STATE OF NEW JERSEY VS. FRANKLIN JACK BURR, II (07-2018, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0828-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANKLIN JACK BURR, II,
Defendant-Appellant.
____________________________
Argued June 5, 2019 – Decided June 27, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Municipal Appeal No. 07-
2018.
Franklin Jack Burr, II, appellant, argued the cause pro
se.
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).
PER CURIAM
Defendant appeals from his September 7, 2018 conviction after a trial de
novo on the record for the motor vehicle violation of failing to observe a traffic
control device by driving through a red light, N.J.S.A. 39:4-81, on January 12,
2018 in Highland Park. At the municipal court trial, the ticketing officer
testified and the video from his patrol car was played. Defendant, who was
represented by counsel during this time, also testified. The municipal court
found defendant guilty and imposed a $100 fine, $33 in court costs, and a $6
assessment fee. Two points were placed on defendant's license, however, the
municipal court informed defendant the points would be removed if he
successfully completed a safe driving course, which he has done. After his trial
de novo, the Law Division reduced his fine from $100 to the minimum of $50.
The court costs and assessment fee remained the same.
Arguing that these were "exceptional circumstances," defendant asked the
Law Division to admit the following items that were not part of the municipal
court record: (1) an eighty-five-page Supreme Court report on municipal
courts;1 (2) a letter from defendant's previous attorney, dated before the
municipal court trial, stating her intention to present a video defendant made
1
Report of the Supreme Court Committee on Municipal Court Operations,
Fines, and Fees (June 2018).
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because it was relevant under N.J.R.E. 401 and N.J.R.E. 402; and (3) the video
created by defendant depicting the traffic light and "several lights on subsequent
blocks" with a timer to show the "duration of each amber light." The Law
Division denied defendant's motion to supplement the record with this evidence,
finding defendant had not sought to introduce it before the municipal court and
the evidence was either irrelevant or duplicative.
The Law Division found the officer credible, and that the patrol car video
supported the officer's testimony. The court did not find defendant to be a
credible witness. In a thoughtful and thorough written opinion, Judge Robert J.
Jones, Jr., affirmed the findings of the municipal court. We affirm substantially
for the reasons expressed by the Judge Jones. We add only the following.
Before hearing the parties' arguments, Judge Jones stated that he watched
the police video "at least [twenty] different times. So you can rest assured that
I have looked at it very closely." Defendant argued the video should be "slowed
way down or stopped and examined frame by frame [so] the truth comes out.
And the truth is the opposite of what the eye thinks it saw." Judge Jones stated:
"I agree with you on that, and I have stopped it and started it and stopped it and
started it repeatedly. [J]ust so you know . . . what my review of it has entailed."
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In his written opinion, the judge first found the yellow light was displayed
for three seconds. The judge "stopped [the video] at the moment the light turned
from green to yellow" and "watched the counter embedded in the video to
determine the length of the yellow light. It ran for three seconds." Judge Jones
then found defendant's car "was not in the frame of the video camera at the point
when the light turned yellow – it was still approaching the intersection." As the
judge recalled, defendant "conceded at oral argument that he was not even in the
video frame when the light turned yellow." Because defendant's car "had not
reached either the stop bar or the crosswalk," the judge concluded, "even
accounting for weather, there was time to stop at the yellow light." Judge Jones
also found both that the light was red when defendant made the left turn, and
that "defendant accelerated when he approached the intersection, as [the officer]
testified."
He concluded that under State v. Cooper, 129 N.J. Super. 229, 231 (App.
Div. 1974), the State proved defendant violated N.J.S.A. 39:4-81 because the
evidence established that (1) defendant was the driver of the car; (2) the video
showed that he did not obey the instruction of the traffic light; (3) the traffic
light was official; and (4) the traffic light "was placed pursuant to the applicable
statutes."
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Defendant raises the following issues on appeal:
POINT I: NEW JERSEY DRIVER MANUAL
LEADS DRIVERS TO VIOLATE THE LAW – A
VIOLATION OF FUNDAMENTAL FAIRNESS.
POINT II: THE MALFUNCTIONING TRAFFIC
CONTROL DEVICE AT ADELAIDE AVENUE AND
STATE ROUTE 27 MALFUNCTIONED BY
SENDING CONFUSING AND ILLEGAL SIGNALS
TO MOTORISTS ON ADELAIDE AVENUE.
POINT III: ON REVIEW DE NOVO, THE
REVIEWING COURT OWES NO DEFERENCE TO
THE TRIAL COURT'S RULING AS TO THE LAW.
POINT IV: BUT FOR ERRORS IN THE TRIAL
COURT AS TO THE LAW, THE VERDICT WOULD
HAVE BEEN DIFFERENT.
POINT V: COMPLIANCE WITH MUTCD [2] IS A
LEGISLATIVE MANDATE THAT THE TRIAL
COURT FAILED TO HONOR.
When a defendant appeals a municipal court conviction, the Law Division
is "to determine the case completely anew on the record made in the municipal
court, giving due, although not necessarily controlling, regard to the opportunity
of the magistrate to judge the credibility of the witnesses." State v. Powers, 448
N.J. Super. 69, 72 (App. Div. 2016) (quoting State v. Johnson, 42 N.J. 146, 157
2
U.S. Dep't of Transp., Fed. Highway Admin., Manual on Uniform Traffic
Control Devices (2009 ed., rev. 1 & 2 2012).
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(1964)). "Our review of the factual record is also limited to determining whether
there is sufficient credible evidence in the record to support the Law Division
judge's findings." Ibid. We will "defer to those findings made in the Law
Division that are supported by credible evidence, but we owe no deference to
the legal conclusions drawn from those findings." Ibid. See also State v.
Morgan, 393 N.J. Super. 411, 422 (App. Div. 2007) ("It is well-recognized that
it is 'improper for [an appellate court] to engage in an independent assessment
of the evidence as if it were the court of first instance.' Rather, '[a]ppellate
courts should defer to trial courts' credibility findings that are often influenced
by matters such as observations of the character and demeanor of witnesses and
common human experience that are not transmitted by the record.'") (alterations
in original) (quoting State v. Locurto, 157 N.J. 463, 471, 474 (1999)).
It is "more compelling" to defer to the Law Division where both the Law
Division and municipal court "have entered concurrent judgments on purely
factual issues." State v. Reece, 222 N.J. 154, 166 (2015) (quoting Locurto, 157
N.J. at 474). "Under the two-court rule, appellate courts ordinarily should not
undertake to alter concurrent findings of facts and credibility determinations
made by two lower courts absent a very obvious and exceptional showing of
error." Ibid. (quoting Locurto, 157 N.J. at 474).
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In State v. S.S., our Supreme Court held that an appellate court reviews a
trial court's findings that are "based solely on video or documentary evidence"
under a clearly mistaken or clearly erroneous standard of review. 229 N.J. 360,
379-81 (2017). The Court found that in such a scenario, an appellate court must
defer to a trial court's factual findings when those findings are supported by
sufficient credible evidence in the record. Ibid. The municipal court and Law
Division were not clearly mistaken with regard to the content of the patrol car
videotape, which was confirmed by the credible testimony of the police officer.
Affirmed.
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