                                NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5625-17T1

GERONIMO Q. MINESES, JR.,

          Plaintiff-Appellant,

v.

EDGAR G. CARRERA-LOPEZ,
DONERITE TRUCKING, LLC,
and FRANKLIN AGUILAR,

     Defendants-Respondents.
______________________________

VILMA MINESES, by her subrogee
STATE FARM INDEMNITY
COMPANY,

          Plaintiff,
v.

PLAZA INSURANCE COMPANY,

     Defendant.
______________________________

                    Argued telephonically June 11, 2019 – Decided July 5, 2019

                    Before Judges Koblitz, Currier and Mayer.
            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-4381-16.

            Ernest Blair argued the cause for appellant (Karim
            Arzadi, attorney; Ernest Blair, on the briefs).

            Terrence John Bolan argued the cause for respondents
            (Bolan Jahnsen, attorneys; Terrence John Bolan, on the
            brief).

PER CURIAM

      Plaintiff Geronimo Q. Mineses, Jr. appeals from a June 22, 2018 final

judgment after a no cause jury verdict, finding plaintiff failed to prove defendant

Edgar G. Carrera-Lopez1 was negligent. In addition, plaintiff appeals from a

July 20, 2018 order denying his motion for a new trial. We affirm both orders.

      The jury had to determine whether defendant was liable for an automobile

accident occurring on October 19, 2015. On the liability issue, the jury heard

testimony from plaintiff, defendant, and a police officer who responded to the

accident, Officer Christopher Cavallo.

      Plaintiff testified at trial he was stopped at an intersection in the center

lane of a three-lane highway. Defendant's truck was directly behind his car.

When the light turned green, plaintiff stated he began to move forward when he


1
  Plaintiff named two additional defendants in his complaint. However, counsel
and the trial court referred only to defendant Edgar G. Carrera-Lopez throughout
the trial.
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                                         2
was struck from behind by defendant. The impact caused his car to turn in front

of the truck and he was pushed thirty feet. According to plaintiff, he did not

change lanes prior to being struck by the truck. At the scene of the accident,

plaintiff provided a statement to the responding police officer.

      Defense counsel cross-examined plaintiff regarding his version of the

accident.   Defense counsel also read to the jury the portion of plaintiff's

deposition explaining the accident. During his deposition, plaintiff testified

defendant's truck hit his car near the left rear tire. At trial, plaintiff stated

defendant's truck struck the rear of his car.

      Officer Cavallo testified he was dispatched to the accident scene.          The

officer was unable to recall specific details regarding this particular incident,

but described his usual procedure when responding to a motor vehicle accident.

Officer Cavallo explained that he typically takes statements from the individuals

involved in an accident. In this case, he created a written report after the

accident and referred to the report during his trial testimony. According to

Officer Cavallo, plaintiff said defendant's truck hit his car from behind, causing

the car to turn in front of the truck and dragging the car thirty feet.

      Officer Cavallo testified he also spoke with defendant.             Defendant

allegedly told the officer that he did not realize plaintiff's car was in front of him


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                                          3
and his truck hit plaintiff's car from behind. On cross-examination, Officer

Cavallo admitted the parties' statements in his written report were not verbatim.

He also testified that the damage to plaintiff's car was located in the "rear driver's

side quarter panel or back fender."

      The jury also heard testimony from defendant. According to defendant,

prior to the accident, he was stopped at a red light in the center lane. Defendant

stated plaintiff's car was to the right of his truck. When the light turned green,

defendant explained "the next thing [he] knew [plaintiff] was in front of

[defendant's truck]." He further testified, "I don't know [why Officer Cavallo

wrote the truck hit plaintiff's car from behind] . . . , because I told him one thing

and what's on the report is something else."

      After completion of the testimony, the judge conducted a charge

conference. Plaintiff requested the judge instruct the jury on N.J.S.A. 39:4-89,

which requires drivers to follow at a reasonable distance. Defendant asked the

judge to include a charge based on N.J.S.A. 39:4-88(b), which requires drivers

to perform safe lane changes.

      Plaintiff's counsel objected to inclusion of the unsafe lane change charge,

arguing there was insufficient evidence to support such a jury instruction. The




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                                          4
judge overruled plaintiff's objection, finding there was sufficient evidence to

infer plaintiff failed to change lanes safely.

      In the final charge, the judge explained that the jury "should consider the[]

instructions as a whole, and . . . not pick out any particular instruction and place

undue emphasis upon it." The judge also stated the jury's decision should be

"based solely on the evidence presented and [the judge's] instructions on the

law." In addition, the jury was instructed "to decide which witness[es] to believe

and which witnesses not to believe." Specifically, the judge told the jury to

assess the credibility of the witnesses by examining the witnesses' interest in the

outcome of the case, the accuracy of the witnesses' testimony, and any

explanation given by the witnesses to explain any inconsistencies in the

testimony.

      With regard to the specific evidence, the judge explained the case involved

a car accident and plaintiff alleged that defendant was negligent. The judge told

the jury that defendant denied he was negligent and claimed in turn that plaintiff

was negligent. The judge instructed the jury that it would decide the issue of

negligence.

      The judge further told the jury that a party making an allegation must

prove the allegation by a preponderance of the evidence. The trial judge stated,


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                                         5
              [i]n this action, the plaintiff has the burden of
              establishing by a preponderance of the evidence all of
              the facts necessary to prove . . . that the defendant was
              negligent and that said negligence was a proximate
              cause of the accident.

