40A :14-118.5 Body worn cameras, recordings, regulations concerning usage; terms defined.

  

New  40A :14-118.5  Body worn cameras, recordings, regulations concerning usage; terms defined.

  1. a. For the purposes of this section: 

   "Body worn camera" means a mobile audio and video recording system worn by a law enforcement officer, but shall not include a recording device worn by a law enforcement officer while engaging in an undercover assignment or a recording device used during a custodial interrogation conducted in a place of detention in compliance with Rule 3:17 of the Rules Governing the Courts of the State of New Jersey. 

   "Constructive authority" means the use of the law enforcement officer's authority to exert control over a person, directed against a person who is subject to an investigative detention or arrest or against any person if the officer has un-holstered a firearm or a conducted energy device.

   "Force" shall include physical, mechanical, enhanced mechanical, and deadly force. 

   "Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest, and conviction of offenders against the laws of this State. 

   "Mobile video recording system" shall have the same meaning as set forth in section 1 of P.L.2014, c.54 (C.40A:14-118.1). 

   "School" means a public or nonpublic elementary or secondary school within this State offering education in grades kindergarten

through 12, or any combination of grades, at which a child may legally fulfill compulsory school attendance requirements.

   "Subject of the video footage" means any law enforcement officer, suspect, victim, detainee, conversant, injured party, or other similarly situated person who appears on the body worn camera recording, and shall not include a person who only incidentally appears on the recording.

   "Youth facility" means a facility within this State used to house or provide services to children under P.L.1951, c.138 (C.30:4C-1 et seq.), including but not limited to group homes, residential facilities, day care centers, and day treatment centers.

   b.   A body worn camera used by a law enforcement officer shall be placed so that it maximizes the camera's ability to capture video footage of the officer's activities.

   c. (1) Except as otherwise provided in this subsection or in subsection e. of this section, the video and audio recording functions of a body worn camera shall be activated whenever the officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public, in accordance with applicable guidelines or directives promulgated by the Attorney General; provided however, if an immediate threat to the officer's life or safety makes activating the body worn camera impossible or dangerous, the officer shall activate the body worn camera at the first reasonable opportunity to do so.  The body worn camera shall remain activated until the encounter has fully concluded and the officer leaves the scene.

   (2)   The video and audio recording functions of a body worn camera may be deactivated, consistent with directives or guidelines promulgated by the Attorney General, under the following circumstances:

   (a)   when a civilian conversing with the officer requests that the device be deactivated where it reasonably appears that the person will not provide information or otherwise cooperate with the officer unless that request is respected;

   (b)   when a person, other than an arrestee, is seeking emergency medical services for themselves or another person and requests that the device be deactivated;

   (c)   while the officer is participating in a discussion pertaining to criminal investigation strategy and planning, provided that the discussion is not conducted in the immediate presence of a civilian and further provided that the officer is not actively engaged in the collection of physical evidence; or

   (d)   when specifically authorized to do so by an assistant prosecutor or an assistant or deputy attorney general for good and sufficient cause as determined by the assistant prosecutor or assistant or deputy attorney general.

   (3)   Unless the officer is actively engaged in investigating the commission of a criminal offense, or is responding to an emergency or call for service, or reasonably believes that he or she will be required to use constructive authority or force, the officer shall not activate the video and audio recording functions of a body worn camera, or shall deactivate a device that has been activated, while the officer:

   (a)   is in a school or youth facility or on school or youth facility property under circumstances where minor children would be in view of the device;

   (b)   is in a patient care area of a healthcare facility, medical office, or substance abuse treatment facility under circumstances where patients would be in view of the device; or

   (c)   is in a place of worship under circumstances where worshippers would be in view of the device.

   (4)   The officer shall not activate the video and audio recording functions of a body worn camera, or shall deactivate a device that has been activated, if the officer knows or reasonably believes that the recording would risk revealing the identity of an individual as an undercover officer or confidential informant or otherwise would pose a risk to the safety of an undercover officer or confidential informant, unless such activation is expressly authorized by a supervisor, or unless the exigency of the situation and danger posed to an officer require that the encounter or incident be recorded, in which event the officer shall inform his or her supervisor that the recording risks revealing the identity of an individual as an undercover officer or confidential informant.

   (5)   An officer shall not activate a body worn camera while in a courtroom during court proceedings, unless the officer is responding to a call for service or is authorized to use constructive force or authority.

   (6)   If the body worn camera model selected by a law enforcement agency produces radio-frequency interference while activated or while in standby mode, the device shall be deactivated while in the area where an electronic alcohol breath testing device is being used, or, as necessary, shall be removed from the area where such device is being used.  Nothing herein shall be construed to preclude the use of a body worn camera to record the behavior of a person arrested for driving while intoxicated other than while the person is in the breath-testing area while the electronic breath testing device is being operated.  If this provision requires deactivation of a body worn camera, the officer shall narrate the reasons for deactivation, and the device shall be re-activated when safe and practicable to do so following the completion of the breath testing operation.

   d.   A law enforcement officer who is wearing a body worn camera shall notify the subject of the recording that the subject is being recorded by the body worn camera unless it is unsafe or infeasible to provide such notification.  Such notification shall be made as close to the inception of the encounter as is reasonably possible.  If the officer does not provide the required notification because it is unsafe or infeasible to do so, the officer shall document the reasons for that decision in a report or by narrating the reasons on the body worn camera recording, or both.  The failure to verbally notify a person pursuant to this section shall not affect the admissibility of any statement or evidence.

   e.   Notwithstanding the requirements of subsection c. of this section:

   (1)   prior to entering a private residence, a law enforcement officer shall notify the occupant that the occupant is being recorded by the body worn camera and, if the occupant requests the officer to discontinue use of the officer's body worn camera, the officer shall immediately discontinue use of the body worn camera unless the officer is actively engaged in investigating the commission of a criminal offense, or is responding to an emergency, or reasonably believes that the officer will be required to use constructive authority or force;

   (2)   when interacting with an apparent crime victim, a law enforcement officer shall, as soon as practicable, notify the apparent crime victim  that he or she is being recorded by the body worn camera and, if the apparent crime victim requests the officer to discontinue use of the body worn camera, the officer shall immediately discontinue use of the body worn camera; and

   (3)   when interacting with a person seeking to anonymously report a crime or assist in an ongoing law enforcement investigation, a law enforcement officer, if the person requests that the officer discontinue use of the body worn camera, shall, evaluate the circumstances and, if appropriate, discontinue use of the body worn camera.

