STATE OF NEW JERSEY VS. SURAJ R. DESAI (15-01-0065, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1433-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SURAJ R. DESAI,
a/k/a SURAJ DESSAI,
Defendant-Appellant.
_____________________________
Argued July 31, 2018 – Decided August 16, 2018
Before Judges Sabatino, Mayer, and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
15-01-0065.
Stephen P. Hunter, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Stephen P. Hunter, of counsel and on the
brief).
David M. Liston, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; David
M. Liston, of counsel and on the brief).
PER CURIAM
Defendant Suraj R. Desai appeals from a judgment of conviction
following a jury trial in which he was found guilty of fourth-
degree operating a motor vehicle during a period of license
suspension, N.J.S.A. 2C:40-26(b). Subsequent to sentencing on his
conviction, defendant pled guilty to motor vehicle summonses of:
operating under the influence, speeding, unsafe lane change,
disregarding a stop sign regulation or yield sign, and driving
with a suspended license. We affirm.
The following facts are taken from the trial record. In the
early morning hours of November 16, 2013, Woodbridge Police
Department Officer Bryan Dorward observed a black BMW enter U.S.
Route 1 at a high rate of speed and cross into the middle right
lane without signaling. Officer Dorward stopped the vehicle,
which was operated by defendant. When the officer asked defendant
for identification, he produced a valid Connecticut driver's
license. Defendant informed Officer Dorward he had been coming
from a family party in Edison and that he owned a business in New
Jersey. As a result, Officer Dorward performed a record check,
which revealed defendant's driving privileges in New Jersey were
suspended. The officer issued defendant a summons for driving
while suspended.
Defendant was subsequently indicted under N.J.S.A. 2C:40-
26(b) for operating a motor vehicle with a suspended license and
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issued the aforementioned summonses. At trial, in addition to
testimony from Officer Dorward, the State presented testimony from
a Motor Vehicle Commission employee, Andrew Feller. Defendant did
not testify, but adduced expert testimony from a retired New Jersey
State Police Trooper regarding police procedures relating to the
motor vehicle stop in this case.1
Feller testified defendant's driver's abstract stated his
driver's license was suspended on June 5, 2013, because defendant
was convicted of driving under the influence (DUI), N.J.S.A. 39:4-
50. Feller further explained defendant was previously convicted
of a DUI on July 22, 2009, which resulted in suspension of his
license. Feller testified a suspended license "means that you
have lost the privilege to drive in the [S]tate of New Jersey."
Feller further stated the possession of an out-of-state license
"doesn't affect [a] New Jersey license suspension at all. However
if someone receives a suspension of their driving privilege,
they're not permitted to drive in our state with or without any
other kind of license."
Following Feller's testimony, the State admitted its
documentary evidence, including evidence defendant had signed an
acknowledgment when his New Jersey license was suspended in 2013,
1
Because it is irrelevant to the issue on appeal, we do not discuss
the testimony by defendant's expert.
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prior to committing the offense in this case. Thereafter,
defendant's expert testified, counsel provided summations, the
jury deliberated and returned a guilty verdict. This appeal
followed.
On appeal, defendant raises the following argument:
THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT
TO PRESENT THE DEFENSE THAT HE DID NOT ACT
KNOWINGLY BECAUSE HE BELIEVED THAT HIS VALID
OUT-OF-STATE LICENSE ALLOWED HIM TO DRIVE IN
NEW JERSEY VIOLATED HIS CONSTITITUTIONAL
RIGHTS.
I.
"Trial judges have broad discretion in setting the
permissible boundaries of summations." State v. Muhammad, 359
N.J. Super. 361, 381 (App. Div. 2003). "The scope of defendant's
summation argument must not exceed the 'four corners of the
evidence.'" State v. Loftin, 146 N.J. 295, 347 (1996) (quoting
State v. Reynolds, 41 N.J. 176, 195 (1963)). "The 'four corners'
include the evidence and all reasonable inferences drawn
therefrom." State v. Jones, 308 N.J. Super. 174, 185 (1998)
(quoting Loftin, 146 N.J. at 347). "Thus, it is proper for a
trial court to preclude references in closing arguments to matters
that have no basis in the evidence." Ibid.
