In this case, the defendant was charged with violating the statute that prohibits cell phone use while driving – NJS 39:4-97.3(a). The case came before the Passaic Municipal Court (Hon. Debbie Klugler Irwin, J.M.C., presiding) on March 15, 2010 for arraignment and on April 15, 2010 for trial. At the arraignment, Judge Irwin stated that “You’re charged…with being on a cell phone without a hands-free device in violation of 39:4-97.3(a). That includes looking at your phone, texting, picking up the phone, being on the phone.” At trial, testimony revealed that on January 15, 2010, the defendant was driving in the City of Passaic and was pulled over by Officer James Perri of the Passaic Police Department. The officer testified that he observed the defendant operating his motor vehicle with “one hand on the steering wheel and the other hand holding a cell phone in front of his view…not directly in front of his face but like kind of tilted down to the right.” After the officer testified, Judge Irwin permitted the defendant cross-examination but the defendant stated “I have nothing on cross, Your Honor.” The State rested. The defendant then moved to dismiss based on the fact that the prosecution “failed to establish use.” The judge then denied the defendant’s motion. The defendant then attempted to lay the foundation for admission of his cell phone and Bluetooth wireless device into evidence. The judge refused to consider admitting the devices into evidence stating “I’m not – he can look at it but it’s not coming into evidence. Continue.” The defendant then attempted to question Officer Peri. The judge did not allow the defendant to question the officer as part of its case-in-chief stating that “You can’t call the – you’re — wait a second…you had an opportunity to cross-examination [sic] the officer…I’m not going to give you an opportunity now to do what you could have done on cross-examination”. The defendant was ultimately convicted of violating NJS 39:4-97.3(a).
Rosenblum Law took an appeal of the Passaic Municipal Court decision to Passaic County Superior Court. Superior Court Judge Hon. Jared Honigfeld ruled that the Passaic Municipal Court judge erred in (a) not allowing counsel to have the items marked for identification and (b) taking the position that because counsel waived cross-examination of the officer he had no right to call him as a defense witness as part of his case-in-chief. Judge Honigfeld ruled that the Passaic Municipal Court judge should have permitted defense counsel to have the items marked for identification and should have allowed defense counsel to call the arresting officer as its witness. Judge Honigfeld reversed the conviction and ordered a new trial, remanding the case back to the Passaic Municipal Court.