   f.   A request to discontinue the use of a body worn camera made to a law enforcement officer pursuant to subsection e. of this section and the response to the request shall be recorded by the recording system prior to discontinuing use of the recording system.

   g.   A body worn camera shall not be used surreptitiously.

   h.   A body worn camera shall not be used to gather intelligence information based on First Amendment protected speech, associations, or religion, or to record activity that is unrelated to a response to a call for service or a law enforcement or investigative encounter between a law enforcement officer and a member of the public, provided that nothing in this subsection shall be construed to prohibit activation of video and audio recording functions of a body worn camera as authorized under this law and in accordance with any applicable guidelines or directives promulgated by the Attorney General.

   i.   Every law enforcement agency shall promulgate and adhere to a policy, standing operating procedure, directive, or order which meets the requirements of subsection j. of this act and any applicable guideline or directive promulgated by the Attorney General that specifies the period of time during which a body worn camera recording shall be retained. 

   j.   A body worn camera recording shall be retained by the law enforcement agency that employs the officer for a retention period consistent with the provisions of this section, after which time the recording shall be permanently deleted.  A body worn camera recording shall be retained for not less than 180 days from the date it was recorded, which minimum time frame for retention shall be applicable to all contracts for retention of body worn camera recordings executed by or on behalf of a law enforcement agency on or after the effective date of this act, and shall be subject to the following additional retention periods: 

   (1)   a body worn camera recording shall automatically be retained for not less than three years if it captures images involving an encounter about which a complaint has been registered by a subject of the body worn camera recording; 

   (2)   subject to any applicable retention periods established in paragraph (3) of this subsection to the extent such retention period is longer, a body worn camera recording shall be retained for not less than three years if voluntarily requested by:

   (a)   the law enforcement officer whose body worn camera made the video recording, if that officer reasonably asserts the recording has evidentiary or exculpatory value;

   (b)   a law enforcement officer who is a subject of the body worn camera recording, if that officer reasonably asserts the recording has evidentiary or exculpatory value;

   (c)   any immediate supervisor of a law enforcement officer whose body worn camera made the recording or who is a subject of the body worn camera recording, if that immediate supervisor reasonably asserts the recording has evidentiary or exculpatory value;

   (d)   any law enforcement officer, if the body worn camera recording is being retained solely and exclusively for police training purposes;

   (e)   any member of the public who is a subject of the body worn camera recording;

   (f)   any parent or legal guardian of a minor who is a subject of the body worn camera recording; or

   (g)   a deceased subject's next of kin or legally authorized designee.

   (3)   Notwithstanding the provisions of paragraph (1) or (2) of this subsection, a body worn camera recording shall be subject to the following additional retention requirements:

   (a)   when a body worn camera recording pertains to a criminal investigation or otherwise records information that may be subject to discovery in a prosecution, the recording shall be treated as evidence and shall be kept in accordance with the retention period for evidence in a criminal prosecution;

   (b)   when a body worn camera records an arrest that did not result in an ongoing prosecution, or records the use of police force, the recording shall be kept until the expiration of the statute of limitations for filing a civil complaint against the officer or the employing law enforcement agency;

   (c)   when a body worn camera records an incident that is the subject of an internal affairs complaint, the recording shall be kept pending final resolution of the internal affairs investigation and any resulting administrative action.

   k.   To effectuate subparagraphs (e), (f), and (g) of paragraph (2) of subsection j. of this section, the member of the public, parent or legal guardian, or next of kin or designee shall be permitted to review the body worn camera recording in accordance with the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) to determine whether to request a three-year retention period.

   l.   Notwithstanding that a criminal investigatory record does not constitute a government record under section 1 of P.L.1995, c.23 (C.47:1A-1.1), only the following body worn camera recordings shall be exempt from public inspection:

   (1)   body worn camera recordings not subject to a minimum three-year retention period or additional retention requirements pursuant to subsection j. of this section;

   (2)   body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to paragraph (1) of subsection j. of this section if the subject of the body worn camera recording making the complaint requests the body worn camera recording not be made available to the public;

   (3)   body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (a), (b), (c), or (d) of paragraph (2) of subsection j. of this section; and

   (4)   body worn camera recordings subject to a minimum three-year retention period solely and exclusively pursuant to subparagraph (e), (f), or (g) of paragraph (2) of subsection j. of this section if a member, parent or legal guardian, or next of kin or designee requests the body worn camera recording not be made available to the public.

   m.   Any body worn camera recording retained beyond 180 days solely and exclusively pursuant to subparagraph (d) of paragraph (2) of subsection j. of this section shall not be admissible as evidence in any criminal or civil legal or administrative proceeding.

   n.   A law enforcement officer shall not review or receive an accounting of a body worn camera recording that is subject to a minimum three-year retention period pursuant to paragraph (1) or paragraph (3) of subsubsection j. of this section prior to creating any required initial reports, statements, and interviews regarding the recorded event; provided that nothing in this paragraph is intended to prevent the officer from considering, reviewing or receiving an accounting of such a body worn camera recording subsequent to the creation of any required initial reports, statements, and interviews regarding the recorded event.

   o.   Body worn camera recordings shall not be divulged or used by any law enforcement agency for any commercial or other non-law enforcement purpose.

   p.   If a law enforcement agency authorizes a third-party to act as its agent in maintaining recordings from a body worn camera, the agent shall be prohibited from independently accessing, viewing, or altering any recordings, except to delete recordings as required by law or agency retention policies.

   q.   If a law enforcement officer, employee, or agent fails to adhere to the recording or retention requirements contained in this act, or intentionally interferes with a body worn camera's ability to accurately capture audio or video recordings: 

   (1)    the officer, employee, or agent shall be subject to appropriate disciplinary action;

   (2)   there shall be a rebuttable presumption that exculpatory evidence was destroyed or not captured in favor of a criminal defendant who reasonably asserts that exculpatory evidence was destroyed or not captured; and

   (3)   there shall be a rebuttable presumption that evidence supporting the plaintiff's claim was destroyed or not captured in favor of a civil plaintiff suing the government, a law enforcement agency, or a law enforcement officer for damages based on police misconduct if the plaintiff reasonably asserts that evidence supporting the plaintiff's claim was destroyed or not captured.

   r.   Any recordings from a body worn camera recorded in contravention of this or any other applicable law shall be immediately destroyed and shall not be admissible as evidence in any criminal, civil, or administrative proceeding.

   s.   Nothing in this act shall be deemed to contravene any laws governing the maintenance and destruction of evidence in a criminal investigation or prosecution.

