STATE OF NEW JERSEY VS. JOSHUA DUFONT (17-2018, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2488-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA DUFONT,
Defendant-Appellant.
_________________________
Submitted December 9, 2019 – Decided January 16, 2020
Before Judges Messano and Susswein.
On appeal from the State of New Jersey, Law Division,
Middlesex County, Municipal Appeal No. 17-2018.
Scott A. Gorman, attorney for appellant.
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Patrick F.
Galdieri, II, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Joshua Dufont appeals his conviction for careless driving,
N.J.S.A. 39:4-97, following a trial de novo in the Law Division. The statute
provides, "A person who drives a vehicle carelessly, or without due caution and
circumspection, in a manner so as to endanger, or be likely to endanger, a person
or property, shall be guilty of careless driving." The mere occurrence of an
accident alone is insufficient proof of careless driving. State v. Lutz, 309 N.J.
Super. 317, 326–27 (App. Div. 1998); State v. Wenzel, 113 N.J. Super. 215,
216–17 (App. Div. 1971). We briefly summarize the testimony before the
municipal court.
Metuchen Police Officer Kevin Ryan was dispatched to an accident scene
in response to a citizen's complaint. He arrived and saw "debris in the
roadway[,]" along with a "tractor trailer that was towing a flatbed that had on it
a . . . personal lift . . . a cherry picker." The truck was stopped about twenty feet
past a railroad bridge that crossed over the road. Officer Ryan saw the cherry
picker was "[h]eavily damaged[,]" and the "eastbound most beam of [the bridge]
. . . was bent approximately six inches inward in the same direction that the truck
was facing." Officer Ryan acknowledged that the bridge's physical presence
was "marked . . . with a light" for drivers approaching it from the same direction
as had the truck.
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Officer Ryan asked the driver of the truck, defendant, what happened.
Defendant "stated . . . he was driving along . . . and he struck the bridge with the
cherry picker on the back. He wasn't sure how he did it, stating that he believed
he had enough clearance, however . . . he admitted he[] struck it." Officer Ryan
acknowledged that had defendant "correctly verified the height of his load , . . .
he would not" have struck the bridge. The officer said the speed limit on the
road at that point was thirty-five miles per hour, it was sunny and there was
nothing obstructing defendant's view of the railroad bridge. As a result of the
accident, the road had to be closed to fix the bridge. 1
Defendant did not testify. The municipal court judge found defendant
guilty and imposed a $56 fine and $33 in court costs.
In his written opinion following trial in the Law Division, Judge Robert J.
Jones, Jr. deferred to the credibility determinations of the municipal court judge
and independently found Officer Ryan was credible. See State v. Kuropchak,
221 N.J. 368, 382 (2015) ("The Law Division reviews the municipal court's
decision de novo, but defers to credibility findings of the municipal court.")
1
The municipal prosecutor asked if the rail line also had to be closed as a result
of the accident. The judge overruled an objection, but the prosecutor rested
before the officer answered the inquiry.
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(citing State v. Johnson, 42 N.J. 146, 157 (1964)). The judge noted defendant's
reliance upon Lutz and Wentzel, and accepted the holdings of those cases stood
for the proposition that "the State must demonstrate more than simply the
existence of an accident." However, he concluded the State had introduced
sufficient evidence "from which to find carelessness."
Recognizing the evidence was circumstantial, Judge Jones found that
defendant approached the "marked bridge that had a flashing light."2 He found
it was "significant" that the "cherry picker struck the bridge . . . with such force
that it created a six-inch dent in a solid-steel beam." The judge also noted the
extent of debris that was strewn across the roadway as a result. Judge Jones
determined that "[r]ather than slow down and make sure he went under the
bridge cautiously, [defendant] raced through the bridge tunnel." The judge
concluded, "[s]omeone acting with circumspection would have slowed
down . . . . [I]t was incumbent upon [defendant] to be sure and to take
precautions before entering the bridge tunnel."
Distinguishing Lutz and Wentzel, where "the courts speculated about how
the accidents happened and found carelessness based upon the accident's
2
Officer Ryan made no reference to a "flashing" light in his testimony, although
he testified the bridge was marked by a lighted sign for drivers approaching the
overpass.
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occurrence alone[,]" the judge found "[h]ere, we know the mechanics of the
accident, and . . . have circumstantial evidence that shows lack of due caution
and circumspection." Judge Jones found defendant guilty and imposed the same
fine and costs.
Before us, defendant argues the following:
POINT I
THE LOWER COURT ERRED WHEN IT FOUND
THAT THE DEFENDANT FAIL[ED] TO DRIVE
WITHOUT DUE CAUTION AND
CIRCUMSPECTION, BECAUSE THE EVIDENCE IN
THE RECORD DOES NOT SUPPORT A FINDING
THAT [DEFENDANT] DISREGARDED ACCURATE
MARKINGS ADVISING OF THE VERTICAL
CLEARANCE OF THE TRESTLE THAT WAS
INVOLVED IN THE ACCIDENT.
We affirm.
"[A]ppellate review of a municipal appeal to the Law Division is limited
to 'the action of the Law Division and not that of the municipal court.'" State v.
Palma, 219 N.J. 584, 591–92 (2014) (quoting State v. Joas, 34 N.J. 179, 184
(1961); State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). In
conducting our review, "[w]e defer to the judge's fact finding, and our 'review
is limited to "whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record."'" State v. L.S., 444 N.J.
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Super. 241, 247–48 (App. Div. 2016) (quoting Kuropchak, 221 N.J. at 382–83).
"We owe no deference, however, to the 'trial court's interpretation of the law . .
. and the consequences that flow from established facts[,]' which we review de
novo." Id. at 248 (alteration in original) (quoting State v. Hubbard, 222 N.J.
249, 263 (2015)).
In this case, it is even more appropriate that we defer to Judge Jones's
factual findings. As in State v. Locurto,
the rule of deference is more compelling where . . . two
lower courts have entered concurrent judgments on
purely factual issues. 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.
[157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz,
10 N.J. 123, 128–29 (1952).]
The factual findings that defendant drove under the railroad trestle at a
high rate of speed, not cautiously, and failed to carefully evaluate the height of
the load he was carrying are fully supported by the circumstantial evidence of
the scene as described by Officer Ryan. In turn, those factual findings support,
beyond a reasonable doubt, the judge's legal conclusion that defendant operated
his truck "without due caution and circumspection[.]" N.J.S.A. 39:4-97.
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Defendant cites a negligence case, J.L. Querner Truck Lines, Inc. v.
Safeway Truck Lines, Inc., for the proposition that a truck driver need not
"necessarily be able to gauge whether his vehicle could clear a trestle, unmarked
as to clearance, where the trestle was one foot lower than his 12' 3" high trailer."
35 N.J. 564, 568–69 (1961) (citing Rapp v. Pub. Serv. Coordinated Transp., 9
N.J. 11 (1952)). In J.L. Querner, however, the Court only held that the driver
was not, as a matter of law, contributorily negligent, so as to remove
consideration of the issue from the jury. Id. at 568; accord Rapp, 9 N.J. at 18.
Affirmed.
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