NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1565-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELLIOTT BATES,
Defendant-Appellant. __________________________
Argued October 3, 2019 – Decided November 15, 2019
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 18-10.
Elliott Bates, appellant, argued the cause pro se.
Cheryl L. Hammel, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Chief Appellate Attorney, of counsel; Cheryl L. Hammel, on the brief).
PER CURIAM Following a trial de novo in the Law Division, defendant Elliott Bates was
convicted of the motor vehicle violation of failing to change lanes for an
emergency vehicle contrary to N.J.S.A. 39:4-92.2 (the "Move Over" law). In
municipal court, defendant was sentenced to pay a fine of $186, court costs of
$33, and ordered to retake his driver's license test. The Law Division did not
resentence defendant; instead, the Law Division stated that it would not modify
the sentence. Having reviewed the record and law, we reject defendant's
arguments and affirm his conviction. We remand so that the Law Division can
impose the sentence de novo.
I.
The trial de novo in the Law Division was conducted on the municipal
court record. At trial, two witnesses testified: Officer Michael Basso of the
Jackson Township Police Department and defendant. Officer Basso was the
officer who observed defendant's infraction and issued the motor vehicle
summons to defendant.
On February 20, 2018, just after 8 p.m., Officer Basso was in his patrol
car parked on the side of a highway. The officer had just finished dealing with
a traffic stop of another vehicle. As the officer sat in his patrol car, he observed
another vehicle coming towards his vehicle and then passing by his vehicle.
A-1565-18T3 2 Officer Basso testified that the vehicle was traveling at a high rate of speed and
passed within three feet of his patrol car. The officer also testified that his patrol
car was a marked police vehicle, the overhead lights on the vehicle were
activated, and the dash camera video (MVR) was running.
After the vehicle passed his patrol car, Officer Basso followed and stopped
the vehicle. The vehicle was driven by defendant, and Officer Basso issued a
summons to defendant for failure to move over. The MVR continued to run
and record that stop. A copy of that video was introduced into evidence and
played at trial.
At his municipal trial, defendant testified that he was driving carefully,
that he slowed down substantially as he passed the officer's vehicle, and that he
moved as far away as possible from the officer's vehicle without crossing into
the left lane. Defendant also contended that the stop and summons were part of
a vendetta and conspiracy to harass him orchestrated by the Jackson Township
Police Chief. To support that contention, defendant subpoenaed the Chief of
Police to testify at the municipal trial. The municipal judge quashed this
subpoena, ruling that it would be "inappropriate" to compel the Chief of Police
to testify.
A-1565-18T3 3 After hearing testimony and reviewing the MVR, the municipal judge
found Officer Basso to be credible and defendant to be incredible. Based on the
officer's testimony, the municipal judge found defendant guilty of violating
N.J.S.A. 39:4-92.2. As noted, the municipal judge sentenced defendant to pay
a fine of $186, court costs of $33, and ordered defendant to retake his driver's
license test.
Defendant appealed to the Law Division. In front of the Law Division,
defendant focused his arguments on the contention that the Jackson Township
Police Department had a vendetta against him and was harassing him. The Law
Division judge noted that the municipal court quashed defendant's subpoena of
the Chief of Police and that the Chief of Police did not appear to have any
firsthand knowledge of the charges against defendant. Accordingly, the Law
Division did not allow defendant to supplement the record.
Turning to the actual charge, the Law Division judge agreed with and
adopted the municipal court judge's credibility findings. Specifically, the Law
Division judge found that Officer Basso's testimony was credible and that it was
corroborated by the MVR. Accordingly, the Law Division found that defendant
had violated N.J.S.A. 39:4-92.2.
A-1565-18T3 4 As previously noted, the Law Division did not resentence defendant.
Instead, the judge stated that he was not going to modify the sentence imposed
by the municipal court and "affirm[ed]" the municipal court's ruling. On
November 30, 2018, the Law Division entered an order denying defendant's
municipal appeal. Defendant appeals the Law Division's order.
II.
