JOEL I. RACHMIEL, ESQ. 99 Morris Avenue Springfield, New Jersey 07081 (973) 467-9200 Attorney for Plaintiff

RECEIVED/F/1.ED Superior Court of New Jersey

APR a 1 2013 Mil_ CASE MANAGEMENT

UNION COUNTY

LORRAINE SELECKY,

Plaintiff,

VS.

OFFICER JAMES CANTRELL, BOROUGH OF ROSELLE PARK POLICE DEPARTMENT,

SUPERIOR COURT OF NEW JERSEY LAW DIVISION : UNION COUNTY DOCKET NO. L. 1

1 i 17 Civil Action

COMPLAINT AND JURY DEMAND

Defendants.

Plaintiff Lorraine Selecky, residing at 517 West End Avenue, in the City of Elizabeth,

County of Union and State of New Jersey, by way of Complaint against the defendants,

alleges and says:

FIRST COUNT

1. At all times mentioned herein, the Borough of Roselle Park Police Department

was a duly authorized law enforcement agency established under the laws of the State of

New Jersey.

2. At all times mentioned herein, defendant Officer James Cantrell was the

employee, agent, or servants of the Borough of the Roselle Park Police Department and

was at all times acting in the course of that employment.

3. On or about September 19, 2009, defendant James Cantrell did illegally,

improperly and without probable cause issue parking summons E-142583 falsely charging

plaintiff with unlawful parking in a space marked for the physically handicapped in violation

of NJSA 39:4-138(o).

4. There was no probable cause for the issuance of that parking ticket and

defendant knew that to be the case at the time he issued it.

5. The conduct of defendant aforesaid resulted in plaintiff being falsely, maliciously

and unlawfully prosecuted in the Roselle Park and Kenilworth Municipal Courts, which

prosecutions subjected her to the rigors and anxiety associated with such prosecutions and

the expense of retaining counsel to defend upon the false charge and thereby deprived

plaintiff of her right to be free from the unreasonable and unlawful seizure of her person

and to the Equal Protection and Due Process of Law in violation of the Fourth and

Fourteenth Amendments to the Constitution of the United States, the laws of the United

States including but not limited to 42 U.S.C. 1983, and the Constitution and laws of the

State of New Jersey including but not limited to NJSA 10:6-2.

6. On October 15, 2009, plaintiff was tried before the Roselle Park Municipal Court

and found guilty of the parking violation. On January 11, 2012, the Superior Court of New

Jersey, Appellate Division, reversed the conviction and remanded the matter for trial in a

municipal court other than Roselle Park. On March 6, 2012, plaintiff was tried before the

Kenilworth Municipal Court and a judgment of acquittal entered upon completion of all the

testimony.

7. All of the acts of defendant were undertaken in a willful and malicious manner

with an immoral purpose and to unjustly enrich the defendant and to injure the reputation,

standing and integrity of plaintiff, to her detriment, and defendant is therefore liable to

plaintiff for punitive damages in addition to cornpensatory damages.

8. As a direct and proximate result of the actions of the defendant, and particularly

of his willful, intentional, false, malicious, reckless, or grossly negligent actions in falsely

issuing plaintiff the parking ticket, plaintiff was greatly humiliated and disgraced, suffered

great mental and physical anguish, suffered severe damage to her reputation and standing

in the community, required her to retain counsel to defend on the false charge, and has

otherwise damaged and injured her in diverse other manners to her great detriment.

WHEREFORE, plaintiff demands judgment for damages against defendant, both

compensatory and punitive, together with reasonable attorney's fees, lawful interest and

costs of suit.

SECOND COUNT

1. Plaintiff repeats all the allegations contained in the First Count of the Complaint

as though set forth fully at length.

2. At all times mentioned herein, the Borough of Roselle Park Police Department

was the employer of the individual defendant who was acting as its agent, servant and

employee.

3. The Borough of Roselle Park Police !Department failed to use reasonable care

in the selection of its employees, agents and servants, failed to properly train and

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41 JOEL 'A 'L

supervise the defendant, and failed to provide appropriate safeguards to prevent the

unlawful conduct described resulting in the violation of plaintiff's civil rights.

4. The Borough of Roselle Park Police Department acted under color of law

pursuant to its official policy or custom and practice and intentionally, knowingly, recklessly

or with deliberate indifference failed to properly and adequately control and discipline on

a continuing basis the defendantss in the performance of his duties and otherwise failed

to refrain the defendant from unlawful conduct described resulting in the violation of

plaintiff's civil rights.

5. The Borough of Roselle Park Police Department had knowledge of or had it

diligently exercised its duties to instruct, supervise, control and discipline defendant on a

continuing basis should have had knowledge of the wrongs that were done as alleged and

intentionally, knowingly, or with deliberate indifference to the rights of plaintiff failed or

refused to prevent their commission.

6. The Borough of Roselle Park Police Department directly or indirectly and under

color of law thereby approved or ratified the unlawful, deliberate, malicious, reckless and

wanton conduct of defendant.

WHEREFORE, plaintiff demands judgment against defendant Borough of Roselle

Park Police Department for both compensatory and punitive damages, together with

reasonable attorney's fees, lawful interest and costs of suit.

JURY DEMAND

Plaintiff hereby demands trial by jury on all issues.

ATTORNEY CERTIFICATION PURSUANT TO R.4:5-1(b)2

The matter in controversy is not the subject of any other action pending in any Court

or of any pending arbitration proceeding, nor are any such actions or arbitrations

contemplated. There are no other known parties who should be joined in this action. /

I hereby certify that the foregoing statements mad y me are true. I am away that

if any of the foregoing statements made b illfu y false, I am subject to

punishment for contempt of court.

Dated : March 25, 2013

Attorney for Plaintiff

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ONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE

his Confidential Settlement Agreement and Release ("Agreement") is made by and betwee Plaintiff, Lorraine Selecky, and her spouse, heirs, assigns, designees, predecessors and succes •rs (hereinafter "Plaintiff') on the one hand, and the New Jersey Intergovernmental Insuran e Fund ("NJIIF") on behalf of its insureds, Defendants Officer James Cantrell, individ Ily and in his representative capacity ("Cantrell"), Borough of Roselle Park and Borou of Roselle Park Police Department ("Borough")(Cantrell and the Borough being jointly referre to herein as "Defendants") Plaintiff and the NJIIF shall jointly be referred to as "the Parties' or individually as a "Party". The Agreement shall be deemed entered into as of the date of sign ture of the last Party or Party representative to sign this Agreement.

WITNESSETH

HEREAS, Plaintiff filed suit against Defendants by way of Complaint in a matter listed i the New Jersey Superior Court, Union County under Docket No. UNN-L-1171-13, which t forth factual and legal allegations against Defendants (the "Action"); and

EREAS, the Defendants have denied all allegations asserted against them in the Action;iand

HEREAS, the Parties have mutually agreed to resolve all claims that form the basis for the ction and wish to memorialize their settlement herein.

OW THEREFORE, in consideration of the mutual promises and covenants made herein, e Parties agree as follows:

Within forty-five (45) days following the last to occur of (a) the NJIIF's receipt of fully executed copies of this Agreement and the Stipulation of Dismissal with Prejudice attached hereto Exhibit A; (b) delivery to the NJIIF of the date of birth of Plaintiff, her current address and co plete social security number, tax identification number and a copy of a clear Charles Jones s arch; and (c) an executed W-9 form from Plaintiffs attorney, the NJIIF shall provide Plainti s attorney with payment in the total amount of fifteen thousand dollars ($15.000.00). referre to herein as the "Settlement Sum".

The Settlement Sum shall be made via check payable to "Joel I. Rachmiel, Esq. Trust count" and shall be delivered to Joel I. Rachmiel, Esq. ("Attorney"), at the following address

Joel I. Rachmiel, Esq. 99 Morris Avenue Springfield, NJ 07081

Plaintiff acknowledges and agrees that all federal and state income taxes and/or penalti relating to the payments set forth in this Agreement are their sole responsibility. Plainti further covenants and agrees that she will indemnify the Defendants for any taxes and/or penalti sought from or assessed to Defendants and/or the NJIIF by any state or federal

00043981.

gove ental agency, including without limitation Social Security payroll taxes ("FICA"), state

and/or ederal disability payments, unemployment taxes, and/or state and/or federal income taxes.

As additional, partial consideration for payment of the Settlement Sum, Plaintiff, for her elf and on behalf of her successors, spouse, heirs, beneficiaries, estates and assigns (indivii ually and collectively referred to herein as "Releasors") do hereby fully and forever release remit, acquit, remise, hold harmless and discharge (the "Release") Defendants and the NJIIF, well as their past and present officials, agents, commissioners, attorneys, departments, volunt rs, officers and employees (for individuals, said Release runs to them in their official and p sonal capacities), and all of their respective heirs, estates, successors and assigns, (herein fter, individually and collectively referred to as "Releasees"), jointly and individually, from y and all liabilities, claims, causes of action, charges, appeals, complaints, obligations, costs, osses, damages, injuries, attorneys' fees and other legal responsibilities, (collectively, referre to as "Claims"), of any form or kind whatsoever, whether vested or contingent, which Releas rs have or may have against Releasees from the beginning of time through the date of this A eement, including without limitation any claims in law, equity, contract, tort, public policy, any claims or causes of action for breach of contract, negligence, retaliation, harassment and/or • iscrimination based upon, among other things, disability, handicap, sex, age or race, neglig t or intentional infliction of emotional distress, defamation, any claims arising under The Civil ghts Act of 1871 as amended by 42 U.S.C. §1983, Title VII of the Civil Rights Act of 1964, amended, the Civil Rights Act of 1991, as amended, the Reconstruction Era Civil Rights Act, as amended, the Americans with Disabilities Act, the Age Discrimination in Emplo ment Act of 1967, as amended, the New Jersey Law Against Discrimination, the United States onstitution, the New Jersey Constitution, or any other federal, state or local statute, ordin ce or law whether such claims are known or unknown, unforeseen, unanticipated, unsusp cted or latent, and any claims which were raised or could have been raised prior to the date o this Agreement, whether known or unknown, unforeseen, unanticipated, unsuspected or latent.

5. Plaintiff promises and agrees that she will not file, re-file, appeal, initiate or cause led or initiated any claim, suit claim or other proceeding based upon, arising out of, or to any claims and causes of action subsumed within the Release, nor shall she solicit, ge, participate, assist or cooperate in any claim against any of the Releasees, whether court or administrative agency, unless required to do so by law. If a Court Order or

ubpoena is served on Plaintiff requiring that she testify in any matter in which Releasees interest, she agrees to immediately notify and provide a copy of the Court Order or

a to all of the attorneys for Defendants in this case and to the NJIIF's counsel c/o Eric J. , P.C., 55 Madison Avenue, Suite 400, Morristown, New Jersey 07960. Plaintiff shall the JJIIF with a copy of the Court Order or subpoena as soon as possible and reasonably ce of her appearance and/or compliance with the Court Order of subpoena. Plaintiff

o cooperate with and assist the Defendants and NJIIF in connection with any lawful o quash or limit the scope of the subpoena or Court Order.

to be related enco before lawful shave subpoe Nemet provid in adv agrees efforts

6. Plaintiff represents that she is not currently married and that she has no spouse that ha the right to assert any interest in the Claims being released or the Settlement Sum.

00043981.. 2

This Agreement is not an admission by any of the Parties and/or any of their agents, employees or representatives of any wrongdoing or liability and is being entered into solely r the purpose of economic expediency.

Plaintiff agrees that she shall engage in no act which is intended, or reasonably may be expected to harm the reputation, business, prospects or operations of the Releasees.

Plaintiff represents and warrants that no other person or entity has any interest in the cla s that comprise or could have been raised in the Complaint, or in any other demands, obligat .ns, or causes of action referred to in this Agreement, and that she has the sole right and exclusi e authority to execute this Agreement and receive the benefits specified. Plaintiff further represe is that she has not sold, assigned, transferred, conveyed or otherwise disposed of any of the cl is which comprise the Action, or any other demands, obligations, or causes of action referred to in this Agreement. Plaintiff further acknowledges that the only consideration for signin this Agreement are the terms stated in this Agreement, and that no other promise or agreem nt of any kind has been made to her by any person or entity whatsoever to cause her to sign t Agreement; that she is competent to execute this Agreement; that she has been advised in writ g and given the opportunity to consult advisors, legal or otherwise, of her own choosing; and th t she fully understands the meaning and intent of this Agreement. No change to or modifi tion of this Agreement shall be valid or binding unless it is in writing and signed by Plainti and the NJIIF.

0. The Parties acknowledge and agree that as a governmental entity and as gove ental employees, the Borough of Roselle Park and its employees and/or the NJIIF may be obli ated to disclose a copy of this Agreement to persons under the New Jersey Open Public Record Act or common law. Notwithstanding the foregoing, for $10.00 in hand and other good and val able consideration not otherwise herein stated, Releasors and Plaintiffs' Attorney agree that th, shall not disclose, or cause to be disclosed, the terms of this Agreement, or the fact that this A a eement exists, except to their accountants and/or tax advisors, or to the extent otherwise require by law. Each such person who is provided information regarding the terms of this Agree ent shall first be required to review this Agreement and agree to abide by the limitations on dis losure. The Releasors and Plaintiffs' Attorney acknowledge and agree that this confid tially provision is an express and absolute condition of this Agreement, is bargained for consid .tion for this Agreement and that any violation of the terms and conditions of this confid= tiality provision shall constitute a material breach of this Agreement. In the event that this A eement is required to be disclosed pursuant to applicable law, the Releasors and Plainti i s' Attorney agree that their communication with any person or the media regarding the Action hall be limited to the statement that the "claim was resolved to my satisfaction". In the event aintiff or her Attorney violates this non-disclosure provision, the NJIIF may move in a summ action to enforce same and shall be entitled to 50% of the Settlement Sum as liquidated damag s, along with court costs and legal fees.

1. If any provision of this Agreement or the application thereof is held invalid, the invalid shall not affect other provisions or applications and to this end the provisions of this Agree 'ent are declared to be severable.

00043981. 3

2. No waiver or any breach of any term or provision of this Agreement shall be constr d as, nor shall it be, a waiver of any other term of this Agreement. No waiver shall be bindin unless in writing and signed by the Party waiving the breach.

13. This Agreement shall inure to the benefit of and be binding upon the heirs, repres tatives, successors, and assignees of each of the Parties to it. Each of the Parties who are not sig atories to this Agreement is intended to be third-party beneficiary of this Agreement. Each s h Party shall be entitled to enforce this Agreement and each of its terms. In the event of any br.:ch of this Agreement, an aggrieved Party may move before the Union County Superior Court enforce the terms hereof and shall be awarded legal fees if it is the prevailing party in such a. ion.

14. Plaintiff hereby agrees ro jointi- y and severally indemnify, defend and hold harmle s Defendants and NJIIF jointly and individually, from any and all liabilities, claims, causes of action, charges, appeals, complaints, obligations, costs, losses, damages, injuries, attome s' fees, and other legal responsibilities of any form or kind whatsoever, whether vested or cont agent, which any party to the Action or any other person or their successors or assigns has or ay have against the Defendants and NJIIF arising from the subject matter of the Action, includi g without limitation any claims in law, equity, contract, tort, public policy, any claims or causes if action for breach of contract, negligence, retaliation, harassment and/or discrimination based .on , among other things, disability, handicap, sex, age or race, intentional or negligent inflictiu of emotional distress, defamation, and any claims which were raised or could have been ra sed in the Action, whether known or unknown, unforeseen, unanticipated, unsuspected or latent.

Parties, to the underst Agreen modifi

This Agreement represents the entire agreement understanding between the constitutes the complete. final and exclusive embodiment of their agreement with respect ubject matter hereof, and supersedes and replaces any and all prior agreements and ndings, both written and oral, concerning the subject matter hereof. The terms of this nt are contractual and not mere recitals. This Agreement may not be changed or

•, except by a writing signed by the Parties hereto.

6. This Setticatent Agreement will be governed by and construed wider the laws of the Sta of New Jersey and shall not be construed for or against any Party based on attribution of draft tg to any Party.

7. This Settlement Agreement may be executed in counterparts, and each counte part shall have the same force and effect as an original and shall constitute an effective, bindin. agreement on that part of each of the undersigned.

8. Plaintiff hereby covenants that if any liens exist against the Settlement Sum. she will be obligate to and shall ensure that they are paid in full, compromised or satisfied and release y her. If a lien exists which is not satisfied as required by this Agreement. ad a claim is made b anyone to enforce that lien against the Defendants or NAM. Plaintiff agrees that she will de nd and indemnify the Defendants and NJIIF from and against all such claims. This

0004 398 1 .5 4

representation is intended to include all liens. past. present and future, including, but not limited to, governmental liens, Social Security liens, child support or custody liens, attorneys' liens, medical provider liens, Medicare and judgment liens. Plaintiff agrees to indemnify and hold the Defend ints and the NJIIF and all of' their insurance carriers harmless in connection with any claim lade by reason of liens against or tax obligations associated with payment of the Settle -nt Sum. If a claim is hereafter made against the Defendants and/or NJIIF or their insura e carriers by anyone seeking payment of the liens, Plaintiff will indemnify and hold the Defen nts and NJIIF and their insurance carriers harmless for any such liens and/or defending against uch a claim, including, but not limited, attorneys' fees, costs of suit, and interest.

n furtherance of the foregoing. Plaintiff sates as follows:

agree to satisfy and personally guarantee payment for any and all liens, including but ut limited to liens asserted by any workers' compensation insurance carrier or ovemmental entity. including but not limited to Medicare and/or Medicaid, that has

• aid, or will pay, any benefits to me, or an my behalf, out of the monies you are paying p ursuant to this Release. I further agree to satisfy any and all child support judgment ens and unpaid medical bills of any medical provider or facility out of the proceeds of us settlement.

n recognition of my obligations to satisfy all such liens out of the monies being paid ursuant to this Release, I further agree to indemnify and defend you, your attorneys and our liability insurance carriers from and against any and all claims made or actions filed gainst you, your attorneys, your liability insurance carriers for payment of any such liens pon prompt presentation and tender of such claims. I further acknowledge that I have ecifically discussed this provision of this Release with my attorneys."

9. Plaintiff represents and warrants that she is not Medicare eligible and/or enrolled and thai Medicare has not (pursuant to 42 U.S.C. §I395y(b) and the corresponding regulations) made a y conditional payments for medical services or items provided to Plaintiff and arising from or relating to any claim, accident, occurrence, act, error, omission, bodily injury, disease, loss, or amages that are subject to the release herein. The Parties agree that all representations and w anties made herein shall survive settlement. In consideration of the promises made by the Sett ng Defendants in this Agreement, including but not limited to the Settlement Sum to be paid by he NJIIF pursuant to this Agreement. Plaintiff agrees that Plaintiff shall be responsible for satin ying any future claims for reimbursement of conditional payments that may be asserted by Med are, and that the Settling Defendants shall have no obligation to satisfy any such claims for reim F ursement.

laintiff and/or her estate agree to investigate and assume any responsibility and/or liability o pay any current Medicare liens that may be related to the injury in question. Further, Plaintiff and/or her estate agrees to pay any future Medicare liens that may arise that are determi d to he related to the injury that is the subject of the Action.

Each Party represents that it has had the opportunity to consult with an attorney, and has arefully read and understands the scope and effect of the provisions of this Agreement,

00043981.5 5

N WITNESS WHEREOF, the Parties have executed this Agreement on the respective forth below. dates s

-4Eyv\., Lorraine Selecky, Plaintiff

/if

W i tness

and st s this Agreement of its own free will. No Party to the Agreement has relied upon any repress tations or statements made by any other Party hereto which are not specifically set forth in this greement. The Parties each understand how this Agreement will affect their legal rights and vo ntarily enter into this Agreement with such knowledge and understanding.

I. This Settlement Agreement is executed voluntarily and without any duress, coerci•or undue influence on the part or behalf of the Parties hereto, with the full intent of releasi g all claims asserted in the Claim. The Parties acknowledge that:

(a) They have read this Agreement:

(b) They have been represented in the preparation. negotiation. and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel;

(c) They understand the terms and consequences of this Agreement and of the releases it contains; and

(d) They are fully aware of the legal and binding effect of this Agreement.

New Jersey Intergovernmental Insurance Fund. behalf DelendanL:

• By: • (-)

Eric J. Nemeth, eneral Counsel

00043981.5 6

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1346-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORRAINE M. SELECKY,

Defendant-Appellant.

_________________________________________________

Submitted November 29, 2011 - Decided

Before Judges Payne and Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Municipal Appeal

Docket No. 5941.

Joel I. Rachmiel, attorney for appellant.

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent (David

A. Zeitzoff, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant, Lorraine M. Selecky, appeals from a Law Division

order following a trial de novo on the record below, finding

defendant guilty of parking in a handicapped parking spot, in

violation of N.J.S.A. 39:4-138o, and imposing a fine of $250 and

January 11, 2012

A-1346-10T2 2

$6 in court costs. On appeal, she raises the following

arguments:

Point I

The Municipal Court Judge's Grant of Special

Inferences to the State and The Testimony of

Officer Cantrell Violates Fundamental

Fairness Standards Thereby Rendering His

Credibility Findings Unworthy of Any

Deference.

Point II

The State Has Not Proved the Charge of

Unlawfully Parking in a Space Reserved For

the Physically Handicapped Beyond a

Reasonable Doubt.

We reverse and remand for a new trial before a different

municipal court judge.

The record discloses that on September 19, 2009, at

approximately 9:40 p.m., defendant drove with her thirteen-year-

old daughter to a 7-Eleven store in Roselle Park to rent a video

from an automated Redbox video vending machine located outside

the store. As they approached the Redbox, defendant and the

daughter were engaged in an intense argument. Once there, they

encountered off-duty police officer James Cantrell, who was

renting a video with his children. At this point, a heated

argument occurred between defendant and Cantrell, either because

defendant thought Cantrell's children were taking too long in

making their choice or because Cantrell interjected himself in

defendant's mother-daughter dispute. In any case, the exchange

A-1346-10T2 3

escalated to the point that defendant threatened to call the

police, but she did not do so, nor did Cantrell disclose that he

was a police officer. Two days later, defendant received in the

mail a summons, issued by Cantrell, for parking in the

handicapped parking spot located next to the Redbox vending

machine.

Defendant, appearing pro se, contested the ticket in

municipal court. At the trial held in the matter, Cantrell

testified that he had observed defendant parking illegally and

that he notified dispatch of the violation. However, he did not

personally raise the subject of defendant's allegedly illegal

conduct with her at the time.

On cross-examination, defendant asked Cantrell why, if she

had parked in a handicapped spot, Cantrell did not ask her to

move her vehicle. Her question was as follows:

Officer, since you took an oath that it

is your honor to[,] you know[,] protect the

public and dispatch anything that you see

[as] wrongdoing, why would you not have

approached me at that time if you in fact

say this is what I did, parked in the

handicapped spot right next to this red box,

having seen I made this violation, why would

you not interject and say to me, Ma'am, why

are you parking there, you don't have the

handicapped sticker?