   L.2020, c.129, s.1.

 

Directive 08-21 Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2

 Directive 08-21 Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2 

https://njcourts.gov/attorneys/assets/directives/dir_08_21.pdf

Criminal/Family/Municipal - Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2 

April 7, 2021 

This Directive promulgates the process for sealing records from public access on order of the court at the time of sentencing for a criminal conviction or juvenile adjudication of certain marijuana or hashish offenses in accordance with the statutory amendments to N.J.S.A. 2C:52-5.2, and the marijuana decriminalization laws enacted by L. 2021, c. 19. Additionally, Attorney General Law Enforcement Directive #2021-1, “Directive Governing Dismissals of Certain Pending Marijuana Charges” (issued February 22, 2021), instructs prosecutors to seek dismissal of certain pending marijuana-related charges against either a juvenile or an adult where the conduct occurred on or before February 22, 2021. 

       The court at the time of sentencing shall order the records of the courts, probation services, and law enforcement agencies to be sealed from the public for a criminal conviction or juvenile adjudication that solely includes the following offense(s): 

• N.J.S.A. 2C:35-5(b)(12)(b)1 – distribution of marijuana in a quantity of one ounce or less or hashish in a quantity of five grams or less; or 

1 The marijuana decriminalization law, L. 2021, c. 19, reconfigured N.J.S.A. 2C:35-5(b)(12) and N.J.S.A. 2C:35-10(a)(3) by adding subsection (b) to both statutes, effective February 22, 2021. Pursuant to Attorney General Directive #2021-1, referenced above, prosecutors will be dismissing the pending charges for N.J.S.A. 2C:35-5(b)(12) and N.J.S.A. 2C:35-10(a)(3) that occurred on or before February 22, 2021. 

N.J.S.A. 2C:35-5(b)(12)(b) and a violation of N.J.S.A. 2C:35-7 on or within 1000 feet of school property and/or a violation of N.J.S.A. 2C:35- 7.1 on or within 500 feet of a public housing facility, public park, or public building; or 

• N.J.S.A. 2C:35-10(a)(3)(b) – possession of marijuana in a quantity of more than six ounces or hashish in a quantity of more than 17 grams. 

This Directive also promulgates three revised forms and two new forms for use effective immediately, as follows: (1) a revised Judgment of Conviction form for use in the Criminal Division (CN 10070); (2) a revised Presentence Investigation Report (CN 10693); (3) a revised Juvenile Disposition Order form (CN 10812); (4) a new sealing court order form (CN 12763) for use in Municipal Court; and (5) a new Order for Judgment form (CN 12757) for entry of a civil judgment for any outstanding court-ordered financial assessments. See Attachments 1-5 for the above referenced forms. 

Additionally, the Supreme Court has amended Rule 1:38-3 (“Court Records Excluded from Public Access”) and Rule 1:38-11 (“Sealing of Court Records”) by order dated February 5, 2021 to conform to the statutory requirements to seal these records from public access upon criminal conviction or juvenile adjudication. 

System enhancements have been made in the Judiciary’s computerized systems to indicate the cases that have been ordered sealed from public access pursuant to N.J.S.A. 2C:52-5.2. Information concerning these modifications has been previously sent to Judiciary staff under separate cover. Modifications have also been made to remove information concerning sealed cases in the Public Safety Assessment (PSA) risk factors in accordance with N.J.S.A. 2C:52-5.2(d), which provides that these records shall not be considered whenever the Pretrial Services Program conducts a risk assessment on an eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision under N.J.S.A. 2A:162-15 et seq. Additionally, cases that have been ordered sealed pursuant to this statute will not be listed in the “Court History” section of the Presentence Investigation Report in accordance with N.J.S.A. 2C:52-5.2(d), which prohibits use of this information for sentencing purposes in any other case. 

If the conviction or adjudication includes a court-ordered financial assessment subject to collection under the comprehensive enforcement program (CEP), the court at the time of sentencing will also enter a civil judgment for the outstanding amount in the name of the Treasurer, State of New Jersey and transfer collections and disbursement responsibility to the State Treasurer pursuant to N.J.S.A. 2C:52- 5.2(a)(2). Accordingly, in those matters the appended Order for Judgment form (Attachment 5) should be completed by court staff, signed by the judge, and electronically forwarded to the Superior Court Clerk’s Office to record the civil judgment, where applicable. 

       Operationally, the municipal courts have not been part of the comprehensive enforcement program (CEP). Currently, there is no provision in the system to move cases through the CEP and civil judgment process for municipal court matters. Therefore, the municipal courts will continue their current collection process for cases that are ordered sealed. 

      Process for Sealing these Records in Criminal, Family, and Municipal Courts 

       For criminal convictions, the  Judgment of Conviction (JOC) form (CN 10070) has been updated to add checkboxes to indicate that the sentencing court has ordered: (1) the case to be sealed (page 1) and entry of a civil judgment for the outstanding court-ordered financial assessment (page 2). See Attachment 1. The appended revised JOC form supersedes the JOC form promulgated by the Supplement to Directive # 04-12 (issued July 22, 2016). Court staff will also prepare the Order of Judgment form (CN 12757) for any outstanding financial assessments as noted above and send the signed Order electronically to the Superior Court Clerk’s Office. Additionally, the Presentence Investigation (PSI) Report (CN 10693) has been updated on the first page to display a notation that this case may be eligible for sealing pursuant to N.J.S.A. 2C:52-5.2 if the charge(s) is one of the enumerated offenses. Thus, this Directive modifies and supplements the first page of the PSI form promulgated by the Supplement to Directive #03-13 (issued September 14. 2017). See Attachment 2. 

       For juvenile adjudications, the attached Juvenile Disposition Order (CN 10812) has been revised to include checkboxes and text for the sealing and outstanding court-ordered financial assessment provision. See Attachment 3. 

       For convictions in Municipal Courts, upon the judge ordering a case sealed, the court administrator will complete the attached Municipal Court sealing order (CN 12763) and distribute notification to the parties indicated on the sealing order in accordance with those identified in the following paragraph. 

       The court administrator will enter a sealing code in the automated complaint system to mark the case sealed which will suppress the record from public access. Information concerning the system code has been sent to the courts under separate cover. 