As to a trial judge's discretion whether to give a particular
charge to a jury, the Supreme Court has held:
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It is not incumbent upon the trial court to
give any requested instruction which is an
erroneous statement of the law or is otherwise
improper under the facts of the case or does
not state the law with substantial
correctness. The trial court may properly
refuse a requested charge which is
unintelligible or incomplete, or which might
prove misleading or confusing to the jury; a
requested instruction requiring the jury to
decide questions of law; a requested
instruction in conflict with instructions
given; a requested instruction which has no
evidence to support it; an instruction which
is too general or too broad or omits some
qualification or limitation necessary to make
it properly applicable to the facts of the
case; or a request not broad enough to cover
the whole law of the case on the point.
Failure to honor proper requests will
ordinarily be deemed prejudicial error when
the subject matter is fundamental and
essential or is substantially material to the
trial. In any other situation the objecting
party must establish an abuse of discretion.
[State v. Green, 86 N.J. 281, 291 (1981)
(citation omitted).]
II.
Defendant argues the trial judge erred by refusing to allow
him to present a defense that he did not knowingly violate N.J.S.A.
2C:40-26(b). Defendant contends he was entitled to present a
defense that he believed his Connecticut license was valid and
permitted him to drive in New Jersey notwithstanding his
suspension. Defendant argues the trial judge erred by requiring
defendant to testify in order to present a defense, and that a
5 A-1433-16T2
jury could infer he did not "knowingly" drive a vehicle in New
Jersey in violation of the statute, and therefore lacked the
requisite mens rea to violate the statute without his testimony.
Defendant also argues the trial judge should have issued the model
charge on ignorance and mistake to aid the jury in understanding
his defense.
Fundamentally, a defendant possesses a "right to present a
defense, the right to present the defendant's version of the facts
as well as the prosecution's to the jury so it may decide where
the truth lies." Washington v. Texas, 388 U.S. 14, 19 (1967); see
also State v. Jenewicz, 193 N.J. 440, 451 (2008) (holding the
fundamental right to present a defense is protected by the United
State Constitution and the New Jersey Constitution).
In New Jersey, ignorance of the law may provide a defendant
with a defense in certain limited circumstances. Indeed, N.J.S.A.
2C:2-4 states: "Ignorance or mistake as to a matter of fact or law
is a defense if the defendant reasonably arrived at the conclusion
underlying the mistake and: (1) It negatives the culpable mental
state required to establish the offense[.]"
N.J.S.A. 2C:40—26(b) states:
It shall be a crime of the fourth degree to
operate a motor vehicle during the period of
license suspension in violation of R.S.39:3-
40, if the actor’s license was suspended or
revoked for a second or subsequent violation
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of R.S.39:4-50 or section 2 of P.L.1981, c.512
(C.39:4-50.4a). A person convicted of an
offense under this subsection shall be
sentenced by the court to a term of
imprisonment.
N.J.S.A. 2C:2-2(c)(3) states:
Although no culpable mental state is expressly
designated in a statute defining an offense,
a culpable mental state may nevertheless be
required for the commission of such offense,
or with respect to some or all of the material
elements thereof, if the proscribed conduct
necessarily involves such culpable mental
state. A statute defining a crime, unless
clearly indicating a legislative intent to
impose strict liability, should be construed
as defining a crime with the culpability
defined in paragraph b.(2) of this section.
This provision applies to offenses defined
both within and outside of this code.
N.J.S.A. 2C:2-2(b)(2) states:
A person acts knowingly with respect to the
nature of his conduct or the attendant
circumstances if he is aware that his conduct
is of that nature, or that such circumstances
exist, or he is aware of a high probability
of their existence. A person acts knowingly
with respect to a result of his conduct if he
is aware that it is practically certain that
his conduct will cause such a result.
"Knowing," "with knowledge" or equivalent
terms have the same meaning.
