STATE OF NEW JERSEY v. CLIFF B. ROHRABACHER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4803-05T34803-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLIFF B. ROHRABACHER,

Defendant-Appellant.

_______________________________________

 

Submitted January 24, 2007 - Decided March 5, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 30-A-2005.

Wronko and Loewen, attorneys for appellant (James R. Wronko, of counsel; Cliff B. Rohrabacher and Mr. Wronko, on the brief).

J. Patrick Barnes, Hunterdon County Prosecutor, attorney for respondent (Sean M. Foxe, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Cliff Rohrabacher appeals from a judgment of conviction for careless driving, N.J.S.A. 39:4-97, and leaving the scene of an accident, N.J.S.A. 39:4-129, following a trial de novo in the Law Division pursuant to Rule 3:23-8(a) and based on the record of the initial proceeding in the Bethlehem Joint Municipal Court. The credible evidence in the record supports, beyond a reasonable doubt, the findings of guilt reached by Judge Mahon on both charges, and we affirm.

On April 1, 2005, defendant, who was the driver, and his wife were involved in a one-car accident in Bethlehem Township, Hunterdon County, around 9:30 p.m. As defendant's vehicle approached the T-intersection of Glen Manor Drive and Black Brook Road, defendant was unable to safely negotiate a turn, and the vehicle went across the top of the T-intersection up an embankment into a wooded area before coming to rest. Both front passenger airbags deployed. Defendant and his wife exited the vehicle and walked to their home, which was located less than a half mile away.

State Trooper John Anthony Olivo was dispatched to the accident scene around 9:45 p.m. Upon his arrival, he did not observe anyone in the car. He looked into the car through the passenger side window with a flashlight and saw a cell phone. At this point, the trooper spoke with a nearby resident, who advised that an off duty officer ran a license plate lookup and discovered that the vehicle was registered to 89 Charlestown Road, located in the area. Olivo called Dispatch to do a registration and criminal activity check on the vehicle. Before receiving a response to this inquiry, Olivo searched the vehicle's interior for identification. Olivo searched through clothing, boxes, and other material in the rear seat looking for a wallet.

Less than a minute into his search, Dispatch contacted Olivo, reporting that defendant and his wife were on the phone advising that they walked home after the accident and that the vehicle was not stolen but registered to defendant's spouse. Dispatch also reported that defendant and his wife refused to return to the scene despite being advised to do so. A towing company, which apparently had been contacted by the owner, sent a truck to the scene to tow the vehicle. The vehicle, however, was impounded, but not before Olivo, contrary to police procedure, searched the front interior of the vehicle after forcibly opening the driver's side door. Olivo recovered the cell phone from the floor of the front passenger seat. The cell phone was on, charged, and reflected that service was available. Olivo placed the phone back into the vehicle. At the end of his search, Olivo located documents for the vehicle in the sun visor.

Defendant was subsequently charged with leaving the scene of an accident in violation of N.J.S.A. 39:4-129, failure to report an accident in violation of N.J.S.A. 39:4-130, and careless driving in violation of N.J.S.A. 39:4-97. Just before trial in the Municipal Court, defendant moved to suppress the admissibility of the cell phone and any testimony as to its operability. The Municipal Court judge denied both motions. Defendant was convicted of all charges. The charge of failing to report an accident was dismissed as merged into the conviction for leaving the scene of an accident. The court imposed appropriate fines and penalties as well as a mandatory six-month suspension of defendant's driving privileges. The six-month suspension, however, was stayed pending appeal.

Defendant appealed the conviction to the Law Division, where the court, following a de novo review of the record pursuant to Rule 3:23-8(a), again convicted defendant of the charges and imposed the exact same sentence as that of the Municipal Court. The six-month suspension of defendant's driving privileges was once again stayed pending further appeal.

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

POINT I

THE N.J.S. 39:4-129 CONVICTION MUST BE REVERSED BECAUSE, AS A MATTER OF LAW, A FIFTEEN MINUTE TIME LAPSE WITHOUT REPORTING AN ACCIDENT CANNOT SUPPORT AN ADJUDICATION OF GUILT UNDER SECTIONS A, B, OR C OF THE STATUTE.

