Statev.Melsky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONApr 26, 2013
DOCKET NO. A-0193-12T2 (N.J. Super. App. Div. Apr. 26, 2013)

DOCKET NO. A-0193-12T2

04-26-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. RYAN MELSKY, Defendant-Appellant.

Ryan Melsky, appellant, argued the cause pro se. Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor, attorney; Ms. Mosco, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Harris and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-2-12-Y23.

Ryan Melsky, appellant, argued the cause pro se.

Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor, attorney; Ms. Mosco, of counsel and on the brief). PER CURIAM

Defendant Ryan Melsky challenges his August 21, 2012 conviction and $85 fine (plus court costs) in the Law Division for failure to stop at a red light at an intersection equipped with an automated traffic control signal monitoring system. We affirm.

I.

On September 28, 2011, at 9:38 p.m., a 2010 Nissan Altima made a right turn from Route 22 West onto County Route 519 in Pohatcong Township at a red light without coming to a complete stop. On October 10, 2011, Pohatcong Police Lieutenant Dean McBride issued a summons to Melsky, the owner of the Nissan, for failure to observe a traffic signal, pursuant to N.J.S.A. 39:4-8.15 and N.J.S.A. 39:4-81. The notice of violation accused Melsky of driving the automobile at the time of the infraction. An internet link provided in the notice offered a videorecording of the putative violation and images of the vehicle's license plate. The notice also contained the following information:

The statute provides there is a permissive inference that the owner of a motor vehicle involved in this violation was also the operator of the motor vehicle at the time the violation occurred.
The law[] provides that a violation of [N.J.S.A.] 39:4-81 – Red Light Camera subsection only – shall not result in the assessment of motor vehicle points or automobile insurance eligibility points.


N.J.S.A.
39:4-8.15(d).

Melsky pled not guilty. A trial was held in the Pohatcong municipal court on December 15, 2011. Lieutenant McBride was the State's only witness, and was subjected to direct and cross-examination. He testified that he "ultimately reviews the videos of the alleged violators," and that he viewed the videorecording of Melsky's vehicle on the night in question. According to Lieutenant McBride, the videorecording indicated that Melsky's "vehicle was doing approximately [twelve] miles per hour as it crossed . . . the stop line and the vehicle proceeded to make a right hand turn onto County Route 519 at a constant rate of speed." At the time of the turn, he noted, "the light was red, it had been red at that time for 39.7 seconds."

The court then viewed the videorecording without objection from Melsky. It is unclear whether this was accomplished by watching a monitor that was connected to a DVD player (or other storage device), or by accessing streaming video connected to the internet. "Exhibit S-1" was marked into evidence without objection, which was described as a "violation evidence report" consisting of seven pages, one of which was "a big print out of the defendant's license [plate]." Melsky did not testify or call any witnesses on his behalf.

The videorecording —— perhaps because it was only available in digital format on the internet —— was not separately marked as a piece of tangible evidence.

After closing arguments, the municipal court judge issued an oral decision. He noted the following:

The issuance of the summons is in the nature of a parking ticket. If you are parked illegal[ly], a summons is issued for a parking ticket and when you are issued a parking ticket, a driver need not be identified. The summons is issued to the vehicle as to the registered owner and the registered owner becomes responsible for that violation.

The law, he noted, was written to ensure a "no point" violation so that there is no jeopardy to the driver. As a result, "the identification of the driver is not required under the statute and the statute is drawn with the clear designation that the summons is issued to the registered owner."

As for the violation itself, the judge initially explained that, after watching the video several times, it was "clear that Mr. Melsky never stopped." Melsky then interjected, stating, "Your Honor, I apologize for interrupting you. At no point did I ever say that I was driving that car." The judge then corrected himself and referred to the vehicle, rather than Melsky. The judge then articulated his final determination as follows:

The summons was issued to the registered owner Mr. Melsky, [and it] makes no difference whether Mr. Melsky was the driver or not. The statute . . . provides for the summons to be issued to the registered owner with a permissive presumption that that's the driver[.] [W]hether it's the driver or not, [a] permissive presumption means that it doesn't make any difference whether you're the
driver or not, it is the same permissive presumption when you issue a parking ticket.
So in this case the only thing that is relevant to this Court is whether this vehicle stopped. There's no question in review of this, this vehicle made no attempt to stop. The vehicle approached the red light, went through the red light, never stopped, didn't stop for a micro second. It was a continuous —— continuous movement of the vehicle through the light.
. . . .
So for those reasons I find the defendant Mr. Melsky guilty beyond a reasonable doubt [of] a violation of the statute as for the reasons set forth on the record and I enter a fine of $85, court costs of $33.


