STATE OF NEW JERSEY VS. MICHAEL HERBST (6229, UNION 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NOT FOR PUBLICATION WITHOUT THE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-4147-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL HERBST,

Defendant-Appellant.

_______________________

Submitted July 13, 2020 – Decided July 24, 2020

Before Judges Suter and Natali.

On appeal from the Superior Court of New Jersey,

Union County, Law Division, Municipal Appeal No.

6229.

Helmer Conley & Kasselman, PA, attorneys for

appellant (Jack J. Lipari, of counsel and on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor,

attorney for respondent (Timothy Mark Ortolani,

Special Deputy Attorney General/Acting Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Following trial in the Linden Municipal Court, defendant Michael Herbst,

was convicted of operating a commercial vehicle in a prohibited lane of travel,

N.J.S.A. 39:4-88(e), and speeding, N.J.S.A. 39:4-98. Defendant was assessed a

fine of $406 and $33 in court costs on the prohibited lane of travel charge and

an identical fine and costs on the speeding conviction. The municipal court

doubled the assessed fines because it concluded defendant committed the

offenses in a construction zone, N.J.S.A. 39:4-203.5. Defendant appealed and

after de novo consideration, the Law Division affirmed defendant's convictions

and sentence. We affirm.

I.

The record discloses the following facts. On July 11, 2018, while on

patrol on the New Jersey Turnpike, Sergeant Keith McCormick of the New

Jersey State Police observed a tractor trailer operated by defendant traveling at

a high rate of speed in the left lane. Sergeant McCormick activated his Stalker

laser speed measurement device, which was previously tested for accuracy. The

device established that defendant was traveling at 70 m.p.h. The posted speed

limit in the construction zone where defendant was driving was 55 m.p.h.

Sergeant McCormick then followed defendant's vehicle from a distance

of four car lengths for approximately one-half mile in the left lane through the

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construction zone. Sergeant McCormick testified that while he was following

defendant, his speedometer indicated he was traveling at 70 m.p.h. and the

distance between his vehicle and defendant's did not change. Sergeant

McCormick also stated that his vehicle had been recently tested to confirm the

accuracy of its speedometer reading.

When Sergeant McCormick stopped defendant, he complained that he was

cut-off by another car and made general complaints regarding the condition of

the roadway and aggressive drivers. Sergeant McCormick issued defendant two

summons for speeding and operating a commercial vehicle in the left lane of

travel.

At the municipal court trial, defendant repeated his claim that he was only

traveling in the left lane because another car cut him off and he moved into the

left lane to avoid an accident and was unable to merge earlier because "people

don't let you over." He also testified that while he was originally traveling at 65

m.p.h., he slowed to between 50 and 55 m.p.h. as he drove through the

construction zone and moved to the right as soon as he was able. Sergeant

McCormick disputed defendant's account in his rebuttal testimony, stated the

traffic was flowing, and while there were some vehicles to defendant's right, he

was able to merge out of the far-left lane.

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After considering the documentary and testimonial evidence, the

municipal court issued comprehensive and detailed factual findings to support

its conclusion that defendant was speeding through a construction zone in an

improper lane of travel based on Sergeant McCormick's observations, his pacing

of the vehicle and the results of the laser instrumentation. The court specifically

concluded that this was "a case of credibility" and in that regard credited

Sergeant McCormick's testimony over that of defendant who claimed he "drove

perfect that day."

The court stated Sergeant McCormick was a "very experienced officer,"

that he had excellent demeanor, was "trying to help the trier of fact," had no

animosity to defendant, and accordingly gave "great weight to his testimony"

which it listened to "very carefully." The court also found that defendant was

aware that he was traveling in a construction zone as signs were posted and it

did not believe his testimony that a "car cut him off," specifically rejecting his

claim that he "had no choice but to be in the left lane."

As noted, defendant appealed his municipal court convictions and

sentence to the Law Division which conducted a trial de novo. The court issued

a comprehensive ten-page written opinion affirming defendant's conviction and

sentence. In that opinion, the court clearly reviewed and considered the

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municipal court record, noted and deferred to that court's "well-reasoned

credibility findings[,]" and found Sergeant McCormick's "testimony credible

and accept[ed] his version of events." In affirming the municipal court's adverse

credibility finding regarding defendant's testimony, the Law Division also noted

that "[t]his is one of the rare cases where [d]efendant's demeanor comes through

on the record" and explained that certain of defendant's testimony was internally

inconsistent.

Defendant now appeals the Law Division order, raising the following

arguments:

POINT I

EVIDENCE DID NOT ESTABLISH DEFENDANT'S

GUILT BEYOND A REASONABLE DOUBT,

ESPECIALLY AFTER DISCOUNTING EVIDENCE

ERRANTLY ELICITED BY THE MUNICIPAL

COURT; THE LOWER COURT'S FINDINGS WERE

INADEQUATE AND ERRANT.