       The statute also requires notice that the matter has been sealed to be sent to: (1) the Attorney General, county prosecutor, or municipal prosecutor handling the case; and (2) the State Police and any local law enforcement agency having custody of the files and records. For criminal convictions and juvenile adjudications, to satisfy this requirement, the prosecuting attorney will have access to the Judgment of Conviction and Juvenile Disposition Order in the eCourts case jacket. 

       Until such time as similar functionality is available in municipal eCourts, Municipal Court staff will provide the court order to the Municipal Court prosecutor. Court staff will forward this information electronically to the State Police and will also provide it to the law enforcement agencies that were involved with the case. 

Link to forms

https://njcourts.gov/attorneys/assets/directives/dir_08_21.pdf

Form Promulgated by Directive #08-21 (4/7/2021), CN: 12757 

The warning system on pot in NJ

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Distribution one ounce or less or possession of larger amounts

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Speedy trial motion denied where no prejudice to defendant State v Pousson

 Speedy trial motion denied where no prejudice to defendant State v Pousson

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
LISA POUSSON,

Defendant-Appellant. _______________________

Submitted January 5, 2021 – Decided March 12, 2021

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 18-04.

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.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3482-18

After a Law Division judge (the first Law Division judge) denied defendant Lisa Pousson's interlocutory appeal following the denial of her speedy-trial motion by the municipal court, another Law Division judge (the second Law Division judge) denied a subsequent appeal filed after she entered a conditional plea of guilty to driving while intoxicated (DWI), N.J.S.A. 39:4- 50. Defendant appeals from the second Law Division judge's March 11, 2019 order arguing, as she did before the first Law Division judge, the charge should have been dismissed because her right to a speedy trial was violated. The State counters that, as the second Law Division judge ruled, an appeal from the first Law Division judge's order should have been filed with this court, not with the Law Division. The State contends defendant's present appeal is time-barred because she did not file within the twenty-day period, see Rule 2:5-6(a), following entry of the December 11, 2017 order—which became the law of the case.

We will reverse the denial of a speedy-trial motion only where it is "clearly erroneous," State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009), but we review the Law Division judge's denial of defendant's motion to dismiss de novo because the challenged decision turns exclusively on a legal issue, see State v. Stas, 212 N.J. 37, 49 (2012). As such, we decline to address the State's

 

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procedural arguments because we determine defendant's speedy-trial right was not violated and affirm.

The four-part test to determine when a violation of a defendant's speedy- trial right contravenes due process—announced in Barker v. Wingo, 407 U.S. 514, 530-33 (1972) and subsequently adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976)—requires courts to "consider and balance the '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Tsetsekas, 411 N.J. Super. at 8 (alteration in original) (quoting Barker, 407 U.S. at 530). "No single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Id. at 10. Our Supreme Court has "decline[d] to adopt a rigid bright-line try-or-dismiss rule," instead continuing its commitment to a "case- by-case analysis," under the Barker balancing test; it has instructed "that facts of an individual case are the best indicators of whether a right to a speedy trial has been violated." State v. Cahill, 213 N.J. 253, 270-71 (2013). The parties do not dispute the timeline of this case, so we analyze those facts.

Defendant was arrested on July 18, 2016. She entered her conditional plea on April 12, 2018, 633 days after her arrest. The length of the delay—the first Barker factor—is beyond the sixty-day goal for disposal of DWI cases set by

       

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Chief Justice Wilentz in a 1984 directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, designed to foster the judiciary's policy "committed to the quick and thorough resolution" of those cases. State v. Farrell, 320 N.J. Super. 425, 446-47 (App. Div. 1999); see also Tsetsekas, 411 N.J. Super. at 11. Although we have not suggested "any delay beyond the sixty-day goal is excessive," as "[t]here is no set length of time that fixes the point at which delay is excessive," Tsetsekas, 411 N.J. Super. at 11, the delay in both the commencement and final adjudication of this case was certainly inordinate, see id. at 11-12 (holding a delay of 344 days to be excessive); Farrell, 320 N.J. Super. at 428 (holding a delay between summons and trial completion of 663 days to be inexcusably extensive).

Barker's second prong "examines the length of a delay in light of the culpability of the parties." Tsetsekas, 411 N.J. Super. at 12. When reviewing "the chronology of the delay," courts should "divid[e] the time into discrete periods of delay" and attribute each delay to the State, the defendant or the judiciary. See State v. May, 362 N.J. Super. 572, 596, 600 (App. Div. 2003). Thereafter, "different weights should be assigned to different reasons" proffered to justify a delay. Barker, 407 U.S. at 531. Purposeful delay tactics weigh heavily against the State. Ibid.; see also Tsetsekas, 411 N.J. Super. at 12. "A

          

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more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, 407 U.S. at 531. "[A] valid reason, such as a missing witness, should serve to justify appropriate delay." Ibid. And, "[d]elay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation." Farrell, 320 N.J. Super. at 446.

Defendant waived her arraignment hearing in Jackson Township Municipal Court, scheduled for July 21, 2016, the day after defendant's counsel entered an appearance. Defendant's first appearance, scheduled for August 11, 2016, was adjourned at defendant's counsel's request.

The first appearance was rescheduled for September 1, 2016, but prior to that date the court sent a notice that a conflict involving defendant and the regular municipal court judge required the matter to be rescheduled before the "conflict judge" utilized by that municipal court. Apparently, the conflict judge kept to a limited calendar in covering the Jackson Township Municipal Court, and defendant's first appearance was rescheduled for December 8, 2016, the judge's next scheduled date. Defendant entered a plea of not guilty on that date and, after discussion of discovery issues, the judge, as per defendant's merits

 

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brief, entered a Holup order.1 The matter was rescheduled—this time for trial— on February 23, 2017,2 the conflict judge's next scheduled date in Jackson.

Defendant's counsel requested an adjournment of that date and, according to defendant's merits brief, was advised the matter would have to be relisted for a date that coincided with the conflict judge's availability. That next scheduled date was July 20, 2017.

Defendant filed a motion to dismiss for lack of prosecution on the day before that date. Following oral argument, the conflict judge denied the motion at the July 20 hearing. Defendant filed an interlocutory appeal from that order on August 3, 2017 that was heard by the first Law Division judge on November 30, 2017 and denied on December 11, 2017. After remand to the municipal court, defendant entered her conditional plea on April 12, 2018.

1 State v. Holup, 253 N.J. Super. 320 (App. Div. 1992). A Holup order provides a mechanism to notice the State of defendant's discovery requests, and, practically, advises the State of defendant's reservation of the right to seek dismissal or suppression for non-compliance. See id. at 324-26.