The model jury charge for N.J.S.A. 2C:40-26 describes the
elements, which must be met by the State to prove the offense:
In order for defendant to be convicted of this
offense, the State must prove the following
elements beyond a reasonable doubt:
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1. That the defendant knowingly operated a
motor vehicle;
2. That the defendant's license was
suspended or revoked for his/her
(a) first violation of [driving while
intoxicated] or [refusal to submit to a
chemical breath test] and the actor had
previously been convicted of operating a motor
vehicle during the period of license
suspension while under suspension for that
first offense;
OR
(b) second or subsequent violation of
[driving while intoxicated] or [refusal to
submit to a chemical breath test]; and
3. That the defendant knew that his/her
license was suspended or revoked.
[Model Jury Charges (Criminal), "Driving While
License is Suspended or Revoked for DWI or
Refusal to Submit to a Chemical Breath Test
(N.J.S.A. 2C:40-26)" (rev. April 11, 2016)
(emphasis added).]
The gravamen of defendant's appeal centers on his claim he
was deprived of the ability to assert he did not know his right
to drive in New Jersey remained suspended, and that his valid
Connecticut license did not authorize him to drive in this state.
Defendant filed a pre-trial motion to suppress the evidence from
the motor vehicle stop, arguing Officer Dorward lacked reasonable
suspicion to make the stop, which the trial judge denied. Officer
Dorward testified at the suppression hearing, and offered
8 A-1433-16T2
testimony consistent with our summary above, specifically
testifying defendant had presented a valid Connecticut driver's
license during the stop.
Following the suppression hearing, defense counsel objected
to the jury charges proposed by the State, and argued the charges
should not mention defendant possessed a Connecticut driver's
license because it was not a part of the model charge. The
prosecutor noted she had crafted the charge to inform the jury
"that just because [defendant had a valid out-of-state license]
doesn't mean he had the right to drive [in New Jersey]." The
prosecutor further explained "I'm not trying to argue that
[defendant] should have known or he shouldn't have known either
way with that charge, just so [the jury is] aware of what the law
is. That was the purpose of that charge."
The trial judge inquired of defense counsel: "Are you going
to assert as part of your trial that [defendant's] possession of
a Connecticut license is a defense to these charges?" Defense
counsel responded: "Not directly, Judge, but it can be inferred
that that's his understanding." Appropriately, the trial judge
did not adjudicate the dispute over the charge before the State
presented the evidence, and instead advised defense counsel as
follows:
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[I]t depends on what you are asserting as a
defense. [The State] might be entitled to
something based on what you assert for a
defense. I'll wait and see what you assert.
If you assert something that [the State has]
a right to respond to . . . the [c]ourt is
always free to craft additional jury charges.
The following day, prior to jury selection, the trial judge
advised that, based on his research, defendant could not assert
possession of a valid out-of-state license as a defense at trial.
Specifically, the trial judge stated: "I will give you two cases
. . . State of New Jersey v. McDonald . . . and State of New Jersey
v. William Nemesh[.]"
After the jury was empaneled and given preliminary
instructions, they were released. Thereafter, the trial judge and
counsel continued to discuss the issue of defendant's Connecticut
license. The prosecutor requested the judge's permission to elicit
testimony from Officer Dorward that defendant had handed him the
Connecticut license during the stop. The trial judge held "[The
State] can mention it, but [defendant] can't argue that it’s a
defense to the driving while suspended." The judge reasoned
permitting such a defense was a "misstatement of the law."
The trial testimony occurred the following day. Over defense
counsel's objections, Officer Dorward testified defendant had
handed him a Connecticut license during the stop, and explained,
notwithstanding the valid Connecticut license, he issued defendant
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a summons because his license had been suspended in New Jersey.
As we noted, Feller also testified, over defense counsel's
objections, and explained a valid out-of-state license does not
affect one's ability to operate a vehicle in New Jersey.
Following submission of the State's case, and before
commencement of the defense case, as the trial judge and counsel
reviewed the proposed jury charges offered by the State, defense
counsel again noted both of the State's witnesses had testified a
valid Connecticut license did not give defendant license to drive
in New Jersey. Defense counsel asserted this objection to argue
it should not be a part of the jury charge. The trial judge stated
he did not intend to give such a charge.
Defendant also argued a document admitted in evidence, which
demonstrated on its face that defendant had been served with notice
of his New Jersey license suspension at his Connecticut address,
warranted the opportunity to explain to the jury he did not
understand he could not drive in New Jersey. The following
colloquy occurred:
[DEFENSE COUNSEL]: . . . the [c]ourt has
already admitted into evidence the notice
. . . which I think is confusing, I will be
arguing to the jury that that is a legal
document and that he may not have understood
the implications as a Connecticut driver and
I –
11 A-1433-16T2
[COURT]: You can't do that because there's no
evidence to support that he did not
understand.
. . . .
You can't create that argument. So you can't
say he did not understand unless he takes the
stand and says he did not understand.
When the trial resumed, defendant advised the trial judge he would
not testify, and adduced only the testimony of his expert.
Having reviewed the record, we agree with the trial judge the
facts presented did not permit defendant the ability to argue he
lacked the requisite mens rea to violate N.J.S.A. 2C:40—26(b).
Thus, although it is the better practice that trial judges avoid
imparting any instruction, which may be perceived as suggesting a
defendant waive the privilege against self-incrimination2, the
facts here do not demonstrate the trial judge abused his discretion
in curtailing defense counsel's closing argument to the jury
concerning mens rea issues.
As we noted, the trial judge relied on our holding in State
v. Nemesh, 228 N.J. Super. 597 (App. Div. 1988). In Nemesh, the
defendant appealed from his conviction of DUI, N.J.S.A. 39:4-
2
"From its beginnings as a State, New Jersey has recognized the
right against self-incrimination and has consistently and
vigorously protected that right. The right against self-
incrimination is an integral and essential safeguard in the
administration of criminal justice." State v. Reed, 133 N.J. 237,
250 (1993) (citations omitted).
12 A-1433-16T2
50(a)(3), and driving while suspended. When Nemesh was stopped
by police, his New Jersey driver's license was suspended, but he
produced a valid Maryland license. The State had adduced a copy
of the notice of suspension of defendant's New Jersey license and
a certificate of mailing demonstrating proof of service of the
notice.
On appeal, we stated:
While it is true that the evidence showed
defendant had a valid Maryland driver's
license, there is nothing to support his
speculation that the notice of [the
suspension] had been resolved and he simply
had not bothered to obtain another New Jersey
license. On the contrary, defendant testified
on direct examination: "I was scared that I
was driving without a driver's license. . . ."
Defendant's driving privileges in this state
had been suspended. His possession of a valid
Maryland driver's license did not authorize
him to operate a motor vehicle in this state,
particularly where he was working full time
in this state and residing with his daughter.
We agree with the trial judge that the
Maryland license seems to have been obtained
and used by defendant to divert the attention
of police officers in the event he was stopped
and to avoid their learning that his New
Jersey driving privileges had been suspended.
[Nemesh, 228 N.J. Super. at 609.]
The defendant in Nemesh could argue a lack of mens rea defense
because the record contained defendant's testimony that he feared
driving without a license as the reason he had obtained a Maryland
13 A-1433-16T2
license, to permit an inference he lacked the requisite mens rea.
Here, defendant made no such admission and the record lacked any
evidence, circumstantial or otherwise, to permit defendant a
defense of mistake or ignorance.
Furthermore, defendant's proffered defense was the
presentation of a valid Connecticut driver's license as evidence
he believed he could drive in New Jersey. However, this argument
would not negate an element of N.J.S.A. 2C:40—26(b). Indeed, the
State had only to prove defendant was driving in New Jersey and
knew his New Jersey license was suspended or revoked. Thus, under
the facts of this case, the circumstantial evidence of the
presentation of a Connecticut license was not state of mind
evidence of a legally valid defense to the offense charged, and
the trial judge correctly concluded defense counsel's argument the
jury could make such an inference was a "misstatement of the law."
For these reasons, the judge was neither required to charge the
jury nor wrong to deny defense counsel the ability to argue in
summation an untenable defense of the sort asserted by defendant.
Affirmed.
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