Melsky appealed to the Law Division, which conducted a de novo trial on August 8, 2012. The court rejected all of Melsky's constitutional, evidential, and policy arguments, and concluded, "the defendant is guilty of failing to observe a traffic signal in violation of N.J.S.A. 39:4-81." The same penalty imposed by the municipal court judge was imposed by the Law Division in its August 21, 2012 order. This appeal followed.

It does not appear that the Law Division judge reviewed the videorecording that was "watched . . . several times" in the municipal court. The reason for this may have been because of N.J.S.A. 39:4-8.15(a), which provides that "[a]ny recorded image or information produced in connection with the traffic control signal monitoring system pertaining to a specific violation shall be purged and not retained later than 60 days after the collection of any fine or penalty." Melsky paid the fine after the municipal court trial. Because neither Melsky nor the State has raised the judge's lapse as something that we should consider significant, we treat it as harmless error. R. 2:10-2; see also McGarry v. Saint Anthony of Padua Roman Catholic Church, 307 N.J. Super. 525, 531 (App. Div. 1998) (noting that a failure to brief an issue may result in it not being considered). We also note that the parties have not provided the videorecording as part of the present appellate record, and we have not reviewed it. Cf. State v. Diaz-Bridges, 208 N.J. 544, 565 (2011) (recognizing appellate review of videotaped interrogation).

Oddly, the order stated that the municipal court "conviction is . . . affirmed." Notwithstanding the use of the word "affirmed," our review of the record fully satisfies us that the Law Division conducted a full de novo review and independently came to a conclusion that the State had met its requisite burden of proof.

II.

On appeal, Melsky raises the following issues for our consideration:

POINT I: THE TRIAL COURT COMMITTED LEGAL ERROR WARRANTING REVERSAL.
POINT II
: PROSECUTIONS FOR MOTOR VEHICLE VIOLATIONS ARE "QUASI CRIMINAL" IN NATURE AND THEREFORE DEFENDANTS CHARGED WITH MOTOR VEHICLE OFFENSES ARE ACCORDED CERTAIN CONSTITUTIONAL RIGHTS AT TRIAL.

A. THIS COURT SHOULD REVERSE BECAUSE THE STATUTE AT ISSUE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO A PRESUMPTION OF INNOCENCE.

B. THIS COURT SHOULD REVERSE BECAUSE THE VIDEO AND PHOTOGRAPHS OF THE ALLEGED VIOLATION WERE "TESTIMONIAL" DOCUMENTS THAT WERE NOT ADMISSIBLE UNDER THE 'BUSINESS RECORD EXCEPTION' TO THE HEARSAY RULE.
C. THIS COURT SHOULD REVERSE BECAUSE THE STATE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN IT PERMITTED THE INTRODUCTION OF TESTIMONIAL EVIDENCE BY WAY OF SURROGATE TESTIMONY.

POINT III
: THE RATIONALE FOR RED LIGHT CAMERA LAW AND THE MANNER IN WHICH POHATCONG TOWNSHIP HAS ADMINISTERED IT RUNS CONTRARY TO PUBLIC POLICY.



A.

We start with Melsky's Sixth Amendment Confrontation Clause argument, including his invocation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its evolving progeny.

Our courts have long held that violations of motor vehicle laws are quasi-criminal offenses. State v. Widmaier, 157 N.J. 475, 494 (1999). These are "a class of offenses against the public 'which have not been declared crimes, but wrongful against the general or local public which it is proper should be repressed or punished by forfeitures and penalties.'" Ibid. (quoting State v. Laird, 25 N.J. 298 302-03 (1957)).

