State of New Jersey v. Chayim Goodman ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3741-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHAYIM GOODMAN,
Defendant-Appellant.
_________________________
Submitted February 5, 2024 – Decided February 27, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 21-08.
Chayim Goodman, appellant pro se.
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Dina Rochelle
Khajezadeh, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Chayim Goodman appeals from the June 15, 2022 judgment of
the Law Division convicting him after a trial de novo of improper passing,
N.J.S.A. 39:4-85. We affirm.
I.
On January 23, 2020, a Toms River Township police officer issued
defendant a summons charging him with improper passing, N.J.S.A. 39:4-85,
following his involvement in a motor vehicle accident. The statute provides, in
relevant part:
The driver of a vehicle overtaking another vehicle
proceeding in the same direction shall pass at a safe
distance to the left thereof and shall not again drive to
the right side of the roadway until safely clear of the
overtaken vehicle. If vehicles on the roadway are
moving in two or more substantially continuous lines,
the provisions of this paragraph . . . shall not be
considered as prohibiting the vehicles in one line
overtaking and passing the vehicles in another line
either upon the right or left, nor shall those provisions
be construed to prohibit drivers overtaking and passing
upon the right another vehicle which is making or about
to make a left turn.
The driver of a vehicle may overtake and pass another
vehicle upon the right as provided in this section only
under conditions permitting such movement in safety.
In no event shall such movement be made by driving
off the pavement or main-traveled portion of the
roadway.
[N.J.S.A. 39:4-85.]
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The officer, who prepared a crash investigation report, was the only
witness called at the trial in municipal court. He testified that he was on duty
when he was dispatched to a motor vehicle collision on a ramp that connects
Route 571, also known as Indian Head Road, eastbound with Route 9, also
known as Lakewood Road, southbound. He described the ramp as designed and
marked as a single lane with concrete curbs. The officer testified that the ramp
is approximately fourteen-feet wide, which is somewhat wider than an ordinary
roadway lane, and has a yield sign at the end of the ramp. According to the
officer's testimony, there is no paint on the ramp demarcating multiple lanes of
traffic.
The officer testified that he arrived on scene to find two vehicles. One, a
large Ford sports utility vehicle, was damaged on its passenger side consistent
with having been sideswiped. The other, a sedan driven by defendant, had
substantial damage on its driver's side. The officer spoke with defendant at the
scene of the accident. According to the officer:
[b]asically, Mr. Goodman advised me that he was on
that ramp going from Indian Head Road, 571, to Route
9 southbound, Lakewood Road. He noted that the ramp
appeared wide and he thought it would be two lanes,
saw . . . vehicle [two], the Ford SUV[,] stopped up
ahead. And I believe he drove up next to it. And then,
once the Ford Excursion began to move, it collided with
the driver's side of his car.
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....
Mr. Goodman had told me that he thought that the SUV
was going to make a left turn.
The officer also testified that he spoke with the driver of the SUV. While
he did not repeat what that driver said to him, the officer testified that after
speaking to the drivers "[t]here didn't seem to be any discrepancy on which
vehicles were where and in what order . . . they went." The officer testified that
the damage to the vehicles "matched both drivers' account of what had happened,
both Mr. Goodman and the other gentleman driving" and was consistent with
the conclusion that defendant "had pulled up next to the lead car and the lead
car, when he moved, struck the other vehicle."
The officer testified that defendant's claim that he thought the lead car at
the end of the ramp was going to make a left turn did not make sense to him. He
testified that "[a] vehicle would not be able to make a legal left turn at the end
of the ramp at the yield sign because then they would be going against traffic,
the wrong way, on Route 9." He also rejected the notion that the driver was
attempting to make a left turn to cross southbound Route 9 to access northbound
Route 9. The officer explained, "there's a concrete divider down the middle of
Route 9, separating northbound and southbound traffic. You wouldn't be able
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to drive across." He also testified that there is a one-way sign facing south on
Route 9 to prevent drivers from turning north into the southbound highway.
When the officer was asked to recount a statement made to him by a
witness, defendant objected on hearsay grounds. The municipal court overruled
the objection, finding that the witness's statement fell within the present sense
impression exception to the hearsay rule. N.J.R.E. 803(c)(1). The following
exchange then took place:
OFFICER: So, I don't recall the woman's name. I
would have to look at the report but she had told me
that she had been stopped in traffic on that ramp. And
she recalled seeing Mr. Goodman's vehicle, Vehicle
Number 1, drive past her on the right and then go up
and get up next to Vehicle Number 2 at the end of the
ramp.
