GERTRUDE GOMEZ v. RICHARD Y. YAU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3882-05T53882-05T5

GERTRUDE GOMEZ,

Plaintiff-Appellant,

v.

RICHARD Y. YAU,

Defendant-Respondent.

________________________________________________________________

 

Argued August 21, 2007 - Decided August 28, 2007

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8989-03.

Peter A. Ouda argued the cause for appellant.

Stephen J. Foley, Jr., argued the cause for respondent (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mario J. Delano, on the brief).

PER CURIAM

This is a personal injury action. On the date of the accident, February 5, 2002, plaintiff lived in a home with her two adult children. That morning, plaintiff and her daughter were going to drive to work together. Plaintiff did not smoke inside the house or in her daughter's car. Therefore, plaintiff claims she was standing on the stoop on the side of her house smoking a cigarette while waiting for her daughter to come out to drive them to work. Defendant was operating an automobile, of which he lost control. He drove across the neighbor's lawn and through a fence, crashing into plaintiff's house, including the stoop. Plaintiff claimed that when she saw the car approaching she panicked and jumped off the stoop. She immediately yelled to her children to call the police, which they did. According to plaintiff, she did not immediately feel any pain or symptoms of injury. She claims she began to feel symptoms that afternoon and first went to a doctor that evening.

Two police officers responded. Plaintiff told the officers she was not injured. Plaintiff's son, Kenneth DeSpirito, and her daughter, Virginia DeSpirito, both spoke to the police officers at the scene.

Plaintiff brought this action for injuries she claimed were caused by the accident. She does not claim the vehicle struck her. She claims the injuries were caused as a result of her jumping and landing on the ground. Defendant admitted negligence. The case went to trial on the issues of proximate cause and damages. The jury returned a verdict finding no proximate cause. Judgment was entered for no cause of action. Plaintiff moved for a new trial on the grounds that the judge erred in admitting hearsay testimony from a supplemental police report prepared by the investigating officer, William Colletto, Jr. The judge denied the motion. This appeal followed.

Plaintiff argues on appeal that she was denied a fair trial because of the admission of this hearsay testimony. We disagree and affirm.

Colletto prepared a standard police accident report on the date of the accident. Plaintiff had no objection to his reference to that report during his testimony. Based upon his personal recollection of the events at the time of trial and with reference to the initial report, Colletto testified that he responded to the accident after receiving a radio dispatch and observed the vehicle impacted on the corner of plaintiff's house and into the side porch. By the time he arrived, the occupants of the house, who he described as an older woman, a young girl whom he knew because she was the bank teller where he did banking, and a young man who was a bit older than the girl, were outside. Colletto assumed he was her brother. Although he did not mention them by name, he was obviously talking about plaintiff, her son and daughter. As part of his routine investigation, Colletto asked everyone at the scene, including defendant, whether anyone was injured. No one said they were injured. This is consistent with plaintiff's trial testimony, in which she stated that she told the officer she was not injured.

As part of his routine investigation, Colletto asked whether anyone witnessed the accident. He reflected on his report that there were no witnesses. Further, there is a provision on the report form for involvement of a pedestrian, and he completed his report in a manner that reflected no pedestrian involvement.

Plaintiff does not contend that she or anyone else told the officers that she was on the stoop when defendant's car was approaching and she jumped off out of fear for her safety.

The objectionable aspect of Colletto's testimony is in reference to a supplemental report that he prepared more than five months after the accident. That report, dated July 5, 2002, states in its entirety:

REGARDING THE MOTOR VEHICLE CRASH THAT OCCURRED ON 02-05-2 002 AT 198 PLAINFIELD AV; AT THE TIME OF THE INCIDENT NO ONE I[N]DICATED TO THIS OFFICER THAT THEY WERE INJURED. THIS OFFICER ASKED IF ANYONE HAD SEEN THE EVENT AND ALL PRESENT (INCLUDING THE HOME OWNER AND PERSONS LIVING IN SAME) INDICATED THAT THEY ONLY HEARD THE CRASH. AT NO TIME DID ANY PERSON INDICATE THAT THEY HAD TO JUMP TO SAFETY, NOR DID THEY INDICATE THAT THEY WERE NEARLY KILLED BY THE OUT OF CONTROL VEHICLE. ALL PARTIES INVOLVED INCLUDING THE DRIVER DECLINED EMERGENCY MEDICAL ATTENTION.

Plaintiff moved in limine to bar evidence of the supplemental report, contending it contained hearsay and was inherently unreliable, having been prepared five months after the accident for no explainable reason. The judge conducted a hearing pursuant to N.J.R.E. 104 and received Colletto's testimony. He admitted that someone must have prompted him to issue a supplemental report. He had no recollection of who did so. He insisted that the contents of the report were based upon his own recollection and that he continued to recall the events described in the supplemental report. Indeed, he said that of all the accidents he has investigated over the years, this is one of the rare ones that has stuck in his mind because of the unique circumstances involved with a motorist striking a house. And, at the Rule 104 hearing (but not before the jury), he explained another reason why it stuck in his mind, namely that the same defendant had previously had a similar accident driving into a house in which Colletto was the responding officer.

