STATE OF NEW JERSEY VS. IAN GALLOWAY (2020-005, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0273-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IAN GALLOWAY,

Defendant-Appellant.

Argued October 19, 2021 – Decided November 29, 2021

Before Judges Fisher and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Municipal Appeal No. 2020-
005.

Ian Galloway, appellant pro se.

Stephen A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Stephen A. Pogany, of
counsel and on the brief).

PER CURIAM
 As defendant was traveling through the Township of West Orange on a

Saturday night in December 2019, at approximately 11:30 p.m., he was stopped

by a police officer. The officer did not inform defendant of the reason for the

stop but after reviewing his credentials, the officer issued two summonses. One

was for a violation of N.J.S.A. 39:4-144, failing to stop at a stop sign. The

second—for improper display of license plates—was dismissed by the

prosecutor at trial.

On the summons, the police officer wrote that the traffic violation

occurred at the intersection of Kingsley and Swaine Streets. However, during

the municipal court trial, the officer conceded that the traffic infraction occurred

at the intersection of Kingsley and Riggs Streets. The officer testified he

observed defendant traveling on Kingsley, and although defendant's vehicle

"slowed" before the stop sign at the Kingsley and Riggs intersection, he did not

"complete[] a full stop."

The officer stated he then turned on his lights and stopped defendant's car

at the next intersection—Kingsley and Swaine. There is no stop sign at that

intersection for traffic traveling on Kingsley, such as defendant was.

Defendant argued before the municipal court judge that he had prepared a

defense based on the traffic violation reflected on the summons—which stated

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he failed to stop at the stop sign at the intersection of Kingsley and Swaine.

Defendant intended to challenge the summons based on the lack of a stop sign

at that intersection, proven by photographs he had taken of the area.

Defendant asserted he was familiar with the area and knew all of the stop

signs because his daughter had lived there for fifteen years. 1 He testified he

stopped for the stop sign at the Kingsley/Riggs intersection. The day following

the incident, defendant stated he filed a complaint with the internal affairs unit

concerning the behavior of the officer who stopped him and requested a copy of

the body camera footage. He believed he was targeted for driving a car with

Connecticut plates through that neighborhood.

Although defendant asked for a copy of the body camera footage at trial,

the judge denied the request, stating it was too late because the trial was over.

He advised defendant he should have asked the prosecutor for the evidence prior

to the start of trial.

In finding defendant guilty of the offense, the municipal court judge stated

he found the officer more credible, and that defendant did not come to a full

stop. There was no discussion of the error in the summons. In addition, the

judge said he was familiar with the area as he lived nearby, and he knew that

1
Defendant's daughter was in the car at the time of the traffic stop.

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cars often rolled through the intersection of Kingsley and Riggs without

stopping.

The prosecutor did not ask the judge to amend the summons to reflect the

proper intersection where the traffic violation occurred. The municipal court

judge did not sua sponte amend the summons.

Defendant appealed to the Superior Court. The State did not submit a

brief. Defendant contended he prepared his defense based on the traffic

violation listed on the summons – that he was not guilty of the offense because

there was no stop sign controlling his travel at the intersection of Kingsley and

Swaine. He asserted the summons was never amended and he was "force[d]

. . . to defend against a violation [he] wasn't aware of." He further argued the

municipal court judge erred in accepting the testimony of the officer over his.

In addition, he contended that because the officer never told him why he was

being pulled over, he did not have notice at any time until trial began that the

infraction was actually for failing to stop at a stop sign at a different intersection

than that listed on the summons.

In response, the State contended the error on the summons was a

"technical infirmity," and an officer is not required under the law to give the

exact location of the offense.

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 The Law Division judge asked defendant how his defense was affected by

the officer's trial testimony that the location of the traffic infraction was a block

earlier than the address noted on the summons. Defendant responded that he did

not receive a trial date until four months after the incident. During those four

months, he believed he was not guilty of the charged offense because there was

no stop sign at the location listed on the summons. He went to the site to take

pictures in preparation for trial. Furthermore, he stated if he knew the correct

location, he would have had a better memory of his actions that night, and he

might have produced his daughter as a witness or taken a statement from her

regarding her observations of his actions. Because the pictures revealed there

was no stop sign controlling the Kingsley/Swaine intersection, defendant said

he did not think he needed anything further for his defense and assumed the

tickets would be dismissed after he showed the photos in court. Defendant also

said he would have pursued getting the bodycam video.

Although the State had not filed a brief, the court asked the assistant

prosecutor if he had any support for his contention that the officer's description

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of the place of the offense was inconsequential. The prosecutor cited two

Appellate Division cases. 2 The court then ended the hearing.

In a written decision and accompanying order issued May 27, 2020, the

Law Division deferred to the municipal court's credibility findings and found

the sufficient credible evidence established defendant was guilty of violating

N.J.S.A. 39:4-144.

In citing to Henry, the court acknowledged that a traffic summons "must

adequately provide defendants with notice of the nature of the alleged violation

so that they may properly mount a defense in court." 56 N.J. Super. at 10. The

court also relied on State v. Fisher, which states that a summons should not be

dismissed "because of any technical insufficiency or irregularity in the

summons, but the summons may be amended to remedy any such technical

defect." 180 N.J. 462, 469 (2004).