PROSECUTOR: Okay. So, she advised that he had
passed several cars, in fact, to get down to the end of
the ramp ahead of the other folks.
OFFICER: That is correct.
The officer testified that it was his opinion defendant "overtook and
passed another vehicle outside of the proper area to be driving, alongside another
party" and, based on that opinion, he issued a summons to defendant for
improper passing.
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Defendant moved to dismiss the summons at the close of the State's case.
He argued that the officer's testimony was based only on what he was told during
the investigation, that the officer testified that it was possible the SUV passed
defendant on the left and collided with this car, and that the State failed to
produce evidence that the driver at the end of the ramp did not have his left turn
signal activated. The municipal court denied defendant's motion. Defendant
did not testify or call any witnesses.
The municipal court thereafter issued an oral opinion convicting
defendant of improper passing. The municipal court found the officer's
testimony to be credible and concluded beyond a reasonable doubt that
defendant passed the victim's vehicle on the right in an unsafe manner. In
reaching its decision, the municipal court noted the officer's testimony
recounting the witness's out-of-court statement that defendant passed several
vehicles on the right to get to the front position on the ramp. After the State
described defendant's lengthy history of moving violations, the municipal court
imposed fines and court costs. Defendant subsequently filed an appeal in the
Law Division.
Following a trial de novo in the Law Division, Judge Michael T. Collins
issued a comprehensive written opinion convicting defendant of improper
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passing. The judge first addressed the admissibility of the witness statement.
The judge found that the record contained no evidence with respect to how soon
after the accident the statement was made, rendering the present sense
impression exception to the hearsay rule, which applies to statements made
while or immediately after observing the event described in the statement,
inapplicable. Thus, the judge concluded, he would not consider the witness's
statement as evidence.
The judge, however, rejected defendant's argument that the officer gave
an inadmissible expert opinion during his testimony that it was not safe for
defendant to pass the victim's vehicle on the right. The judge found that the
officer's testimony was a lay opinion permitted by N.J.R.E. 701. Judge Collins
noted the officer's lengthy experience as a traffic safety officer, his training at
the police academy, and his observations at the scene of the crash as supporting
the evidentiary value of his lay opinion to the trier of fact.
Based on the officer's testimony, the court concluded that the State
established beyond a reasonable doubt that defendant illegally passed the
victim's vehicle at the end of the ramp. The court found that defendant's
operation of his vehicle violated the statute whether or not the other vehicle was
attempting to make an illegal left turn into oncoming traffic, because it was
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unsafe to pass a vehicle on the right at the end of a heavily trafficked ramp
leading to a State highway and marked with a yield sign in any circumstances.
A June 15, 2022 judgment memorializes the trial court's decision.
This appeal followed. Defendant raises the following arguments, with
record citations omitted.
POINT I
THE TRIAL COURT JUDGE ERRED BY
ACCEPTING THE "ERRONEOUS ADMISSION OF
[THE WITNESS'S] STATEMENT TO WARREN" AS
ADMISSIBLE EVIDENCE. APPARENTLY, EVEN
THOUGH THE TRIAL COURT JUDGE DID
CONCUR THAT THE STATEMENTS FROM THE
WITNESS [ARE] NOT ADMISSIBLE UNDER THE
HERESAY EXCEPTIONS, HE STILL FOUND THE
APPELLANT GUILTY BY HIS OWN ADMISSION
FOR DRIVING ON THE "RIGHT HAND SIDE OF
THE RAMP". THIS IS AN ERROR FOR TWO
REASONS.
REASON #1: APPELLANT NEVER TESTIFIED SO
THE ONLY ADMISSION BY THE APPELLANT IS
DERIVED FROM THE OFFICER'S NARRATIVE
FROM THE POLICE REPORT, WHICH WAS
PARAPHRASED BY THE OFFICER INTO HIS OWN
WORDING BASED ON HIS RECOLLECTION OF
STATEMENTS FROM THREE DIFFERENT
WITNESSES. THAT SAID, THE POLICE REPORT
HAD PARAPHRASED APPELLANT[']S
STATEMENTS WHICH ACCORDING TO JOHN
MORRIS V. PEDRO TORRES, SUCH STATEMENTS
ARE QUESTIONABLE OF TRUSTWORTHINESS
AND SHOULD NOT BE ADMISSIBLE.
