NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1324-20
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
March 9, 2022
v. APPELLATE DIVISION
MICHELANGELO TROISI,
Defendant-Appellant.
________________________
Submitted December 14, 2021 – Decided March 9, 2022
Before Judges Currier, DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Municipal Appeal No.
2019-22.
Michelangelo Troisi, appellant pro se.
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (John M. Carbonara, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
SMITH, J.A.D.
Defendant, Michelangelo Troisi, appeals the Law Division order denying
his de novo appeal of a guilty finding against him in Princeton Municipal
Court for violating N.J.S.A. 39:4-97.3, use of hands-free and hand-held
wireless communication devices while driving. We reject his arguments
because the Law Division's interpretation of what constitutes impermissible
conduct under N.J.S.A. 39:4-97.3 was correct and there is sufficient credible
evidence in the record to sustain its determination that defendant's actions here
were prohibited by the statute. Accordingly, we affirm.
I.
On November 20, 2019, Officer Strobel of the Princeton Police
Department was monitoring traffic on State Road when he observed defendant
driving while holding his cell phone and moving his fingers "in a texting like
manner." As a result, Officer Strobel pulled defendant over and conducted a
motor vehicle stop. Defendant told the officer that he was activating his phone
to use the hands-free navigation function, specifically to pull up Google Maps
and search for directions to his ultimate destination. Officer Strobel issued
defendant a citation for violating N.J.S.A. 39:4-97.3.
Defendant challenged the citation in Princeton Municipal Court. At
trial, Officer Strobel testified that defendant appeared to be texting while
driving. Officer Strobel also testified that defendant admitted he used his
phone for GPS purposes and that he took his eyes off the road to do so.
A-1324-20
2
At the close of trial, the judge reviewed the record and made findings.
The judge found Officer Strobel's testimony credible and concluded that
defendant's conduct violated N.J.S.A. 39:4-97.3. The court imposed a $206
fine and court costs of $33, which defendant paid.
Defendant appealed to the Law Division. At the motion hearing,
defendant made two arguments: 1) the municipal court erred in its analysis of
the statute; and 2) the State failed to prove all elements of the offense beyond a
reasonable doubt.
The Law Division, on de novo review, found defendant's actions in his
car were "well in excess of . . . what is permitted by the statute." Specifically,
the court concluded that:
based on th[e] record, the reading of the statute,
considering what the record clearly sets forth, what
the defendant clearly acknowledges and what the
statute says, clearly says, . . . based on the clear
legislative intent of this statute, this [c]ourt hereby
denies the appeal and . . . the fines and costs below are
re-imposed.
Defendant appeals, arguing that:
POINT I
THE TRIAL COURT ERRED IN ITS ANALYSES
OF LAW AND FACT. THE COURT
MISINTERPRETED THE PLAIN MEANING OF
THE LAW AND ERRED IN DETERMINING
THAT THE STATE PROVED ITS CASE
BEYOND A REASONABLE DOUBT;
A-1324-20
3
MOREOVER, THE COURT ERRONEOUSLY
PLACED THE BURDEN OF PROOF UPON THE
DEFENDANT. SUCH ERRORS REQUIRE A
REVERSAL OF THE DEFENDANT'S
CONVICTION. (Raised Below)
POINT II
THE SUPERIOR COURT ERRED IN ITS
ANALYSES OF LAW AND FACT. THE COURT
MISINTERPRETED THE PLAIN MEANING OF
THE LAW AND ERRED IN DETERMINING
THAT THE STATE PROVED ITS CASE
BEYOND A REASONABLE DOUBT. SUCH
ERRORS REQUIRE A REVERSAL OF THE
DEFENDANT'S CONVICTION. (Raised Below)
II.
Our review of a de novo decision in the Law Division is limited. State
v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). We do not
independently assess the evidence as if we were the court of first instance.
State v. Locurto, 157 N.J. 463, 471 (1999). Rather, we focus our review 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) (alteration
in original) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Deference is especially appropriate when, as here, two separate courts
have examined the facts and reached the same conclusion. Under the two-
court rule, we do not ordinarily alter concurrent findings of fact and credibility
A-1324-20
4
determinations made by two prior courts absent a very obvious and exceptional
showing of error. Locurto, 157 N.J. at 474 (citation omitted).
The trial court's legal rulings, however, are considered de novo.