When directed to rephrase her question, defendant asked:

Let's say I'm parked in the handicap

spot such as Officer Cantrell is saying here

that I'm parked there, and you see me coming

A-1346-10T2 4

out of the car and I approach the red box,

why would you not stop me then and say,

Ma'am, you shouldn't park there, move your

car. Why would you not do that if that were

the case as you're suggesting?

Cantrell responded that defendant was deemed to know the law, so

there was no need on his part to inform her of her violation.

In the circumstances presented, he could nonetheless do so, or

he could issue a summons. He chose the latter course.

In trial testimony given after the State had rested,

defendant admitted to a "horrible verbal altercation" with

Cantrell. She denied parking in a handicapped spot, but was

unable to offer corroboration of her position, because the 7-

Eleven did not conduct video surveillance of that area.

Defendant attempted to introduce hearsay corroboration by her

daughter that defendant had parked properly. However, that

testimony was ruled inadmissible.

Defendant concluded her testimony by offering a photograph

of the parking area in front of the 7-Eleven and testifying that

she had parked in the spot next to the handicapped one.

However, on rebuttal, Cantrell testified that defendant was

incorrect; that he had parked in the indicated spot and that

defendant had parked in the one reserved for handicapped

persons.

In reaching his decision on the matter, the municipal judge

observed that, in this case, he was required to determine that

A-1346-10T2 5

"somebody's facts are right and somebody's facts are wrong." He

then held: "Based upon the inferences that are to be given to

the State and to the police, I find Officer Cantrell's testimony

to be credible." The judge continued by stating:

The one thing that I did find

interesting to your [defendant's] detriment

is when you asked the officer, I guess it

was a hypothetical, but you asked him, well

even if a person had parked in that spot,

would you not interject with the person and

ask him to simply pull — basically pull out

of that spot rather than issue them a

summons.

My — it made me think a little bit what

would trigger that question and it made me

think possibly, possibly that you were in

that spot and that you were hurt or offended

by the fact that a simple courtesy would

have been to say hey, why don't you back out

of the handicapped spot.

I don't know if that happened or not.

But it made me have a thought process of why

you would ask that particular question.

Following some additional musings on the import of defendant's

question, the judge determined to accept Cantrell's testimony

regarding the episode, and he ruled that the State had met its

burden of proving a statutory violation.

Defendant retained counsel and appealed to the Law

Division. On appeal, counsel argued that no deference should be

given to the municipal judge's credibility finding, which was

based upon his erroneous conclusion that deference had to be

accorded to the State and its police witness. The Law Division

A-1346-10T2 6

judge agreed and, on that basis, determined that he could not

give the deference in this case ordinarily accorded to judicial

findings of credibility. Additionally, counsel objected to the

fact that the municipal judge had interpreted defendant's

hypothetical question as an admission that she had parked in the

handicapped spot. The Law Division judge responded that he did

not think it was proper for the municipal judge to have done so,

and that questions were not evidence. As a final matter,

counsel argued that, upon ruling inadmissible defendant's

testimony regarding her daughter's corroboration of her account

of where she parked, the judge should have offered defendant,

who was appearing pro se, a continuance to permit her to produce

the daughter. However, the judge refused to consider that

argument in the absence of a motion to supplement the record.

Following argument, the Law Division judge ruled in the

State's favor, deferring to the municipal judge's determination

that Officer Cantrell's testimony was straightforward and

credible. With respect to defendant, the judge found that,

because she would be required to pay a fine if found guilty, she

had a motivation for claiming that she had parked legally — a

finding that the judge utilized to bolster his credibility

determination. Additionally, the judge stated:

I want to specifically note that I did not

consider the judge's rulings on deference.

I did not consider the judge's comments that

A-1346-10T2 7

Ms. Selecky's cross-examination should be

considered as evidence or in any way an

admission on her part. I made this finding

based strictly on the testimony in front of

me.