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REASON #2: EVEN IF IT WERE TO BE
ADMISSIBLE, THERE IS NO RECORD OF THE
APPELLANT STATING THAT HE PASSED
"TRAFFIC" ON THE RIGHT AS THE OFFICER
GAVE AS THE REASON FOR THE CITATION
"AND THEN I ALSO WROTE HIM FOR IMPROPER
PASSING WHEREAS HE HAD PASSED TRAFFIC
ON THE RIGHT SIDE OF THE RAMP". SO ANY
ADMISSION BY THE APPELLANT WOULD BE
FOR PASSING ONE VEHICLE WHICH WAS
ATTEMPTING TO MAKE A LEFT TURN ONLY
AND NOT TRAFFIC AS CITED BY THE OFFICER.
NOTE: THE POLICE REPORT DIAGRAM
INCLUDES AN ARROW INDICATING THAT
APPELLANT PASSED THE WITNESSES (sic)
VEHICLE AS WELL WHICH APPEARS TO BE
ECHOING THE STATEMENT MADE BY THE
HEARSAY WITNESS . . ., WHICH SHOULD NOT
BE ACCEPTABLE UNDER THE HEARSAY RULE
701.
POINT II
SINCE THE OFFICER'S OPINION, AND ISSUANCE
OF THE CITATION, WAS PRIMARILY BASED ON
HEARSAY, THE TRIAL COURT ERRED FOR NOT
UPHOLDING THE APPELLANT'S MOTION FOR
DISMISSAL IN MUNICIPAL COURT. SINCE THE
OFFICER CITED THE APPELLANT FOR PASSING
"TRAFFIC" INSTEAD OF SAYING THE
DEFENDANT PASSED THE FORD EXCURSION, IT
IS APPARENT THAT THE OFFICER WAS
ECHOING THE STATEMENTS FROM THE
HEARSAY WITNESS.
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POINT III
THE TRIAL COURT'S POSITION IS THAT THE
OFFICER'S TESTIMONY IS QUALIFIED AS A LAY
OPINION WITNESS. TO DETERMINE THE
FOLLOWING: 1. THE ACTIONS OF THE
APPELLANT TO BE IN VIOLATION; 2. THE
INTERPRETATION OF THE STATUTE; 3. THE
CONDITION/DESIGN OF THE ROADWAY. ALL
THREE APPEAR TO BE REVERSIBLE ERRORS
FOR THE FOLLOWING POINTS: AS FOR
NUMBER E1, THE OFFICER HAD NO PERSONAL
KNOWLEDGE OR PERCEPTION OF THE
APPELLANT'S ACTIONS, SINCE HE DID NOT
PERSONALLY WITNESS THE PASSING OR THE
ACCIDENT SO HIS OPINION WAS PRIMARILY
RELIANT ON HEARSAY.
AS FAR AS NUMBER 2 IT APPEARS TO BE A
REVERSIBLE ERROR BECAUSE IT SEEMS TO
CHARACTERIZE THE STATUTE AS
UNCONSTITUTIONALLY VAGUE BY
INTERPRETING TO EXCLUDE ILLEGAL LEFT
TURNS, WHERE THE TRIAL JUDGE
ACKNOWLEDGES AND QUOTES KENDALL V.
KENDALL "BUT A DRIVER MAY PASS ON THE
RIGHT IF TRAFFIC HAS BECOME SO DENSE
THAT LINES OF TRAFFIC HAVE BECOME
SUBSTANTIALLY CONTINUOUS OR THE
PRESENCE OF A SLOW MOVING VEHICLE IN
THE LEFT LANE" (sic). IN OTHER WORDS, THE
COURT APPEARS TO BE UTILIZING THE
OFFICER'S OPINION TO INTERPRET THE
STATUTE OUT OF ITS ORDINARY
PARAMETERS, ESPECIALLY WHEN THE
STATUTE PROVIDES EXAMPLES OF UNSAFE BY
GOING OFF THE PAVEMENT OR DRIVING OFF
THE ROADWAY, WHICH IN THIS CASE THERE
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WAS NO TESTIMONY AT ALL THAT THE
APPELLANT WENT OFF THE ROADWAY,
HOPPED ANY CURBS OR OF THE ALIKE (sic),
NOT ONLY THAT, TO THE CONTRARY THE
OFFICER WOULD BE CONTRADICTING
HIMSELF AS HE TESTIFIED EARLIER IN COURT
THAT THE ROADWAY WAS EXTRA WIDE AND
THAT TWO VEHICLES CAN FIT PASSING EACH
OTHER WITHOUT GOING OFF THE ROADWAY.