      However, the trial judge omitted a similar instruction regarding the

defendant's burden of proof. The judge told the jury both parties "assert that the

other party was guilty of negligence in the operation of their automobile," that

each party asserted the other violated a specific motor vehicle statute, and the

jury could find the violation of a statute constituted negligence.

      After the judge charged the jury, plaintiff's counsel requested a sidebar

conference. Plaintiff argued the judge failed to instruct the jury on defendant's

burden of proof. During the sidebar colloquy, the judge ruled that the jury was

told defendant had the same burden of proof as plaintiff.2 The judge believed

he had instructed the jury properly and denied the request to add to the charge.

The jury then deliberated and unanimously found plaintiff failed to prove

defendant was negligent. As a result, the jury did not consider the remaining

questions on the verdict sheet, including the question regarding plaintiff's

negligence.



2
 In his merits brief, defendant concedes the judge omitted the portion of the
model jury charge related to defendant's burden of proof.
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                                         6
      Plaintiff filed a motion for a new trial, arguing the evidence demonstrated

defendant was negligent in the operation of his truck. Plaintiff also claimed

"[t]here's nothing . . . offered by the defendant to account for an improper lane

change." Plaintiff asserted the jury overlooked uncontroverted evidence and

"[a] terrible wrong was committed by th[e] jury."

      In a July 20, 2018 order, the judge denied the new trial motion. He found

the testimony and evidence presented at trial allowed the jury to infer plaintiff

caused the accident. The judge therefore did not "find that . . . there was a

miscarriage of justice."

      On appeal, plaintiff argues the judge erred in denying his motion for a new

trial. In addition, plaintiff contends it was an error for the judge to charge the

jury regarding an unsafe lane change, N.J.S.A. 39:4-88(b). Further, plaintiff

claims the judge erred in failing to charge the jury as to defendant's burden of

proof. Because defendant requested the jury be instructed regarding plaintiff's

violation of N.J.S.A 39:4-88(b), plaintiff asserts the judge should have

instructed that defendant had the burden of establishing the facts necessary to

prove the unsafe lane change allegation against plaintiff.

      A new trial motion is governed by Rule 4:49-1. In accordance with the

rule, "[t]he trial judge shall grant the motion [for a new trial] if, having gi ven


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                                        7
due regard to the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a miscarriage of

justice under the law." R. 4:49-1(a). A trial court's ruling on a "motion for a

new trial will not be disturbed unless it clearly appears that there was a

miscarriage of justice under the law." Diakamopoulos v. Monmouth Med. Ctr.,

312 N.J. Super. 20, 36 (App. Div. 1998) (citing Caldwell v. Haynes, 136 N.J.

422, 432 (1994)).      Jury verdicts are "entitled to considerable deference and

'should not be overthrown except upon the basis of a carefully reasoned and

factually supported and articulated determination, after canvassing the record

and weighing the evidence, that the continued viability of the judgment would

constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp.,

Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J.

588, 597-98 (1977)).

      Jury trials are the bedrock of our system of civil justice, and the jury's

fact-finding function deserves a high degree of respect and judicial deference.

See Caldwell, 136 N.J. at 432. In assessing the strength of the proofs, a jury

verdict is "impregnable unless so distorted and wrong, in the objective and

articulated view of a judge, as to manifest with utmost certainty a plain




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                                        8
miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div.

2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).

      Applying these principles, we are satisfied there was ample evidence for

the jury to reasonably find plaintiff failed to establish defendant was negligent

in the operation of his truck. The damage described by the parties and shown

on the photographs was on the driver's side rear panel, not the rear bumper as

later claimed by plaintiff. In addition, it was the jury's province to assess the

credibility of the parties' inconsistent versions of the accident.

      We next consider plaintiff's argument that the judge's instructions to the

jury were erroneous. "It is axiomatic that clear and correct jury charges are

essential to a fair trial, and the failure to provide them may constitute plain

error." Das v. Thani, 171 N.J. 518, 527 (2002) (citing State v. Robinson, 165

N.J. 32, 40 (2001)). Reversible error "will not be found where the charge,

considered as a whole, adequately conveys the law and is unlikely to confuse or

mislead the jury, even though part of the charge, standing alone, might be

incorrect."   Fischer v. Canario, 143 N.J. 235, 254 (1996) (citing Latta v.

Caulfield, 79 N.J. 128, 135 (1979)).

      Here, the judge instructed the jury that a party asserting an allegation had

the burden of proving the allegation. The judge should have also instructed the


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                                         9
jury specifically as to defendant's burden of proof regarding his allegations as

the judge did with regard to plaintiff's burden of proof. But the error is harmless.

The first question on the verdict sheet asked whether plaintiff proved defendant

was negligent. Having unanimously answered "no" to that question, the jury did

not deliberate on the remaining questions, including whether plaintiff was

negligent. The jury never had to decide whether defendant met his burden of

proving plaintiff's negligence because plaintiff failed to satisfy his burden of

proof regarding defendant's negligence.

       In reviewing the record, the jury charge as a whole adequately conveyed

the law regarding negligence. Because the jury never reached the issue of

plaintiff's negligence, the judge's failure to explicitly state defendant had the

burden of proving plaintiff's negligence did not confuse or mislead the jury.

Moreover, defense counsel never argued the issue of plaintiff's negligence

during summation.      Consequently, we are satisfied that the jury was not

confused and properly applied the law as instructed by the judge.

      We are satisfied there was sufficient credible evidence to support the

jury's verdict and, therefore, we discern no basis for disturbing the judge's denial

of plaintiffs motion for a new trial.

      Affirmed.


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