2

   

In his written opinion denying defendant's interlocutory appeal of the municipal court's denial of her speedy-trial motion, the first Law Division judge found this was set as a trial date. In her merits brief, defendant contends trial notices were never "sent to the [d]efense." The nature of that proceeding does not influence our decision.

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Defendant contends the delays after any requested adjournments were inordinately long and should not have been attributed to her, adding that the case could have been transferred to another venue instead of remaining in Jackson where it was subject to the conflict judge's calendar. We have previously ruled that "the transfer of the matter between municipal courts and the unavoidable absence of [a] police witness"—even if a "significant part" of the delay— reasonably explains and justifies a lapse. State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983). Likewise, the court's limited calendar after a perceived conflict is a reasonable and justifiable reason for delay.

Significantly, defendant knew of the long gaps between the conflict judge's available dates when the matter was first adjourned at her counsel's request in February 2017, and the matter was not rescheduled until July 20. Yet she voiced no objection in the interim between the adjourned February date until July 19 when she filed the speedy-trial motion. Moreover, while she now argues the case should have been transferred to a different municipal court, she never before advanced that proposition.

Thus, the time lapses caused by both adjournment requests by defendant— from the August 11, 2016 and February 23, 2017 court dates—were properly attributed to defendant. Even if we were to consider the longer delay caused by

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the conflict judge's availability—a delay recognized by our Supreme Court as typical, Cahill, 213 N.J. at 273—that would be a neutral reason and would "be weighted less heavily," Barker, 407 U.S. at 531. We also note that the municipal court proceedings were on hold from July 20, 2017, while defendant's interlocutory appeal was pending. And, importantly, the prosecution did not cause any delays in this matter. On balance, the reasons for the delay weigh against defendant.

In analyzing the third Barker factor, we recognize a defendant's assertion of the right to a speedy trial need not be "by way of formal motion." State v. Smith, 131 N.J. Super. 354, 363-64 (App. Div. 1974), aff'd, 70 N.J. 213 (1976). That analysis includes "the frequency and force of the [defendant's] objections" when assessing whether the defendant properly invoked the right. Barker, 407 U.S. at 529.

The first Law Division judge found defendant asserted her speedy-trial right in her initial discovery request of July 20, 2016. But, as we observed, she waited until the day before the July 2017 trial date to file a motion to dismiss. Although defendant did not have an obligation to bring herself to trial, see id. at 527; see also State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002), and it is the State's obligation to prosecute and do so in a manner consistent with

       

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defendant's right to a speedy trial, see Barker, 407 U.S. at 527, defendant's failure to assert the right is a factor that must be considered in any analysis of her averred speedy-trial violation, see id. at 531-32. We recognize defendant's assertion of her rights, but weigh the delayed filing of her motion, for almost five months from late February to late July 2017, against her in our analysis.

In contrast to a due process claim, which a defendant must support with a showing of "actual prejudice, not possible or presumed prejudice," State v. Aguirre, 287 N.J. Super. 128, 133 (App. Div. 1996), "proof of actual trial prejudice is not 'a necessary condition precedent to the vindication of the speedy trial guarantee,'" Tsetsekas, 411 N.J. Super. at 13-14 (quoting State v. Merlino, 153 N.J. Super. 12, 15 (App. Div. 1977)). Although the delay may have caused a defendant

    

no prejudice affecting [his] liberty interest or his ability to defend on the merits. . . . significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances.

[Id. at 13 (citations and internal quotation marks omitted).]

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Defendant argues she "lost employment opportunities, experienced financial strain, [and] suffered stress and anxiety in anticipation of a resolution" of this case. Even accepting those unspecific and unsupported assertions, we agree with the first Law Division judge's observation that defendant was not incarcerated during the pendency of the case and has alleged no impairment to any defense caused by the delays, the latter considered "the most serious since it [goes] to the question of fundamental fairness." Szima, 70 N.J. at 201. We further note defendant's driving privileges were never suspended, as stays of the imposed sentence were granted. The first Law Division judge concluded "the evidence of prejudice, if any, is slight, and therefore does not weigh heavily in [defendant's] favor." We agree.

"[I]n the administration of justice[,] dismissal must be a recourse of last resort." State v. Prickett, 240 N.J. Super. 139, 147 (App. Div. 1990); see also Farrell, 320 N.J. Super. at 447. Balancing the four Barker factors, we do not discern any error in the Law Division's denial of defendant's speedy-trial application. The delay in adjudicating this case was lengthy. But considering the reasons for the delays, the delays caused by defendant, the delay in her final assertion of rights and the lack of prejudice suffered by defendant, we conclude

    

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there was no violation of defendant's constitutional speedy-trial right. Dismissal of this case was not warranted.

Affirmed.

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Leaving scene reversed where not sufficient testimony defendant in accident State v Lyons

 Leaving scene reversed where not sufficient testimony defendant in accident

State v Lyons

'STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
MICHAEL LYONS,

Defendant-Appellant. ________________________

Submitted February 24, 2021 – Decided March 24, 2021

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 20- 19.

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.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3017-19

Defendant Michael Lyons appeals from a Law Division order, entered after a trial de novo on an appeal from the Hoboken Municipal Court, finding him guilty of driving while driving under the influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50(a); failure to report an accident, N.J.S.A. 39:4-130; and leaving the scene of an accident, N.J.S.A. 39:4-129(b). Defendant argues his convictions should be reversed because the State failed to present evidence establishing the necessary elements of each offense. Having reviewed the record and the parties' arguments, we are persuaded the evidence supports the court's finding defendant is guilty of DUI, but there is insufficient evidence supporting its determination defendant is guilty of leaving the scene of an accident and failure to report an accident. We reverse defendant's convictions for the latter two offenses and affirm his DUI conviction.

I.
The State presented two witnesses during the municipal court trial.

Hoboken Police Officer Edward Lepre testified that in that late evening of April 28, 2019, he was dispatched to the intersection of Third and Grant Streets to investigate a report of a vehicle striking a parked car several times. He met a woman at the scene who provided a description of the vehicle. He reported the

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description to the dispatcher who then broadcasted it to the other officers on patrol.

The State also called Hoboken Police Officer Joseph Cahill as a witness at trial. He is a thirty-five-year veteran of the Hoboken Police Department and has extensive training in DUI investigations and the administration of field sobriety tests and Alcotest breath tests. Cahill was on duty on the evening of defendant's arrest. As part of his duties, he was assigned to pick up a police department dispatcher and transport the dispatcher to police headquarters.