Robertson, 228 N.J. at 148. A "trial court's interpretation of the law and the
consequences that flow from established facts are not entitled to any special
deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (quoting
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)). We also apply a de novo standard when determining the
constitutionality of a statute. State v. Dalal, 467 N.J. Super. 261, 280 (App.
Div. 2021) (citing State v. Hemenway, 239 N.J. 111, 125 (2019)). Statutes are
presumed valid, and any act of the legislature will be upheld unless "it's
repugnancy to the Constitution is clear beyond a reasonable doubt." Dalal, 467
N.J. Super. at 280 (quoting State v. Muhammad, 145 N.J. 23, 41 (1996)).
Courts "look first to the plain language of the statute, seeking further
guidance only to the extent that the Legislature's intent cannot be derived from
the words that it has chosen." McGovern v. Rutgers, 211 N.J. 94, 108 (2012)
(quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). "The
Legislature's intent is the paramount goal when interpreting a statute and,
generally, the best indicator of that intent is the statutory language."
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano,
A-1324-20
5
177 N.J. 250, 282 (2003)). Thus, any analysis to determine legislative intent
begins with the statute's plain language. Ibid.
III.
Defendant argues the Law Division erred because his actions were
within the scope of activity permitted by N.J.S.A. 39:4-97.3, enacted in 2007,
because he was "engaging in [an] activation process . . . within the plain
meaning of the statute[.]"
N.J.S.A. 39:4-97.3 governs the use of hands-free and hand-held wireless
communication devices while driving. The statute covers permissible and
impermissible uses of such devices, as well as penalties for violations of its
provisions. It reads in pertinent part:
a. The use of a wireless telephone or electronic
communication device by an operator of a moving
motor vehicle on a public road or highway shall be
unlawful except when the telephone is a hands-free
wireless telephone or the electronic communication
device is used hands-free, provided that its placement
does not interfere with the operation of federally
required safety equipment and the operator exercises a
high degree of caution in the operation of the motor
vehicle. . . .
As used in this act: . . .
"Hands-free wireless telephone" means a mobile
telephone that has an internal feature or function, or
that is equipped with an attachment or addition,
whether or not permanently part of such mobile
telephone, by which a user engages in a conversation
A-1324-20
6
without the use of either hand; provided, however, this
definition shall not preclude the use of either hand to
activate, deactivate, or initiate a function of the
telephone. . . .
"Use" of a wireless telephone or electronic
communication device shall include, but not be
limited to, talking or listening to another person on the
telephone, text messaging, or sending an electronic
message via the wireless telephone or electronic
communication device. . . .
[N.J.S.A. 39:4-97.3(a)-(b)]
The record shows that the municipal court judge made findings and
applied those findings to the plain language of the statute. The judge found
that "punch[ing] in six numbers . . . as a password to get access to the phone
and then . . . [finding] the Google Map[s] app to open it up . . . was precisely
the kind of conduct that the statute [intended] to prevent." The municipal
court judge interpreted the exception for activating, deactivating, or initiating a
function of the phone as allowing the use of one hand to push a button, "but
certainly not to do all of the functions that defendant testified [he did]"
because it would "make[] no sense . . . whatsoever to say that the legislature
intended that a driver could do all these functions and still pay attent ion to the
road."
The Law Division reached the same conclusion in its de novo review,
rejecting defendant's argument and finding his actions were "in excess of what
A-1324-20
7
was contemplated by activation, deactivation or initiation of a function of the
phone." On this record, we conclude that each court's interpretation of
N.J.S.A. 39:4-97.3 was correct.
While we find that the plain language of the statute compels the result
reached by both the municipal court and the Law Division, we also note that
the legislative history supports our interpretation of N.J.S.A. 39:4-97.3. We
briefly turn to the Senate Committee Statement which accompanies the statute.
According to the legislative statement, the law was amended so that drivers
could "be stopped and ticketed solely for illegally using a hand-held wireless
telephone or electronic communication device." See N.J.S. Comm. State., S.B.
1099 (2007). The previous version "prohibit[ed] the use of hand-held wireless
telephones while operating a motor vehicle, but . . . [could] only be enforced
. . . [if] officers . . . stop[ped] a motorist for some other offense or violation"
first. Ibid. "The amended bill also expand[ed] the current law" to cover all
"electronic communication device[s] . . . and prohibit[] text messaging or
sending electronic message[s]" while driving. Ibid. We find these
amendments illustrate the Legislature's intent to deter motorists from placing
others in danger by driving with one hand while repeatedly keying inputs into
their devices with the other.
