State of New Jersey v. Dominick Cofone ( 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NOT FOR PUBLICATION WITHOUT THE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-2165-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOMINICK COFONE,
Defendant-Appellant.
________________________
Argued October 8, 2024 – Decided October 16, 2024
Before Judges Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Municipal Appeal No. MA-
2023-020.
Kenneth Ralph argued the cause for appellant (Bruno &
Ferraro, attorneys; Kenneth Ralph, of counsel and on
the brief).
Stephen A. Pogany, Assistant Prosecutor, argued the
cause for respondent (Theodore N. Stephens, II, Essex
County Prosecutor, attorney; Stephen A. Pogany, on the
brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant Dominick
Cofone was convicted of leaving the scene of an accident, N.J.S.A. 39:4-129(b),
and failing to report an accident, N.J.S.A. 39:4-130.1 He was sentenced to a six-
month driver's license suspension, fines, and costs. The trial court stayed
defendant's sentence pending appeal. 2 In his brief, defendant contends:
THE GUILTY VERDICTS SHOULD BE VACATED
BECAUSE THE STATE FAILED TO PROVE THE
CHARGES OF LEAVING THE SCENE OF AN
ACCIDENT AND FAILURE TO REPORT AN
ACCIDENT BEYOND A REASONABLE DOUBT.
A. The State Did Not Prove Beyond A Reasonable
Doubt That [Defendant] Drove And Crashed Into
The Parked Car.
B. The State Failed To Prove Beyond A Reasonable
Doubt That [Defendant] Violated The Charged
Statutes By Unlawfully Leaving The Scene Of An
Accident.
We affirm, substantially for the reasons set forth in the comprehensive
written opinion of Judge Arthur J. Batista. There was sufficient credible
evidence in the record to support the judge's finding that defendant left the scene
of an accident and failed to report an accident.
1
Defendant was found not guilty of careless driving, N.J.S.A. 39:4-97.
2
The State consented to defendant's request to stay his sentence pending appeal.
A-2165-23
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I.
We derive the facts from the testimony and other evidence presented in
the municipal court trial. On March 4, 2023, at 2:45 a.m., Evan Hall returned
home to his parents' Richard 3 and Gail Hall's home. After exiting his Uber ride,
Evan observed that his brother Brian's car, a Nissan Sentra, which was parked
in front of the house, was damaged. Richard had been sleeping and was unaware
of what happened to the car. Evan notified Richard and they contacted the Cedar
Grove police department to report the damage.
Officer Anthony Grigolo responded and testified that he observed
"significant damage" "to the rear bumper, rear fender and wheel area" of Brian's
vehicle. Grigolo testified that other units arrived on the scene and canvassed
the area to determine if there was a vehicle in the area with "matching damage."
Judge Batista credited Grigolo's testimony that he observed defendant's
Tesla parked in the driveway of his home—located on the same street as the
Hall's residence—"less than a block away" from the crash. Grigolo observed
defendant's vehicle had "significant damage . . . to the front bumper area, front
fender area and . . . the headlight area was damaged." Based upon his experience
3
Individuals who share a last name with other individuals are referred to by
their first names for ease of reference. By doing so, we intend no disrespect.
A-2165-23
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as a police officer, investigating motor vehicle accidents, he determined that the
two subject vehicles were damaged in "a consistent manner." Specifically,
Grigolo testified that the areas of both vehicles "in the two-car crash were
matching, namely being opposite corners of each vehicle" and "[t]he levels of
damage were similar in significance and the height of the damage on both
vehicles match each other." Grigolo stated the damage to defendant's Tesla was
"recent" because "it didn't appear that the operator of the vehicle would have
left it in that manner if it was an older crash."
Grigolo and his supervisor, Sergeant Snyder,4 approached defendant's
residence. Here, the judge found Grigolo's testimony credible that defendant
"appeared to be highly intoxicated" and dressed in clothing "that appeared to be
consistent with going out" and "not just home for the evening." Defendant spoke
with slurred speech, had a "significant odor of alcohol on his breath ," and
"bloodshot and watery eyes."
Based upon his conversation with defendant, Grigolo determined that
defendant was the operator of the vehicle earlier that evening. Although
defendant did not admit to driving the vehicle while intoxicated, Grigolo
4
Sergeant Snyder's first name is not contained in the record.
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testified defendant "indicated that he had possibly been in a crash, making
multiple statements that were vague or ambiguous in nature."
The judge reviewed Grigolo's body camera footage and confirmed it
supported his testimony. The judge noted defendant was "cagey in his oddly
delayed responses" to Grigolo's inquires. Grigolo's testimony was
uncontradicted.5
The judge also credited Richard's testimony that when he went outside to
see Brian's car, "it had been pushed a space and [was] obviously pretty much
destroyed, or hit very hard" and was "totaled." Richard testified that he has
known defendant as his "neighbor for twenty years." After the incident, Richard
testified that defendant came to his house the following morning "to explain and
apologize meaning it was late at night," it was "raining," and defendant "wasn't
sure what vehicle . . . lights went on when he hit this."
