                        NOT FOR PUBLICATION WITHOUT THE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-2500-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DUKE NYANGWESO,

     Defendant-Appellant.
_____________________________

              Submitted February 14, 2017 – Decided July 20, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Municipal Appeal
              No. 11-5.

              Beninato & Matrafajlo, L.L.C., attorneys for
              appellant (Dan T. Matrafajlo, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Erin M. Campbell,
              Assistant Prosecutor, on the brief).


PER CURIAM

        Defendant Duke Nyangweso was convicted in municipal court for

careless driving, N.J.S.A. 39:4-97.             He appealed and after a trial
de novo in the Law Division, he was again convicted on January 15,

2016.   For the reasons that follow, we reverse.

     On March 3, 2015, defendant was issued a summons for careless

driving by a New Jersey State Trooper.        He later pled not guilty,

and trial was conducted in Bayonne Municipal Court.              The State

presented    the   testimony   of   one   witness,   Cassandra    Markman.

Defendant did not present any witnesses.

     Markman testified that:

            I was driving across the [Bayonne Bridge] at
            seven, . . . something in the morning. I looked
            in my rear view mirror. Traffic was pretty
            far behind me. The next thing I know traffic
            is slowing down and I get hit from the rear,
            which in turn caused me to hit another car in
            front of me. I get out of my car and I go
            around and I look and I see my bumper is
            hanging a little in the back.

Markman also identified defendant in court as the driver of the

vehicle that rear-ended her.

     Following the parties' summation, the municipal court judge

found defendant guilty of careless driving.          The judge rejected

defendant's argument that Markman's testimony did not establish

beyond a reasonable doubt that defendant was guilty.             The judge

found Markman to be credible, and determined that her testimony

proved defendant was not operating his car with care when he hit

Markman's car in the rear as she was slowing down in traffic on

the Bayonne Bridge.

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     Upon a trial de novo on the record, the Law Division judge

found defendant guilty anew.        Defendant contended there was no

evidence indicating that he was inattentive and drove carelessly,

and that the municipal court found him guilty based upon the theory

of res ipsa loquitor – the sole fact that he rear-ended Markman,

constituted   careless   driving.       The   Law   Division   judge   was

unpersuaded, and determined that the municipal court did not apply

the doctrine of res ipsa loquitor in finding defendant guilty.           He

ruled:

          The accident itself, the impact, is direct
          evidence. The circumstantial evidence is what
          led up to it. This would not have occurred
          but for the fact that the defendant was
          inattentive, which in my mind means the same
          as without due caution and circumspection,
          right, and frankly, that's what this [c]ourt
          finds and it fits within the definition of
          careless driving.

          The [municipal court] stated and with these
          transcripts, it's always a little difficult,
          defendant had or should have had [complete]
          control of his vehicle, that means complete
          control, I believe . . . if he had total and
          complete control of his vehicle, he wouldn't
          have bumped into anything.

This appeal followed.

     Before us, defendant argues:

          POINT ONE
          [THE] BURDEN OF PROOF IS UPON THE STATE TO
          PROVE EACH ELEMENT OF CARELESS DRIVING.



                                    3                             A-2500-15T3
           POINT TWO
           THE [LAW DIVISION] CLEARLY MISINTERPRETED THE
           CARELESS DRIVING STATUTE.

      Our scope of review is limited to determining whether the

findings by the Law Division judge could reasonably have been

reached on sufficient credible evidence in the record, giving due

deference to the credibility assessments of the municipal court

judge and considering the proofs as a whole.           State v. Locurto,

157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146,

161-62 (1964)).    However, we review legal issues de novo.            State

v. Gandhi, 201 N.J. 161, 176 (2010).

      Citing State v. Lutz, 309 N.J. Super. 317, 326-27 (App. Div.

1998), and State v. Wenzel, 113 N.J. Super. 215, 217 (App. Div.

1971), defendant contends that the Law Division inappropriately

applied the doctrine of res ipsa loquitor in finding him guilty

of   careless   driving   merely    because   he   rear-ended     Markman's

vehicle.

      In Wenzel, we reversed the defendant's conviction based on

what amounted to the "res ipsa doctrine," which "has no place in

criminal   or   quasi-criminal     proceedings,    where   the   burden     is

totally on the State to prove beyond a reasonable doubt that

defendant violated a penal (or quasi-penal) statute."            Id. at 218.

There, the defendant was charged with careless driving when his

tractor-trailer jackknifed and struck another vehicle.               Id. at

                                     4                               A-2500-15T3
216.    The State's only witness, a police officer, did not see the

accident and there was no evidence establishing that the defendant

drove without due caution or circumspection.                   Id. at 216-17.

Nonetheless,     both   the   municipal       court   and   the   Law   Division

determined that an otherwise unexplained jackknifing of a truck

was sufficient to establish careless driving.                  Id. at 217.      We

disagreed, concluding there was no testimony that the defendant

was speeding, or that he had driven carelessly.                Id. at 217-18.

       Relying upon our precedent in Wenzel, we concluded in Lutz,

that the municipal court and the Law Division judges improperly

applied a res ipsa loquitur analysis in finding the defendant

guilty of careless driving.        Lutz, supra, 309 N.J. Super. at 326.

We noted, "other than the [car] accident itself, the State only

presented [the] defendant's statement that his vehicle began to

slide on the wet highway and continued to do so when he tapped his

brakes."      Id. at 327.

        The underlying principles of Lutz and Wenzel apply here.                 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."      N.J.S.A. 39:4-97.    The only evidence presented by the

State   was    Markman's    testimony       that   defendant    rear-ended    her

vehicle as she was slowing down on the bridge.              We conclude there

                                        5                                A-2500-15T3
is no support in the record for the Law Division's finding that

Markman's testimony was sufficient evidence that defendant was

guilty of careless driving.

       Contrary to the Law Division's statement that its decision

was not based upon res ipsa loquitor, it effectively applied that

standard.     The mere fact that a collision occurred does not

establish beyond a reasonable doubt that defendant was inattentive

or driving carelessly.          Given that the State Trooper did not

testify, there was no indication what observations he made at the

accident    scene,   or   any   statements    made    by   defendant,     that

influenced his decision to issue defendant a summons for careless

driving. As in Lutz, "[t]he State presented no evidence indicating

that defendant had been speeding, driving too fast for the wet

road   conditions,   distracted    or    otherwise    driving   without   due

caution and circumspection."       Lutz, supra, 309 N.J. Super. at 327.

Consequently,    there    was     insufficient       evidence   to   support

defendant's conviction for careless driving.

       Reversed and remanded to the Law Division for an entry of an

order vacating defendant's conviction.




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