STATE OF NEW JERSEY VS. IAN GALLOWAY (2020-005, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0273-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IAN GALLOWAY,
Defendant-Appellant.
Argued October 19, 2021 – Decided November 29, 2021
Before Judges Fisher and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Municipal Appeal No. 2020-
005.
Ian Galloway, appellant pro se.
Stephen A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Stephen A. Pogany, of
counsel and on the brief).
PER CURIAM
As defendant was traveling through the Township of West Orange on a
Saturday night in December 2019, at approximately 11:30 p.m., he was stopped
by a police officer. The officer did not inform defendant of the reason for the
stop but after reviewing his credentials, the officer issued two summonses. One
was for a violation of N.J.S.A. 39:4-144, failing to stop at a stop sign. The
second—for improper display of license plates—was dismissed by the
prosecutor at trial.
On the summons, the police officer wrote that the traffic violation
occurred at the intersection of Kingsley and Swaine Streets. However, during
the municipal court trial, the officer conceded that the traffic infraction occurred
at the intersection of Kingsley and Riggs Streets. The officer testified he
observed defendant traveling on Kingsley, and although defendant's vehicle
"slowed" before the stop sign at the Kingsley and Riggs intersection, he did not
"complete[] a full stop."
The officer stated he then turned on his lights and stopped defendant's car
at the next intersection—Kingsley and Swaine. There is no stop sign at that
intersection for traffic traveling on Kingsley, such as defendant was.
Defendant argued before the municipal court judge that he had prepared a
defense based on the traffic violation reflected on the summons—which stated
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he failed to stop at the stop sign at the intersection of Kingsley and Swaine.
Defendant intended to challenge the summons based on the lack of a stop sign
at that intersection, proven by photographs he had taken of the area.
Defendant asserted he was familiar with the area and knew all of the stop
signs because his daughter had lived there for fifteen years. 1 He testified he
stopped for the stop sign at the Kingsley/Riggs intersection. The day following
the incident, defendant stated he filed a complaint with the internal affairs unit
concerning the behavior of the officer who stopped him and requested a copy of
the body camera footage. He believed he was targeted for driving a car with
Connecticut plates through that neighborhood.
Although defendant asked for a copy of the body camera footage at trial,
the judge denied the request, stating it was too late because the trial was over.
He advised defendant he should have asked the prosecutor for the evidence prior
to the start of trial.
In finding defendant guilty of the offense, the municipal court judge stated
he found the officer more credible, and that defendant did not come to a full
stop. There was no discussion of the error in the summons. In addition, the
judge said he was familiar with the area as he lived nearby, and he knew that
1
Defendant's daughter was in the car at the time of the traffic stop.
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cars often rolled through the intersection of Kingsley and Riggs without
stopping.
The prosecutor did not ask the judge to amend the summons to reflect the
proper intersection where the traffic violation occurred. The municipal court
judge did not sua sponte amend the summons.
Defendant appealed to the Superior Court. The State did not submit a
brief. Defendant contended he prepared his defense based on the traffic
violation listed on the summons – that he was not guilty of the offense because
there was no stop sign controlling his travel at the intersection of Kingsley and
Swaine. He asserted the summons was never amended and he was "force[d]
. . . to defend against a violation [he] wasn't aware of." He further argued the
municipal court judge erred in accepting the testimony of the officer over his.
In addition, he contended that because the officer never told him why he was
being pulled over, he did not have notice at any time until trial began that the
infraction was actually for failing to stop at a stop sign at a different intersection
than that listed on the summons.
In response, the State contended the error on the summons was a
"technical infirmity," and an officer is not required under the law to give the
exact location of the offense.
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The Law Division judge asked defendant how his defense was affected by
the officer's trial testimony that the location of the traffic infraction was a block
earlier than the address noted on the summons. Defendant responded that he did
not receive a trial date until four months after the incident. During those four
months, he believed he was not guilty of the charged offense because there was
no stop sign at the location listed on the summons. He went to the site to take
pictures in preparation for trial. Furthermore, he stated if he knew the correct
location, he would have had a better memory of his actions that night, and he
might have produced his daughter as a witness or taken a statement from her
regarding her observations of his actions. Because the pictures revealed there
was no stop sign controlling the Kingsley/Swaine intersection, defendant said
he did not think he needed anything further for his defense and assumed the
tickets would be dismissed after he showed the photos in court. Defendant also
said he would have pursued getting the bodycam video.
Although the State had not filed a brief, the court asked the assistant
prosecutor if he had any support for his contention that the officer's description
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of the place of the offense was inconsequential. The prosecutor cited two
Appellate Division cases. 2 The court then ended the hearing.
In a written decision and accompanying order issued May 27, 2020, the
Law Division deferred to the municipal court's credibility findings and found
the sufficient credible evidence established defendant was guilty of violating
N.J.S.A. 39:4-144.
In citing to Henry, the court acknowledged that a traffic summons "must
adequately provide defendants with notice of the nature of the alleged violation
so that they may properly mount a defense in court." 56 N.J. Super. at 10. The
court also relied on State v. Fisher, which states that a summons should not be
dismissed "because of any technical insufficiency or irregularity in the
summons, but the summons may be amended to remedy any such technical
defect." 180 N.J. 462, 469 (2004).
In considering the summons before him, the Law Division judge noted the
Court's conclusion in Fisher that an error in a traffic summons should not be
fatal to the prosecution if "the alleged insufficiency did not detract from the
intended purpose of the challenged instrument and did not prejudice the rights
2
State v. Morgan, 393 N.J. Super. 411 (App. Div. 2007); State v. Henry, 56
N.J. Super. 1 (App. Div. 1959).