Decisional law in our court suggests that the Confrontation Clause applies to serious, quasi-criminal driving-while-intoxicated cases. See, e.g., State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007); State v. Renshaw, 390 N.J. Super. 456, 463 (App. Div. 2007); State v. Berezansky, 386 N.J. Super. 84, 89 (App. Div. 2006), certif. dismissed as improvidently granted, 196 N.J. 82 (2008). However, "[o]ur Supreme Court twice expressly declined to reach the issue." State v. Gibson, 429 N.J. Super. 456, 464 n.1 (App. Div. 2013) (citing State v. Sweet, 195 N.J. 357, 371 n.9 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009); State v. Chun, 194 N.J. 54, 137 n.41 (2007), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)).

We cannot agree that a violation of N.J.S.A. 39:4-81, which is processed under N.J.S.A. 39:4-8.15's traffic control monitoring system, is analogous to a driving-while-intoxicated violation. See State v. Gonzalez, 114 N.J. 592, 607 (1989) (acknowledging "the considerable consequences of a conviction" for more serious motor vehicle offenses, particularly driving while intoxicated). Driving while intoxicated can result in fines, installation of ignition interlock devices, license suspension, and imprisonment. N.J.S.A. 39:4-50. Other examples of serious violations include reckless driving, N.J.S.A. 39:4- 96, and leaving the scene of an accident, N.J.S.A. 39:4-129, which can result in fines, imprisonment, points, and license suspension. Yet, a violation produced by N.J.S.A. 39:4-8.15 entails only a fine, and yields no possibility of motor vehicle or automobile insurance eligibility points, license suspension, or imprisonment.

While the nomenclature for a violation produced by this law is a quasi-criminal offense, its real-world effect readily falls on the least punitive side of the spectrum of "forfeitures and penalties" recognized by our courts. Widmaier, supra, 157 N.J. at 494-95. Because the penalties involved in the present matter are more akin to a routine parking violation, present-day Confrontation Clause jurisprudence is inapplicable.

Nevertheless, even if the Confrontation Clause does play a role in prosecutions of this type, Crawford and its progeny were not violated by the State's trial use of the videorecording and photographs of Melsky's car. Pursuant to the Confrontation Clause, out-of-court statements are only admissible where the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. The Confrontation Clause does not apply unless the evidence at issue is "testimonial." Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The central task when a violation of the Confrontation Clause is alleged is to determine whether the offending evidence was "testimonial" in nature. See, e.g., [State ex rel J.A.,[] 195 N.J. 324, [] 342-43 [2008].

"[W]itnesses against the accused," for Confrontation Clause purposes, are "those who bear testimony." [Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192.] In the constitutional sense, testimony is when "[a]n accuser . . . makes a formal statement to government officers." Ibid. Out-of-court testimonial statements include affidavits, depositions, grand jury testimony, and "[s]tatements taken by police officers in the course of interrogations"—statements which, given the manner of their use in court, are the functional equivalent of testimony, but which have not been subjected to cross-examination. Id. at 51-52, 124 S. Ct. at 1362, 158 L. Ed. 2d at 190.
[Id. at 342.]

[State v. Cagno, 211 N.J. 488, 518 (2012).]


Melsky argues that Bullcoming v. New Mexico, 564 U.S. __, __, 131 S. Ct. 2705, 2712, 180 L. Ed. 2d 610, 619 (2011) and dicta contained in footnotes ten and eleven in People v. Borzakian, 136 Cal. Rptr. 3d 772, 777 (App. 2012), command the conclusion that the admissibility of the videorecording and photographs generated by the traffic control signal monitoring system is prohibited by the Confrontation Clause. We disagree.