POINT II

THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW, TO HAVE NOTICE OF EVERY ELEMENT OF THE OFFENSES CHARGED AND TO HAVE OPPORTUNITY TO DEFEND.

POINT III

THE LAW DIVISION HAD NO ALTERNATE GROUNDS FOR CONVICTION ON THE NEW ELEMENT IT WRONGLY INTRODUCED.

POINT IV

THE LAW DIVISION FAILED TO CORRECTLY READ N.J.S. 39:4-129 CREATING AN ABSURD RESULT.

POINT V

THE LAW DIVISION ERRED BY WRONGLY INTERPRETING N.J.S. 39:4-129 TO REQUIRE SLAVISH ADHERENCE TO FORM IN DISREGARD OF THE STATUTE'S SOLE PURPOSE AND ESTABLISHED LAW.

POINT VI

THE LAW DIVISION AND THE MUNICIPAL COURT BELOW WRONGLY INVOKED THE DOCTRINE OF RES IPSA LOQUITUR TO FIND GUILT ON CARELESS DRIVING.

POINT VII

THE EVIDENCE MUST BE SUPPRESSED BECAUSE THE TROOPER'S UNCONSTITUTIONAL SEARCH OF THE ROHRABACHER VEHICLE WAS MADE WITHOUT A WARRANT, PROBABLE CAUSE, OR CONSENT, AND DID NOT FALL WITHIN ANY EXCEPTION.

We briefly address the arguments advanced in Points I, VI and VII.

I.

Our scope of review is limited to determining whether the findings by the Law Division judge could reasonably have been reached on sufficient credible evidence in the record, giving due deference to the credibility assessments of the Municipal Court judge and considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).

N.J.S.A. 39:4-129(b) provides in pertinent part:

[t]he driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section.

[Ibid.]

Subsection (c) provides:

[t]he driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person.

In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection.

[N.J.S.A. 39:4-129(c).]

At the outset, we observe that defendant's contention on appeal that he had to leave the scene of the accident to wash poison ivy from his wife's skin is not part of the record before us. The record reveals that neither at the time of the accident nor during his testimony at the suppression hearing did defendant explain why he left the scene. Therefore, defendant's reliance upon State v. Saulina, 177 N.J. Super. 264 (App. Div. 1980), where defendant explained that he left the scene of an accident to attend to a bloody nose, is misplaced. Here, in concluding the State proved the charge beyond a reasonable doubt, Judge Mahon found:

Subsection (c) includes a driver's responsibilities when involved in an accident, specifically in pertinent part, ["]the driver shall give his name and address and exhibit,["] and I emphasize the word exhibit, ["]his operator's license and registration certification of his vehicle to any police officer. When no police officer is present, he shall forthwith report such accident to the nearest office of the state police and,["] and again, I emphasize, ["]submit thereto the information specified in this subsection[."] In State v. Patterson, 47 N.J. 450, 1966, the Court found the driver not guilty of leaving the scene when he left the scene of a one car collision with a tree. Only the driver's vehicle sustained damage and the Court concluded that the legislature had intended the phrase ["]damage to property["] to mean damage to property of another, Pages 454 through 455. Within one year the legislature amended N.J.S.A. 39:4-129 to make it clear that the statutory meaning of the phrase, ["]property damage["] includes damage to property of the violator himself. Quote, this quick response by the legislature to the Patterson decision indicates an intent to include injuries sustained by the violator himself within the scope of similar language providing for mandatory punishment under the traffic regulations statute. . . . The state has proved each element beyond a reasonable doubt. First, the defendant left the scene of the accident and did not return. He did not do so for any legally recognized reason such as to get medical treatment for an injury. Next, while the defendant called the police to inform them about the accident, he did not, ["]exhibit["] or ["]submit["] his operator's license to the police as required under Subparagraph (c).

These findings by Judge Mahon are supported by the record. Defendant left the scene for no justifiable reason, reported the accident over the phone, and then refused to return to the scene when advised to do so. Defendant's arguments to the contrary are without merit, and the cases defendant cites in support of his contentions are inapposite. Mazella v. Lee, 12 N.J. Misc. 158 (1934) involved a situation where the driver who caused the accident had to move his vehicle because of "the conditions of traffic." Id. at 159. In Saulina, supra, the driver required immediate assistance to attend to his bloody nose. Saulina, supra, 177 N.J. Super. at 266.

