NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0598-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK LEONE,
Defendant-Appellant.
Submitted February 26, 2025 – Decided May 2, 2025
Before Judges Currier and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2020- 03.
Frank Leone, appellant pro se.
Janetta D. Marbrey, Mercer County Prosecutor, attorney for respondent (Tasha M. Kersey, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Frank Leone appeals from the Law Division's October 6, 2023
order finding him guilty, following de novo review of the municipal court
appeal, of leaving the scene of an accident involving property damage, N.J.S.A.
39:4-129(b), and failing to report an accident, N.J.S.A. 39:4-130. We affirm.
I.
In December 2018, defendant was charged with leaving the scene of an
accident involving property damage and failing to report an accident. 1 A trial
was subsequently conducted in the Trenton Municipal Court in February 2020.
At the outset of the proceeding, defense counsel moved to dismiss the
charges against defendant. Counsel stated he requested the body camera footage
referenced in the police report but never received the footage or a response from
the Mercer County Prosecutor's Office. Counsel asserted the footage may
contain exculpatory evidence. However, the municipal court denied the motion
because it previously adjourned the trial to allow counsel an opportunity to
obtain the footage and review it with defendant.
1 Defendant was also charged with reckless driving, N.J.S.A. 39:4-96; failure to keep right, N.J.S.A. 39:4-82; and failure to carry motor vehicle insurance coverage, N.J.S.A. 39:6B-2. The municipal court found defendant not guilty of reckless driving and dismissed the remaining charges pursuant to a plea agreement. A-0598-23 2 Thereafter, Officer Eric Thompson of the Trenton Police Department
testified he was dispatched to the intersection of Greenwood Avenue and Barlow
Street in the early morning of December 30, 2018, for a reported hit and run
motor vehicle crash. He stated that upon arriving at the scene, he found a traffic
light pole lying "down in the middle of the road" and "a gray bumper with a
license plate attached" several feet away from where the traffic light was struck.
He further testified that after running the license plate number, he identified
defendant as the registered owner of the vehicle—an Oldsmobile Alero—and
obtained defendant's address.
On cross-examination, Officer Thompson stated he did not conduct any
further investigation to determine whether the paint on the traffic light pole
matched the paint on the bumper found at the scene. However, he noted "[they
were] kind of the same color." He also testified the bumper and license plate
were not taken to defendant's home.
Next, Officer Tamar Williams testified he arrived at the scene to assist the
investigation and saw the downed traffic light and the gray bumper with the
license plate attached. He stated Officer Thompson advised him to proceed to
the registered owner's address. Officer Williams testified that upon arriving at
the residence, he observed defendant "taking stuff from the vehicle inside the
A-0598-23 3 house." He also noticed defendant's car did not have a front bumper and realized
the rear license plate "match[ed] the [license] plate" left at the accident. He
further testified a woman came out of the home and spontaneously stated she
and defendant "were involved in a motor vehicle accident in Titusville and . . .
hit a deer." Officer Williams stated he left defendant's home once a tow truck
arrived to tow the vehicle.
On direct examination, defendant testified he owned an Oldsmobile
Cutlass Ciera, drove the car on December 30, 2018, and was involved in an
accident when he hit a deer and then drove home. He maintained "[he] never
lost [his] bumper" and "was never at the scene" referenced in the officers'
testimony. On cross-examination, defendant acknowledged he drove his car in
Titusville on December 30 but denied driving on Greenwood Avenue. He
testified it was "impossible" for the officers to run his license plate and find his
home address because he always had possession of his front bumper and license
plate.
In rendering its decision, the municipal court determined that based on the
evidence presented, defendant was guilty, beyond a reasonable doubt, of leaving
the scene of an accident and failing to report an accident. Specifically, regarding
the violation of N.J.S.A. 39:4-129(b), it found defendant failed to provide
A-0598-23 4 evidence to rebut the statutory presumption under N.J.S.A. 39:4-129(e) that he
drove the vehicle involved in the accident on Greenwood Avenue. The
municipal court stated that while defendant recalled an accident that occurred in
Titusville, he failed to "provide an accident report or testify that [he] had notified
[the] Titusville Police Department" about the accident.
The municipal court further found the testimony of Officers Thompson
and Williams was credible. Specifically, it noted Officer Thompson was
credible in testifying that "he found . . . the light pole" lying across the
intersection with "a bumper [and] license plate . . . attached," which "[was]
registered to [defendant]." The municipal court also noted Officer Williams
testified credibly about the investigation he conducted at defendant's home.
Accordingly, the municipal court found defendant guilty of leaving the
scene of an accident involving property damage and failing to report an accident.
