State v. Palma

Decision Date30 September 2014
Docket NumberA-41 September Term 2012, 071228
Citation219 N.J. 584,99 A.3d 806
PartiesSTATE of New Jersey, Plaintiff–Appellant, v. Diana M. PALMA, Defendant–Respondent.
CourtNew Jersey Supreme Court

Paul H. Heinzel, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Monica L. do Outeiro, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

Paul E. Zager, Red Bank, argued the cause for respondent.


Judge RODRÍGUEZ (temporarily assigned) delivered the opinion of the Court.

In this appeal, we address an issue similar to the question addressed in State v. Moran, 202 N.J. 311, 997 A. 2d 210 (2010), where the Court identified the appropriate factors to be considered when sentencing a person convicted of reckless driving, N.J.S.A. 39:4–96. The factors were provided in order to channel the discretion afforded to the sentencing court under the reckless driving statute. Here, defendant pleaded guilty to careless driving under N.J.S.A. 39:4–97, a statute that similarly provides considerable discretion to a sentencing court. In this instance, a fatality resulted from the incident. The municipal court and Law Division judge imposed a fifteen-day custodial term as part of defendant's sentence. The Appellate Division reversed the custodial term and remanded for resentencing after consideration of sentencing factors identified in Moran. We affirm and, pursuant to our supervisory function, N.J. Const. art. VI, § 2, ¶ 3, and in order to provide guidance for the municipal court and Law Division judges, hold that the Moran factors provide the appropriate guidance and should be followed in this and similar cases involving sentencing pursuant to the careless driving statute.


On February 22, 2010, defendant, Diana M. Palma, was driving a Ford Expedition sport utility vehicle (SUV) in Red Bank. As she traveled east on Bergen Place, she made a left turn onto Broad Street. A forty-four-year-old woman, Alla Tsiring (victim), who was wearing a pink jacket, was crossing Broad Street at that moment. She was struck by the driver's side of defendant's SUV. The victim became pinned between the SUV's undercarriage and the pavement. Defendant continued to drive, unaware of the collision or that the victim was being dragged under the SUV. Another driver, Jules Slewski, alerted defendant that she had struck the victim. Defendant stopped her SUV and saw the victim. Shortly thereafter, emergency personnel freed the victim and transported her to a local hospital. About two months later, the victim died as a result of injuries sustained from the accident.

Red Bank Patrolman Beau Broadley verified that defendant had a valid driver's license and was not under the influence of intoxicants at the time of the accident. He issued motor vehicle citations to defendant for careless driving, N.J.S.A. 39:4–97, and failure to yield to a pedestrian, N.J.S.A. 39:4–36.

The Monmouth County Prosecutor's Office reviewed the pertinent police investigation reports and declined to present criminal charges against defendant to the county grand jury. The prosecutor forwarded the traffic summonses to the Red Bank Municipal Court for adjudication.

In the municipal court, pursuant to an agreement, defendant entered a plea of guilty to the careless-driving charge. The remaining charge was dismissed. Defendant gave an adequate factual basis, and the guilty plea was accepted.

According to N.J.S.A. 39:4–104, a person convicted of careless driving, reckless driving, speeding, and other traffic offenses defined in Article 12 of Title 39 (N.J.S.A. 39:4–95 to –103(1)), “shall, for each violation, be subject to a fine of not less than $50.00 or more than $200.00, or imprisonment for a period not exceeding 15 days, or both,” unless otherwise provided.

The municipal court judge imposed the following sentence: a fifteen-day term in the Monmouth County Jail to be served on weekends; a ninety-day license suspension; and fines and costs totaling $241. The municipal court judge stayed the custodial sentence and license suspension pending appeal. Subsequently, by agreement, the stay of the license suspension was vacated.


Defendant appealed only the custodial sentence to the Law Division. On a de novo review the Law Division judge imposed the same sentence.

Defendant then appealed to the Appellate Division. In a published opinion, the Appellate Division vacated the sentence and remanded for resentencing. State v. Palma, 426 N.J.Super. 510, 520, 45 A. 3d 1022 (App.Div.2012). The panel concluded that the Moran sentencing factors, Moran, supra, 202 N.J. at 328–29, 997 A. 2d 210, provided the controlling guidance in arriving at an appropriate sentence.