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of the defendant." Id. at 470. Using "[c]ommon sense and the testimony at
trial," the court determined "the summons issued to [defendant] contained . . . at
worst, a minor technical insufficiency that may have properly been amended at
trial." The court determined defendant was not prejudiced at trial because he
"could still mount a defense." And, the judge stated, because the officer told
defendant where the infraction occurred during the traffic stop, the court
reasoned defendant was provided with fair notice of the nature of the alleged
charges. The judge found "[t]he fact that the summons was not later formally
amended is irrelevant and inconsequential."
On appeal, defendant presents the following points for our consideration:
POINT 1
THE TRIAL COURT ERRED IN FINDING
APPELLANT/DEFENDANT GUILTY WHEN NOT
FOLLOWING THE COURT AMENDMENT
PROCEDURES IN ACCORDANCE WITH RULE
7:14-2. APPELLANT/DEFENDANT WAS NOT
ALLOWED AN ADJOURNMENT TO ESTABLISH A
DEFENSE ON CHANGES OF VIOLATION AT
TR[IA]L.
POINT 2
[THE LAW DIVISION] JUDGE ERRED BY NOT
REVIEWING APPEL[LANT']S BRIEF [FOR]
"PRIMA FACIE" REVERSIBLE ERRORS, AND FOR
ALLOWING NEW ARGUMENTS AND CASE LAW
TO BE SUBMITTED BY THE APPELLEE, WHEN
APPELLEE SUBMITTED NO RESPONSE BRIEF.
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POINT 3
[THE LAW DIVISION] JUDGE … E[R]RED IN HIS
OPINION LETTER BY NOT DEALING WITH THE
MAIN ISSUE OF THE APPEAL WHICH WAS [THE]
IMPROPER COURT PROCEEDINGS TO FIX
ALLEGED "ERRORS" ON SUMMONS, RATHER
THAN P[R]EPONDERANCE OF EVIDENCE,
DEFENDANT WAS DENIED HIS RIGHT TO
PREPARE A DEFENSE. ALL THE FRUITS
DERIVED FROM THE POISONOUS TREE SHOULD
NOT HAVE BEEN CONSIDERED.
In reviewing the Law Division's decision, we "focus[] on whether there is
'sufficient credible evidence . . . in the record' to support the trial court's
findings." State v. Robertson, 228 N.J. 138, 148 (2017) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)). "We ordinarily [do] not . . . alter concurrent
findings of facts and credibility determinations made by two lower courts absent
a very obvious and exceptional showing of error." Ibid. (quoting State v.
Locurto, 157 N.J. 463, 474 (1999)). However, the trial court's legal rulings are
considered de novo. Ibid.On appeal, defendant contends that because the traffic complaint and
summons incorrectly cited the location of the traffic offense, he was "surprised"
at trial and did not have sufficient notice of the offense. He also asserts the
municipal court erred in failing to follow Rule 7:14-2 to amend the complaint
and summons. Therefore, the Law Division erred in affirming the guilty finding.
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Under Fisher, a traffic complaint must "inform a defendant of the charges
he must defend against." 180 N.J. at 468. Rule 7:2-5 permits the amendment of
a "technical insufficiency or irregularity" in the summons. Id. at 469. The
amendment procedure is governed by Rule 7:14-2 which states:
[t]he court may amend any process or pleading for any
omission or defect therein or for any variance between
the complaint and the evidence adduced at trial, but no
such amendment shall be permitted which charges a
different substantive offense, other than a lesser
included offense. If the defendant is surprised as a
result of such amendment, the court shall adjourn the
hearing to a future date, upon such terms as the court
deems appropriate.
It is undisputed there was an error on the summons—the location of the
alleged traffic offense was incorrect. And clearly defendant was surprised by
the municipal court's acceptance of the error and the court's finding that the
location of the stop was sufficient. Therefore, under Rule 7:14-2, the municipal
court was required to adjourn the case.
Defendant explained to the municipal court and the Law Division he had
prepared his defense based on the information in the summons. He took photos
of the area and was confident he could not be found guilty of the traffic violation
because there was no stop sign at the intersection noted on the summons. But,
despite defendant's assertion that he prepared a defense based on the summons,
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the court did not ask defendant whether he wished to adjourn the case and did
not sua sponte adjourn the trial as required under the rule.
Because the information on the summons was erroneous, defendant was
not placed on notice of the charges against him. He relied on the noted
intersection to craft his defense. The Law Division judge misstated the record
when he found the error was inconsequential because the officer told defendant
at the traffic stop where he had run the stop sign, and therefore defendant was
on notice of the charge. But the record does not reflect that testimony.
The officer did not testify that he told defendant at any time where the
offense occurred. And defendant reiterated numerous times he did not know
why the officer stopped him and he was never informed of the reason for the
stop during the incident. It was not until he was handed the tickets that the
officer said he had run a stop sign. But he did not inform defendant of the
location of the offense. And the summons listed the Kingsley/Swaine
intersection. An intersection where there was no stop sign.
Because the summons did not inform defendant of the proper location of
the infraction, which mattered here because of the difference in the signage at
the two intersections, and because defendant was prejudiced by the error in
preparing a defense based upon erroneous information, we must reverse the Law
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Division decision and remand to the municipal court for a new trial. At that
time, the municipal court judge shall amend the summons to reflect the proper
intersection of the offense pursuant to Rule 7:2-5. If defendant desires to request
discovery from the State, he shall do so in a timely manner and pursuant to the
governing rules.
Reversed and remanded to the municipal court for further proceedings in
accordance with this opinion. We do not retain jurisdiction.
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