Our research discloses that the California Supreme Court granted review in Borzakian and in People v. Goldsmith, 138 Cal. Rptr. 3d 305 (App. 2012) to address the admissibility of computer-generated red light camera photographs, video, and data. People v. Borzakian (Annette), 280 P. 3d 536 (Cal. 2012); People v. Goldsmith (Carmen), 280 P. 3d 535 (Cal. 2012). In Borzakian, the Second District Court of Appeal reversed a conviction for a traffic infraction based on an automated camera enforcement system, but did so based on a lack of proper authentication and foundation. In Goldsmith, a different division of the Second District Court held that red light camera enforcement photographs, video, and data imprinted on them were not hearsay. Among the issues to be briefed and argued before the California Supreme Court is whether such automated traffic enforcement evidence is hearsay and, if so, whether any exceptions apply. People v. Ellis, 213 Cal. App. 4th 1551, 1564 n.9 (2013).

In Bullcoming, the Supreme Court held that a lab report in a driving-while-intoxicated case could not be introduced at trial by a scientist who did not perform or observe the test, even if the scientist was familiar with the laboratory testing procedures. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 616. That case, like Williams v. Illinois, ___ U.S. ___, ___, 132 S. Ct. 2221, 2227, 183 L. Ed. 2d 89, 98 (2012), involved forensic reports and the manner of providing expert testimony to explain the assumptions on which an expert opinion rests. The issues addressed in those cases are not akin to the computer-generated video images that the State utilized in the present case.

Those images are not testimonial in nature because they were captured by the automated monitoring system. It would be impossible to cross-examine the inanimate maker of those visualizations because the creator is an electronic combination of a computer's central processing unit and the image sensor of a camera. Because there was no human choice or intervention in the collection of the particular digital images involved, there is no Confrontation Clause "witness" involved. A pixel cannot speak and an algorithm cannot be cross-examined. Nor did this case involve, or require, an expert's interpretation of forensic test results. Thus, we discern no Confrontation Clause violations by the use of the automated videorecording and photographs in this case. Furthermore, we are satisfied that the evidentiary admission of those data was properly accomplished. See State v. Joseph, 426 N.J. Super. 204, 220 (App. Div. 2012) (citing State v. Wilson, 135 N.J. 4, 16 (1994)), certif. denied, 212 N.J. 462 (2012).

Both the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution provide that the accused in a criminal prosecution has the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10.

B.

We next turn to Melsky's contention that he was deprived of the presumption of innocence and that the State failed to demonstrate that he, in fact, was the operator of the vehicle that failed to observe the red light.

N.J.S.A. 39:4-8.15(b) provides that

the owner and operator [of a motor vehicle] shall be jointly liable for a traffic control signal violation summons issued pursuant to a traffic control signal monitoring system . . . unless the owner can show that the vehicle was used without his consent, express or implied. An owner who pays any fine, penalty, civil judgment, costs or administrative fees in connection with a traffic control signal violation issued pursuant to a traffic control signal monitoring system shall have the right to recover that sum from the operator in a court of competent jurisdiction.

Melsky argues that the statute's "joint liability" standard results in an automatic finding of guilt in municipal court. He asserts that this standard, which is more civil than quasi-criminal, is improper. Moreover, it does not coincide with the language of the notice of violation, which provides for a "permissive inference" that the vehicle owner was the driver at the time of the violation.

The presumption of innocence is a fundamental principle of due process in the criminal context. See State v. Hill, 199 N.J. 545, 558-59 (2009). "Prosecution for a motor vehicle violation is a quasi-criminal proceeding and the State has the burden of establishing all elements of the offense beyond a reasonable doubt." State v. Wenzel, 113 N.J. Super. 215, 217 (App. Div. 1971). However, we held in State v. McCandless, 190 N.J. Super. 75, 79 (App. Div.), certif. denied, 95 N.J. 210 (1983), petition for habeas corpus denied 835 F.2d 58 (3d Cir. 1987), that a statutory rebuttable presumption of fact for certain offenses may be invoked, provided two criteria are met. First, "there must be a rational connection in terms of logical probability between the proved fact and the presumed fact," and second, "the presumption may not be accorded mandatory effect." Ibid.

Pursuant to N.J.S.A. 2C:1-13(e), "[w]hen the code or other statute defining an offense establishes a presumption with respect to any fact which is an element of an offense, it has the meaning accorded it by the law of evidence." This means that a fact-finder "may be permitted to infer, until the defendant comes forward with some evidence to the contrary," that such a presumption is valid. State v. Ingram, 98 N.J. 489, 498 (1985).

