July 26, 2011




DOCKET NO. A-1323-10T3






Submitted June 7, 2011 – Decided June 24, 2011

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal

Appeal No. 40-2010.

Thomas D. Williamson, appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Brian D. Gillet,

Assistant Prosecutor, of counsel; Jason

Seidman, on the brief).


Following a trial de novo in the Law Division, defendant Thomas D. Williamson appeals from an October 12, 2010 order that found him not guilty of improper passing, N.J.S.A. 39:4-85, but guilty of careless driving, N.J.S.A. 39:4-97. For the reasons that follow, we reverse.

The facts of this case are not in dispute. On the morning of February 11, 2010, defendant was driving in Spotswood, New Jersey. Although the weather was clear, the road remained "covered with snow and ice" from a storm the previous day. Defendant approached a slow-moving vehicle in a passing zone, signaled, and passed it on the left.

The maneuver was observed by Officer Michael Gardini of the Spotswood Police Department. Gardini "activated [his] overhead lights" and pulled defendant over. Defendant was issued two summonses: one for improper passing, and another for having an obstructed window.1

During defendant's trial in the Spotswood Municipal Court on March 30, 2010, Gardini acknowledged that he had observed defendant's vehicle pass another vehicle in a forty-mile-per-hour passing zone. He further stated that defendant "could have been" traveling "about 20 miles per hour." Nevertheless, Gardini maintained that "[t]he road conditions were unsafe to pass." On cross-examination, Gardini admitted that he had not measured the speed of either car and did not observe any "lack of control" in defendant's driving, but he issued the ticket because the pass was not "a safe maneuver."

After the State rested, defendant testified as follows:

There was a car on Main Street that I came up to. It was being driven . . . at about eight to ten miles an hour. There was snow and ice on the road. I . . . signaled to turn and pass because there were no cars at all coming [in] the other direction. The speed limit is 40 miles an hour and it is clearly marked as a passing zone because I go on that road twice a day every day, [and I am] very familiar with that road.

I had a long approach. I pulled out gently in front of the car that was going at about eight, ten miles an hour, passed the car, pulled in. The car had absolutely no fish-tail. There was nothing. It was already past sunrise. There was ice . . . on the road, but there was also water on the road. Passed the car, pulled in, did not exceed the speed limit of about 20 miles an hour. When I pulled in in front of the other car, [I] had total control of the car the entire time.

Following closing arguments, the municipal judge rendered an oral decision. He found defendant guilty of improper passing and provided the following explanation:

I do detect, Mr. Williamson, that on your behalf you seem to have this idea that because the car in front of you was going slowly and other vehicles on the road were going slowly that that gives you the right to pass that vehicle. You're forgetting the fact that the statute does require that you do so with safety. And the fact that your vehicle wasn't fish-tailing doesn't mean that the officer shouldn't make an observation that the passing was not done safely.

In this instance, Officer Gardini clearly . . . made a determination that the weather was clear, but the roads were snow covered. There had been a heavy snow. The roads had been plowed, but they were still snow covered. And the reason why all the other vehicles on the road were going eight to ten miles an hour, as you suggested, and not going faster is because the road conditions were such that going faster could be a dangerous condition. And that's the condition that Officer Gardini found when he saw you.

It's not okay to say that the vehicle in front of me is going slowly and, therefore, I'm able to pass him and I kept my vehicle under control. You can only pass him when you can do so safely and the officer made the determination [that] you may have been lucky this time, but you wouldn't have been lucky the next time, perhaps. So he made that determination.

I do find his testimony credible. I find that it's incredible that you, at the time of this event, would take it upon yourself to pass these vehicles and find that would be okay. So I am going to find you guilty of that charge.

Defendant appealed the conviction to the Law Division, which heard oral arguments on September 21, 2010. In a written decision dated October 12, 2010, the court found that "defendant's operation [of the vehicle] was unsafe and without due caution, based upon the conditions." However, it determined that he "should [have been] charged with careless driving underN.J.S.A. 39:4-97 rather than improper passing under N.J.S.A. 39:4-85." Therefore, the court modified the complaint pursuant to Rule 3:23-8(c) and found defendant guilty of careless driving.2 An order memorializing the decision was entered the same day.

On appeal, defendant asserts that the State failed to prove the elements of careless driving beyond a reasonable doubt. We agree.

Our review of the Law Division's decision is limited. We may not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Instead, we consider only whether "the findings made could reasonably have been reached on sufficient credible evidence present in the record."State v. Johnson, 42 N.J. 146, 162 (1964).

N.J.S.A. 39:4-97 states: "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving." Because careless driving is a quasi-criminal offense, the State must prove each element beyond a reasonable doubt. See State v. Badessa, 185 N.J. 303, 312 (2005) (noting that beyond a reasonable doubt "is the standard governing . . . quasi-criminal offenses prosecuted in municipal court").

In this case, the evidence presented by the State was insufficient to establish that defendant was driving his vehicle "in a manner so as to endanger, or be likely to endanger, a person or property." N.J.S.A. 39:4-97. Defendant was driving under the speed limit; the maneuver occurred in a legal passing zone; and there was no evidence that defendant's vehicle was being driven in an unsafe manner. Given these facts, we find that the State failed to prove defendant's guilt beyond a reasonable doubt. Cf. State v. Lutz, 309 N.J. Super. 317, 327 (App. Div. 1998) (reversing a conviction for careless driving where "[t]he State presented no evidence indicating that defendant had been speeding, driving too fast for the wet road conditions, distracted or otherwise driving without due caution and circumspection").


1 According to Gardini, "the rear of the vehicle was still covered with a heavy amount of snow." The obstructed view ticket was dismissed by the municipal court.

2 In relevant part, Rule 3:23-8(c) states that when considering a municipal appeal, the Law Division may "amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances of which the court from whose judgment or sentence the appeal is taken had jurisdiction."

No comments: