STATE OF NEW JERSEY v. ANNIE DANIELS-PERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3890-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANNIE DANIELS-PERRY,

Defendant-Appellant.

_____________________________

March 23, 2011

Argued January 3, 2011 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 34-10-09.

Annie Daniels-Perry, appellant, argued the cause pro se.

Rachelle C. Jones, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Robin M. Lawrie, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the April 8, 2010 order of the Law Division finding her guilty, following de novo review, of failing to stop at a stop sign, in violation of N.J.S.A. 39:4-144 and imposing $89 in costs and penalties. We affirm.

According to the transcript of the municipal court trial, State Troopers Jimenez and Crane1 were on patrol on July 6, 2009, at approximately 4:00 a.m. While stationed on Route 639 with a clear view of the intersection of that highway with Newman Road, Jimenez observed defendant's vehicle come down Newman Road and make a right turn onto Route 639 "[a]t approximately [ten] to [fifteen] miles an hour[,]" without stopping at the stop sign. The troopers "immediately . . . pulled out . . . and stopped the vehicle" a short distance away.

Crane approached defendant's vehicle after the stop; Jimenez heard Crane advise defendant that she had failed to stop before making the right turn; he heard defendant deny it and state that the officers were "mistaken." Crane took defendant's driving credentials and returned to the police car. Shortly afterwards, Jimenez approached defendant's vehicle and gave her the summons.

Defendant's husband testified. He stated that he was in the front passenger seat at the time of the stop. He asserted that defendant came to a complete stop at the intersection because she had to wait for a car to pass on Route 639 before she could turn right. He added that he could see the troopers' vehicle and he warned defendant to drive carefully.

Defendant testified that she was on her way to work at the time, that she has traveled the same route for thirty years and that she always stops at the stop sign at the intersection in question. She stated that the troopers followed her for about a mile before turning on their lights and pulling her over.

Defendant also presented photographs of the area where she claimed the troopers' vehicle had been parked, which showed vegetation blocking the view of the road. Jimenez testified in rebuttal that he had, in fact, been parked at a different location from that depicted in defendant's photographs, and reiterated that he had an unobstructed view.

The municipal judge found Jimenez's testimony more credible than that of defendant and her husband. The judge observed that if the police vehicle had been parked at the location depicted in defendant's photograph, her husband would not have been able to see it, as he testified he did, before defendant made the right turn onto Route 639. Based upon his credibility determinations, the judge found defendant guilty.

Defendant had appeared pro se in the municipal court, but was represented by counsel in the Law Division. Counsel produced a videotape of the stop of defendant's car for the judge's review. The videotape disclosed that one of the troopers made somewhat offensive comments such as that defendant was "getting a ticket, because she lied," and that her crying "made his day." Defendant argued that if the municipal judge had heard these comments it would have affected his credibility determinations.

The Law Division judge noted that the videotape contained other comments by the troopers that supported Jimenez's testimony as to where their vehicle was parked when they observed defendant fail to stop at the intersection. The judge rejected defendant's argument that Jimenez's motivation in stopping her was "to put a niche [sic] in his belt" and, after reviewing the evidence, found:

[W]hat is consistent in the testimony that was offered here is the position of this troop [sic] vehicle having [an] unobstructed view of this particular intersection, and observing the operation of the vehicle by the [d]efendant as it came down Newman Road to this particular point, and . . . observing that the vehicle did not come to a full stop as required because of the stop sign.

So, . . . in my view, there is evidence beyond a reasonable doubt to support this conviction.

On appeal, defendant does not include in the table of contents to her brief any point headings of the issues to be argued, as required by Rule 2:6-2(a)(1). After setting forth a lengthy statement of facts, defendant asserts in one page of legal argument that

[t]he court failed to consider [the following] important facts in the case that would cast doubt on the police testimony when he testified in the [m]unicipal [c]ourt under oath[:]

Jimenez . . . testified . . . under oath that [she] said that [she] was not going to pay for the ticket.

The Superior Court refused to accept the evidence on the tape to show that [she] did not say that [she] was not going to pay the ticket.

. . . The [j]udge said he did review[] the tape. However, the tape was not reviewed in the presen[ce] of . . . defendant nor in the presen[ce] of . . . defendant['s] attorney as far as [she] know[s].

The tape was not reviewed in the court room -- why was the tape . . . not shown during the hearing?

[She] was told by [her a]ttorney . . . that [she] could not testify at the hearing [in the Law Division].

. . . [T]he court over looked [sic] that there was another car in the intersection at the time.

. . . [T]he officer state[d]: there were other cars traveling that route, but when [she was] stopped at the stop sign there were no other cars visible.

. . . [D]efendant also believed that she was use[d] for training purposes.

[(Emphasis omitted.)]

Having reviewed the record in light of these contentions and the controlling legal principles, we are convinced they are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), beyond the following comments.

In a trial de novo, the Law Division is obliged to "determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In the context of a trial de novo, the Law Division

does not affirm or reverse what occurred in the municipal court. Rather, the . . . judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments that the municipal court judge may have made. . . .

"A trial de novo by definition requires the trier to make his own findings of fact."

[State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983)), aff'd, 180 N.J. 45 (2004).]

Our standard of review on appeal from a trial de novo in the Law Division is very different from the standard applied by the Law Division judge. We do not make our own findings of fact, and our standard of review is a deferential one. State v. Locurto, 157 N.J. 463, 474 (1999). As the Court there observed, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. When we review the findings of the Law Division, our task is "restricted to the test of whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Id. at 472 (internal quotations omitted).

Applying these principles to this case leads us to conclude that the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record[,]" based on the testimony of Trooper Jimenez. Those findings were "concurrent" with the municipal judge's factual determinations. Id. at 474. We discern no "very obvious and exceptional showing of error[,]" ibid., to warrant altering those findings.

Affirmed.

1 Neither trooper's first name is disclosed in the transcript.