In making his credibility determination, the judge rejected

defendant's argument that Officer Cantrell had a motive to claim

that defendant had acted illegally, arising from the admittedly

hostile confrontation between him and defendant.

Following issuance of an order stating that defendant's

appeal was "denied," defense counsel moved for an order granting

defendant a new trial or permitting defendant to supplement the

record with the testimony of her daughter. In a written opinion

denying counsel's motion, the judge addressed an argument by

counsel, set forth in a certification accompanying the motion,

that neither judge had made a credibility finding with respect

to defendant. The judge stated:

On the merits of defendant's claim, I,

along with [the municipal court judge] did,

in fact, take into account her testimony.

Both courts took note of the surprising

hypothetical that defendant posed when she

asked Officer Cantrell why, in lieu of

issuing a ticket, he would not have just

asked an individual parked in a handicapped

spot if they would simply move from the

spot. [The municipal court judge] found the

hypothetical suspect, as if she "were hurt

or offended by the fact that a simple

courtesy would have been to say hey, why

don't you back out of the handicapped spot."

I adopted [the judge's] concerns.

A-1346-10T2 8

. . . I properly took the testimony of

both the defendant and Officer Cantrell into

account in coming to the determination that

the State properly met its burden in proving

that defendant illegally parked the vehicle

in a handicapped spot.

Additionally, the judge denied counsel's request to supplement

the record, determining that the motion seeking such relief was

untimely, and that none of the conditions for supplementation

set forth in Rule 3:23-8 had been demonstrated.

Defendant has appealed. Following our review of the

proceedings in the Law Division, we have determined that

reversal and retrial before a different municipal judge is

mandated. In reaching that conclusion, we concur with the

ruling of the Law Division judge that the municipal court judge

based his credibility determination on an improperly recognized

inference in favor of testimony provided by Officer Cantrell in

support of the State's case against defendant. No such

inference in favor of the State or its law enforcement witnesses

exists.

Nonetheless, we are unwilling to accept the credibility

determination of the Law Division judge, made without

consideration of the inference drawn at the municipal level. In

this regard, we are particularly concerned by statements by the

judge in his opinion denying defendant's motion for a new trial

or supplementation of the record, indicating that in determining

A-1346-10T2 9

credibility he, like the municipal judge, considered defendant's

hypothetical questions as an admission that she, in fact, had

parked illegally. We know of no precedent that would permit a

hypothetical question posed by a pro se party during cross-

examination of a witness at trial to be considered as

substantive evidence in the proceeding. Indeed, for it to be so

construed would present an unlawful trap to a defendant,

untutored in the law, representing his or herself in a legal

proceeding. Moreover, evidence has been defined as:

Any knowable fact or group of facts, not a

legal or a logical principle, considered

with a view to its being offered before a

legal tribunal for the purpose of producing

a persuasion, positive or negative, on the

part of the tribunal, as to the truth of a

proposition, not of law or of logic, on

which the determination of the tribunal is

to be asked.

[1 Wigmore on Evidence § 1 at 8 (Tillers

Revision 1983).]

Defendant's hypothetical question cannot be considered a "fact"

as that concept has been defined. Moreover, we do not regard

defendant's hypothetical question either "suspect" or

"surprising." Rather, it constituted an entirely logical

inquiry designed to test the officer's credibility.

We thus conclude that, because a basis for the judge's

credibility determination was plainly improper, the

determination thus reached was sufficiently lacking in

A-1346-10T2 10

foundation as to warrant judicial intervention and correction.

State v. Johnson, 43 N.J. 146, 162 (1964). Retrial is therefore

required.

Given the well-recognized importance of a municipal judge's

evaluation of witness credibility, and out of concern that the

evidentiary mistakes occurring in that regard in the initial

municipal trial in this case would infect future proceedings if

held before the same municipal judge, we direct that a different

judge be assigned to the retrial of this matter.

Reversed and remanded for retrial.