Hall stated defendant explained that "he didn't want to go around ringing
doorbells" and "he came right down to admit what had happened," and was "very
gracious and apologetic." Hall added that defendant's insurance company "took
care of everything." The judge found Hall was unaware that the police had
5
Notwithstanding their observations and belief that defendant was intoxicated,
the judge noted the officers elected not to charge him with driving while
intoxicated. N.J.S.A. 39:4-50.
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already discovered defendant's involvement in the accident and had served him
with motor vehicle summonses.
The judge rejected defendant's argument that the incident occurred late at
night, and he did not want to "disturb his neighbors at that hour." Further, the
judge was unpersuaded by defendant's argument that the rain prevented him
from leaving a note and found it was "conveniently embroidered to serve his
studied purpose." After striking Brian's vehicle, the judge stated defendant was
required to immediately stop "then and there," locate, and notify the owner of
the vehicle he struck, and if that was not possible, defendant was required to
attach securely "in a conspicuous space in or on the vehicle" written notice
including his name and address. Based upon the evidentiary record, the judge
concluded that defendant did neither of these things. This appeal followed.
II.
A municipal court decision is appealed to the Law Division. See R. 3:23-
1; R. 7:13-1. "In the Law Division, the trial judge 'may reverse and remand for
a new trial or may conduct a trial de novo on the record below.'" State v.
Robertson, 228 N.J. 138, 147 (2017) (quoting R. 3:23-8(a)(2)). "At a trial de
novo, the court makes its own findings of fact and conclusions of law but defers
to the municipal court's credibility findings." Ibid. "It is well-settled that the
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trial judge 'giv[es] due, although not necessarily controlling, regard to the
opportunity of the' municipal court judge to assess 'the credibility of the
witnesses.'" Id. at 148 (alteration in original) (quoting State v. Johnson, 42 N.J.
146, 157 (1964)).
On appeal from the Law Division's decision, our review "focuses on
whether there is 'sufficient credible evidence . . . in the record' to support the
trial court's findings." Ibid. (quoting Johnson, 42 N.J. at 162). "[A]ppellate
courts ordinarily should not undertake to alter concurrent findings of fact and
credibility determinations made by two lower courts absent a very obvious and
exceptional showing of error." Ibid. (alteration in original) (quoting State v.
Locurto, 157 N.J. 463, 474 (1999)). Therefore, appellate review of a de novo
conviction in the Law Division following a municipal court appeal is
"exceedingly narrow." State v. Reece, 222 N.J. 154, 167 (2015) (quoting
Locurto, 157 N.J. at 470). However, the trial court's legal rulings are considered
de novo. Robertson, 228 N.J. at 148 (citing State v. Kuropchak, 221 N.J. 368,
383 (2015)).
Nevertheless, we will reverse only after being "thoroughly satisfied that
the finding is clearly a mistaken one and so plainly unwarranted that the interests
of justice demand intervention and correction." See Johnson, 42 N.J. at 162.
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"We do not weigh the evidence, assess the credibility of witnesses, or make
conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997).
Because neither the appellate court nor the Law Division judge is in a good
position to judge credibility, the municipal court's credibility findings are given
deference. See Locurto, 157 N.J. at 470-71.
[T]he rule of deference is more compelling where, as here, both judges
made concurrent findings. Id. at 474. "Under the two-court rule, appellate
courts ordinarily should not undertake to alter concurrent findings of fact and
credibility determinations made by two lower courts absent a very obvious and
exceptional showing of error." Ibid. (citation omitted).
The judge found the State met its burden in proving defendant violated
N.J.S.A. 39:4-129(b) and N.J.S.A. 4-130 beyond a reasonable doubt. Defendant
challenges the judge's finding of guilt as to both charges contending there is a
lack of direct evidence that he was driving and caused the crash; the
circumstantial evidence was not convincing; and there is reasonable doubt that
even if he drove, his conduct did not violate the charged statutes. Because no
one observed defendant driving the Tesla, he contends the State did not meet its
burden beyond a reasonable doubt.
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Due to the inclement weather at the time of the crash, defendant asserts
that he did not have to report the accident. Defendant also argues the judge
disregarded aspects of Richard's testimony, which were favorable to him .
Additionally, defendant contends that the police and judge unfairly considered
defendant's alleged "intoxication," which colored the conclusion of his guilt,
even though intoxication was not an issue in the case.
Applying our deferential standard of review, we find that the judge
considered the totality of the circumstances, including the damage to the two
vehicles, the officers' interactions with defendant at his home—where he
admitted ownership of the Tesla and operation earlier that evening—in
conjunction with defendant's intoxicated appearance and "equivocation."