As he drove to pick up the dispatcher, he observed a small gray SUV pass through an intersection. When he first observed the vehicle, Cahill "thought [it] didn't have [its] lights on," but after Cahill turned at an intersection and travelled behind the SUV, he observed the lights on the SUV turn on "just before" it stopped at a stop sign. Cahill stopped his vehicle to pick up the dispatcher, and he saw the SUV turn into a parking lot on Adams Street.

Cahill then heard the dispatcher broadcast a description of a "small gray SUV" with New Jersey license plates that "fled" the scene of the accident Lepre had investigated. Cahill transported the dispatcher to the police department and drove to the reported accident scene. He observed a parked vehicle with "[t]he left rear quarter panel and rear bumper . . . pushed in as if somebody was driving

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in that area and struck" the vehicle. Cahill left the scene and went to the parking lot where he had earlier seen the small gray SUV enter.

Upon entering the lot, Cahill saw defendant standing outside of a small gray SUV. Defendant held onto the open driver's door and appeared to have just finished urinating. The vehicle's engine was running. Cahill observed defendant's "fly was undone," "[h]is pants were wet . . . from urinating," and "[t]here was a big puddle on the ground."

Cahill approached defendant. Cahill described defendant as "highly intoxicated." He asked defendant if the vehicle was his, and defendant said "yes." Cahill testified defendant had bloodshot and watery eyes, "had a very strong odor of alcoholic beverage flavoring," and could not stand in place. Defendant "sway[ed] back and forth" and held "onto the car for support." Defendant also "slurr[ed] his words," and, when Cahill asked for identification, defendant "went through his wallet several times passing his license before" handing it over. Cahill observed "damage on the right front side . . . of [defendant's] vehicle" that "would match up more or less with the same . . . damage on the . . . parked vehicle" at the alleged accident scene.

Cahill testified he arrested defendant but did not perform any field sobriety tests because defendant's inability to stand made the tests unsafe. While

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Cahill placed handcuffs on defendant, defendant lost his balance, and it was necessary for Cahill to "grab" defendant to "do a controlled fall to the ground." By that time, other officers had arrived. Four officers were required to help defendant off the ground and place him in Cahill's vehicle. Once at the police station, four officers were required to remove defendant from Cahill's vehicle. After he was removed, "defendant fell to his knees," and four officers were required to get defendant to his feet.

After defendant entered the station, Cahill administered Alcotest breath tests.1 During the process prior to the administration of the tests and following the administration of Miranda2 warnings, Cahill asked defendant if he had been drinking. Cahill testified that defendant said he drank four or five "Harp beer[s]."

On cross-examination, Cahill acknowledged he did not see defendant operate the vehicle, but he explained defendant stood beside the vehicle with the

1 During trial, the court determined the results of the Alcotest breath tests were inadmissible because the State did not offer into evidence two foundational documents—the most recent New Standard Solution Report and the Certificate of Analysis of the Simulator Solution used in defendant's control tests—required for admission of the test results. See State v. Chun, 194 N.J. 54, 154 (2008). The municipal court and Law Division judges did not consider the test results in their determinations of defendant's guilt on the DUI charge.

  

2 Miranda v. Arizona, 384 U.S. 436 (1966). 5

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engine running and no one else around. While at the police station, Cahill asked defendant about his medical history, and defendant said he had high blood pressure and diabetes. Cahill testified he did not believe his observations of defendant were consistent with someone suffering from a diabetic episode because defendant was "highly intoxicated."

Defendant presented one witness, Herbert Leckie, who the court qualified as an expert in the administration of field sobriety tests, DUI investigations, and "the interrelationship of medical conditions including diabetes and high blood pressure and the impact that it may have on intoxication or the appearance of intoxicat[ion]." Leckie described the standard field sobriety tests—the one- legged stand, horizontal gaze nystagmus, and walk-and-turn tests—and explained that alternative tests—"the alphabet test, the counting-backwards test, a finger dexterity test," and the "normal abilities test"—may be performed when the standard tests are not possible. Leckie testified there was no reason defendant could not have been asked to perform the alternative tests prior to his arrest or at the police station.

Leckie also testified that "if the person [is] a diabetic and experiencing a diabetic emergency[,] . . . that can oftentimes mimic the signs and symptoms of impairment." He also explained that "[t]he person will appear lethargic, not be

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able to put together sentences, [have] slurred speech, their physical coordination would be impaired based upon that condition," and the person may emit a mouth odor that can mimic alcohol. On cross-examination, however, Leckie acknowledged he was unaware of any evidence defendant suffered a diabetic emergency on the evening of his arrest.

The municipal court judge rendered an opinion from the bench finding the defendant "was in physical possession of the vehicle" and had "intent to operate the vehicle" because he was standing next to it with the engine running and no one else around. The court also found Cahill's observations of defendant established defendant was under the influence of intoxicating liquor and therefore violated the DUI statute, N.J.S.A. 39:4-50(a).

The municipal court judge further found Cahill's testimony that "the damage to . . . defendant's vehicle and the paint transfer onto . . . defendant's vehicle matched the damage and the color of the vehicle . . . that was struck while parked" established beyond a reasonable doubt defendant had been involved in an accident with the parked vehicle. Based on that finding, the court concluded defendant left the scene of the accident in violation of N.J.S.A. 39:4- 129(b), and failed to report an accident in violation of N.J.S.A. 39:4-130.

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The municipal court judge sentenced defendant to a two-year license suspension on the DUI conviction and a concurrent six-month suspension on the leaving the scene of an accident conviction. The court ordered that defendant attend forty-eight hours at the Intoxicated Driver's Resource Center on the DUI charge. The court also imposed fines, penalties, and court costs on each of the three offenses. The court stayed the concurrent license suspensions pending appeal subject to the condition that defendant install an ignition interlock device on his vehicle. Defendant timely appealed to the Law Division.

At the trial de novo in the Law Division, defendant argued Cahill's observations alone were insufficient to support a finding he was under the influence of an intoxicating liquor. He further claimed that contrary to the municipal court's finding, there was no evidence of a paint transfer between his vehicle and the parked vehicle that the State alleged had been involved in an accident. Defendant argued there was no competent evidence there had been an accident. Defendant also claimed that because there was no evidence there was an accident or that he was involved in an accident, he could not properly be convicted of either leaving the scene of an accident or failing to report an accident. Defendant further asserted the State failed to present evidence that the value of the property damage in the alleged accident was at least $500, and, as

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a result, the State failed to prove an essential element of a failure to report an accident offense under N.J.S.A. 39:4-130.

