STATE OF NEW JERSEY v. FRANK NICOLOUDAKIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK NICOLOUDAKIS,

Defendant-Appellant.

December 6, 2013

Argued October 29, 2013 Decided

 
Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 11-2010.

Frank Nicoloudakis, appellant, argued the cause pro se.

Laura Kotarba, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Kotarba, of counsel and on the brief).

PER CURIAM

Defendant Frank Nicoloudakis appeals his speeding conviction after a trial de novo in the Law Division and the reimposition of a $156 penalty. See R. 3:23; N.J.S.A. 39:4-98. We affirm.

Hopewell Township Officer Christopher Vaccarino stopped Nicoloudakis on November 13, 2009, after observing him passing in the opposite direction at an excessive speed. Through the use of a K55 radar gun, he determined that Nicoloudakis was traveling fifty-eight miles per hour in a forty-mile-per-hour zone. At the time of the stop, Nicoloudakis was driving eastbound on Bull Run Road. In that area, the eastbound lane was actually situated in Ewing Township. The westbound lane was located in Hopewell Township. This matter was initially tried in the Hopewell Township Municipal Court.

At trial, the State introduced documents establishing that Vaccarino had been certified as a radar operator. These documents revealed that the stop in this case occurred after his certification lapsed on December 31, 2008 but before it was renewed on December 1, 2009.

Nicoloudakis attempted to cross-examine the officer about whether he recalled seeing Nicoloudakis's "disabled person identification card" at the time of the traffic stop. The officer stated that he did not specifically recall Nicoloudakis's identification; the State objected to the line of questioning. When Nicoloudakis responded that he wanted to explore Vaccarino's bias against disabled persons, the State pointed out that there was no objective basis for the suspicion. The court sustained the objection because the line of questioning was not supported by anything in the proofs.

At the end of the municipal court trial, the judge ruled that because no "statute, regulation, directive, attorney general's opinion or case law" required an officer to be certified before he could use a radar gun reading to establish a speeding violation, the officer's testimony was admissible. The court also ruled that Nicoloudakis's argument that he was being tried in the wrong municipal court lacked merit because N.J.S.A. 39:5-3(c) provided that when a violation occurs on a street on which the border between two or more municipalities is situated, the proceedings can be brought before a judge having jurisdiction in any one of the municipalities. The judge reiterated that nothing in the record warranted Nicoloudakis's line of questioning with reference to the officer's purported bias against disabled persons. Nicoloudakis was convicted and the sentence was imposed.

The Law Division judge likewise concluded that the radar certification was "strictly voluntary," and that, therefore, failure to become recertified did not bar the officer from operating the radar device and issuing tickets for speeding based on its readings. The Law Division judge agreed that N.J.S.A. 39:5-3(c) authorized the trial of the matter in either municipality, Ewing Township or Hopewell Township. The judge further found that there was no foundation for Nicoloudakis's argument that he should have been permitted to explore any bias the officer may have had regarding disabled persons.

On this appeal, defendant raises the following points:

POINT ONE

THE TRIER OF FACT MISAPPREHENDED THE JURISDICTIONAL QUESTION. HE VIEWED IT SIMPLY IN TERMS OF WHETHER OR NOT THE TRIAL COURT HAD THE AUTHORITY TO HEAR THE MATTER. THE STATE'S WITNESS IN CHIEF TESTIFIED UNDER OATH HE OBSERVED APPELLANT COMMIT A MOTOR VEHICLE VIOLATION IN HOPEWELL TOWNSHIP. DEFENDANT WAS IN EWING, NEVER IN HOPEWELL. THE OFFICER IS OBLIGATED TO KNOW THE LAW INCLUDING THE BOUNDARY OF HIS TERRITORIAL LIMITS AND FOLLOW PROPER PROCEDURE BY FILING A SUMMONS IN THE APPROPRIATE VENUE. HAVING FAILED ON ALL THESE MEASURES, THE STATE'S CASE IS SERIOUSLY FLAWED. SINCE JURISDICTION IS AN ESSENTIAL ELEMENT OF AN OFFENSE, IT WAS NECESSARY TO TESTIFY AS TO THE PROPER LOCATION OF WHERE THE ALLEGED OFFENSE TOOK PLACE. NO TESTIMONY WAS PROFFERED THAT A VIOLATION OCCURRED IN EWING TOWNSHIP. THE DEFENSE WAS PREJUDICED BY THIS ERROR. THE CONVICTION IS FATALLY DEFECTIVE AND MUST FA[I]L BECAUSE THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION OF SPEEDING IN HOPEWELL.

POINT TWO[]

THE OFFICER TESTIFIED THAT USE OF RADAR WAS INDISPENSABLE TO ISSUANCE OF THE CITATION. HIS FAILURE TO MAINTAIN OR KEEP CURRENT RECERTIFICATION TO OPERATE RADAR ON THE DAY OF THE MOTOR VEHICLE STOP PREEMPTED HIS QUALIFICATIONS TO OPERATE RADAR AND GIVE TESTIMONY THEREOF. THIS IS FATAL TO THE STATE[']S CASE. THE STATE CAME TO COURT WITH UNCLEAN HANDS THEREBY TAINTING HIS TESTIMONY. THE WIDE GULF OF TIME BETWEEN WHEN HIS CERTIFICATION HAD EXPIRED AND HE GOT RECERTIFIED ALMOST AN ENTIRE YEAR IS INEXCUSABLE AND INEXPLICABLE.

OFFICER WAS DISQUALIFIED FROM USING RADAR.

POINT THREE

THE OVER ZEALOUS PROSECUTOR VIOLATED THE CONSTITUTIONAL RIGHT TO EFFECTIVE CROSS-EXAMINATION BY BLOCKING INQUIRY ABOUT THE WITNESS' MOTIVE FOR TESTIFYING; WITHHOLDING OF POTENTIALLY EXCULPATORY EVIDENCE UNTIL THE DAY OF TRIAL [DUE PROCESS VIA DISCOVERY] WHILE ENGAGING IN A SPECIOUS ARGUMENT WITH A FALLACIOUS ASSUMPTION, TO WIT, THAT THE AGENCY'S CERTIFICATE OF AUTHORIZATION TO OPERATE RADAR HAD NO EXPIRATION DATE WHEN THE DOCUMENT CLEARLY STATED THAT IT HAD EXPIRED ELEVEN MONTHS PRIOR TO THE ISSU[]ANCE OF THE SUMMONS. ALL THESE ERRORS AMOUNT TO UNFAIR TREATMENT OF DEFENDANT AND AN UNFAIR TRIAL VIOLATION OF DUE PROCESS.

A. THE QUESTION OF IMPERMISSIBLE MOTIVE.

B. DEMONSTRATION OF PREJUDICE TO DEFENDANT.

C. WITHHOLDING OF DISCOVERY UNTIL TRIAL.

We consider these arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

N.J.S.A. 39:5-3(c) establishes the procedure followed in this case. Defendant was stopped by a Hopewell Township officer; that officer had the authority to issue the speeding ticket and bring the matter to trial in the Hopewell Township Municipal Court despite the fact that the lane in which Nicoloudakis was stopped was in Ewing Township. A trial in either municipality would have been valid and the specific intent and purpose of the statute was to vest jurisdiction in either municipality.

With regard to the officer's lapsed radar gun certification, it is noteworthy that defendant has not at any phase of the proceedings produced any written requirement that an officer be certified to operate a K55. If the officer was not required to be certified in the first instance, then the lapse of certification had no legal consequence on his ability to accurately operate the device and issue the speeding ticket.