State v. DuthieState v. Duthie
The State‘s only witness at the municipal court trial was Donald Williams, a Montclair police officer. Williams testified that on June 22, 1983 he and Officer Powell were driving south on North Mountain Avenue, a street without marked lanes for traffic, when they observed defendant driving in the same direction at a high speed. The officers followed defendant and saw him go through the intersection of North Mountain and Watchung Avenues without stopping for a stop sign. Defendant then accelerated rapidly to a speed greatly exceeding the speed limit. He passed another southerly-bound vehicle forcing a vehicle coming north to pull to its right and almost go into a driveway to avoid colliding with defendant‘s vehicle. Defendant then pulled back to his right. The officers then stopped defendant. Though he later produced it, he did not have his driver‘s license in his possession when he was stopped.
Defendant testified that he stopped at Watchung Avenue and then went ahead along North Mountain Avenue passing vehicles illegally parked on his right side. These parked cars were the only ones defendant described seeing before he was stopped. Defendant specifically denied seeing any vehicle coming from the opposite direction. Defendant attempted to subpoena Officer Powell as a witness but the subpoena was not personally served on him and Powell did not appear. Defendant
The municipal judge dismissed the stop sign charge because he believed that it merged into the speeding violation. However, he convicted defendant on the remaining three complaints. The penalty for violation of
In the Law Division defendant argued that inasmuch as North Mountain Avenue was not marked by lines he could not have violated
Defendant has appealed to this court solely from the conviction under
... operate as a waiver of all defects in the record including any defect in, or the absence of, any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, 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, except that if the appeal is from a conviction for an indictable offense, the appeal shall not operate as a consent that the complaint may be amended so as to charge such an offense or a new or different indictable offense, unless the defendant agrees to such amendment.
R. 3:23-8(c) authorizes an amendment of a complaint provided the violation charged in the amended complaint is related to the offense originally charged. State v. Henry, 56 N.J. Super. 1, 14 (App.Div. 1959). However the rule cannot be used to permit the substitution of a more serious offense for that originally charged. Thus in State v. Koch, 161 N.J. Super. 63 (App.Div. 1978), we held that on an appeal de novo from a conviction for violation of
Here we see no inherent qualitative difference between violations of
There is, however, one significant difference between convictions under the two sections.
We are satisfied, however, that the requirements of State v. Koch and State v. DeBonis may be met simply by reducing the assessment of points for the violation of
Finally we note the anomalous consequence of a decision that we could not order the points reduced. There can be no doubt but that a driver who appeals from a municipal court to the Superior Court, Law Division, following a motor vehicle conviction may be convicted of a lesser offense related to the original charge. Thus a driver convicted of reckless driving in the municipal court could be convicted of careless driving on an appeal de novo. It seems extraordinary therefore that a driver guilty of a more serious offense than originally charged may be convicted of nothing. Accordingly if the requirements of State v. Koch, supra, 161 N.J. Super. at 63 and State v. DeBonis, supra, 58 N.J. at 182 may be satisfied, we should attempt to uphold the conviction under
Defendant argues that inasmuch as he did not defend against the charge under
Q Officer Williams, you charged the defendant in Summons 149 with a violation of 4-88a, driving on the wrong side of the line. Is that what that summons indicates?
A I charged him on the wrong side of the road, improper passing. I might have missed the ____ It‘s probably on the other copy, the ____.
Finally we note that defendant did dispute Williams’ testimony concerning the passing and thus the facts concerning the passing were in issue. While Williams indicated defendant forced the oncoming vehicle to its right defendant denied there was any such car.
We reject defendant‘s double jeopardy claim. He asserts, correctly, that when a judgment is reversed because an appellate court determines the evidence was insufficient to support a conviction a retrial is precluded. State v. Tropea, 78 N.J. 309, 313-314 (1978). He reasons from this that inasmuch as the evidence was insufficient to support the conviction under
We have carefully considered defendant‘s remaining contentions relating to the enforcement of the subpoena and the standard of review used by the Law Division judge and find them to be clearly without merit. R. 2:11-3(e)(2).
The judgment of conviction under