STATE OF NEW JERSEY VS. TATYANA ROZENTULER (9-2017, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5097-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TATYANA ROZENTULER,
Defendant-Appellant.
Submitted June 6, 2018 – Decided July 12, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Municipal
Appeal No. 9-2017.
Tatyana Rozentuler, appellant pro se.
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Tatyana Rozentuler appeals from the June 23, 2017
Law Division conviction following a trial de novo on the municipal
court record. See R. 7:13-1. The charge she was convicted on was
the motor vehicle offense of following too closely,1 N.J.S.A.
39:4-89.2 The judge sentenced Rozentuler to payment of a $50 fine
and court costs of $33. On July 13, 2017, he denied Rozentuler's
stay application. We denied a similar motion on August 24, 2017.
We now affirm.
On this appeal, Rozentuler presents the following points for
our consideration:
I. MIDDLESEX COUNTY SUPERIOR COURT ERRED ON
IGNORING THE VERIFIABLE MATHEMATICAL
CALCULATIONS . . . WHICH WERE PROVIDED BY THE
DEFENSE AS BEING BASED ON APPROXIMATIONS . . .
IGNORING VIDEO EVIDENCE . . . AND CHOOSING
INSTEAD TO BELIEVE THE QUESTIONABLE AND
INCONSISTENT EYEWITNESS ACCOUNT . . . OF
OFFICER VELEZ IN ORDER TO PROVE THE STATE'S
CASE BEYOND THE REASONABLE DOUBT
II. MIDDLESEX COUNTY SUPERIOR COURT ERRED ON
ACCEPTING STATE'S ARGUMENTS WITHOUT RAISING
QUESTIONS AS TO HOW THE DEFENDANT'S CAR ENDED
UP TWO FEET BEHIND THE OFFICER'S CAR ON THE
"STRAIGHT STRETCH OF THE ROAD" BEFORE THE
POINT WHERE OFFICER VELEZ PULLED OVER TO LET
MRS. ROZENTULER TO PASS
III. COURT DID NOT ALLOW THE DEFENDANT TO
REPRESENT ALL ARGUMENTS BY CONSTANTLY
INTERRUPTING THE DEFENDANT AND MAKING REMARKS
THROUGHOUT THE DEFENDANT'S TESTIMONY
IV. MIDDLESEX COUNTY SUPERIOR COURT RELIED ON
THE OPINION OF THE MUNICIPAL COURT WHEN
1
Also known as "tailgating."
2
Rozentuler was also found guilty of failure to produce her
driver's license, N.J.S.A. 39:3-29(a), but she does not appeal
that conviction.
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DETERMINED [sic] THE CREDIBILITY OF THE
WITNESS FOR TO THE STATE . . . HOWEVER THE
MUNICIPAL COURT REPEATEDLY SHOWED PREJUDICE
AGAINST THE DEFENDANT AND DOES NOT APPEAR TO
BE IMPARTIAL TOWARD THE DEFENDANT
Having reviewed the record in light of the applicable legal
standards, we find no merit in any of these arguments.
I.
Township of East Brunswick Officer David Velez testified that
on November 15, 2016, a rainy morning, at approximately 7:14 a.m.,
he was proceeding northbound on Jensen Road in an unmarked vehicle.
He looked in his rear view mirror and saw a vehicle within two to
three feet of his car. It was so close he was unable to see either
the front license plate or the car's headlights. He pulled over
for the vehicle to pass; after it did, he stopped the car and
issued the summons for tailgating. Velez testified that a safe
distance between vehicles at twenty-five miles per hour is two and
one-half car lengths apart, whereas Rozentuler was only two to
three feet behind him.
The only defense witness was Rozentuler's husband, who was
driving about 100 feet behind her when she was pulled over. At
the point where he could see his wife's car in front of him, on a
curve, she was not tailgating. In fact, defendant was stopped on
a straight stretch of road; again, her husband was at least 100
feet behind her. The municipal court judge found both witnesses
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credible, and concluded that after the curve in the roadway, given
the distance he was traveling behind his wife——varying from 100
to 200 feet——he would have been unable to see Rozentuler's
proximity to the police car.
II.
During her presentation to the Law Division, Rozentuler
presented mathematical calculations in an attempt to undermine
Velez's testimony. In response to this argument, the Law Division
judge stated the calculations were based on a false premise,
because the speeds of the vehicles involved varied and her
formulations assumed a constant. He ignored the argument, because
he did not believe that in "real life" the attack on the officer's
accuracy of perception could succeed based on "rigid
determinations." Instead, he relied upon the officer's
perceptions while observing the car behind him in the rearview
mirror. As the judge said, the officer pulled over because he
believed the conduct was dangerous. Given that he was found to
be credible by the municipal court judge, and based on the judge's
own review of the record, the officer's observations controlled
and warranted the conviction.
III.
Rozentuler asserts the Law Division judge erred because he
did not sufficiently question Velez's testimony. Neither the
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Municipal Court judge nor the Law Division judge perceived there
to be such inaccuracies as to warrant an acquittal.
Rozentuler also claims the Municipal Court judge constantly
interrupted her presentation and "favor[ed]" the State during the
proceeding. This bias, she argues, is proven by a sequence of
events, including the municipal court's slow response to
inquiries. Therefore, she argues, the Law Division judge should
not have relied upon the Municipal Court judge's findings of
credibility.
Since Rozentuler represented herself in the Law Division, as
she does on appeal, she is no doubt unaware she cannot raise new
arguments in this court not addressed by the trial court. We have
nonetheless considered her points, not previously made, about the
alleged bias in the municipal court. Based on our review of the
record, although Rozentuler obviously disagrees with the factual
findings, nothing that was said by either judge displays any bias
for the State or prejudice against defendant.
As our Supreme Court has recently reiterated, 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."
State v. Robertson, 228 N.J. 138, 147 (2017). Such deferral is
not cast in stone, but depends upon the Law Division judge giving
due, though "not necessarily controlling," regard to the Municipal
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Court judge's opportunity to view the witness's demeanor. Id. at
148 (citing State v. Johnson, 42 N.J. 146, 157 (1964)).
When we review the trial court's findings, we focus on whether
"sufficient credible evidence . . . in the record" justifies the
Law Division's findings. Ibid. (quoting Johnson, 42 N.J. at 162).
We rarely "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. (citing State
v. Locurto, 157 N.J. 463, 474 (1999)). In our view, the Law
Division's deferral to the credibility findings of the Municipal
Court judge was warranted, and, in any event, the Law Division
judge made independent credibility findings based on his review
of the record. There is nothing in this record that raises a
doubt as to the fairness of the ultimate holding that defendant
violated the law with regard to tailgating.
Affirmed.
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