It issued defendant a $300 fine, plus $33 in court costs, and ordered a six-month
suspension of defendant's driver's license for the violation of N.J.S.A. 39:4 -
129(b). It also imposed a $189 fine for defendant's failure to report the accident.
Defendant appealed, and the Law Division conducted a trial de novo.
Defendant, who was self-represented before the Law Division, raised various
issues regarding the municipal court proceeding.
A-0598-23 5 First, defendant argued his counsel provided ineffective assistance
because "counsel wasn't really there for [him]"—or else defendant "wouldn't be
here" before the Law Division—and failed to represent him on appeal. He also
claimed he obtained "paperwork from the [New Jersey Department of
Transportation (NJDOT)]" and that counsel had a duty to submit the report into
evidence, regardless of the municipal judge finding it irrelevant. Next,
defendant argued he did not have a fair trial because the municipal judge "was
biased" and "[t]hreaten[ed] [his] livelihood" by suspending his driver's license,
which he needed for work. He further asserted the prosecution and municipal
judge withheld favorable evidence by not admitting the officers' body camera
footage into evidence, which, according to defendant, was exculpatory.
Judge Sherry L. Wilson rendered a comprehensive, well-reasoned oral
decision on September 11, 2023, denying defendant's de novo appeal, finding
there was sufficient evidence in the record to support the municipal court's
ruling. She noted defendant testified that he owned and drove the vehicle
involved in the accident and acknowledged he was in an accident. She found
both officers provided credible testimony and agreed the police located
defendant based on finding his bumper and license plate at the scene. She
determined that, "[a]lthough the [municipal court] judge used a higher standard
A-0598-23 6 of a rebuttal presumption, . . . there was not sufficient evidence to outweigh even
a permissible inference under [N.J.S.A.] 39:4-129(e)."
Judge Wilson allowed defendant to supplement the record with the body
worn camera footage pursuant to N.J.S.A. 3:23-8(a)(2). She found "the footage
[was] very brief, and essentially depict[ed] the dashboard of the officer's vehicle
and contain[ed] audio of him communicating with dispatch" regarding "a hit and
run into a traffic pole." She determined "[t]he absence of this video footage at
trial would not have prejudiced defendant" or "changed the outcome of the trial,"
and "[i]t d[id] not contain exculpatory evidence."
The judge further rejected defendant's contention that the municipal court
judge showed personal bias and prejudice toward him. Specifically, she stated
the municipal court asked defendant to confirm what he did for work and
reminded him of the fines associated with finding him guilty. Judge Wilson
found "[t]here [was] no bias, partiality, or appearance of partiality . . . that would
be questioned by a fully informed reasonable person."
The judge then proceeded with sentencing. As to defendant's violation of
N.J.S.A. 39:4-129(b) for leaving the scene of an accident, it amended the
municipal court's original sentence to a minimum fine of $200, plus $33 in court
costs. She did not impose an additional suspension of defendant's license, as he
A-0598-23 7 already completed the previous suspension and restored his license. For
defendant's failure to report an accident in violation of N.J.S.A. 39:4 -130, the
judge affirmed the municipal court's original fine of $189. 2
On September 18, 2023, the judge supplemented the September 11
decision, incorporating all findings and conclusions from that record. She
determined "defendant['s] . . . testimony was not credible." She found "the
testimony of both officers [was] credible, logical, and consistent with each
other." She stated:
The officers' version of the facts was more logical tha[t] the bumper and license plate left at the scene of the accident on Greenwood Avenue . . . led [them] to . . . defendant after searching the license plate number in the Info-Cop system which identified the vehicle as a vehicle registered to . . . defendant [and his home address].
She indicated "[t]he license plate on the rear bumper of the vehicle parked at . .
. defendant's house . . . matched the plate found attached to the bumper on
Greenwood Avenue" and that defendant's "vehicle had damage to the front end
and was missing its bumper." She also noted a woman at defendant's home
2 The Law Division also dismissed the remaining charges against defendant pursuant to the plea agreement. A-0598-23 8 "spontaneously admitted [to Officer Williams] that she and defendant were in
an accident, but claimed that they hit a deer in Titusville."
Judge Wilson further found "[defendant's] version of the facts [was]
simply not believable" and "defie[d] logic." She stated defendant "denie[d]
being involved in the accident on Greenwood Avenue . . . on December 30[],
2018." Notably, "[d]efendant admitted that he drove his vehicle" that night but
"claimed he hit a deer in Hopewell," put his "fallen bumper with the license plate
intact . . . in his car, drove home, and placed it in his apartment."
