NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-6176-09T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELLIOTT MALONE, Defendant-Appellant. ________________________________________________________________ Argued April 12, 2011 Decided July 1, 2011 Before Judges Payne and Baxter. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-10-10. Elliott Malone, appellant, argued the cause pro se. Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief). PER CURIAM Following a trial de novo in the Law Division, defendant Elliott Malone appeals from his conviction on a charge of

improper 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

phone was equipped with a hands-free device, she also found that defendant was "pressing buttons" on the cell phone, thereby

violating the statute. that such conduct 39:4-97.3,

We disagree with the judge's conclusion constitutes a violation of

necessarily and

N.J.S.A. conviction.

therefore

reverse

defendant's

I. On April 7, 2010, Lieutenant Daniel Siegel of the Tenafly Police Department was on duty driving southbound on a county road when he observed defendant driving in the opposite

direction.

From a distance of eight feet, Lieutenant Siegel was

able to observe defendant holding a cell phone in his hand, and "pushing buttons." Believing such conduct to be a violation of There was

the statute, Siegel effected a motor vehicle stop.

not "any question in [his] mind" that defendant "had a cell phone and . . . was using it." On cross-examination, Siegel was asked whether, when he saw defendant "pressing buttons," he "assumed that [defendant] was dialing," to which he answered "[n]ot necessarily." Defendant

could have been "doing anything else" on the cell phone, such as "sending a text." When asked whether defendant was using "a

hands-free device . . . on [his] ear," Siegel answered, "I have no idea."

A-6176-09T4

Defendant

testified,

asserting

that

at

the

time

in

question, he "was not using the phone for sending text messages, receiving text messages, [or] activating any function of the phone." He offered his cell phone records in evidence, which

the judge declined to accept because the cell phone record had not been authenticated, as required by N.J.R.E. 901. Defendant

also contended that even if he had been "pressing buttons," as Lieutenant Siegel testified, this would not be a violation of the statute, because the statute permits a driver to hold the phone in one hand to activate, deactivate or initiate a function of the telephone. The dismiss. municipal The court judge denied as defendant's the motion to

judge

accepted

credible

Lieutenant's

testimony that he saw defendant holding the cell phone in his hand and "pushing buttons." In rejecting defendant's claim that

his cell phone was equipped with a hands-free device, the judge observed that "if that had been the case, [defendant] would have been pushing it in the Lieutenant's face and showing it to him." Having rejected defendant's contention that his cell phone was equipped with a hands-free device, the municipal court found defendant guilty of violating judge

N.J.S.A. 39:4-97.3.

The judge imposed a $106 fine and $33 in court costs.

A-6176-09T4

In

the

de

novo

trial

in

the

Law

Division,

the

judge

assessed the record made in the municipal court, but reached a different conclusion on the question of whether defendant had been using a hands-free device, concluding that he had.

However, the judge concluded that a hands-free device "is for listening." The judge observed that the statute prohibits a

driver from holding a cell phone while driving, but does permit the driver to use one hand "to activate, deactivate, or initiate a function of the telephone." The judge noted that "[i]t should She

not take the pressing of buttons to activate a cell phone."

concluded that none of the exceptions contained in the statute was applicable because activating or deactivating the phone

"would take [only] one touch of a button," rather than pressing multiple buttons. The judge also reasoned that "it's counter-intuitive to the statute to believe that someone dialing a phone would be driving safely, because they'd have to be concentrating on either

looking at . . . the numbers or pressing the right numbers." Based on this interpretation of the statute, the judge concluded that defendant was guilty of holding his cell phone while

driving, observing that the State was only required to show that defendant was "'using' a wireless telephone and that he was on a

A-6176-09T4

public road or highway," and the State proved those elements beyond a reasonable doubt. On appeal, defendant argues: 1) the exclusion of his cell

phone records was error; 2) the State's failure to provide him with a copy of Lieutenant Siegel's handwritten notes prior to trial in the municipal court entitled him to the dismissal of the charge; 3) N.J.S.A. 39:4-97.3 is unconstitutionally vague; 4) the judge's analysis of the statute was incorrect; and 5) because the State failed to prove all elements of the offense beyond a reasonable doubt, his conviction must be reversed. II. We begin our analysis with point four, in which defendant maintains that his conviction must be reversed because the Law Division judge's analysis of the statute was incorrect. particular, defendant maintains that even if, as the In judge

found, he was pressing buttons on his cell phone to initiate a call, such conduct is permitted by the statute. A "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference' on appeal." State v. Ugrovics, 410

N.J. Super. 482, 487 (App. Div. 2009) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)), certif. denied, 202 N.J. 346 (2010). The "scope of review is de

A-6176-09T4

novo, without affording [the trial court's] judgment any special deference." Id. at 487-88.

When construing a statute, our primary goal is to determine the legislative intent. 605-06 (2011). unambiguous State v. Ciancaglini, 204 N.J. 597,

"'If the plain language leads to a clear and then our interpretive process is over.'"

result,

State v. Gandhi, 201 N.J. 161, 177 (2010) (quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007)). We ascribe to statutory words their ordinary meaning N.J.S.A. 1:1-1 (stating that in construing

and significance.

both civil and criminal statutes, "words and phrases shall be read and construed with their context, and shall, unless

inconsistent with the manifest intent of the [L]egislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the

approved usage of the language").

Moreover, "no word should be Macysyn v. Hensler, 329

rendered inoperative or superfluous." N.J. Super. 476, 485 (2000).

In relevant part, the statute prohibiting the use of a cell phone1 while operating a moving motor vehicle provides that: The use of a wireless telephone electronic communication device by
1

or an

Although the statute uses the phrase "wireless telephone," we shall use the more well-accepted term "cell phone."

A-6176-09T4

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 . . . . [N.J.S.A. 39:4-97.3(a) (emphasis added).] The statute defines "use" to "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." free wireless telephone" is defined as: 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 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. [Ibid. (emphasis added).] Thus, the statute prohibits a motorist from talking or Ibid. "Hands-

listening to another person on the telephone, text messaging or sending an electronic message, unless the motorist uses a handsfree device to accomplish those functions.2 The driver may,

The statute also provides an emergency exception that permits a driver to hold a cell phone in one hand to make a call whenever the motorist believes his life or safety, of that of another, is in danger; or the motorist is using the phone to report "to (continued) 7
A-6176-09T4

however, hold the telephone in one hand for the period of time necessary to "activate, deactivate or initiate a function of the telephone." Ibid.

Defendant argues both that the statute permits the "use" of the wireless telephone when a hands-free device is worn, and that the use of the wireless telephone is not limited to

"listening." use the

Defendant contends that a motorist is permitted to telephone by holding it in one hand to

wireless

"activate, deactivate, or initiate a function of the telephone," N.J.S.A. 39:4-97.3(a), and that this activity may lawfully

entail pressing buttons on the telephone.

He further argues

that pressing buttons to activate or initiate a function of the cell phone does not necessarily mean that a driver is dialing a number on the cell phone, to but even if he is, or dialing initiate is a

implicitly

permitted

"activate,

deactivate,

function of the telephone." In contrast, the State urges us to conclude that the

statute prohibits a motorist from holding a cell phone in his or her hand while driving, unless one of the exceptions contained

(continued) appropriate authorities" a "fire, a traffic accident, a serious road hazard or medical or hazardous materials emergency, or to report the operator of another motor vehicle" who is driving in an "unsafe manner" or appears to be intoxicated. N.J.S.A. 39:4-97.3(b)(1), (2).

A-6176-09T4

in N.J.S.A. 39:4-97.3(b)(1) or (2) applies.

The State also

argues that pushing buttons, which it equates with dialing, is not "activating, deactivating or initiating a function" of the phone. chosen Notably, the State observes that the "Legislature has not to include a definition of what constitutes

'activating, deactivating, or initiating a function' of a cell phone. dialing." The statute Neither neither has the expressly permits nor prohibits whether

Legislature

explained

"activating, deactivating, or initiating a function of a cell phone may allow for pressing more than one button." The first issue we must address is whether N.J.S.A.

39:4-97.3(a) limits the "use" of a wireless telephone fitted with a hands-free device to "listening." The statute bans

the "use of a wireless telephone . . . by a [motorist] . . . except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free[.]"

N.J.S.A. 39:4-97.3(a).

"Use" includes "talking or listening to

another person on the telephone, text messaging, or sending an electronic message[.]" N.J.S.A. 39:4-97.3. Thus, the plain

language of the statute permits motorists to use a wireless telephone for talking, listening, text messaging, or sending an electronic message, provided that the phone is used with a

hands-free device, and the motorist is not holding the telephone

A-6176-09T4

in his or her hand. The statute does not limit the use of the cell phone fitted with a hands-free device to only "listening." Therefore, error. The second issue of interpretation raised by this appeal is whether N.J.S.A. 39:4-97.3(a) permits a motorist to briefly hold the cell phone in one hand when using the wireless telephone "hands-free." The definition of "hands-free wireless telephone" the Law Division's conclusion to that effect was

is "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 without the use of either hand[.]" N.J.S.A. 39:4-97.3. wireless telephone" Although the statute defines a "hands-free as a device that either functions in a

hands-free manner, or becomes hands-free when equipped with "an attachment or addition," the definition of "hands-free wireless telephone" specifies that "this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of the telephone." N.J.S.A. 39:4-97.3(b).

Thus, the plain language of the statute permits motorists to hold the cell phone in one hand for the limited purpose of activating, telephone. deactivating, or initiating a function of the

The State urges us to conclude that the statute

10

A-6176-09T4

prohibits a motorist from holding a cell phone in his or her hand while driving; however, such an interpretation would

conflict with the provision of the statute that allows the "use of either hand" to perform specified functions when using a hands-free wireless telephone. Reading the entire definition as

a whole, a motorist could use one hand to "activate, deactivate, or initiate a function of the telephone," but once engaged in the conversation, the use of the telephone must be "without the use of either hand." N.J.S.A. 39:4-97.3(b). Thus, we reject

the State's contention that a motorist is not permitted to hold a wireless telephone at any time while driving, as the statute permits a motorist to use one hand to "activate, deactivate, or initiate a function of the telephone." Ibid.

The next issue we must address is whether the provision that allows motorists to use "either hand to activate,

deactivate, or initiate a function of the telephone," N.J.S.A. 39:4-97.3, permits motorists to dial. telephones and accessories allow While hands-free wireless to engage in the

motorists

conversation "hands-free," some cell phones require the pushing of a button or buttons, or an icon, to connect or disconnect the hands-free device. Nonetheless, once the wireless telephone is

connected to the hands-free device, a motorist cannot engage in a conversation unless he or she "activate[s], deactivate[s], or

11

A-6176-09T4

initiate[s] a function of the telephone."

Defendant argues that

the statute allows a motorist to dial the phone when activating, deactivating, or initiating a function of the phone, because otherwise, "[o]ne could stare at a phone for hours, but such would not lead to . . . the simple function of a call being made." As the State notes, the Legislature did not define the terms "activate, deactivate, or initiate a function," nor did the Legislature expressly permit or prohibit dialing. The

statute is also silent on whether a motorist is permitted to press a button or buttons to "activate, deactivate, or initiate a function." measure to The State argues the statute was a "preventative discourage motorists from engaging in highly

distractive behaviors while they were driving." argument, the State relies on the press

To support its release from

then-Governor McGreevey, in which he observed that the new law "[r]equiring drivers to keep both hands on the wheel will save lives," and the purpose was to "minimize distractions while

driving, making our roads safe."3

While it is clear that the

statute was designed to minimize distractions while driving, the plain language does not require drivers to keep both hands on
3

Office of the Governor, News Release, "Governor Signs Banning Hand-Held Cell Phones While Driving." (January 2004).