The Law Division judge rejected defendant's claim he could not be convicted of DUI because Cahill did not perform field sobriety tests. The court accepted Cahill's testimony and concluded Cahill's observations established defendant was under the influence of an intoxicating liquor. The court also found defendant operated his vehicle within the meaning of N.J.S.A. 39:4-50(a) by standing next to the vehicle with its engine running while holding onto the driver's door with no one else in the area.

The court rejected defendant's reliance on Leckie's testimony that individuals experiencing a diabetic episode will exhibit the same physical manifestations as someone who is intoxicated. The court noted Leckie's admission that there was no evidence defendant experienced a diabetic episode on the evening of his arrest. The court found defendant guilty of DUI.

The court also determined defendant was involved in an accident because Lepre reported that a small gray SUV fled the scene of the parked vehicle, and Cahill testified the damage to the parked vehicle—a pushed in "left-rear quarter panel" and rear bumper—"more or less" matched the damage to the "right front"

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of defendant's small gray SUV.3 The court determined Cahill's testimony established defendant was involved in an accident with the parked car, left the scene of the accident, and failed to report the accident to Cahill. The court found defendant guilty of violating N.J.S.A. 39:4-129(b) and N.J.S.A. 39:4-130.

The court imposed the same sentences as the municipal court on defendant's conviction of the three offenses, and the court stayed the suspension of defendant's license pending appeal. Defendant appeals from the Law Division's final order. He offers the following arguments for our consideration:

POINT I

THE COURT ERRED BY FINDING [DEFENDANT] GUILTY OF DRIVING WHILE INTOXICATED.

POINT II

THE COURT IMPERMISSIBLY SHIFTED THE BURDEN TO [DEFENDANT].

POINT III

THE COURT ERRED BY FINDING [DEFENDANT] GUILTY OF LEAVING THE SCENE OF AN ACCIDENT.

3 The Law Division judge correctly noted there is no support in the record for the municipal court's finding there was evidence of a "paint transfer" between defendant's vehicle and the parked vehicle that supported the municipal court's conclusion defendant had been involved in an accident with the parked vehicle.

   

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POINT IV

THE COURT ERRED BY FINDING [DEFENDANT] GUILTY OF FAILING TO REPORT AN ACCIDENT.

II.
In our review of the Law Division's decision on a municipal appeal, "we

'consider only the action of the Law Division and not that of

the municipal

2011) (citation omitted). "Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a), we do not independently assess the

State v. Locurto, 157 N.J. 463, 471 (1999)), rev'd on other grounds, 219 N.J. 227 (2014). We consider only "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State

State v. Robertson, 228 N.J. 138, 148 (2017). We review de novo the court's legal conclusions and the legal consequences that flow from established facts. State v. Goodwin, 224 N.J. 102, 110 (2016).

A.

Defendant argues the evidence does not support his DUI conviction because Cahill's "uncorroborated observations of impairment are simply

court.'"

State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div.

evidence." State v. Gibson, 429 N.J. Super. 456, 463 (App. Div. 2013)

(citing

v. Stas, 212 N.J. 37, 48-49 (2012)

(quoting Locurto, 157 N.J. at 471); see also

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insufficient to prove guilt beyond a reasonable doubt." In his reply brief, defendant "concede[s] that there is no per se rule or legal requirement that an officer's observations must be corroborated by [f]ield [s]obriety [t]ests or an Alcotest reading," but he contends that to establish proof beyond a reasonable doubt, "corroboration of some kind is necessary for the [S]tate to meet [its] heavy burden" of proof. We disagree.

In pertinent part, N.J.S.A. 39:4-50(a) prohibits an individual from "operat[ing] a motor vehicle while under the influence of intoxicating liquor." To establish a violation of the statute, the State must prove the defendant operated a motor vehicle while under the influence of intoxicating liquor, State v. Thompson, 462 N.J. Super. 370, 374 (App. Div. 2020), beyond a reasonable doubt, Robertson, 228 N.J. at 148.

Defendant does not challenge the court's determination the State proved beyond a reasonable doubt that he operated the vehicle. See generally Thompson, 462 N.J. Super. at 374-75 (explaining proofs required to establish operation of a vehicle under N.J.S.A. 39:4-50(a)). Operation of a vehicle under N.J.S.A. 39:4-50(a) does not require proof of "driving" and "may be found from evidence that would reveal 'a defendant's intent to operate a motor vehicle.'" Ibid. (quoting State v. Tischio, 107 N.J. 504, 513 (1987)). Our independent

    

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review of the record confirms there is substantial credible evidence establishing defendant operated the vehicle.

Defendant argues the evidence did not adequately establish he was under the influence of an intoxicating liquor at the time of his operation of the vehicle. "A driver is 'under the influence' of alcohol, N.J.S.A. 39:4-50, when his or her 'physical coordination or mental faculties are deleteriously affected.'" State v. Nunnally, 420 N.J. Super. 58, 67 (App. Div. 2011) (quoting State v. Emery, 27 N.J. 348, 355 (1958)). "'Intoxication' not only includes obvious manifestations of drunkenness but any degree of impairment that affects a person's ability to operate a motor vehicle." State v. Zeikel, 423 N.J. Super. 34, 48 (App. Div. 2011).

   

Cahill's testimony provided sufficient credible evidence establishing defendant was under the influence of an intoxicating liquor, and that his physical

coordination and mental faculties were affected. Defendant admitted drinking alcoholic beverages, four or five beers, and Cahill's testimony established that prior to pulling into the parking lot, defendant drove his vehicle late at night without its lights on. Cahill also observed defendant had bloodshot and watery eyes, had the smell of alcohol on his breath, slurred his words, swayed as he stood, had difficulty finding his license in his wallet, and could not stand without

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holding onto his vehicle's door. Those observations amply support Cahill's testimony that defendant was "highly intoxicated," and the court's finding defendant was under the influence. See State v. Bealor, 187 N.J. 574, 588 (2006) (noting a court will sustain a driving while under the influence of alcohol

conviction "on proofs of the fact of intoxication—a defendant's demeanor and physical appearance—coupled with proofs as to the cause of intoxication—i.e., the smell of alcohol, an admission of the consumption of alcohol, or a lay opinion of alcohol intoxication"); State v. Bryant, 328 N.J. Super. 379, 383 (App. Div. 2000) (noting that the "prosecutor could have proceeded on the driving under the influence charge by utilizing evidence other than the breathalyzer results," including an odor of alcohol, "slow and uncoordinated" hand movements, "difficulty walking," and a refusal to take a sobriety test).