A. As to N.J.S.A. 39:4-88

B. As to N.J.S.A. 39:4-98

C. As to N.J.S.A. 39:4-203.5

D. The Law Division drew errant inferences and

made errant findings from the record of the defendant's

manner of presenting himself at the municipal court

trial.

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POINT II

THE LOWER COURTS ERRED IN ADMITTING

AND CONSIDERING A SPEED MEASUREMENT

OBTAINED THROUGH THE USE OF A STALKER

LASER DEVICE.

POINT III

THE MUNICIPAL COURT EXCEEDED ITS

PROPER NEUTRAL ROLE IN EFFECTIVELY

ASSUMING THE ROLE OF THE PROSECUTOR IN

QUESTIONING THE ONLY STATE'S WITNESS

AFTER THE PROSECUTOR HAD COMPLETED HIS

QUESTIONING CONCERNING THE EVENT

OCCURRING IN A CONSTRUCTION ZONE.

POINT IV

BOTH LOWER COURTS ERRED IN ADMITTING

EVIDENCE AS TO THE DEFENDANT'S DRIVING

HISTORY, AND THE LAW DIVISION ERRED

EVEN MORE IN RELYING ON IT IN ITS RULING.

POINT V

THE DEFENDANT WAS DEPRIVED OF THE

EFFECTIVE ASSISTANCE OF COUNSEL UNDER

THE SIXTH AMENDMENT AND ARTICLE I,

PARAGRAPH TEN OF THE NEW JERSEY STATE

CONSTITUTION.

II.

An appeal of a municipal court conviction must first be addressed by the

Law Division de novo. R. 3:23-8. The role of the Law Division is to make

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independent findings of facts and conclusions of law based on the record

developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333

(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964). The Law

Division is required to decide the case completely anew on the record made

before the municipal judge, "giving due, although not necessarily controlling,

regard to the opportunity" of the judge to evaluate witness credibility. Johnson,

42 N.J. at 157; see also State v. Cerefice, 335 N.J. Super. 374, 382-83 (App.

Div. 2000). The Law Division judge performs "an independent fact-finding

function in respect of defendant's guilt or innocence" and must "make his [or

her] own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.

1983).

We review the Law Division's decision employing the "substantial

evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "Our

review is limited to determining whether there is sufficient credible evidence

present in the record to support the findings of the Law Division judge, not the

municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div.

2005) (citing Johnson, 42 N.J. at 161-62). We owe no deference to the trial

judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm.,

140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

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We have reviewed the record below against defendant's arguments and

conclude that the Law Division properly determined the matter and defendant's

arguments lack sufficient merit to warrant extended discussion in a written

opinion. See R. 2:11-3(e)(2). We offer the following to amplify the reasons for

our decision.

We disagree with defendant's arguments in Point I, A-D as there was

substantial credible evidence in the record to support the convictions and

sentence. Sergeant McCormick's testimony was credited over defendant's that

he operated his tractor trailer in the extreme left lane while speeding through a

construction zone. And, while the Law Division typically should not make new

credibility findings without an opportunity to evaluate a witness, we are satisfied

that the Law Division's factual findings are amply supported by the record.

With respect to defendant's challenges in Points II-IV, we note that

defendant failed to raise these claims in either the municipal court or the Law

Division and are therefore waived. In this regard, we "'decline to consider

questions or issues not properly presented to the trial court when an opportunity

for such a presentation is available' unless the matter involves the trial court's

jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P.,

149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,

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234 (1973)). No exception applies here. For purposes of completeness,

however, we have substantively considered defendant's arguments and conclude

they are all without merit.

As to defendant's challenge to the Stalker laser instrument reading, we are

satisfied that there was sufficient credible evidence in the municipal court

record, apart from that reading, to support the determination of the Law

Division. In this regard, we noted that Sergeant McCormick testified that

defendant was exceeding the speed limit while he was pacing defendant 's

vehicle.

We also reject defendant's contention that the municipal court engaged in

inappropriate questioning of plaintiff. A trial judge "may examine a witness

regardless of who calls the witness." N.J.R.E. 614. "Trial judges are vested

with the authority to propound questions to qualify a witness's testimony and to

elicit facts on their own initiative and within their sound discretion." State v.

Medina, 349 N.J. Super. 108, 131 (App. Div. 2002) (citing State v. Ross, 80 N.J.

239, 248-49 (1979)). "The intervention of a trial judge is a 'desirable procedure,'

but it must be exercised with restraint." Ibid. (quoting Village of Ridgewood v.

