State v. Palma, Docket No. A-3473-10T3 (App. Div. June 26, 2012)

On June 26, 2012, the Appellate Division delivered an opinion in State v. Palma which redefined the standards which municipal and law division judges must use in determining whether or not to deliver a custodial sentence for careless driving violations. In Palma, the defendant had been driving in Red Bank, NJ, on February 22, 2010, in the mid afternoon. Slip. Op. at 2. The defendant stopped at a red light at the intersection of Bergen Place and Broad Street. Id. After the light changed to green, the defendant made a left turn and began traveling north on Broad Street. Id. After a few moments, a driver in the southbound lane signalled to the defendant that she had hit a pedestrian, and she stopped her vehicle immediately. Id. Without knowing it, the defendant had struck a pedestrian, who then became lodged under her SUV and was then dragged down Broad Street. Id. The pedestrian would die some two months later of the injuries sustained in the accident. Id.

Blood tests determined that the defendant was not intoxicated at the time of the accident. Id. Likewise, defendant’s voluntarily produced cell phone records did not provide any evidence that she was using her cell phone at the time of the accident. Id. The Appellate Division also stated that there was no evidence which showed that the defendant had intentionally struck the victim, fallen asleep, run the traffic signal, exceeded the speed limit, or had acted recklessly. The State, based on the evidence, charged Palma with careless driving, to which she pled guilty. Id. at 3.

During the municipal court plea hearing, the Municipal Court Judge stated that he possessed knowledge of the case stemming from such sources as newspapers. Id. at 5. The judge then personally read through the evidence that had been provided to the State. Id. at 6. The Judge also mischaracterized the events of this case as someone being “murdered.” Id. The defendant entered a guilty plea and provided the court with a factual basis for that plea, however the municipal court judge decided to make further factual findings based upn his reading of the record including police reports and witness statements. Id. The judge “found” that the defendant was “busilly engaged on her [cell] phone” and was on her phone “all the time.” The judge also made findings including a detailed description of the accident not based upon the defendant’s factual basis, but rather from his own review of discovery materials. Id. These findings, the Appellate Division noted, were not supported by the defendant’s plea allocution or evidential cell phone records. Id. at 7. Though the municipal court judge referenced State v. Moran, 202 N.J. 311 (2010), he did not properly follow the principles found therein, and instead stated that “Someone has to realize that they have to pay… for the consequences of their actions.” Palma, Slip. Op. at 7.

The defendant was sentenced to a 90 day suspension of driving privileges, fines and costs of $241, and a fifteen day jail sentence. Id. at 2. Palma then appealed to the Law Division. At a trial de novo in the Law Division, the suspension was consensually vacated, but the judge imposed the same sentence as the municipal court based upon the record provided by that court. Id. On Review, the Appellate Division, though it characterized the municipal judge’s behavior as “inappropriate,” did not find that there was any actual bias on the part of the Law Division. Id. at 7.

During its consideration, the Law Divison attempted to follow State v. Moran and State v. Henry, 418 N.J. Super. 481 (Law Div. 2010), in passing its sentence. The Appellate Division, in reviewing this sentence, held that the decision to follow Moran and Henry was correct, but that decision was tainted by an insufficient record on which the Law Division’s sentence was based. As such, the Appellate Division remanded the case to the Law Division to develop the record properly and deliver a new sentence in line with Moran and Henry. Palma, slip. Op. at 8.

In Henry, the Law Division held that in sentencing a DUI offender, the court “should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes.” Id. at 8. Though the Criminal Codes factors are not mandated for traffic offenses, they provide appropriate guidelines for a court’s exercise of discretion. Id.

In Moran, the New Jersey Supreme Court directed lower courts to consider a number of factors when determining whether to impose a license suspension for reckless driving. Id. at 9. The Court instructed judges to consider the following factors when determining the amount of time, if any, for which the defendant’s license should be suspended:

[T]he nature and circumstances of the defendant’s conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant’s driving record, including the defendant’s age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant’s driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant’s conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence․ Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.

Palma, Slip. Op. at 10 (quoting Moran, 202 N.J. at 328-29). The Moran Court further stated that a license suspension should only occur in reckless driving cases that present aggravating circumstances. Id.

The Appellate Division held that the Moran sentencing principles apply equally to the question of whether a custodial sentence is appropriate for careless driving, a lesser charge than reckless driving which involves the same requirement that the conduct be “in a manner so as to endanger or be likely to endanger, a person or property.” Id. at 11. Just as a judge must examine any indicia of willful or wanton conduct in reckless driving, so must judges in careless driving identify the behavior that constitutes driving carelessly, without due caution and circumspection. Id.

As with reckless driving, the Appellate Division held that only in careless driving cases that present aggravating circumstances may a defendant receive a custodial sentence or license suspension. Id. Aggravating circumstances must be based upon the facts in the judge’s factual findings and must then be appropriately weighed under the Moran principles. Id. at 11-12. Turning to Palma’s sentencing in the Law Division, the Appellate Division noted that the record on which the Law Division based its sentence was not sufficiently developed to enable a proper Moran weighing. Id. at 12. Indeed, the Law Division’s sentence was based upon the Municipal Court’s findings which were based not on the evidence, but primarily from non-evidentiary sources. Id. Though the victim in this case suffered “the ultimate harm,” the death of the victim is not in and of itself sufficient to decide the issue. Id. The municipal judge did not consider the age of the defendant, the length of time she’d been driving, any discussion of the civil settlement, or the hardship to defendant or her dependents, all of which are to be considered when balancing the facts under Moran. Id.

As such, the Appellate Division held that he Law Division should have further developed the factual record based only upon evidentiary sources before delivering its sentence. Id. at 13. The Appellate Division, therefore, remanded the case and ordered the Law Division to conduct further proceedings which would supplement the record before reconsidering the defendant’s sentence under the Moran principles. Id. Ultimately, the Appellate Division held that a custodial sentence could not be imposed without a showing of aggravating circumstances, which would not be established solely by the death of the victim, properly balanced under Moran. Id.