THEREFORE, IT WOULD BE EXTREMELY
ERRONEOUS FOR THE COURT TO ACCEPT SUCH
OPINION WHICH WOULD BE CONTRADICTORY
TO BOTH THE OFFICER'S EARLIER TESTIMONY
AND THE LANGUAGE OF THE STATUTE ITSELF.
AS FAR AS NUMBER 3, ACCORDING TO RULE
701 A LAY OPINION MUST ESTABLISH A BASIS
FOR HIS OPINION (SIC) AND MUST NOT BE A
MATTER OF SPECULATION. ONE ISSUE WITH
THIS IS THE OFFICER ADMITTED HE NEVER
MEASURED THE ROADWAY OR MADE ANY
PHYSICAL EVALUATION OF THE ROADWAY AS
HE TESTIFIED THAT HE DID NOT MEASURE THE
ROADWAY. HE ONLY ESTIMATED BY
GUESSING THE WIDTH WHICH WOULD BE
SPECULATIVE, AND DID NOT SUPPLY A BASIS
TO HIS OPINION FINDINGS OTHER THAN
STATING THAT "THE ROADWAY WASN'T
DESIGNED THAT WAY", WHICH APPEARS TO
CALL FOR ROADWAY EXPERT TESTIMONY
WHICH WOULD BE OUT OF THE SPHERE OF AN
OFFICER'S EXPERTISE. AS IN RULE 701(4) LAY
OPINION MAY NOT CROSS INTO THE REALM OF
AN EXPERT.
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POINT IV
THE TRIAL COURT ERRED BY
MISINTERPRETING THE STATU[T]E 39:4-85 AND
BY ATTEMPTING TO USE A LAY OPINION TO
ESTABLISH A NEW DEFINITION OF THE
STATUTE WHICH WOULD ADD A NEW
CONDITION TO THE PERMISS[I]BLE PASSING.
THE NEW DEFINITION WOULD BE, IS THAT
WHEN A VEHICLE IS ATTEMPTING TO MAKE A
"LEGAL" LEFT TURN.
POINT V
THERE IS NO RECORD OF THE OFFICER
INQUIRING FROM THE OTHER DRIVER
WHETHER OR NOT HE WAS ATTEMPTING TO
MAKE A LEFT TURN.
II.
On appeal from a municipal court to the Law Division, the review is de
novo on the record. R. 3:23-8(a)(2). The Law Division judge must make
independent findings of fact and conclusions of law but defers to the municipal
court's credibility findings. State v. Robertson, 228 N.J. 138, 147 (2017).
"Our standard of review of a de novo verdict after a municipal court trial
is to determine whether the findings made could reasonably have been reached
on sufficient credible evidence present in the record, considering the proofs as
a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (internal
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quotation marks and citation omitted). We do not, however, independently
assess the evidence. State v. Locurto, 157 N.J. 463, 471-72 (1999).
The rule of deference to findings of fact is more compelling where, as
here, the municipal and Law Division judges made concurrent findings.
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. "Therefore, appellate review of the factual and
credibility findings of the municipal court and the Law Division 'is exceedingly
narrow.'" State v. Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J.
at 470). But, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the June 15, 2022 judgment for the
reasons stated by Judge Collins in his thorough and well-reasoned written
opinion. As Judge Collins found, the record contains sufficient admissible
evidence that defendant passed a vehicle on the right at the end of a heavily
travelled, single-lane ramp to a divided State highway marked with a yield sign.
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Whether the vehicle he passed was attempting to make an illegal left turn into
two lanes of oncoming traffic, as defendant claims, or not, the trial court's
conclusion that defendant's attempt to overtake the vehicle on the right was not
"under conditions permitting such movement in safety[,]" N.J.S.A. 39:4-85, is
supported by the record.
Affirmed.
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