A-1324-20
8
We also find that the plain language and legislative history of the statute
support the finding by each court that defendant's actions in handling his
phone while driving went well beyond permissible cell phone "activation" or
"initiation" envisioned by the legislature. Defendant admitted that his conduct
in the car required him to divert his attention from steering his vehicle on a
public road for enough time to enter his six-digit passcode, open the Google
Maps app, and place the cursor in the search window. Such conduct is a
violation of N.J.S.A. 39:4-97.3 and we find this result is consistent with the
Legislature's express intent.
IV.
Defendant next argues that the Law Division's analysis of the statute
rendered it unconstitutionally vague and overbroad. Specifically, defendant
argues that because N.J.S.A. 39:4-97.3's definition of "use" contains the words
"but not limited to" the statute is "so broad and vague that [it] . . . fail[s] to
give the kind of notice that would enable ordinary people to understand what
conduct is prohibited[.]" Additionally, defendant argues that the "language . . .
allows[,] and perhaps even promotes[,] the arbitrary and discriminatory
enforcement of the statute."
We are not persuaded. A statute may either be vague facially or vague
as applied. State v. Heine, 424 N.J. Super. 48, 65 (App. Div. 2012) (citations
A-1324-20
9
omitted). A statute is facially vague "if it is vague in all its applications, while
a statute is vague as applied only if it is vague when applied to the
circumstances of a specific case." Ibid. "A law is void as a matter of due
process if it is so vague that persons 'of common intelligence must necessarily
guess at its meaning and differ as to its application.'" Ibid. (citing Town
Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983)). Vague laws are
prohibited because they fail to give adequate notice that certain conduct will
put the actor at risk of liability. Ibid. (citation omitted). Vague laws may
create unacceptable dangers of arbitrary and discriminatory enforcement
because they fail to provide sufficiently precise standards. Ibid.
Here, the challenged statute is not vague either facially or as applied. A
person of common intelligence would readily understand the conduct
prohibited by N.J.S.A. 39:4-97.3. The fact that the definition of "use" contains
the terms "but not limited to" does not require such persons to guess at its
meaning. "Ultraspecificity" is not required for a statute to pass constitutional
muster under the void for vagueness doctrine. See Jenkins v. N.J. Dep't of
Corrs., 412 N.J. Super. 243, 256 (App. Div. 2010).
Stated differently, it is sufficient for the Legislature to comport with due
process by identifying the categories of behavior which violate the law without
classifying every specific type of prohibited conduct. Ibid. Text messaging or
A-1324-20
10
sending electronic messages entails entering multiple inputs into a device
which diverts a driver's focus away from the road. We conclude that this
category of behavior, when read together with the "but not limited to"
language, fairly puts motorists on notice that making multiple keystrokes on
their cellphone to locate and use an app such as Google Maps while driving
would constitute an offense.
V.
Defendant further contends the State failed to prove all elements of the
offense beyond a reasonable doubt, and that, in any event, the municipal court
improperly shifted the burden of proof to him. We find this argument
meritless. Officer Strobel described the actions he observed. Defendant was
touching buttons on his phone while driving and took his eyes off the road
while doing so. Defendant did not dispute that testimony. Instead, he argued
that conduct did not violate the statute.
The record does not reflect the municipal court judge shifted the burden
of proof. Once defendant testified in his own defense, the judge was entitled
to question him. See N.J.R.E. 614(b). Beyond these brief comments, we find
the burden shifting argument without sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(2).
A-1324-20
11
The Law Division judge succinctly addressed the issue of whether the
State met its burden, stating:
It is absolutely clear from th[e] record that [the
municipal judge] heard the testimony at the trial,
considered the testimony, heard oral arguments,
considered the evidence advanced by both the State
and the defendant and found that the State had met its
burden beyond a reasonable doubt that this defendant
violated the statute.
Our thorough review of the record leads us to the same destination: the
State met its burden of proof. Mindful of our deference to "findings of facts
and credibility determinations made by two [prior] courts" and discerning no
error, we decline to disturb the Law Division's order. See Locurto, 157 N.J. at
474.
Affirmed.
A-1324-20
12