In considering the summons before him, the Law Division judge noted the

Court's conclusion in Fisher that an error in a traffic summons should not be

fatal to the prosecution if "the alleged insufficiency did not detract from the

intended purpose of the challenged instrument and did not prejudice the rights

2
State v. Morgan, 393 N.J. Super. 411 (App. Div. 2007); State v. Henry, 56
N.J. Super. 1 (App. Div. 1959).

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of the defendant." Id. at 470. Using "[c]ommon sense and the testimony at

trial," the court determined "the summons issued to [defendant] contained . . . at

worst, a minor technical insufficiency that may have properly been amended at

trial." The court determined defendant was not prejudiced at trial because he

"could still mount a defense." And, the judge stated, because the officer told

defendant where the infraction occurred during the traffic stop, the court

reasoned defendant was provided with fair notice of the nature of the alleged

charges. The judge found "[t]he fact that the summons was not later formally

amended is irrelevant and inconsequential."

On appeal, defendant presents the following points for our consideration:

POINT 1
THE TRIAL COURT ERRED IN FINDING
APPELLANT/DEFENDANT GUILTY WHEN NOT
FOLLOWING THE COURT AMENDMENT
PROCEDURES IN ACCORDANCE WITH RULE
7:14-2. APPELLANT/DEFENDANT WAS NOT
ALLOWED AN ADJOURNMENT TO ESTABLISH A
DEFENSE ON CHANGES OF VIOLATION AT
TR[IA]L.

POINT 2
[THE LAW DIVISION] JUDGE ERRED BY NOT
REVIEWING APPEL[LANT']S BRIEF [FOR]
"PRIMA FACIE" REVERSIBLE ERRORS, AND FOR
ALLOWING NEW ARGUMENTS AND CASE LAW
TO BE SUBMITTED BY THE APPELLEE, WHEN
APPELLEE SUBMITTED NO RESPONSE BRIEF.

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 POINT 3
[THE LAW DIVISION] JUDGE … E[R]RED IN HIS
OPINION LETTER BY NOT DEALING WITH THE
MAIN ISSUE OF THE APPEAL WHICH WAS [THE]
IMPROPER COURT PROCEEDINGS TO FIX
ALLEGED "ERRORS" ON SUMMONS, RATHER
THAN P[R]EPONDERANCE OF EVIDENCE,
DEFENDANT WAS DENIED HIS RIGHT TO
PREPARE A DEFENSE. ALL THE FRUITS
DERIVED FROM THE POISONOUS TREE SHOULD
NOT HAVE BEEN CONSIDERED.

In reviewing the Law Division's decision, we "focus[] on whether there is

'sufficient credible evidence . . . in the record' to support the trial court's

findings." State v. Robertson, 228 N.J. 138, 148 (2017) (quoting State v.

Johnson, 42 N.J. 146, 162 (1964)). "We ordinarily [do] not . . . alter concurrent

findings of facts and credibility determinations made by two lower courts absent

a very obvious and exceptional showing of error." Ibid. (quoting State v.

Locurto, 157 N.J. 463, 474 (1999)). However, the trial court's legal rulings are

considered de novo. Ibid.

On appeal, defendant contends that because the traffic complaint and

summons incorrectly cited the location of the traffic offense, he was "surprised"

at trial and did not have sufficient notice of the offense. He also asserts the

municipal court erred in failing to follow Rule 7:14-2 to amend the complaint

and summons. Therefore, the Law Division erred in affirming the guilty finding.

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 Under Fisher, a traffic complaint must "inform a defendant of the charges

he must defend against." 180 N.J. at 468. Rule 7:2-5 permits the amendment of

a "technical insufficiency or irregularity" in the summons. Id. at 469. The

amendment procedure is governed by Rule 7:14-2 which states:

[t]he court may amend any process or pleading for any
omission or defect therein or for any variance between
the complaint and the evidence adduced at trial, but no
such amendment shall be permitted which charges a
different substantive offense, other than a lesser
included offense. If the defendant is surprised as a
result of such amendment, the court shall adjourn the
hearing to a future date, upon such terms as the court
deems appropriate.

It is undisputed there was an error on the summons—the location of the

alleged traffic offense was incorrect. And clearly defendant was surprised by

the municipal court's acceptance of the error and the court's finding that the

location of the stop was sufficient. Therefore, under Rule 7:14-2, the municipal

court was required to adjourn the case.

Defendant explained to the municipal court and the Law Division he had

prepared his defense based on the information in the summons. He took photos

of the area and was confident he could not be found guilty of the traffic violation

because there was no stop sign at the intersection noted on the summons. But,

despite defendant's assertion that he prepared a defense based on the summons,

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the court did not ask defendant whether he wished to adjourn the case and did

not sua sponte adjourn the trial as required under the rule.

Because the information on the summons was erroneous, defendant was

not placed on notice of the charges against him. He relied on the noted

intersection to craft his defense. The Law Division judge misstated the record

when he found the error was inconsequential because the officer told defendant

at the traffic stop where he had run the stop sign, and therefore defendant was

on notice of the charge. But the record does not reflect that testimony.

The officer did not testify that he told defendant at any time where the

offense occurred. And defendant reiterated numerous times he did not know

why the officer stopped him and he was never informed of the reason for the

stop during the incident. It was not until he was handed the tickets that the

officer said he had run a stop sign. But he did not inform defendant of the

location of the offense. And the summons listed the Kingsley/Swaine

intersection. An intersection where there was no stop sign.

Because the summons did not inform defendant of the proper location of

the infraction, which mattered here because of the difference in the signage at

the two intersections, and because defendant was prejudiced by the error in

preparing a defense based upon erroneous information, we must reverse the Law

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Division decision and remand to the municipal court for a new trial. At that

time, the municipal court judge shall amend the summons to reflect the proper

intersection of the offense pursuant to Rule 7:2-5. If defendant desires to request

discovery from the State, he shall do so in a timely manner and pursuant to the

governing rules.

Reversed and remanded to the municipal court for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

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