NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Alejandra Duque appeals from a judgment of conviction after a trial de novo in the Superior Court for a traffic offense, failure to keep right, N.J.S.A. 39:4-82. We reverse.

The only witnesses at defendant's trial in the Municipal Court of Bergenfield were Officer David Tortora, who issued the traffic summons, and defendant.1

The officer testified that at about 4:10 p.m. on March 23, 2013, he was in his patrol car heading northbound on Washington Avenue and stopped for a traffic light in the right lane at the intersection of Clinton Avenue. Cars in his lane were permitted to go straight through the intersection or to turn right. The intersection also has a left-turn-only lane that, according to the officer, "goes back approximately 20 feet." The officer estimated that two or three vehicles would fit in the left-turn lane.

The officer testified that he saw defendant's car "cross over the double yellow line, proceed northbound on South Washington Avenue, to make her way around the other vehicles that were in that lane, to get to the left turn only lane." After the traffic light turned green, the officer followed defendant's car, activated his lights, and made a motor vehicle stop. He issued a summons to defendant for failure to keep right.

The officer did not recall anything that defendant said to him while he was in contact with her or "anything else of note" about the encounter. On cross-examination, he conceded that he did not remember defendant "by face" and could not identify her. He remembered defendant only "by summons" because he issues a lot of traffic tickets.

In her testimony, defendant denied she had crossed the double yellow lines and presented photographs to dispute the accuracy of the officer's description of the left-turn lane. Defendant testified that she approached the intersection on Washington Avenue and intended to turn left at the traffic light onto Clinton Avenue. The intersection has a sign with arrows indicating the permitted lanes of travel, and also painted arrows in the pavement to designate the left-turn lane. Using her photo exhibits, defendant testified that the street is wide enough at the intersection to accommodate two cars side-by-side traveling north and, most important, that the left-turn lane is long enough to hold five or six cars. She testified that she entered the left-turn lane appropriately and without crossing into the opposite lane for traffic, also stating there was no oncoming traffic because the light was red.

On cross-examination, she testified she had her two children in the car seated in the back and she was not distracted by anything. Officer Tortora's police car was the lead car in the right lane waiting at the red light, and there was only one car in front of her in the left-turn lane. She passed four or five cars as she drove in the left-turn only lane, and the light changed quickly to green. She acknowledged she knew of no reason the officer would have given her a ticket because of "something against" her, but she stated the officer had made a mistake.

The municipal court's decision was as follows:

The court imposed a fine of $85 and costs of $33. Defendant filed a notice of appeal in the Superior Court, Law Division. See R. 3:23-2. On February 7, 2014, the Law Division conducted a trial de novo on the basis of the municipal court record, see R. 3:23-8(a)(2), and also found defendant guilty. The court reviewed the photo exhibits defendant had submitted and stated:

The Law Division reduced the sentence to a fine of $50 and $33 in costs.

We are keenly aware of our standard of review from the decision of a municipal court as confirmed by a similar decision of the Law Division on trial de novo. We must "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the `feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "Moreover, when the Municipal Court and the Superior Court `have entered concurrent judgments on purely factual issues,' we will not disturb those findings `absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J.Super. 1, 8 (App. Div. 2005) (quoting Locurto, supra, 157 N.J. at 474). We are obliged, as was the Law Division, to defer to the municipal court's credibility findings. State v. Cerefice, 335 N.J.Super. 374, 383 (App. Div. 2000).

This is the rare case, however, where the municipal court's decision contains obvious error. The municipal court judge credited the testimony of the officer over the conflicting testimony of defendant because the judge was familiar with the officer from other cases and because the officer had no motive to issue an erroneous charge against defendant. The first of these reasons was an improper consideration by the trial court, and the second not sufficient by itself to reach a credibility determination in favor of the officer.

Defendant had neither an opportunity to challenge the officer's testimony in other cases nor the ability to prove herself also a credible witness in the judge's eyes over the course of a number of different matters. In addition, the fact that a charge was brought by the officer does not in itself lend credibility to the testimony that supports that charge. Such a basis for judging credibility flies in the face of the presumption of innocence and the prosecution's burden to prove the charge beyond a reasonable doubt. See State v. Dively, 92 N.J. 573, 585 (1983).

Here, the municipal court judge did not address defendant's evidence showing that the officer might have been mistaken in what he thought he observed. At least one aspect of his testimony was clearly mistaken, namely, that the left-turn lane was about twenty feet in length and would accommodate only two or three cars. The photographs entered in evidence by defendant clearly show the lane to be much longer and to have room for at least five or six cars.

Furthermore, the prosecution never established how the officer saw defendant's car as it approached from behind where his patrol car was stopped at the traffic light. The officer said he observed defendant's car but did not explain whether he did so with his body turned backwards in the driver's seat or by looking into a rear view mirror. In either case, defendant approached from behind the officer, not from the front where the officer's vantage point and line of sight would have been direct and clear. In focusing only on whether the officer had a motive to fabricate his testimony, the judge did not consider whether he could simply have been mistaken. And finally, the municipal court judge never indicated that she found the officer's testimony to prove defendant's guilt beyond a reasonable doubt.

With those shortcomings in the record of the trial judge's decision, the Law Division was not bound to defer to the judge's credibility determination. Nor in a short trial such as this, where the officer testified for only a few minutes, could such intangible factors as demeanor and body language have played a significant role in the trial court's findings. In fact, the municipal court judge did not say she was relying on the manner in which the two witnesses testified to make a credibility determination.

Defendant presented a viable defense supported by unchallenged photographic evidence. The municipal court judge did not find that her testimony was not credible or her exhibits unpersuasive. In these circumstances, where the trial court relied on improper considerations in making a credibility judgment, neither the Law Division nor we are bound by its findings. We conclude there was insufficient evidence in the record to find defendant guilty of the violation beyond a reasonable doubt.

Reversed and remanded for dismissal of the charge and any necessary order in conformity with this decision. We do not retain jurisdiction.