NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISIONSUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISIONDOCKET NO. A-6176-09T4STATE OF NEW JERSEY,Plaintiff-Respondent,v.ELLIOTT MALONE,Defendant-Appellant. ________________________________________________________________ Argued April 12, 2011 – Decided July 1, 2011Before Judges Payne and Baxter.On appeal from the Superior Court of NewJersey, Law Division, Bergen County,Municipal Appeal No. 009-10-10.Elliott Malone, appellant, argued the causepro se.Annmarie Cozzi, Senior Assistant Prosecutor,argued the cause for respondent (John L.Molinelli, Bergen County Prosecutor,attorney; Ms. Cozzi, of counsel and on thebrief).PER CURIAMFollowing a trial de novo in the Law Division, defendantElliott Malone appeals from his conviction on a charge ofimproper use of a cell phone while driving, N.J.S.A. 39:4-97.3.Although the Law Division judge found that defendant's cell
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2phone was equipped with a hands-free device, she also found thatdefendant was "pressing buttons" on the cell phone, therebyviolating the statute. We disagree with the judge's conclusionthat such conduct necessarily constitutes a violation ofN.J.S.A. 39:4-97.3, and therefore reverse defendant'sconviction.I.On April 7, 2010, Lieutenant Daniel Siegel of the TenaflyPolice Department was on duty driving southbound on a countyroad when he observed defendant driving in the oppositedirection. From a distance of eight feet, Lieutenant Siegel wasable to observe defendant holding a cell phone in his hand, and"pushing buttons." Believing such conduct to be a violation ofthe statute, Siegel effected a motor vehicle stop. There wasnot "any question in [his] mind" that defendant "had a cellphone and . . . was using it."On cross-examination, Siegel was asked whether, when he sawdefendant "pressing buttons," he "assumed that [defendant] wasdialing," to which he answered "[n]ot necessarily." Defendantcould have been "doing anything else" on the cell phone, such as"sending a text." When asked whether defendant was using "ahands-free device . . . on [his] ear," Siegel answered, "I haveno idea."
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3Defendant testified, asserting that at the time inquestion, he "was not using the phone for sending text messages,receiving text messages, [or] activating any function of thephone." He offered his cell phone records in evidence, whichthe judge declined to accept because the cell phone record hadnot been authenticated, as required by N.J.R.E. 901. Defendantalso contended that even if he had been "pressing buttons," asLieutenant Siegel testified, this would not be a violation ofthe statute, because the statute permits a driver to hold thephone in one hand to activate, deactivate or initiate a functionof the telephone.The municipal court judge denied defendant's motion todismiss. The judge accepted as credible the Lieutenant'stestimony that he saw defendant holding the cell phone in hishand and "pushing buttons." In rejecting defendant's claim thathis cell phone was equipped with a hands-free device, the judgeobserved that "if that had been the case, [defendant] would havebeen pushing it in the Lieutenant's face and showing it to him."Having rejected defendant's contention that his cell phone wasequipped with a hands-free device, the municipal court judgefound defendant guilty of violating N.J.S.A. 39:4-97.3.The judge imposed a $106 fine and $33 in court costs.
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State v. Malone, A-6176-O9T4 (N.J. Ct. App. July 1, 2011)
New Jersey appeals court neuters NJ's cell phone driving statute.
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