Accordingly, the judge determined there was sufficient credible evidence
to support finding a permissive inference under N.J.S.A. 39:4-129(e). Applying
the inference, the judge found, based on the totality of the evidence, "[defendant]
was the driver of [the] vehicle that caused damage to the traffic light [pole] on
Greenwood Avenue . . . and that he had knowledge that he was involved in the
accident." As such, she concluded the State satisfied its burden beyond a
reasonable doubt.
Moreover, although it was not required for Judge Wilson to address at that
juncture,3 she also determined defendant failed to establish a prima facie claim
3 Pursuant to Rule 7:10-2, defendant should have first filed a petition for post- conviction relief before the municipal court. A-0598-23 9 of ineffective assistance of counsel under the standard in Strickland v.
Washington, 466 U.S. 668, 688 (1984). She found defense counsel's
performance met the objective standard for reasonableness under the first prong
of Strickland because "[h]e filed a motion to dismiss, cross[-]examined
witnesses, conducted a direct examination of . . . defendant, and vigorously
challenged the State's evidence throughout the trial." She further commented
that even if defendant satisfied the first prong, he failed to show the alleged
evidentiary errors would have changed the outcome of the trial under the second
prong. Accordingly, the judge affirmed the municipal court's decision.
II.
Defendant raises the following points on appeal:
POINT I
DEFENDANT['S] DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF [THE] UNITED STATES CONSTITUTION. (Not Raised Below) (Due to: Municipal Court Proceedings Ineffective Assistance of Counsel).
POINT II
SUPERIOR COURT OF NEW JERSEY LAW DIVISION MERCER COUNTY CRIMINAL PART DEPRIVED [DEFENDANT] OF DUE PROCESS IN PROVIDING A FULL, FAIR AND IMPA[RT]IAL REVIEW OF LOWER MUNICIPAL COURT
A-0598-23 10 FINDINGS. (Not Raised Below) (Due to: Municipal Court Proceedings Ineffective Assistance of Counsel).
A municipal court decision is appealed to the Law Division where the
judge "may reverse and remand for a new trial or may conduct a trial de novo
on the record below." R. 3:23-8(a)(2); see also R. 3:23-1; R. 7:13-1. "At a trial
de novo, the [Law Division] makes its own findings of fact and conclusions of
law but defers to the municipal court's credibility findings." See State v.
Robertson, 228 N.J. 138, 147 (2017). "It is well-settled that the trial judge
'giv[es] due, although not necessarily controlling, regard to the opportunity of
the' municipal court judge to assess 'the credibility of the witnesses.'" Id. at 148
(quoting State v. Johnson, 42 N.J. 146, 157 (1964)).
As such, this court reviews the record through a deferential lens because
"the rule of deference is more compelling where . . . two lower courts have
entered concurrent judgments on purely factual issues." State v. Locurto, 157
N.J. 463, 474 (1999). "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. Where a defendant is convicted in the Law Division
and seeks reversal in the Appellate Division, "the State no longer has the burden
of proof[,] [and] [a]ppellate review instead focuses on whether there is
A-0598-23 11 'sufficient credible evidence . . . in the record' to support the trial court's
findings." Robertson, 228 N.J. at 148 (quoting Johnson, 42 N.J. at 162). As the
Court in Robertson stated:
The differences[—]between . . . convictions in municipal court and the Law Division[—]matter. After the first conviction, the stage is set for a new trial, where the defendant retains the presumption of innocence; after the second, a defendant loses the cloak of innocence and stands convicted—ready to challenge that determination on appeal.
[Ibid.]
Thus, appellate review of a de novo proceeding in the Law Division
following an appeal from the municipal court is "exceedingly narrow." Locurto,
157 N.J. at 470. "[A]ppellate review of a municipal appeal to the Law Division
is limited to 'the action of the Law Division and not that of the municipal court.'"
State v. Hannah, 448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v.
Palma, 219 N.J. 584, 591-92 (2014)). However, the Law Division's legal
conclusions are reviewed de novo. Robertson, 228 N.J. at 148.
Defendant contends the Law Division erred in finding he did not sustain
a prima facie claim of ineffective assistance of counsel because his attorney
failed to admit exculpatory evidence. Specifically, defendant alleges he
requested his attorney to enter the reports from NJDOT into evidence, but
A-0598-23 12 counsel failed to do so. He further argues counsel did not produce the officers'
body worn camera footage in support of his defense. Defendant maintains "that
but for the ineffective assistance of counsel, in failing to put exculpatory
evidence . . . into the Mercer County municipal [t]rial record[,] he would have
been found not guilty . . . ." The State counters that the Law Division correctly
found defendant failed to establish a prima facie claim of ineffective assistance
of counsel.