Plaintiff did not object to the first portion of the supplemental report, namely that no one told the officer they were injured. However, plaintiff objected to the next portion, which included hearsay statements from the homeowner and occupants, namely plaintiff, her son and daughter, to the effect that "they only heard the crash." Plaintiff did not specifically object to the remaining portion of the supplemental report. However, in arguing the new trial motion, plaintiff's counsel correctly observed that whoever prompted Colletto to issue a supplemental report must have told him that someone claimed they had to jump to safety, because he did not obtain such information during his initial investigation. Thus, according to plaintiff's counsel, this was further evidence of the unreliability of the supplemental report and the suspicion that Colletto was writing in the report not what he personally recalled but what the unknown person who prompted him to write the report told him.

The trial judge evaluated the credibility of Colletto and accepted as credible his testimony that the contents of the supplemental report were based upon his personal recollection and that he would never, and did not in this case, place information in a report merely because someone asked him to do so. We defer to that credibility finding. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Defense counsel did not seek to admit either report in evidence. He only sought to elicit testimony from Colletto with regard to the subject matter of the reports. The reports were not admitted in evidence, and we therefore have no need to determine whether the supplemental report would be admissible as a business record under N.J.R.E. 803(c)(6), or as a public record or report under N.J.R.E. 803(c)(8). Instead, we evaluate the propriety of Colletto's trial testimony on the subject.

In his direct examination of Colletto, defense counsel asked him to look at both police reports, which were marked for identification. After questioning Colletto with regard to the initial report, counsel turned to the subject matter of the supplemental report. Colletto testified that the purpose of the supplemental report was for "[f]urther investigation." He acknowledged that he prepared and signed the report, and when asked what the gist of the report was, he said, "Basically it says that, at the time of the incident, there was no one injured or required medical attention."

Colletto testified before the jury that he prepared the report from his own recollection and that no one told him what information to put in the report. He also testified that he had, at the time of trial, "an independent recollection of the incident."

This exchange then followed:

Q. Okay. Now, what does the report say with regard to witnesses?

A. It doesn't say that anybody was a witness here.

Q. Okay. Do you -- does the report mention anything about people that lived in the house?

(The witness reviewing Exhibit D-2)

A. Yes, it does.

Q. Okay, And -- and what is your recollection of that?

A. That the pers -- the people, who were living in the house, had heard the crash and came out to investigate what happened.

Q. Okay. Based upon the contents of this report, do you have -- do you have any recollection of anyone telling you that they were outside the house when the accident occurred?

A. No, sir.

The statement that the supplemental report did not reflect any witnesses was consistent with Colletto's earlier testimony and his initial report. There was nothing objectionable in that regard.

The remainder of this passage is basically a statement that, in general, "the people" who lived in the house heard the crash and came out to investigate and that he had no recollection of anyone saying they were outside when the accident happened. This testimony was a much more generalized expression than the objectionable passage in the supplemental report that he "asked" if anyone had seen the event and, presumably in response to his question, "all present, including the home owner [plaintiff] and the persons living in same, indicated that they only heard the crash."

With respect to plaintiff, of course, any acknowledgment by her that she only heard the crash would be admissible as a statement by a party-opponent. See N.J.R.E. 803(b)(1). And, with respect to plaintiff's son and daughter, plaintiff's position is that they were indeed in the house.

We understand, however, that the essence of plaintiff's argument is that Colletto's testimony could well leave the jurors with the impression that all three occupants of the home told the police that all three of them were inside the house and only heard the crash, only to come out and investigate after the fact. But this was cleared up through effective cross-examination:

Q. Do you remember asking her [Virginia DeSpirito] if she was in the house?

A. No, sir.

Q. Could she have told you she was in the house?

A. It's possible.

Q. Do you remember asking Gertrude Gomez if she was in the house?

A. No, sir.

Q. Do you remember talking to a male individual?

A. I remember a male being there. Yes, sir.

. . . .

Q. But do you remember speaking to a male there?

A. Yeah. I remember a male being there. Yes, sir.

Q. But do you -- do you remember if he told you whether or not he was in the house?

A. No, sir, I don't.

Q. But he could have told you he was in the house, right?

A. Sure.

. . . .

Q. Let me ask. Is it possible that Gertrude Gomez was on her stoop at the time of the collision, but just did not tell you, because she didn't think she was injured?

A. Sure. It's possible.

Therefore, Colletto acknowledged that his comment about "the people" living in the house was very generalized, and he had no specific recollection of what he asked the individuals and what each one of them told him about whether they were in the house or not at the time of the crash. As far as the statement in his supplemental report that no one said they jumped to safety, Colletto was asked in his trial testimony whether, if someone told him such a thing during his investigation, he would have considered it important and put it in his report, to which he responded affirmatively. There was nothing objectionable about that testimony. And, again, plaintiff never contended she told the police she had to jump off the stoop.

We therefore conclude that if there was any error in admitting impermissible hearsay evidence, the error was harmless. The jury had a full picture from Colletto of his recollection of the events and the results of his investigation, and the assessment of his credibility was the province of the jury. We are therefore satisfied that plaintiff was not denied a fair trial and there was no error in denying her motion for a new trial.

 
Affirmed.

(continued)

(continued)

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A-3882-05T5

August 28, 2007