Law 20,

12

A-6176-09T4

the wheel at all times, but instead requires motorists who are using a hands-free telephone while talking on the phone to do so "without the use of either hand." The legislative history N.J.S.A. 39:4-97.3. is meager, with only short The

statements supporting the enactment of the Legislation.4 sponsor's statement indicates that: Under this bill, the use of cellular telephones equipped for hands-free operation

Seven other states and the District of Columbia have enacted statutes that impose limits on the holding of a cell phone while driving. See Cal. Veh. Code 23123 (2011); Conn. Gen. Stat. 14-296aa (2011); Del. Code Ann. tit. 21, 4176c (2011); D.C. Code 50-1731.04; Md. Code Ann., Transp. 211124.2 (2011); N.J.S.A. 39:4-97.3; N.Y. Veh. & Traf. Law, 1225c (McKinney 2011); Or. Rev. Stat. 811.507 (2011); Wash. Rev. Code 46.61.667 (2010). Although the statutes in Connecticut, Oregon and New York contain the "active, deactivate or initiate a function of the telephone" language, none have had an opportunity to interpret its meaning. Conn. Gen. Stat. 41296aa(a)(5); Or. Rev. Stat. 811.507 (1)(b)(3)(h); N.Y. Veh. & Traf. Law, 1225c(1)(e). The language in the other four states and the District of Columbia is varied. For instance, in California, a driver can use a cell phone for "hands-free listening and talking," Cal. Veh. Code 32123(a); in Delaware a driver is permitted to "engage[] in a call without the use of either hand or both hands" with the use of a hands-free device, Del. Code Ann. tit. 21, 4176c(b)(4); in the District of Columbia drivers can use a cell phone with a hands-free accessory to "initiate[] or terminate[] a telephone call, or turn[] the telephone on or off," D.C. Code 50-1731.04(b)(3) (2011); in Washington, a driver is guilty of violating the statute if he or she holds the cell phone to his or her ear, but can use "a wireless communications device with a speaker phone, headset, or earpiece," Wash. Rev. Code 46.61.667(4); and in Maryland, a driver can use his or her hands "to initiate or terminate a wireless telephone call or to turn on or off the hand held telephone," Md. Code. Ann., Transp. 421-1124.2(c)(2).

13

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would be permissible in moving vehicles during and beyond a three-month transition period phasing out hand-held cell phones. Hands-free designs or attachments should reduce the distractions associated with dialing, holding, reaching for or picking up a dropped handset.

[Sponsor's

Statement to Senate (March 7, 2002) (emphasis added).]

No.

1283

It is clear from the sponsor's statement that the Legislature recognized that the use of a hands-free wireless telephone would "reduce" the distractions associated with dialing, not eliminate the distractions associated with dialing. Thus, the Legislature

intended motorists to be able to "activate" the phone through the use of dialing. The Law Division judge's interpretation of

the statute that "activating or deactivating does not include dialing" is incorrect. The last issue is whether the activation of a wireless telephone with a hands-free device requires the "pressing of buttons." The Law Division judge found that the activation of a

wireless telephone "should not take the pressing of buttons." Generally, there are three methods for dialing when using a wireless telephone: (1) the standard method of dialing where the user presses each digit and then presses the call or send

button; (2) speed dialing where the user finds the name of the contact in the telephone address book, selects the contact, and then presses the call or send button on the phone; and (3) voice

14

A-6176-09T4

dialing where the user presses a button to activate the voice dialing prompt, and then speaks the name of the contact and the telephone automatically dials that contact. Even with voice dialing, the most advanced of these three options, a user may still need to press a button on the wireless telephone to activate that feature, or in the alternative, press a button on the wireless earpiece or on the car's audio system. The other two methods of dialing require the user to press more than one button on the telephone, earpiece or car audio system to dial. Thus, it may be necessary for a motorist to press more There

than one button when dialing on the wireless telephone.

are many ways by which a motorist would "activate" the wireless telephone, and the statute does not limit the methods used by a motorist. As such, the Law Division judge's conclusion that

"merely activating or deactivating the phone . . . would take one touch of the button" is incorrect. Even if we were to agree with the judge's conclusion that "activating or deactivating the phone . . . would take one touch of the button[,]" we cannot ignore the portion of the statute that authorizes a driver to use one hand to "initiate a function of the telephone." "no word [is] That phrase should be given meaning so that inoperative or superfluous." Macysyn,

rendered

supra, 329 N.J. Super. at 485.

"[I]nitiat[ing] a function of

15

A-6176-09T4

the telephone" could involve pressing buttons to find a contact in the address book, to activate the voice dial function, to dial the numbers to place a phone call or to receive an incoming call. Therefore, although activating the telephone (turning it

on), or deactivating the telephone (turning it off), may require the touch of only one button, "initiat[ing] a function of the telephone" could require the pressing of multiple buttons. We four, therefore the Law conclude, Division as defendant argues in point

that

incorrectly

interpreted

N.J.S.A.

39:4-97.3.

In particular, contrary to the judge's findings:

(1) the statute does not limit the use of a hands-free telephone to listening because a motorist using a hands-free wireless

telephone is also permitted to hold the wireless telephone in one hand while activating, deactivating or initiating a function of the telephone; (2) initiating a function of the hands-free wireless telephone includes dialing; and (3) it may be necessary to press more than one button to "activate, deactivate, or

initiate a function of the telephone." In sum, other than in an emergency, a motorist may only engage in a conversation on a cell phone if the telephone is equipped with a hands-free device; the motorist may not hold the telephone in one hand while talking to, or listening to, the person on the other end of the phone. A motorist is also

16

A-6176-09T4

prohibited from holding the telephone to send a text message or electronic mail. The only circumstance in which a motorist is

permitted to hold a wireless cell phone in one hand, with the other hand on the steering or wheel, is when a the motorist of is the

activating,

deactivating

initiating

function

telephone, which includes answering the phone, ending the phone call or dialing a phone number. III. We turn to point five, in which defendant argues that

the State did not meet its burden of proving him guilty beyond a reasonable doubt. found that As we have noted, the Law Division judge phone had a hands-free device, and

defendant's

defendant was pressing buttons on his wireless telephone while driving on a public highway. conduct constituted the use The State did not prove that such of his phone for any unlawful

purpose under the statute in light of the fact that the statute permits a driver to hold his phone in one hand to "activate, deactivate or initiate a function" of his wireless telephone; and the State failed to prove that by pressing buttons, or

pressing icons, defendant was using the phone for any other purpose. We recognize that the pressing of buttons with one hand to send a text message is prohibited by the statute, as it

17

A-6176-09T4

constitutes

neither

the

activating,

or

deactivating

of

the

phone, or the initiating of a function of the phone. did not, however, prove such an improper use.

The State

Where the same

conduct -- pressing of buttons -- constitutes both lawful and unlawful activity, a defendant must be found not guilty. Ciancaglini, established construed"). supra, 204 N.J. at 611 (recognizing must the be See

"well-

principle

that

penal

statutes

strictly

Thus, because the State did not prove that the

"pressing of buttons" in this instance constituted a violation of N.J.S.A. 39:4-97.3, defendant's conviction must be reversed. In light of that conclusion, we need not reach the claims defendant advances in points one, two and three. Reversed for the entry of a judgment of acquittal.

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