Sreel Inv. Corp., 28 N.J. 121, 132 (1958)).

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Here, the court merely inquired of Sergeant McCormick to clarify his

direct testimony that defendant was speeding in an improper lane "in a

construction zone." The court engaged in similar clarifying questioning of

defendant that he was not speeding and could not merge out of the left lane. We

find the court's respectful and direct questioning well within its discretion.

Finally, we find defendant's reliance on State v. O'Brien, 200 N.J. 520 (2009),

misplaced. The court's questioning here bears no resemblance to the

circumstances in that case.

As to defendant's challenge to the court's consideration of his driving

history, the State introduced defendant's driving history for impeachment

purposes after defendant testified he "obeys traffic laws and [does not] speed."

The municipal court explicitly stated it could not, and would not, consider

defendant's driving history to establish guilt and there is no support that either

the municipal court or the Law Division relied upon any specific prior violation

as supportive of defendant's guilt for the charges. Although the Law Division

noted defendant's driving history when commenting on defendant's credibility,

we are satisfied that the Law Division based its findings on the substantial

evidence in the record, specifically, Sergeant McCormick's credible testimony,

that supported the convictions and sentence. The municipal court and Law

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Division's limited reliance on defendant's driving history was neither plain error

nor an abuse of discretion. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492

(1999) (We uphold the trial court's evidentiary rulings "unless it can be shown

that the trial court palpably abused its discretion, that is, that its finding was so

wide off the mark that a manifest denial of justice resulted." (citations omitted)).

In his final point, defendant maintains that he was prejudiced by the

ineffectiveness of his counsel before the municipal court and Law Division.

Specifically, he maintains that his: 1) municipal counsel was ineffective for

failing to object to the Stalker laser reading, to the introduction of his dri ving

history, for "allowing the judge to become an advocate for the government," and

"because his presentation under court questioning was ineffectual"; 2) counsel

in the Law Division was ineffective for failing to argue the points raised in the

instant appeal, and in failing to argue ineffectiveness of municipal counsel; and

3) both counsel were ineffective for failing to argue necessity as a defense.

"To establish a prima facie claim of ineffective assistance of counsel, a

defendant must demonstrate the reasonable likelihood of succeeding under the

test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984), and United

States v. Cronic, 466 U.S. 648 (1984), which [our Supreme Court] adopted in

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State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Preciose, 129 N.J. 451, 463

(1992).

Under the Strickland standard, a petitioner must show counsel's

performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248,

264 (1999). Counsel's performance is deficient if it falls "below an objective

standard of reasonableness" measured by "prevailing professional norms."

Strickland, 466 U.S. at 687-88. In evaluating deficiency, counsel's performance

must be reviewed with "extreme deference . . . , requiring 'a strong presumption

that counsel's conduct falls within the wide range of reasonable professional

assistance.'" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 689)).

The record before us does not reveal the information necessary to address

fully the ineffective assistance of counsel claims. See State v. Morton, 155 N.J.

383, 432-33 (1998) (refusing to decide ineffective assistance claim on direct

appeal where record did not reveal why counsel did not call certain witnesses

during penalty phase of capital trial); State v. Dixon, 125 N.J. 223, 261-62

(1991) (refusing to decide ineffective assistance claim on direct appeal where

record was "inadequate to disclose what reasons of tactics and strategy

motivated counsel"). In this regard, certain of defendant's claims involve

alleged conduct that lies outside the trial record. See Preciose, 129 N.J. at 460

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("Our courts have expressed a general policy against entertaining ineffective-

assistance-of-counsel claims on direct appeal because such claims involve

allegations and evidence that lie outside the trial record." (citations omitted)).

As to defendant's claim that counsel was ineffective for failing to object

to the Stalker laser reading, however, for the reasons detailed in our opinion,

even if counsel was ineffective, defendant was not prejudiced as other

substantial credible evidence existed to support the speeding charge independent

of that evidence. We reach a similar conclusion regarding defendant's claims

that his counsel was ineffective for failing to object to the introduction of his

driving history, and for "allowing the judge to become an advocate for the

government." We decline to address defendant's remaining ineffective

assistance claims.

In sum, we affirm defendant's convictions and sentence. Our decision,

however, does not bar defendant from reasserting his ineffective assista nce of

counsel claim in a timely filed PCR petition, except as otherwise indicated in

this opinion. See Morton, 155 N.J. at 433 (permitting a defendant to revisit

ineffective assistance of counsel claims in a PCR proceeding "despite rejection

of these claims on direct appeal"); Preciose, 129 N.J. at 460 ("Ineffective-

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assistance-of-counsel claims are particularly suited for post-conviction review

because they often cannot reasonably be raised in a prior proceeding.").

Affirmed.

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