January 4, 2013

Honorable Eugene H. Austin, J.S.C Superior Court of New Jersey Bergen County Justice Center 10 Main Street Hackensack, New Jersey 07601 Re: State v. Claude Rashduni Docket No. BMA #001-77-12

Dear Judge Austin: Please accept this letter memorandum in lieu of a formal brief in support of defendants trial de novo in the above-captioned matter. PROCEDURAL HISTORY On April 21, 2012, Claude Rashduni, received Summons No. PJ-007036 (0236) by Patrolman John Szot of the Park Ridge Police Department. Mr. Rashduni was charged with Careless Driving in violation of N.J.S.A. 39:4-97 to which he entered a plea of Not Guilty. On September 24, 2012, no plea offer was extended to defendant and a trial was held before the Honorable Harry D. Norton, Jr., J.M.C. of the Pascack Joint Municipal Court. The defendant was found guilty of Careless Driving in violation of N.J.S.A. 39:4-

97. A fine of $81.00 was imposed and $33.00 costs. On October 12, 2012, a Notice of Appeal was filed and this trial de novo follows. STATEMENT OF FACTS On April 21, 2012, Patrolman John Szot of the Park Ridge Police Department was parked in the parking lot of the Oritani Bank located at the corner of Grand Avenue and Spring Valley Road. (p.7). The officer testified that he observed a BMW traveling westbound on Grand Avenue pull up to the red light and stop. He further testified that he observed the BMW appear to be backing up for a distance of 75 to 100 feet. (p.7). The court found that the patrol car video reflects that the vehicle moved backwards approximately 4 to 5 car length which was estimated at 12 feet for each car for a total of 48 to 60 feet. (p. 20, l. 10-15). Szot testified that the light turned green and he saw smoke (dirt) come from the back of the tires. (p.8) Szot testified as he saw the vehicle moving backwards, he found it to be a little suspicious so he activated his patrol car video and recorded the event. (p.8); (Exhibit S1). He testified that he followed the vehicle on Grand Avenue and after the BMW made a left turn on Phillips Parkway, he initiated a motor vehicle stop. (p. 9-10). He issued a summons to the driver. Szot identified defendant in court as the operator of the vehicle. (p. 10). On cross-examination, Szot testified that he saw defendants vehicle backing up and assumed he was not paying attention. The officer conceded that there were no other cars in front of or behind Mr. Rashduni. (p. 12). Moreover, the officer testified that there were no pedestrians in the area where he saw defendants car moving backwards or

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anywhere else on the roads as he followed Rashduni. (p. 13). The officer confirmed that the time of his observation was at 1:06 a.m. LEGAL ARGUMENT REASONABLE DOUBT EXISTS REGARDING THE ELEMENT THAT THE VEHICLE BE OPERATED TO ENDANGER OR LIKELY TO ENDANGER A PERSON OR PROPERTY. In the present matter, Officer Szot issued defendant a summons alleging a violation of N.J.S.A. 39:4-97. This careless driving statute provides: "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." In addition to the requirement that the State must prove that the vehicle was operated without due caution and circumspection, it has been held that the careless driving statute requires that the driving be "in a manner so as to endanger or be likely to endanger, a person or property . . . ." State v Dorko, 298 N.J. Super. 54, 60 (App. Div.) certif. denied, 150 N.J. 28 (1997). Here, the court below held that defendants action in moving backwards 48 to 60 feet at the traffic light were, per se, a violation of the careless driving statute. In his ruling, the municipal court judge stated in and of itself, in and of itself, I think thats careless driving. (p. 20, l. 20-21). With regard to the requirement that the manner be such to as to endanger or likely to endanger, a person or property, the court stated, there could have been an animal that went behind the vehicle. (p. 21, l. 20-21). Moreover, the court stated that the vehicle may have wandered up on to the curb. (p. 21, l. 22-23). The defendant was operating his vehicle at 1:06 a.m. There was no evidence of any pedestrians or animals being present in the area at the time of the officers

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observations. The officer made these observations from quite some distance from the defendant as is reflected in the patrol car video. Moreover, the defendants vehicle did not wander up on to the curb. If the defendants vehicle did, in fact, perform those actions, then it would have been those actions which would have been considered in viewing the likelihood of endangering person or property. However, the court below erred in speculating that the defendants car could have been operated in a manner which never in fact occurred in this case. Stated differently, had the defendant drove up on to a curb, or off the road, then it would have been proper for the court to consider the likelihood of that action endangering person or property. However, the testimony as well as the patrol car video show that the defendants car moved back 4 to 5 car lengths at the intersection late at night with no other vehicles in front of him or behind him. At no time, did defendant come close to the curb. If the present matter were in the civil context, perhaps the evidence could support a finding of negligence. However, this Court is not called upon to make that determination. The State must satisfy each and every element beyond a reasonable doubt. Considering all the circumstances of this case, particularly the rural nature of the area, the late hour, and lack of pedestrians or other cars at the time the defendant operated his vehicle in the questioned manner, Claude Rashduni should be found Not Guilty. CONCLUSION For the reasons contained herein, defendant should be found Not Guilty at the trial de novo. Respectfully submitted,

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John R. Klotz JRK/ss cc: Jacqueline Choi-Assistant Prossecutor

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