We find no support in the law for defendant's claim Cahill's competent and admissible testimony could not satisfy the State's burden of proving defendant was under the influence. As we explained in State v. Corrado, "[e]ven in the absence of breathalyzer results, the testimony of the police officers regarding their observations and opinions based thereon was sufficient to establish th[e] defendant was intoxicated." 184 N.J. Super. 561, 567 (App. Div. 1982); see also State v. Guerrido, 60 N.J. Super. 505, 510 (App. Div. 1960)

  

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(finding testimony that the "defendant smelled of alcohol, staggered, was abusive, and was definitely under the influence of intoxicating liquor" supported a conviction for DUI); State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) ("Independent of breathalyzer results, an alternative finding of intoxication may be based upon observational evidence to find a defendant guilty beyond a reasonable doubt of DUI."), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). We therefore discern no basis to conclude the court erred by finding the State presented sufficient evidence establishing beyond a reasonable doubt that defendant was under the influence. Cahill's observations of the highly intoxicated defendant are enough.

Defendant also claims the court improperly shifted the burden to him by implying he had an obligation to present evidence concerning his diabetes. Defendant relies on the court's finding "there was no evidence presented . . . that showed . . . defendant was having a diabetic episode at the time of his arrest." He contends the court's finding impermissibly placed a burden on him to "present an alternative theory and specifically evidence of diabetes."

The record does not support defendant's claim. He introduced the issue of the effects of a diabetic episode into the case. Defendant presented Leckie, who testified the effects of a diabetic episode mimic the effects of intoxication.

 

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In its opinion, the court merely addressed defendant's argument, supported by Leckie's testimony, that defendant's physical characteristics and actions might have been caused by a diabetic episode and not intoxication. The court did not shift the burden to defendant. The court did nothing more than restate Leckie's testimony there was no evidence defendant suffered from a diabetic episode, and the court properly determined that without such evidence, it could not conclude defendant's appearance and actions were the result of a diabetic episode. The court solely relied on the State's evidence defendant was highly intoxicated to support its finding defendant operated his vehicle while under the influence of an intoxicating liquor in violation of N.J.S.A. 39:4-50(a). We therefore affirm defendant's conviction for DUI.

B.
Defendant argues there was insufficient credible evidence establishing he

was involved in an accident and, as a result, his convictions for leaving the scene of an accident and failure to report an accident must be reversed. He also claims he could not be properly convicted of failing to report an accident because the State did not present evidence establishing the alleged accident resulted in property damage in excess of $500.

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N.J.S.A. 39:4-130 defines the offense of failing to report an accident. In pertinent part, the statute provides that "[t]he driver of a vehicle . . . involved in an accident resulting in injury to . . . any person . . . or damage to property of any one person in excess of $500[] shall by the quickest means of communication give notice of such accident" to the police. N.J.S.A. 39:4-130. By the statute's plain language, a driver commits an offense when he or she fails to report involvement in an accident resulting in either injury to any person or property damage of any one person exceeding $500.

The trial record is bereft of evidence that any person suffered personal injury in the purported accident or that there was any property damage exceeding $500. Indeed, the court's findings of fact and conclusions of law do not address this essential element of an offense under N.J.S.A. 39:4-130. The State failed to sustain its burden of proving property damage element of the offense, and, for that reason alone, we reverse defendant's conviction for failing to report an accident. See State v. Cooper, 129 N.J. Super. 229, 231 (App. Div. 1974) (explaining that "the State has the burden of proving all the essential elements of a motor vehicle violation").

We reverse defendant's conviction for failure to report an accident for a separate but equally dispositive reason that also requires the reversal of

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defendant's conviction for leaving the scene of an accident in violation of N.J.S.A. 39:4-129(b). The failure to report and leaving the scene offenses for which defendant was convicted share a common element: the State must prove the defendant was involved in an accident in the first instance. See N.J.S.A. 39:4-129(b) (requiring that a "driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle . . . immediately stop" and stay at the scene or as close as possible to the scene); N.J.S.A. 39:4-130 (requiring the driver of a vehicle involved in an accident involving personal injury or property damage exceeding $500 to provide notice of the accident to the police). The trial evidence failed to satisfy the State's burden of proving this element of the offenses for which defendant was convicted.

There was no direct evidence presented at trial describing the occurrence of the accident during which defendant allegedly drove his vehicle into a parked car. No witnesses to the accident testified. The owner of the parked vehicle did not testify. There was no evidence concerning the condition of the parked vehicle before the alleged accident. Instead, Lepre testified he was dispatched to investigate a "complaint of a vehicle that struck a parked vehicle several times," and he spoke to a woman when he arrived. The municipal court properly sustained defendant's objection to Lepre testifying about what the woman said.

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See N.J.R.E. 802 (prohibiting admission of hearsay evidence unless as otherwise provided by the Rules of Evidence). Thus, Lepre testified only that after speaking to the woman, he provided a description of a vehicle, a small gray SUV, to the dispatcher. Neither Lepre nor any other witness testified the car he described was involved in an alleged accident with the parked car.

The court's finding defendant was the driver of the vehicle involved in the alleged accident with the parked car is founded solely on Cahill's testimony the damage to the parked car "more or less" matched the damage to defendant's vehicle. We find that scant opinion testimony insufficient to establish beyond a reasonable doubt that defendant's vehicle was involved in a purported accident with the parked car. The State offered no competent evidence linking defendant's vehicle to the purported accident with the parked car, and, in our view, the mere fact that defendant's vehicle had damage that "more or less" matched the damage to the parked car does not establish beyond a reasonable doubt that the two cars had been involved in accident or that defendant's vehicle caused the damage to the parked car. Lacking evidence establishing defendant's vehicle was involved in the purported accident and defendant was driving the vehicle at the time, the court's findings defendant is guilty of leaving the scene,

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N.J.S.A. 39:4-129(b), and failing to report an accident, N.J.S.A. 39:4-130, cannot be sustained. We reverse defendant's convictions for those offenses.

Affirmed in part, reversed in part. The stay of defendant's license suspension for his DUI conviction is hereby vacated.

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