II.

Defendant argues that since an investigation into the cause of the accident was not conducted, he was convicted of careless driving based solely upon the accident itself, contrary to State v. Wenzel, 113 N.J. Super. 215 (App. Div. 1971).

N.J.S.A. 39:4-97 provides that "[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." Judge Mahon found:

A Court may not find a defendant guilty of careless driving solely based on evidence of the accident itself or res ipsa loquitor. In Wen[z]el, the appellate court reversed the trial court's finding of guilt where the trial judge used res ipsa loquitor to relieve the state of its burden of proof. Specifically evidence that a tractor-trailer jackknifed on a wet road in a construction zone without evidence of speeding or driving without due caution was non-sufficient to support careless driving. In State v. Joas, 34 N.J. 179, 1961, the Court found N.J.S.A. 39:4-97 ["]constitutional because it expressed ideas which find adequate interpretation and common usage and understanding. It's clear the apparent purpose illustrated the impossibility of delineating in precise detail, all of the enumerable acts[."] This Court finds that the record below established guilt beyond a reasonable doubt and supports the defendant's conviction of careless driving. Specifically in pertinent part the municipal court judge cited the defendant's admission that he was driving the car when the accident occurred. He admitted that the car failed to negotiate the turn. The car came to rest at a distance sufficiently up a wooded incline to infer that the car was going fast and that it must have been ["]traveling at a significant speed because any reasonable person would have been applying their brake and stopping or slowing to make the right hand turn["], if it was a stop sign, ["]but if there was no stop sign, the vehicle should have slowed to a sufficient speed so that it would not have been able to travel clearly up an embankment and come to rest in the position that this vehicle came to rest[."] . . . One, in addition, needs to review the videotape to put all the facts in context.

The record therefore clearly supports the lower court's finding that was supported by the evidence presented including witness testimony and again the videotape of the scene. This Court independently reaffirms the conviction for the same reason set forth -- or essentially the same reasons set forth by the municipal court judge.

We agree with these findings. We are satisfied that defendant's argument that there were no facts to support the careless driving conviction other than the accident itself is therefore without merit.

III.

Defendant also contends the search of his vehicle was a violation of his Fourth Amendment rights because neither the plain view exception nor any exigency exception justified the warrantless search. We disagree.

A warrantless search is presumed invalid unless the search falls within one of the judicially recognized exceptions to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003). When evidence is seized without a warrant, the burden of proof is upon the State to prove there was no Fourth Amendment violation. State v. Whittington, 142 N.J. Super. 45, 51-52 (App. Div. 1976).

Judge Mahon found the search which produced the cell phone to be permissible under the plain view exception:

The defendant made a motion to suppress in the trial court, the municipal court. During the suppression hearing, the trooper testified that after arriving at the scene and finding an apparently abandoned vehicle, he looked into the vehicle with his flashlight and observed the cell phone on the floor in front of the passenger seat in plain view. . . . The lower court had obviously a better opportunity to assess the credibility of the parties and that Court found the testimony of the trooper more credible. . . . This Court must give due but not control[ling] . . . regard to the trial court's determination of witness credibility. . . . This Court concurs with those findings based upon an independent review of the record, and again, giving due regard to the trial court's credibility determinations. Here this Court['s] findings that the plain view discovery of the phone was not violative of defendant's rights against unreasonable search, and the motion to suppress regarding the evidence was appropriately denied.

The record supports the validity of the search and we discern no basis to disturb the findings reached by Judge Mahon. Locurto, supra, 157 N.J. at 471. Nor are we persuaded, as defendant argues, that Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), requires a contrary conclusion. In Horton, the Court held that to sustain a seizure based upon the plain view doctrine, not only must the item be in plain view, but its incriminating character must also be "immediately apparent." 496 U.S. at 129. Here, the presence of a cell phone in a vehicle involved in an accident immediately implies an ability to report the accident to police, as required by the motor vehicle statute; and, its operability, in the absence of any other evidence, such as physical incapacity, is proof of the ability to immediately report the accident. Thus, the incriminating character of the cell phone under the facts of this case was readily apparent. State v. Johnson, 171 N.J. 192, 206-07 (2002).

The arguments raised in the remaining points are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-4803-05T3

 

March 5, 2007