The panel distinguished this case from Moran by noting that Moran involved a charge for reckless driving, which is a more serious offense than careless driving. Palma, supra, 426 N.J.Super. at 517, 45 A. 3d 1022. Moreover, in Moran, no custodial sentence was imposed, only a period of license suspension. Moran, supra, 202 N.J. at 315, 997 A. 2d 210. The panel also concluded that [j]udges may only impose a license suspension or custodial sentence in careless driving cases that present aggravating circumstances,” and such circumstances must come from “evidential sources in the record, which shall be recited in the judge's factual findings.” Palma, supra, 426 N.J.Super. at 519, 45 A. 3d 1022.

The Appellate Division rejected the Law Division's use of the Criminal Code factors to justify the custodial sentence. Id. at 517, 45 A. 3d 1022. The panel then vacated defendant's sentence and held that the Moran factors were “equally apt in determining whether to impose a custodial sentence in this matter” as they were to impose a license suspension in Moran. Id. at 518, 45 A. 3d 1022.

The State petitioned for certification. We granted the petition. 213 N.J. 45, 59 A. 3d 602 (2013).


The State argues on its appeal that the Appellate Division incorrectly interpreted Moran, conflating the statutory language of the reckless driving statute with that of the careless driving statute. The State contends that the reckless driving statute, at issue in Moran, contains a “willful violation” provision, necessitating a finding of “aggravating circumstances” in order to impose a license suspension. However, the careless driving statute has no such provision, and thus, no requirement of aggravated carelessness as a prerequisite to the imposition of the fifteen-day custodial term. The State also argues that the Appellate Division substituted its own judgment for the judgment of the sentencing court contrary to State v. Blackmon, 202 N.J. 283, 297, 997 A. 2d 194 (2010). The State contends the Appellate Division improperly held that the victim's death, the ultimate result of defendant's careless conduct, could not, “in and of itself[, be] dispositive of whether a custodial sentence should be imposed.” See Palma, supra, 426 N.J.Super. at 520, 45 A. 3d 1022.

Finally, the State argues that the Appellate Division improperly imposed an inordinately high burden on the municipal judge to establish a record gleaned only from evidential sources. The State argues that requiring the municipal judge to rely solely on evidential sources is contrary to this Court's directive that sentencing courts ‘consider all relevant information, including hearsay, unrestrained by the rules of evidence.’ State v. Natale, 184


458, 486, 878 A. 2d 724 (2005) (quoting State v. Davis, 96 N.J. 611, 619–20, 477 A. 2d 308 (1984) ).

Defendant argues that the appropriate sentencing guideline for a careless driving case in which a fatality occurs should be derived from State v. Zucconi, 93 N.J.Super. 380, 226 A. 2d 16 (App.Div.), aff'd on other grounds, 50 N.J. 361, 235 A. 2d 193 (1967). Defendant argues that the Law Division and municipal court judges erroneously ignored Zucconi and each used “different guidelines in an attempt to ‘make law’ on an ad hoc, outcome-determinative basis.” Defendant also argues that [b]ased on Zucconi and Moran, it is clear that something beyond mere carelessness is required before jail [sic] can be imposed.” Defendant argues that [e]ven if the carelessness results in a fatal accident, the driver should expect nothing more than a moderate fine.” Defendant urges the Court to adopt Zucconi's rationale as the uniform standard for careless driving cases and find that defendant should not be jailed for the offense because she “was guilty of nothing else beyond mere carelessness.”

In the alternative, defendant argues that even if the Court finds that the holding in State v. Henry, 418 N.J.Super. 481, 14 A. 3d 750 (Law Div.2010), adopting the Criminal Code factors, should apply to this case, the Law Division nevertheless misapplied the factors based upon an incomplete municipal record. In reaching the conclusion that a fifteen-day custodial term was appropriate, the Law Division judge relied in part on Henry.1

Defendant's arguments also challenge the actions of the municipal court judge. However, appellate review of a municipal appeal to the Law Division is limited to “the action of the Law Division and not that of the municipal court.” State v. Joas, 34 N.J. 179, 184, 168 A. 2d 27 (1961) ; State v. Oliveri, 336 N.J.Super. 244, 251, 764 A. 2d 489 (App.Div.2001). For that reason, we do not consider defendant's arguments in respect of the municipal court judge's actions.


The issue in this case involves the propriety of a custodial sentence given the facts presented. The traffic offense at issue here is careless driving, which is defined as follows:

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.
[N.J.S.A. 39:4–97.]

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