                                NOT FOR PUBLICATION WITHOUT THE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-2488-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSHUA DUFONT,

     Defendant-Appellant.
_________________________

                    Submitted December 9, 2019 – Decided January 16, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the State of New Jersey, Law Division,
                    Middlesex County, Municipal Appeal No. 17-2018.

                    Scott A. Gorman, attorney for appellant.

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Patrick F.
                    Galdieri, II, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Joshua Dufont appeals his conviction for careless driving,

N.J.S.A. 39:4-97, following a trial de novo in the Law Division. The statute

provides, "A person who drives a vehicle carelessly, or without due caution and

circumspection, in a manner so as to endanger, or be likely to endanger, a person

or property, shall be guilty of careless driving." The mere occurrence of an

accident alone is insufficient proof of careless driving. State v. Lutz, 309 N.J.

Super. 317, 326–27 (App. Div. 1998); State v. Wenzel, 113 N.J. Super. 215,

216–17 (App. Div. 1971). We briefly summarize the testimony before the

municipal court.

      Metuchen Police Officer Kevin Ryan was dispatched to an accident scene

in response to a citizen's complaint.        He arrived and saw "debris in the

roadway[,]" along with a "tractor trailer that was towing a flatbed that had on it

a . . . personal lift . . . a cherry picker." The truck was stopped about twenty feet

past a railroad bridge that crossed over the road. Officer Ryan saw the cherry

picker was "[h]eavily damaged[,]" and the "eastbound most beam of [the bridge]

. . . was bent approximately six inches inward in the same direction that the truck

was facing." Officer Ryan acknowledged that the bridge's physical presence

was "marked . . . with a light" for drivers approaching it from the same direction

as had the truck.


                                                                             A-2488-18T4
                                         2
      Officer Ryan asked the driver of the truck, defendant, what happened.

Defendant "stated . . . he was driving along . . . and he struck the bridge with the

cherry picker on the back. He wasn't sure how he did it, stating that he believed

he had enough clearance, however . . . he admitted he[] struck it." Officer Ryan

acknowledged that had defendant "correctly verified the height of his load , . . .

he would not" have struck the bridge. The officer said the speed limit on the

road at that point was thirty-five miles per hour, it was sunny and there was

nothing obstructing defendant's view of the railroad bridge. As a result of the

accident, the road had to be closed to fix the bridge. 1

      Defendant did not testify. The municipal court judge found defendant

guilty and imposed a $56 fine and $33 in court costs.

      In his written opinion following trial in the Law Division, Judge Robert J.

Jones, Jr. deferred to the credibility determinations of the municipal court judge

and independently found Officer Ryan was credible. See State v. Kuropchak,

221 N.J. 368, 382 (2015) ("The Law Division reviews the municipal court's

decision de novo, but defers to credibility findings of the municipal court.")



1
  The municipal prosecutor asked if the rail line also had to be closed as a result
of the accident. The judge overruled an objection, but the prosecutor rested
before the officer answered the inquiry.


                                                                            A-2488-18T4
                                         3
(citing State v. Johnson, 42 N.J. 146, 157 (1964)). The judge noted defendant's

reliance upon Lutz and Wentzel, and accepted the holdings of those cases stood

for the proposition that "the State must demonstrate more than simply the

existence of an accident." However, he concluded the State had introduced

sufficient evidence "from which to find carelessness."

      Recognizing the evidence was circumstantial, Judge Jones found that

defendant approached the "marked bridge that had a flashing light."2 He found

it was "significant" that the "cherry picker struck the bridge . . . with such force

that it created a six-inch dent in a solid-steel beam." The judge also noted the

extent of debris that was strewn across the roadway as a result. Judge Jones

determined that "[r]ather than slow down and make sure he went under the

bridge cautiously, [defendant] raced through the bridge tunnel." The judge

concluded, "[s]omeone acting with circumspection would have slowed

down . . . .   [I]t was incumbent upon [defendant] to be sure and to take

precautions before entering the bridge tunnel."

      Distinguishing Lutz and Wentzel, where "the courts speculated about how

the accidents happened and found carelessness based upon the accident's


2
  Officer Ryan made no reference to a "flashing" light in his testimony, although
he testified the bridge was marked by a lighted sign for drivers approaching the
overpass.
                                                                            A-2488-18T4
                                         4
occurrence alone[,]" the judge found "[h]ere, we know the mechanics of the

accident, and . . . have circumstantial evidence that shows lack of due caution

and circumspection." Judge Jones found defendant guilty and imposed the same

fine and costs.

      Before us, defendant argues the following:

             POINT I

             THE LOWER COURT ERRED WHEN IT FOUND
             THAT THE DEFENDANT FAIL[ED] TO DRIVE
             WITHOUT      DUE      CAUTION      AND
             CIRCUMSPECTION, BECAUSE THE EVIDENCE IN
             THE RECORD DOES NOT SUPPORT A FINDING
             THAT [DEFENDANT] DISREGARDED ACCURATE
             MARKINGS ADVISING OF THE VERTICAL
             CLEARANCE OF THE TRESTLE THAT WAS
             INVOLVED IN THE ACCIDENT.

We affirm.

      "[A]ppellate review of a municipal appeal to the Law Division is limited

to 'the action of the Law Division and not that of the municipal court.'" State v.

Palma, 219 N.J. 584, 591–92 (2014) (quoting State v. Joas, 34 N.J. 179, 184

(1961); State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)).            In

conducting our review, "[w]e defer to the judge's fact finding, and our 'review

is limited to "whether the findings made could reasonably have been reached on

sufficient credible evidence present in the record."'" State v. L.S., 444 N.J.


                                                                          A-2488-18T4
                                        5
Super. 241, 247–48 (App. Div. 2016) (quoting Kuropchak, 221 N.J. at 382–83).

"We owe no deference, however, to the 'trial court's interpretation of the law . .

. and the consequences that flow from established facts[,]' which we review de

novo." Id. at 248 (alteration in original) (quoting State v. Hubbard, 222 N.J.

249, 263 (2015)).

      In this case, it is even more appropriate that we defer to Judge Jones's

factual findings. As in State v. Locurto,

            the rule of deference is more compelling where . . . two
            lower courts have entered concurrent judgments on
            purely factual issues. 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.

            [157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz,
            10 N.J. 123, 128–29 (1952).]

      The factual findings that defendant drove under the railroad trestle at a

high rate of speed, not cautiously, and failed to carefully evaluate the height of

the load he was carrying are fully supported by the circumstantial evidence of

the scene as described by Officer Ryan. In turn, those factual findings support,

beyond a reasonable doubt, the judge's legal conclusion that defendant operated

his truck "without due caution and circumspection[.]" N.J.S.A. 39:4-97.



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                                        6
      Defendant cites a negligence case, J.L. Querner Truck Lines, Inc. v.

Safeway Truck Lines, Inc., for the proposition that a truck driver need not

"necessarily be able to gauge whether his vehicle could clear a trestle, unmarked

as to clearance, where the trestle was one foot lower than his 12' 3" high trailer."

35 N.J. 564, 568–69 (1961) (citing Rapp v. Pub. Serv. Coordinated Transp., 9

N.J. 11 (1952)). In J.L. Querner, however, the Court only held that the driver

was not, as a matter of law, contributorily negligent, so as to remove

consideration of the issue from the jury. Id. at 568; accord Rapp, 9 N.J. at 18.

      Affirmed.




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