STATE OF NEW JERSEY v. BENJAMIN SHERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5916-05T35916-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN SHERMAN,

Defendant-Appellant.

____________________________________

 

Submitted March 19, 2007 - Decided April 25, 2007

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, 009-04-06.

Gary Moore, attorney for appellant.

John L. Molinelli, Bergen County

Prosecutor, attorney for respondent

(Yomara Castro, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

After a trial de novo in the Law Division, defendant was convicted of leaving the scene of an accident, N.J.S.A. 39:4-129. He appeals from the conviction, asserting that the evidence was insufficient to sustain a conviction. He also seeks a credit against the six-month suspension of driving privileges imposed by the Law Division judge. We affirm.

The appeal respecting the credit requires a short discussion of the procedural aspects of the conviction. On July 20, 2005, defendant, Benjamin Sherman, was charged with leaving the scene of an accident, N.J.S.A. 39:4-129. On November 16, 2005, he was tried in the Saddle Brook Municipal Court and convicted. The judge imposed a $306 fine and $33 court costs together with a six-month suspension of defendant's New Jersey driving privileges.

Defendant filed motions for reconsideration and to dismiss the summons. On January 25, 2006, an attorney, representing himself as counsel for defendant, appeared in the municipal court with the prosecutor. The prosecutor consented to a resolution of the pending motions by an amendment of the charge to a failure to report an accident, N.J.S.A. 39:4-130, to which defendant, through his attorney, pled guilty. The judge amended the conviction and reduced penalty to a fine of $106 and the imposition of $33 in costs. He also vacated the driver's license suspension.

Defendant appealed, claiming the attorney who had succeeded in restoring his driving privileges was not authorized to do so. The Law Division judge vacated the conviction for failing to report an accident and, on June 12, 2006, considered the appeal from the conviction of leaving the scene of an accident. The judge found the defendant guilty on that date, summarizing the evidence as follows:

In this case, the complainant, Shelly Mania, was in her car. She testified that she was in her car waiting to make a left turn at the corner of Market Street in Saddle Brook. She alleges that as she was about to turn, she heard a very loud screech, those are her words, and felt an impact on her rear passenger side bumper. She followed the car that she believed had hit her, down Market Street, honking her horn and motioning for the car to pull over. She noticed the license plate number [and filed a complaint on the following day].

The defendant testified and he insists that he -- while he was in the area, he did not hit her car. He acknowledged that he saw her honking and waiving behind him. But he testified that he was frightened to pull over.

The judge rejected defendant's denial of striking plaintiff's car, placing substantial emphasis on defendant's testimony that: "I was not about to stay at the scene of an accident where somebody is flailing their fists." The judge accepted, as he was obligated to do, the findings of the Municipal Court judge that the complaining witness was very credible and said:

[I]t's clear to me he knew he was in an accident and he took off. He was afraid. Not because she was flailing her fists, but because he had been in an accident and he didn't want to deal with the consequences. So I'm making the finding that he was the driver. I think her description was adequate, it makes sense, it was the car where the impact was and he went right in front of her immediately.

The judge then re-imposed $306 fine, the $33 court costs, and the six-month suspension of defendant's driver's license originally fixed in the municipal court. Defendant's counsel represented that defendant's license had been suspended from November 16, 2005, until January 25, 2006, when the unauthorized conversion of the leaving the scene charge to failing to report an accident charge was entered. He sought credit for that period of time. The municipal court judge said "all right." He stayed the imposition of the sentence pending appeal.

Our review of a conviction rendered de novo on the record is limited to a determination of whether there is sufficient credible evidence in the record to support the findings of the Law Division judge. State v. Johnson, 42 N.J. 146, 162 (1964). Our independent review of this record convinces us that there was ample evidence in the record to support the conviction. The complaining witness testified to contact immediately followed by defendant's car pulling around her. The judge was justified in inferring that the contact, which appears unrelated to any other car, was caused by defendant. Defendant's claim to the contrary lacks sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

Defendant never sought, after the de novo conviction, a credit against his suspension other than for the period between November 16, 2005, and January 25, 2006. He may not do so on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, there is no basis for that credit. Defendant premises his argument on his failure to drive between January 25, 2006, and June 12, 2006. The appeal from the January 25, 2006, sentence was dated February 10, 2006. Accordingly, defendant knew that he was permitted to drive very shortly after the suspension had been vacated. The voluntary decision not to drive provides no basis for a credit against the suspension. There is simply no basis for awarding any greater credit than that given by the Law Defendant Division judge.

Affirmed.

 

The State has included in its appendix a print-out from the New Jersey Automated Traffic System containing a notation: "STAY SUSPENSION-PENDING APPEAL." The transcript of the November 16, 2005 sentencing does not contain any reference to a stay of the suspension.

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A-5916-05T3

April 25, 2007