accident and testified that there were no defects in the acceleration and braking systems. He also testified that the cruise control mechanism was working properly, and that as part of its normal operation it would not work when the truck was in reverse. The expert concluded that the accident was most likely caused by "pedal misapplication," that is, defendant using the accelerator instead of the brake. He also testified that even with his foot on the accelerator, he was able to stop the truck by applying the brake with his other foot.

Defendant testified that the accident occurred because the accelerator became stuck and he was unable to stop the car even by using the brake. He also testified that he looked to the rear before he began backing up the truck, and he did not see anyone behind his truck. Defendant also presented an expert who testified that his examination of the truck led him to conclude that defendant was applying the brakes at the time of the accident. This expert also testified that he had heard of two consumer complaints of spontaneous acceleration in reverse due to cruise control malfunction, but that neither of these were substantiated. Defendant presented another expert who testified concerning the theoretical possibility that the cruise control could have malfunctioned due to radio interference, but he admitted that he had never been able to verify his theory.

The municipal court judge did not find defendant's experts credible, and he credited the testimony of the State's experts. He concluded that defendant "mistakenly thought that he had his foot on the brake and, in fact, had his foot on the accelerator and the harder he pushed the faster the car went." He did not find defendant's testimony to be credible, and he concluded that defendant "didn't make proper observation."

The Law Division judge agreed with the credibility determinations of the municipal court judge and concluded that due to defendant's error in hitting the accelerator instead of the brake, "defendant accelerated back at a rapid speed, failed to see Ms. Schmidt at the waste disposal truck" and hit her causing her death.

 
On this appeal, our review of the Law Division determination is limited. We must affirm if the decision is supported by substantial evidence. State v. LoCurto, 157 N.J. 463, 471-72 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). We find that the record amply supports Judge Mahon's conclusions. Defendant's reliance on State v. Wenzel, 113 N.J. Super. 215 (App. Div. 1971), and State v. Lutz, 309 N.J. Super. 317 (App. Div. 1998), is misplaced. In those cases, there was insufficient evidence to support a finding of careless driving. Here, there was both eyewitness and expert testimony to support that finding.

Affirmed.

(continued)

(continued)

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A-2299-04T3

November 10, 2005