N.J.S.A. 39:4-81(a) provides that "[t]he driver of every vehicle . . . shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer." Pursuant to N.J.S.A. 39:4-115,

[t]he driver of a vehicle . . . intending to turn right at an intersection where traffic is controlled by a traffic control signal shall . . . proceed to make the turn upon a "stop" or "caution" signal with proper care to avoid accidents after coming to a full stop, observing traffic in all directions, yielding to other vehicular traffic traveling in a direction in which the turn will be made, and stopping and remaining stopped for pedestrians crossing the roadway within a marked crosswalk, or at an unmarked crosswalk, into which the driver is turning.


N.J.S.A.
39:4-8.15 reads, in part, as follows:

b. Except as provided in subsection c. of this section, the owner and operator shall be jointly liable for a traffic control signal violation summons issued pursuant to a traffic control signal monitoring system established in accordance with this act, unless the owner can show that the vehicle was used without his consent, express or implied. . . .
c. The owner of a motor vehicle who is a lessor shall not be liable for a traffic control signal violation summons issued pursuant to this act when the motor vehicle is under the control or in the possession of the lessee, if upon notice of a traffic control signal violation, the owner of the motor vehicle which was leased at the time of the offense notifies the clerk of the court where the case is pending, by an affidavit of the name and address of the lessee. . . .
d. In no case shall motor vehicle points or automobile insurance eligibility points . . . be assessed against any person for a
violation occurring under the provisions of this act.

From this statutory array, we are fully satisfied that there is nothing illogical about linking, subject to rebuttal, the owner of a motor vehicle to its operation. Even in an age of multiple-car ownership, there is "a rational connection in terms of logical probability" that the owner of a car is usually the driver, or has consented to another driver, at the time of a violation. McCandless, supra, 190 N.J. Super. at 79.

While there may be a reasonable presumption that the owner of the vehicle was the driver, this presumption does not result in an irrefutable finding of fact. While the driver and owner of a vehicle are "jointly liable" for traffic violations under N.J.S.A. 39:4-8.15, the statute clearly provides that the owner can avoid liability by showing "that the vehicle was used without his consent, express or implied." In other words, the finding that the owner was the driver is not mandatory, but rather, may be presumed until a defendant has come forward with evidence to the contrary. This "does not offend our notions of due process." Ingram, supra, 98 N.J. at 498. See also State v. Moore, 247 N.J. Super. 129, 137 (App. Div. 1991) (upholding statutory presumption in drunk driving case, as the statute "gives rise to a permissible inference, not a mandatory finding").

Moreover, the State was still required to prove every other element of the offense, namely, that Melsky was the owner of the vehicle and that the violation occurred. See ibid. ("It is implicit within [the statute] that the State is required to show not only consumption of an alcoholic beverage but that a defendant was operating the motor vehicle.").

Furthermore, the distinctions Melsky raises between the present statute and N.J.S.A. 39:4-139.4(b), which governs parking tickets, is unpersuasive. Concededly, the parking ticket statute does provide that tickets should be issued to the driver present at the time, unlike N.J.S.A. 39:4-8.15(b). However, this proves nothing. The reason that parking tickets are statutorily required to be given to the driver, if possible, is because such summonses are issued by human police officers. The traffic control signal monitoring system, by its very nature, precludes the possibility of a summons being contemporaneously served because there is no police officer present on the scene.

"A parking ticket shall be served personally upon the operator of a vehicle who is present at the time of service, and his name shall be recorded on the parking ticket . . . . If the operator is not present, the parking ticket shall be served upon the owner of the vehicle by affixing the parking ticket to the vehicle." Ibid.
--------

Melsky's remaining arguments are wholly without merit. R. 2:11-3(e)(2). We comment briefly only to note that his public policy attack upon traffic control signal monitoring systems raises concerns that can only be addressed by the political branches of government, rendering them non-justiciable. See In re Veto by Governor Christie, 429 N.J. Super. 277, 293 (App. Div. 2012).

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION