STATE OF NEW JERSEY VS. RICHARD LYNCH (020-15-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0304-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD LYNCH,
Defendant-Appellant.
_________________________________
Argued November 8, 2017 – Decided August 16, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Municipal Appeal
No. 020-15-16.
Richard Lynch, appellant, argued the cause pro
se.
Michael R. Philips, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Mr. Philips, of counsel and on the brief).
PER CURIAM
Defendant Richard Lynch appeals the August 8, 2016 order by
the Law Division finding defendant guilty of traffic offenses upon
de novo review of his Municipal Court conviction. We affirm.
I.
The following facts appear in the Law Division's opinion and
in the transcripts. On July 18, 2015, in the Borough of
Rutherford, defendant make a left turn from Glen Road onto Park
Avenue. Several signs at the intersection warned motorists that
left turns from Glen Road onto Park Avenue were prohibited.
Officer Matthew Van Dyk saw defendant's Jeep making the left
turn, and effectuated a motor vehicle stop. He asked defendant
for his driver's license, registration, and insurance card.
Defendant presented his driver's license and expired insurance
card, but did not provide his registration, saying he had a copy
at home. Van Dyk issued defendant a summons for making an illegal
left turn in violation of Borough of Rutherford Municipal Ordinance
§ 126-51. That ordinance states in pertinent part: "No vehicle
shall make a left turn at any of the following locations[:] . . .
(18) Vehicles moving in a northwesterly direction along Glen Road
shall not turn left at the intersection of Glen Road and Park
Avenue." Borough of Rutherford Municipal Ordinance § 126-51(A).
Van Dyk also issued a summons for failing to possess and exhibit
his registration card in violation of N.J.S.A. 39:3-29, which
N.J.S.A. 39:3-29 provides in pertinent part that "the registration
certificate of a motor vehicle . . . shall be in the possession
of the driver or operator at all times when he is in charge of a
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motor vehicle," and that "the operator or driver of a motor vehicle
. . . shall also exhibit the registration certificate, when
requested so to do by a police officer."
At the December 10, 2015 trial before the Municipal Court,
defendant was represented by his counsel Miles Feinstein, Esq.
Defendant unsuccessfully moved for the judge to recuse himself.
After hearing testimony from Officer Van Dyk and defendant, the
judge convicted defendant of the two traffic violations.
Defendant appealed, seeking a trial de novo in the Law
Division. See R. 3:23-8. Feinstein filed a brief on defendant's
behalf, but after a disagreement defendant petitioned the court
to proceed pro se. In a July 25, 2016 colloquy, defendant waived
his right to counsel.
The Law Division held a trial de novo on August 8, 2016. The
court convicted defendant of the two traffic violations. The
court rejected defendant's argument that traffic cones near the
curb on the right side superseded the posted signs because "the
traffic cones were located adjacent to hash-marked 'no-parking'
zones" to prevent parking, "not to redirect traffic." The court
also rejected defendant's argument that it was sufficient that he
was in constructive possession of his registration at his home.
The court assessed $303 in fees and court costs.
Defendant appeals, arguing (as originally spelled):
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POINT I - MUNICIPAL COURT DENIED DEFENDANT HIS
RIGHT TO COUNSEL.
POINT II - THE MUNICIPAL COURT ENTERED A
RULING BASED UPON HERASAY AND PRIVELDGED
WRITTEN COMMUNICATION BETWEEN THE DEFENDANT
AND HIS ATTORNY THAT WAS BROUGHT FORTH BY
OPPOSING COUNSEL.
POINT III - THE MUNICIPAL COURT ENTERED A
RULING BASED ON OPINION AND EVIDANCE NOT
ARGUED OR BROUGHT FORTH BY THE STATE.
POINT IV - THE MUNICIPAL COURT SHOULD HAVE
RECUSED ITSELF.
II.
Defendant first claims he was denied his right to counsel at
a December 3, 2015 hearing in the Municipal Court. The State
cites the rule that when a defendant appeals from Municipal Court
to the Law Division, "[t]he appeal shall operate as a waiver of
all defects in the record[.]" R. 3:23-8(c). However, we have
held "the waiver does not apply in respect of defects of a
constitutional or jurisdictional nature." State v. Ross, 189 N.J.
Super. 67, 74 (App. Div. 1983); see, e.g., State v. Abbondanzo,
201 N.J. Super. 181, 184-85 and n.1 (App. Div. 1985) (considering
a defendant's claim that he was deprived of his right to counsel
because he represented himself in his Municipal Court trial, even
though he was represented by counsel at his trial de novo in the
Law Division). We will assume that Rule 3:23-8(c)'s waiver rule
does not apply here.
4 A-0304-16T4
Defendant filed a pro se subpoena duces tecum to the
Rutherford Municipal Court Administrator, commanding her to appear
to testify but not listing any documents for her to bring. The
Borough attorney, on behalf of the Court Administrator, filed a
motion to quash.
At the December 3, 2015 hearing on the motion to quash, the
prosecutor was not present. Defendant said "I'm here without
Miles Feinstein, he's having [a medical treatment] today, it was
scheduled." The judge acknowledged that Feinstein had recently
notified the judge that he was having a medical treatment that day
in New York. The judge stated he had declined to adjourn the
matter because "this is the last court session before the trial.
This is the only opportunity this Court has to hear" the motion
to quash the subpoena.
This exchange followed:
THE COURT: Yes, Mr. Lynch you want to be
heard?
MR. LYNCH: All right, You Honor, now it was
served actually about this –
THE COURT: Okay, I wasn't really getting into
the substance of it –
MR. LYNCH: Okay.
The judge reported that Feinstein was notified by court staff
that he either had to send an associate or colleague, or had to
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send a written response for the judge to decide on the papers.
The Borough attorney represented that Feinstein's office told him
Feinstein was sending an associate, but the associate did not
appear. The Borough attorney further represented that when he had
called to ask why, Feinstein called back, stating "that he had an
associate available, [and] was sending him today, but his client
refused to have anyone but Mr. Feinstein appear today. So for
that reason he advised the associate not to come."
This exchange followed:
THE COURT: I see, okay. You want to be heard
on that.
MR. LYNCH: Well, then I guess we'll be heard
on this – the – the matter.
THE COURT: Well, no – no do you want to be
heard on . . . that statement.
Defendant responded that he "hired Miles Feinstein," and that
he sent Feinstein an email "that I wanted Miles," "I hired Miles
and I would expect Miles to be here." Defendant said he "didn't
get a response" to his email, so he did not know "that nobody was
going to show up today." Hearing that, the judge accepted the
Borough attorney's representations of his conversations with
Feinstein and his office. The judge stated he would let defendant
himself oppose the motion to quash.
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Defendant said he had a tape he wanted to play of the Court
Administrator discussing a change of venue.1 He said he subpoenaed
the Court Administrator to testify "how [the tickets] were
processed and how they were generated and how they were sent to
the county and how it was sent to the prosecutor's office." He
alleged "these interactions have been malicious." He admitted he
had not paid a fee for her to appear. He argued the motion to
quash was served in an untimely way because it gave him less than
seven days to respond, but the judge noted it was an emergent
application and was not untimely.
The judge found that the subpoena duces tecum had to be
quashed because: it did not request any documents; defendant did
not pay the transportation fee for the witness; there was no basis
to believe she had relevant knowledge; and the subpoena was
unreasonable and oppressive.
On appeal, defendant now claims that the Municipal Court
denied his right to counsel. However, as the Law Division noted,
"neither defense counsel nor the defendant directly raised this
issue at the motion to quash hearing, the recusal motion, the
trial, or, in defendant's brief filed in th[e] appeal" to the Law
Division, even when defendant was represented by counsel.
1
The judge stated that the Assignment Judge issued an August 14,
2015 order "transferring venue to this court."
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Defendant mentioned the December 3 hearing when he waived
counsel in the Law Division on July 25, 2016. Steven Braun, Esq.
appeared in Feinstein's stead and reported that defendant wanted
to proceed pro se, and that Feinstein, who had not been paid, had
no objection to being relieved. Defendant stated that Feinstein's
brief in the Law Division was inadequate and that he would prefer
to have Feinstein relieved as long as defendant was given two
weeks to prepare, which the court granted.
The trial court conducted a thorough colloquy in which
defendant stated that he went to college for two years, owned a
towing and trucking company, "dabble[d]" in the law, had been a
criminal defendant, had represented himself in a prosecution for
driving while intoxicated and obtained an acquittal, and had
represented himself successfully in federal bankruptcy court.
Defendant said he understood the charges and the burden of proof,
and knew he was bound by the rules of evidence and criminal
procedure. Defendant voluntarily waived counsel despite the
court's warning that it was a serious choice, that it would be far
better to have counsel, that proceeding without counsel may impair
his ability to defend himself, and that the court strongly urged
him not to go pro se.
Representing himself at his trial in the Law Division,
defendant again mentioned the December 3 hearing, but argued Braun
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should not have been allowed to appear in Feinstein's stead, and
that he had no interest in being represented by anyone but
Feinstein. However, defendant again stated that Feinstein's brief
was inadequate and questioned whether Feinstein was capable of
representing him. Defendant then argued he was denied his right
to private counsel because the Municipal Court instructed
Feinstein to send another attorney in Feinstein's absence, and
therefore he had no choice but to defend himself.
Under these circumstances, the Law Division concluded that
defendant had to show plain error under Rule 2:10-2. We agree.
See State v. Hannah, 448 N.J. Super. 78, 92-93 (App. Div. 2016);
State v. Avena, 281 N.J. Super. 327, 334 (App. Div. 1995); see
also N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super.
322, 343, 351 (App. Div. 2007). He failed to show plain error.
Defendant first argues that the Municipal Court erred in
moving forward on December 3 because he should not be liable for
Feinstein not adhering to the judge's instruction to send a
substitute counsel. However, the judge found that Feinstein did
try to send counsel to represent defendant but defendant refused
to be represented by anyone but Feinstein. That finding was
supported not only by Feinstein's statements to the Borough
attorney but also by defendant's own statements to the judge that
he hired Feinstein and would accept representation only by
9 A-0304-16T4
Feinstein. That finding was subsequently corroborated by
defendant's belated but vehement objection to the counsel sent by
Feinstein appearing at the Law Division hearing at which defendant
waived counsel. Even in his brief before us, defendant argues
that "had Mr. Feinstein elected to send a substitute attorney, the
retainer agreement Mr. Feinstein had with the defendant would not
support an unnamed colleague."
Defendant quotes Rule 1:11-2(a)(3) that "[i]n a criminal
action, no substitution shall be permitted unless the withdrawing
attorney has provided the court with a document certifying that
he or she has provided the substituting attorney with the discovery
that he or she has received from the prosecutor." However,
Feinstein was not withdrawing from being defendant's counsel, nor
was the counsel he attempting to send a "substituting attorney,"
which refers to an attorney permanently replacing a withdrawing
attorney. See R. 1:11-2(a)(2), (3). Feinstein was sending the
attorney only to cover a hearing when Feinstein was temporarily
unavailable but was continuing to represent defendant.
Citing Rule 1:2-4(a), defendant argues that Feinstein "failed
to give reasonable attention to the fact that his medical
appointment conflicted with the Notice to Appear he received for
December 3, 2015." However, as defendant admits, Feinstein sought
an adjournment, which was denied by the judge, a ruling defendant
10 A-0304-16T4
has not challenged. Moreover, the judge found Feinstein tried to
send counsel to represent defendant. Thus, Feinstein had just
excuse for his absence and gave "reasonable attention to the
matter." R. 1:2-4(a).
Defendant rejected such representation by another counsel.
Moreover, rather than protesting Feinstein's absence, defendant
twice immediately began to discuss the merits of his pro se
subpoena duces tecum. Those circumstances, and defendant's
subsequent criticism of Feinstein's representation and his
decision to proceed pro se after a thorough colloquy, belie his
current contention he was forced to represent himself. See State
v. Crisafi, 128 N.J. 499, 517-18 (1992) (holding a defendant's
rejection of representation by trained counsel and proceeding pro
se "can produce a valid waiver of counsel").
Nonetheless, defendant contends the judge erred by failing
to conduct a colloquy under Crisafi and State v. Reddish, 181 N.J.
553 (2004). Such a colloquy is required for criminal defendants
who have a Sixth Amendment right to counsel. Reddish, 181 N.J.
at 587; Crisafi, 128 N.J. at 508-09. However, defendant had no
constitutional right to assistance of counsel regarding these
minor traffic offenses. State v. Smith, 408 N.J. Super. 484, 491
(App. Div. 2009). The penalty for each offense was limited to a
$150 fine. N.J.S.A. 39:3-29; Borough of Rutherford Municipal
11 A-0304-16T4
Ordinance § 126.65(B)(17). A defendant has a right to assistance
of counsel only where the penalties include imprisonment, license
suspension, or aggregate monetary sanctions of $800 or greater.
See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971); R. 7:3-2(b);
Guidelines for Determination of Consequences of Magnitude,
Pressler & Verniero, Current N.J. Court Rules, App. to Part VII
to R. 7:3-2 at 2754 (2018).2
Courts have not required full Crisfali colloquies for
defendants lacking such rights. E.g., In re Adoption of J.E.V.,
226 N.J. 90, 114 (2016) (defendants facing termination of parental
rights); D.N. v. K.M., 429 N.J. Super. 592, 607-08 (App. Div.
2013) (defendants in domestic violence actions). Moreover,
defendant was not "proceed[ing] to trial without an attorney."
Cf. R. 7:8-10. Nor was he being deprived of "the right to counsel
of choice" at his trial. Cf. United States v. Gonzalez-Lopez, 548
U.S. 140, 150 (2006); State v. Kates, 426 N.J. Super. 32, 51 (App.
Div. 2012), aff'd o.b., 216 N.J. 393 (2014).
2
In his reply brief, defendant contended "points" were charged
against his driver's license, making it ineligible for commercial
insurance coverage. However, we are aware of no basis under which
the Motor Vehicle Commission could assess points for these
violations. See N.J.A.C. 13:19-10.1. Any actions of defendant's
insurance company would be irrelevant to the consequences-of-
magnitude inquiry. In any event, we "decline to consider arguments
raised for the first time in a reply brief." Bacon v. N.J. State
Dep't of Educ., 443 N.J. Super. 24, 38 (App. Div. 2015); see State
v. Lenihan, 219 N.J. 251, 265 (2014).
12 A-0304-16T4
Rather, defendant's counsel of choice, who represented him
at trial, was simply absent from a brief, inconsequential hearing.
The absence of counsel does not "require[] reversal of the
conviction, no matter how brief the deprivation or how trivial the
proceedings that occurred during the period of deprivation."
Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 2009); see United
States v. Roy, 855 F.3d 1133, 1150-51 (11th Cir. 2017); see also
United States v. Gordon, 710 F.3d 1124, 1139 n.19 (10th Cir. 2013).
In any event, we agree with the Law Division that defendant
has not shown that any error was "clearly capable of producing an
unjust result." R. 2:10-2. The only topic of the December 3
hearing was defendant's pro se subpoena duces tecum, which failed
to seek any documents and failed to tender the required fee for
the witness's appearance. See R. 1:9-2, 1:9-3. Defendant was
unable to offer a valid reason why he sent the subpoena to the
Court Administrator. Defendant's assertion that the Court
Administrator could testify about how tickets were processed and
copied to various agencies "was wholly irrelevant to the motor
vehicle offenses," as the Law Division found. The Municipal Court
properly quashed the subpoena as "unreasonable [and] oppressive."
R. 1:9-2.
Given that defendant's subpoena was pro se and meritless, the
hearing concerned a motion by the subpoenaed person rather than
13 A-0304-16T4
the state, and the prosecutor was not present, the hearing was not
a "'critical stage'" of a prosecution where "the substantial rights
of the accused may be affected." State v. A.O., 198 N.J. 69, 82
(2009). In any event, even if a defendant has a right to assistance
of counsel, the counsel is temporarily absent from a critical
stage, and the defendant objects, New Jersey courts do "not presume
prejudice" from the temporary absence of counsel but, "instead,
analyze the error in accordance with the harmless error standard."
State v. Dennis, 185 N.J. 300, 302 (2005); see State v. Scherzer,
301 N.J. Super. 363, 454-59 (App. Div. 1997) (finding no prejudice
from counsel's absence from parts of jury selection and trial).
Feinstein was absent from a hearing quashing a facially-
improper pro se subpoena which sought irrelevant information. "It
is unlikely that defense counsel, if present at the hearing, would
have been able to persuade the judge not to" quash the subpoena.
See Dennis, 185 N.J. at 302. Moreover, "[t]he presence of
[defendant's] attorney would, beyond any doubt, have made no
difference to the outcome of the trial." See Scherzer, 301 N.J.
Super. at 457. Further, defendant was represented by counsel
throughout his Municipal Court trial. See State ex rel. L.R., 382
N.J. Super. 605, 619-21 (App. Div. 2006) (finding the absence of
counsel from an earlier hearing was harmless because he was
represented by counsel at the later dispositive hearing); cf.
14 A-0304-16T4
Johnson v. United States, 520 U.S. 461, 468-69 (1997)
(distinguishing "a total deprivation of the right to counsel");
J.E.V., 226 N.J. at 114-15 (reversing due to "a complete denial
of counsel"); Abbondanzo, 201 N.J. Super. at 184 (reversing where
the defendant was not represented at his Municipal Court trial).
Thus, defendant cannot show plain error.
III.
Defendant now contends that at the December 3 hearing on the
motion to quash, the Municipal Court improperly relied on the
Borough attorney statements that "I learned today from Mr.
Feinstein that the basis of [the subpoena] likely had to do with
an opposition, or a concern or an issue with the change of venue,"
and that Feinstein said he tried to send an associate to the
hearing but defendant said that was unacceptable, as related above.
Defendant contends Feinstein's statements were inadmissible
hearsay because they were not a party's own statement or adopted
by him under N.J.R.E. 803(b)(1) or (2). However, it is unclear
that the Rules of Evidence apply to a proceeding about a subpoena.
See N.J.R.E. 101(a)(2)(E) (relaxing the evidence rules in
"proceedings to determine the admissibility of evidence"). Nor
is it clear the rules which provide "[h]earsay is not admissible"
apply to discussion between court and counsel on procedural matters
where no evidence is being admitted. See N.J.R.E. 802.
15 A-0304-16T4
Regardless, defendant's statements to Feinstein were a
party's own statements, and Feinstein's statements as defendant's
counsel were statements by a party's authorized representative or
agent. N.J.R.E. 803(b)(1), (3), (4); see State v. Mauti, 448 N.J.
Super. 275, 330-32 (App. Div. 2017); Howard Sav. Bank v. Liberty
Mut. Ins. Co., 285 N.J. Super. 491, 497 (App. Div. 1995).
Moreover, Feinstein's statements concerned "the management of the
litigation," a topic on which counsel's statements are clearly
admissible. 4 Wigmore, Evidence § 1063(1) (Chadbourne rev. 1972);
Dumont v. Dinallo, 4 N.J. Super. 371, 375 (App. Div. 1949); see
McCormick on Evidence § 259 at 286-87 (7th ed. 2013).
Defendant also claims his email to Feinstein was privileged.
"For a communication to be privileged it must initially be
expressed by an individual in his capacity as a client in
conjunction with seeking or receiving legal advice from the
attorney in his capacity as such, with the expectation that its
content remain confidential." Fellerman v. Bradley, 99 N.J. 493,
499 (1985); see N.J.R.E. 504(a). Here, the only identified
statement by defendant to Feinstein was defendant's refusal to
accept another attorney. That was not a communication "in which
legal advice is sought." Hedden v. Kean Univ., 434 N.J. Super.
1, 10 (App. Div. 2013).
16 A-0304-16T4
In any event, defendant did not object in the Municipal Court
to the Borough attorney's relation of Feinstein's statements, and
must show plain error. He cannot do so, as he told the judge he
sent an email to Feinstein stating he had hired Feinstein and
wanted Feinstein. Defendant also told the judge his pro se
subpoena was intended to obtain the County Administrator's
testimony on how tickets were processed and where they were sent.
The judge rejected defendant's stated purpose for the subpoena as
having "nothing to do with the case." Because defendant's
statements to the judge provided ample basis for the judge's
actions, defendant cannot show the Borough attorney's repetition
of Feinstein's statements was "clearly capable of producing an
unjust result." R. 2:10-2.
IV.
Defendant now complains that the Municipal Court erred in
relying on a photograph he admitted at trial. During defendant's
testimony, he introduced through counsel several photos of Glen
Road's intersection with Park Avenue. Defendant testified he took
the photos on the day he made the left turn to show the traffic
cones. Defendant got the photos admitted into evidence. In
issuing his decision, the judge stated: "What wasn't mentioned
by anyone and it's very apparent on D-13 is that right at this
intersection on Glen, going on - going to Park there's a huge
17 A-0304-16T4
white arrow painted on the ground. Right turn - it doesn't say
right turn only, it's pointed in the right direction, only."
Defendant claims the Municipal Court erred in referencing the
right-turn arrow on the pavement because the arrow was not
discussed in testimony. However, there was no error because the
photo clearly depicted the arrow, defendant testified the photo
accurately represented the scene at the time of his left turn, and
the photo had been admitted into evidence without limitation.
Moreover, any error was invited by defendant, who introduced
the photo for the judge's consideration. Under the invited-error
doctrine, "trial errors that '"were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal."'" State v. A.R., 213 N.J.
542, 561-62 (2013) (citations omitted) (finding invited error when
the defendant encouraged the factfinder to watch a video); N.J.
Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010)
(finding invited error where the "defendant consented to the
admission of the relevant documents").
In any event, the Law Division made no reference to the right-
turn arrow in reaching its decision. The court could rely on
defendant's own testimony that he was aware of the signs
prohibiting left turns, and that he knew left turns were
prohibited. See State v. Kashi, 360 N.J. Super. 538, 545 (App.
18 A-0304-16T4
Div. 2003) (citation omitted) (upholding a traffic conviction for
which the Law Division gave a different basis than the Municipal
Court), aff'd o.b., 180 N.J. 45, 47-48 (2004).
"[A]ppellate review of a municipal appeal to the Law Division
is limited to 'the action of the Law Division and not that of the
municipal court.'" State v. Palma, 219 N.J. 584, 591-92 (2014)
(citations omitted). "For that reason, we [need] not consider
defendant's arguments in respect of the municipal court judge's
actions." Ibid.; see Hannah, 448 N.J. Super. at 93-94.
V.
Defendant finally claims the Municipal Court judge should
have granted his motion for the judge's recusal at the beginning
of the December 10, 2015 trial. Motions for recusal "are entrusted
to the sound discretion of the judge and are subject to review for
abuse of discretion." State v. McCabe, 201 N.J. 34, 45 (2010).
We must hew to that standard of review. "[T]he mere appearance
of bias may require disqualification. However, before the court
may be disqualified on the ground of an appearance of bias, the
belief that the proceedings were unfair must be objectively
reasonable." State v. Marshall, 148 N.J. 89, 279 (1997) (citation
omitted); see R. 1.12-1(g); Code of Judicial Conduct, Canons 2,
3.17, Pressler & Verniero, Current N.J. Court Rules, App. to Pt.
I (2018). "The proper standard to assess defendant's request for
19 A-0304-16T4
recusal is set forth in DeNike v. Cupo, 196 N.J. 502, 517 (2008):
'Would a reasonable, fully informed person have doubts about the
judge's impartiality?'" State v. Dalal, 221 N.J. 601, 606 (2015).
Defendant argues that the judge should have recused himself
because he had heard two prior cases involving defendant, one of
which involved the unlawful sale of a boat. The judge stated: "I
didn't even remember that I had [defendant] in front of me, until
[counsel] said it earlier today." Defendant raised "a second case
involving his son's maternal grandmother," but the judge said he
did not remember it, and counsel noted the judge had found in
defendant's favor. The judge denied the motion, explaining:
I don't have any recollection of the cases
that – you are telling me about now. I
remember something about a boat, but I didn't
know that that involved [defendant] until
[counsel] just recited it. So I have no
knowledge of any prior matters that would
cause me not to be able to hear this case
. . . in a just way.
Defendant's recusal claim was properly rejected. Even "[a]n
adverse ruling in prior proceedings does not warrant
disqualification." Marshall, 148 N.J. at 276; see Strahan v.
Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot
be inferred from adverse rulings against a party."). Further,
"[a]n error by the court in the previous proceeding does not
necessarily justify an inference of bias and will not, by itself,
20 A-0304-16T4
furnish a ground for disqualification." Marshall, 148 N.J. at
276. As the Law Division found, "no fully informed person would
question [the Municipal Court judge's] impartiality."
In any event, "[a]t a trial de novo, the [Law Division] makes
its own findings of fact and conclusions of law but defers to the
municipal court's credibility findings." State v. Robertson, 228
N.J. 138, 147 (2017). The Municipal Court made no credibility
findings because the testimony of Officer Van Dyk and defendant
were "very consistent." As the Law Division found, "credibility
was not at issue." Thus, the Law Division "consider[ed] the matter
anew," State v. Kashi, 180 N.J. 45, 48 (2004), so defendant's
claim against the Municipal Court judge cannot invalidate the Law
Division's decision.
Defendant's remaining claims lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2).
Affirmed.
21 A-0304-16T4