Defendant makes two arguments on this appeal. First, he contends that he
was driving carefully, did not have a chance to safely move over and, therefore,
he did not violate N.J.S.A. 39:4-92.2. Second, he argues that the municipal
judge should have allowed him to submit evidence concerning the conspiracy.1
On an appeal of a municipal conviction to the Law Division, the Law
Division judge must decide the matter de novo on the record. State v. Adubato,
420 N.J. Super. 167, 176 (App. Div. 2011). This means that the Law Division
judge must independently make his or her own factual findings, rather than
determine whether the findings of the municipal judge were supported by
1 In his amended notice of appeal, defendant named the Ocean County prosecutor, the Lakewood Township's Chief of Police, Officer Basso, the Township's court administrator, the municipal judge, and the municipal prosecutor as "parties." None of those individuals were parties to the municipal court action. Thus, to clarify the record, any attempt to add those parties to this appeal is denied and the appeal is dismissed as to all of those parties. A-1565-18T3 5 sufficient credible evidence. See ibid.; State v. Johnson, 42 N.J. 146, 157
(1964). In making findings about witness credibility, however, the Law
Division judge should give "due" but "not necessarily controlling" weight to the
municipal judge's credibility determinations, because the municipal judge had
the opportunity to observe the testimony firsthand. Adubato, 420 N.J. Super. at
176 (quoting Johnson, 42 N.J. at 157).
When we review the Law Division judge's decision, our standard is
different. We do not decide the facts de novo. Instead, we decide whether the
Law Division judge's factual findings were supported by sufficient credible
evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting Johnson, 42
N.J. at 161); Adubato, 420 N.J. Super. at 176. Where both the municipal judge
and the Law Division judge have found a witness credible, we owe particularly
strong deference to the Law Division judge's credibility findings. Id. at 474. We
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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-1565-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELLIOTT BATES,
Defendant-Appellant. __________________________
Argued October 3, 2019 – Decided November 15, 2019
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 18-10.
Elliott Bates, appellant, argued the cause pro se.
Cheryl L. Hammel, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Chief Appellate Attorney, of counsel; Cheryl L. Hammel, on the brief).
PER CURIAM Following a trial de novo in the Law Division, defendant Elliott Bates was
convicted of the motor vehicle violation of failing to change lanes for an
emergency vehicle contrary to N.J.S.A. 39:4-92.2 (the "Move Over" law). In
municipal court, defendant was sentenced to pay a fine of $186, court costs of
$33, and ordered to retake his driver's license test. The Law Division did not
resentence defendant; instead, the Law Division stated that it would not modify
the sentence. Having reviewed the record and law, we reject defendant's
arguments and affirm his conviction. We remand so that the Law Division can
impose the sentence de novo.
I.
The trial de novo in the Law Division was conducted on the municipal
court record. At trial, two witnesses testified: Officer Michael Basso of the
Jackson Township Police Department and defendant. Officer Basso was the
officer who observed defendant's infraction and issued the motor vehicle
summons to defendant.
On February 20, 2018, just after 8 p.m., Officer Basso was in his patrol
car parked on the side of a highway. The officer had just finished dealing with
a traffic stop of another vehicle. As the officer sat in his patrol car, he observed
another vehicle coming towards his vehicle and then passing by his vehicle.
A-1565-18T3 2 Officer Basso testified that the vehicle was traveling at a high rate of speed and
passed within three feet of his patrol car. The officer also testified that his patrol
car was a marked police vehicle, the overhead lights on the vehicle were
activated, and the dash camera video (MVR) was running.
After the vehicle passed his patrol car, Officer Basso followed and stopped
the vehicle. The vehicle was driven by defendant, and Officer Basso issued a
summons to defendant for failure to move over. The MVR continued to run
and record that stop. A copy of that video was introduced into evidence and
played at trial.
At his municipal trial, defendant testified that he was driving carefully,
that he slowed down substantially as he passed the officer's vehicle, and that he
moved as far away as possible from the officer's vehicle without crossing into
the left lane. Defendant also contended that the stop and summons were part of
a vendetta and conspiracy to harass him orchestrated by the Jackson Township
Police Chief. To support that contention, defendant subpoenaed the Chief of
Police to testify at the municipal trial. The municipal judge quashed this
subpoena, ruling that it would be "inappropriate" to compel the Chief of Police
to testify.
A-1565-18T3 3 After hearing testimony and reviewing the MVR, the municipal judge
found Officer Basso to be credible and defendant to be incredible. Based on the
officer's testimony, the municipal judge found defendant guilty of violating
N.J.S.A. 39:4-92.2. As noted, the municipal judge sentenced defendant to pay
a fine of $186, court costs of $33, and ordered defendant to retake his driver's
license test.
Defendant appealed to the Law Division. In front of the Law Division,
defendant focused his arguments on the contention that the Jackson Township
Police Department had a vendetta against him and was harassing him. The Law
Division judge noted that the municipal court quashed defendant's subpoena of
the Chief of Police and that the Chief of Police did not appear to have any
firsthand knowledge of the charges against defendant. Accordingly, the Law
Division did not allow defendant to supplement the record.
Turning to the actual charge, the Law Division judge agreed with and
adopted the municipal court judge's credibility findings. Specifically, the Law
Division judge found that Officer Basso's testimony was credible and that it was
corroborated by the MVR. Accordingly, the Law Division found that defendant
had violated N.J.S.A. 39:4-92.2.