Moreover, the judge highlighted that defendant made a statement against interest
to Richard admitting responsibility for the damage, witnessed by Evan. And,
defendant apologized for the damage to Brian's vehicle and provided his
automobile insurance information to pay for the damage. We find no error here.
In pertinent part, N.J.S.A. 39:4-129(b) states:
(b) The driver of any vehicle knowingly involved in an
accident resulting only in damage to a vehicle,
including his [or her] own vehicle, or other property
which is attended by any person shall immediately stop
his [or her] vehicle at the scene of such accident or as
close thereto as possible, but shall then forthwith return
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to and in every event shall remain at the scene of such
accident until he [or she] has fulfilled the requirements
of subsection (c) of this section. Every such stop shall
be made without obstructing traffic more than is
necessary. Any person who shall violate this
subsection shall be fined not less than $200[.00], nor
more than $400[.00], or be imprisoned for a period of
not more than [thirty] days, or both, for the first offense,
and for a subsequent offense, shall be fined not less than
$400[.00] nor more than $600[.00], or be imprisoned
for a period of not less than [thirty] days nor more than
[ninety] days or both.
In addition, a person who violates this subsection shall,
for a first offense, forfeit the right to operate a motor
vehicle in this State for a period of six months from the
date of conviction, and for a period of one year from
the date of conviction for any subsequent offense.
The judge found the intent of N.J.S.A. 39:4-129(b) "is to prohibit the
automobile driver involved in an accident from evading his [or her]
responsibilities by escaping or departing before his [or her] identity is made
known." State v. Fisher, 395 N.J. Super. 533, 542 (App. Div. 2007) (quoting
State v. Gill, 47 N.J. 441, 443 (1966)). Moreover, we have held that the driver
of a hit-and-run vehicle may be proven by circumstantial evidence. See, e.g.,
id. at 545-46.
Relevant here, N.J.S.A. 39:4-130 provides:
The driver of a vehicle or street car involved in an
accident resulting in injury to or death of any person, or
damage to property of any one person in excess of
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$500.00 shall by the quickest means of communication
give notice of such accident to the local police
department or to the nearest office of the county police
of the county or of the State Police, and in addition shall
within [ten] days after such accident forward a written
report of such accident to the commission on forms
furnished by it. Such written reports shall contain
sufficiently detailed information with reference to a
motor vehicle accident, including the cause, the
conditions then existing, the persons and vehicles
involved and such information as may be necessary to
enable the chief administrator to determine whether the
requirements for the deposit of security required by law
are inapplicable by reason of the existence of insurance
or other circumstances. The chief administrator may
rely upon the accuracy of the information contained in
any such report, unless he [or she] has reason to believe
that the report is erroneous. The commission may
require operators involved in accidents to file
supplemental reports of accidents upon forms furnished
by it when in the opinion of the commission, the
original report is insufficient. The reports shall be
without prejudice, shall be for the information of the
commission, and shall not be open to public inspection.
The fact that the reports have been so made shall be
admissible in evidence solely to prove a compliance
with this section, but no report or any part thereof or
statement contained therein shall be admissible in
evidence for any other purpose in any proceeding or
action arising out of the accident.
Whenever the driver of a vehicle is physically
incapable of giving immediate notice or making a
written report of an accident as required in this section
and there was another occupant in the vehicle at the
time of the accident capable of giving notice or making
a report, such occupant shall make or cause to be made
said notice or report not made by the driver.
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When considering the factual evidence adduced at the municipal court
hearing as applied by Judge Batista in his findings, we find no basis for reversal
here. The undisputed evidence provided in the record, including the "matching
damage" to the two vehicles, the police officers' interactions with defendant at
his home where he admitted ownership of the Tesla and operating the vehicle
earlier in the evening, combined with his intoxicated appearance, equivocation,
and his admission to Richard, supports the conclusion that defendant left the
scene of an accident and failed to report the accident.
We also note the judge placed great weight on a letter drafted by Richard
to the municipal court judge, which was entered into evidence at the municipal
court hearing and stated:
Recently very late at night, [defendant] struck my son's
car. No one in the house heard the crash. Nor any
neighbors. He did not want to ring doorbells in the . . .
middle of the night. I was sure he was upset and unsure
of what to do. He parked his car in the driveway across
the street in plain view of all neighbors. He did not
attempt to flee or hide [h]is vehicle. The first thing . . .
the next morning, he came to our house and took full
accountability for what happened. He apologized . . .
profusely and we're more than happy to accept the
apology. It was an accident. No one was hurt.
The judge stressed that Richard confirmed his conversation with defendant the
morning after the accident.
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These facts were significant to support defendant's convictions for leaving
the scene of an accident and failing to report an accident. We conclude the State
proved the charges beyond a reasonable doubt. Accordingly, we discern no
error.
To the extent that we have not otherwise addressed defendant's arguments,
we conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed. The trial court's stay is vacated.
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