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-prong Strickland test: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment[,]" and (2) "the deficient performance prejudiced the
defense." 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-prong test in New Jersey). Under prong one, a defendant must
demonstrate "counsel's representation fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. To establish prejudice under
prong two, "a defendant 'must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have
been different.'" State v. Harris, 181 N.J. 391, 432 (2004) (quoting id. at 694).
A-0598-23 13 We affirm substantially for the reasons set forth in Judge Wilson's cogent
opinion regarding this issue. Regarding the first prong of Strickland, defendant
did not demonstrate that his counsel's performance fell below an objective
standard of reasonableness. As the judge noted, defense counsel moved to
dismiss the charges, cross-examined witnesses, conducted a direct examination
of defendant, and continued to challenge the State's evidence throughout the
municipal trial. Likewise, under the second prong, she correctly found
defendant failed to demonstrate that any of the alleged errors would have
changed the outcome of the trial.
Notably, the court permitted defendant to supplement the record with the
body worn camera footage, which, in part, forms the basis for defendant's
ineffective assistance of counsel claim. Following an in-camera review, the
judge made an independent determination that the footage did not contain
exculpatory evidence and would not have changed the outcome of the trial, given
the officers' credible testimony and the footage corroborating the hit and run ,
damaged traffic pole, and the bumper and license plate found at the scene.
Furthermore, defendant fails to articulate how defense counsel's failure to
admit the NJDOT report into evidence proves his ineffective assistance of
counsel claim—or that it contains exculpatory evidence. Pursuant to the Open
A-0598-23 14 Public Records Act, N.J.S.A. 47:1A-1 to -13, defendant requested documents
from NJDOT regarding which "of the [seven] traffic signals at [Market Street
and Barlow Street]" were damaged or replaced on December 30, 2018.
However, the request was denied because such records "d[id] not exist."
Defendant did, however, receive a claim report from the State Department of
Treasury, Division of Risk Management, detailing the costs to repair the downed
traffic signal from the December 30, 2018 accident. Accordingly, defendant
provides no basis to disturb the Law Division's conclusion that he failed to
sustain a prima facie claim of ineffective assistance of counsel.
Defendant next asserts the Law Division deprived him of a fair and
impartial de novo review of the municipal trial because it continued to suppress
exculpatory evidence. Defendant maintains "he was not at the scene of the
accident . . . but rather at a different location where he was the victim of a deer
strike." According to defendant, the State failed to meet its burden of proof
because it "erroneously linked" him to the downed light pole, and the Law
Division erred in finding him guilty because it relied upon "testimony of police
officers who were not [present] at the scene of the incident . . . , did not
personally witness it, and did not receive and present any eyewitness account
[of] . . . the alleged traffic pole strike."
A-0598-23 15 Defendant was convicted of violating N.J.S.A. 39:4-129(b), which, in
pertinent part, provides:
(b) The 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 remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section. . . . Any person who shall violate this subsection shall be fined not less than $200 nor more than $400 . . . .
In addition, a person who violates this subsection shall, for a first offense, forfeit the right to operate a motor vehicle in this State for a period of six months from the date of conviction . . . .
Moreover, if no police are present at the scene of an accident, the driver "shall
. . . report such accident" to the nearest police department and submit
identification information. N.J.S.A. 39:4-129(c). The statute further provides
"a permissive inference that the driver of any motor vehicle involved in an
accident resulting in . . . damage in the amount of $250[] or more to any . . .
property has knowledge that he was involved in such accident[,]" and "that the
registered owner of the vehicle . . . was the person involved in the accident."
N.J.S.A. 39:4-129(e).
Furthermore, defendant was found guilty of violating N.J.S.A. 39:4-130,
which defines the offense of failing to report an accident. That statute requires
A-0598-23 16 a driver involved in an accident resulting in over $500 in property damage to
notify the police and file a written report within ten days of the accident.
N.J.S.A. 39:4-130. The report must contain detailed information about the
accident and the then-existing conditions. Ibid.
Here, following de novo review of the record, the Law Division
determined there was sufficient evidence to support a finding that defendant was
guilty of leaving the scene of an accident involving property damage and failing
to report an accident. Notably, the Law Division found both officers' testimony
credible, logical, and consistent. It stated both officers testified to noticing a
traffic pole broken at its base, lying across Greenwood Avenue and Barlow
Street, and finding a bumper with defendant's license plate attached several feet
away. In contrast, the Law Division found defendant's testimony was not
credible and "defie[d] logic."
We conclude there was ample credible evidence in the record to support
Judge Wilson's factual findings and ultimate decision and discern no basis upon
which to disturb her conclusions.
Affirmed.
A-0598-23 17