A-1565-18T3 4 As previously noted, the Law Division did not resentence defendant.
Instead, the judge stated that he was not going to modify the sentence imposed
by the municipal court and "affirm[ed]" the municipal court's ruling. On
November 30, 2018, the Law Division entered an order denying defendant's
municipal appeal. Defendant appeals the Law Division's order.
II.
Defendant makes two arguments on this appeal. First, he contends that he
was driving carefully, did not have a chance to safely move over and, therefore,
he did not violate N.J.S.A. 39:4-92.2. Second, he argues that the municipal
judge should have allowed him to submit evidence concerning the conspiracy.1
On an appeal of a municipal conviction to the Law Division, the Law
Division judge must decide the matter de novo on the record. State v. Adubato,
420 N.J. Super. 167, 176 (App. Div. 2011). This means that the Law Division
judge must independently make his or her own factual findings, rather than
determine whether the findings of the municipal judge were supported by
1 In his amended notice of appeal, defendant named the Ocean County prosecutor, the Lakewood Township's Chief of Police, Officer Basso, the Township's court administrator, the municipal judge, and the municipal prosecutor as "parties." None of those individuals were parties to the municipal court action. Thus, to clarify the record, any attempt to add those parties to this appeal is denied and the appeal is dismissed as to all of those parties. A-1565-18T3 5 sufficient credible evidence. See ibid.; State v. Johnson, 42 N.J. 146, 157
(1964). In making findings about witness credibility, however, the Law
Division judge should give "due" but "not necessarily controlling" weight to the
municipal judge's credibility determinations, because the municipal judge had
the opportunity to observe the testimony firsthand. Adubato, 420 N.J. Super. at
176 (quoting Johnson, 42 N.J. at 157).
When we review the Law Division judge's decision, our standard is
different. We do not decide the facts de novo. Instead, we decide whether the
Law Division judge's factual findings were supported by sufficient credible
evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting Johnson, 42
N.J. at 161); Adubato, 420 N.J. Super. at 176. Where both the municipal judge
and the Law Division judge have found a witness credible, we owe particularly
strong deference to the Law Division judge's credibility findings. Id. at 474. We
review the Law Division judge's legal conclusions de novo. See State v. Rivera,
411 N.J. Super. 492, 497 (App. Div. 2010).
We will first address defendant's substantive arguments concerning his
conviction of the motor vehicle offense. In short, defendant makes arguments
consistent with the testimony he gave in the municipal trial. The Law Division
judge, effectively rejected that testimony by relying on the testimony of Officer
A-1565-18T3 6 Basso. The testimony of Officer Basso supported the factual findings that
defendant's vehicle traveled too close to the officer's vehicle and that defendant
had the time, but failed to move over. Those factual findings support a
conviction for violating N.J.S.A. 39:4-92.2. Accordingly, we affirm the Law
Division's ruling that defendant violated that statute.
In his second argument, defendant seeks to challenge the actions of the
municipal court. Specifically, he argues that the municipal court violated his
rights by not allowing him to compel testimony from the Chief of Police and
offer other evidence concerning the alleged conspiracy against him.
We do not review municipal court judgments. See State v. Oliveri, 336
N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184
(1961). Instead, we review the decision by the Law Division. Ibid. The Law
Division conducts a de novo review of the record developed by the municipal
court, including its evidentiary decisions. State v. Golin, 363 N.J. Super. 474,
481 (App. Div. 2003). Rule 3.23-8(a)(2) provides that the Law Division may
remand a matter "for the limited purposes of correcting a legal error in the
proceedings below[]" such as an improper evidentiary decision.
We discern no error in the Law Division's decision to not admit
supplemental evidence. There is no dispute that the Chief of Police did not
A-1565-18T3 7 participate in the stop that resulted in the motor vehicle summons issued to
defendant. Defendant has also failed to articulate or provide any support for his
contention that the ticket was issued as part of a vendetta against him.
Finally, we are constrained to remand the matter for sentencing by the
Law Division. After conducting a de novo review, the Law Division must
resentence a defendant who has been found guilty. R. 3:23-8 (e) ("Disposition
by Superior Court, Law Division. If the defendant is convicted, the court shall
impose sentence as provided by law."). The sentence should not be greater than
the sentence imposed in the municipal court. State v. Kashi, 180 N.J. 45, 49
(2002). The Law Division did not resentence defendant in this case.
Accordingly, we remand for that limited purpose.
Affirmed and remanded. We do not retain jurisdiction.
A-1565-18T3 8