STATE OF NEW JERSEY VS. MARK EL (25-19, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4480-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK EL,
a/k/a MARK SMITH,
Defendant-Appellant.
_______________________
Submitted November 18, 2021 – Decided December 3, 2021
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Municipal Appeal No. 25-
19.
The Law Firm of George K. Miller, Jr., attorneys for
appellant (Kristina A. Miller, of counsel and on the
briefs).
Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (Kristen Pulkstenis, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Mark El, a/k/a Mark Smith, appeals from the Law Division's
August 14, 2020, order finding him guilty of three traffic offenses: driving while
on the suspended list, N.J.S.A. 39:3-40; failure to possess a driver's license,
N.J.S.A. 39:3-29A; and unlawful windshield tint, N.J.S.A. 39:3-74. The
convictions were issued after a hearing on defendant's trial de novo of his
conviction in municipal court for the same offenses. See R. 3:23-2. We affirm.
We discern the following facts from the trial record. On December 17,
2019, defendant appeared in municipal court for trial of the three summonses.
He rejected representation by the assigned public defender, who was present in
court, and elected to represent himself. Before trial commenced, the judge
rejected defendant's protestations that he was not ready because he was not
notified that this was his trial date. The judge stated he had informed defendant
of the trial date at his last appearance. Defendant disagreed. Relevant to this
appeal, the judge informed defendant: "I'll tell you what. As part of your appeal,
you can order the transcript from last time where you were told today is your
trial date." In response to defendant's claim that the trial could not go forward
because he had not received discovery, the judge informed defendant that
discovery was limited to the traffic tickets already in his possession.
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The State's witness was Sergeant Thomas Rocco of the Egg Harbor
Township Police Department (EHTPD), who testified that on the afternoon of
November 13, 2016, he was on patrol when he observed defendant driving a
black Honda Accord with tinted windows. Rocco conducted a random plate
inquiry, which indicated that defendant did not have a valid driver's license.
Rocco's mobile data terminal confirmed that defendant's driving privileges were
suspended.1
After he stopped the vehicle, Rocco approached the Accord and spoke to
defendant. In response to Rocco 's request for defendant's credentials, defendant
presented documents, none of which was a New Jersey driver's license.
Defendant interrupted Rocco's testimony to interject: "I did not give him a New
Jersey license because I do not have one. I have the right to travel."
In his defense, defendant asserted he was not required to have a driver's
license because he is a "Moorish American" with a "right to travel." He admitted
that he "[doesn’t] have a driver's license. He doesn't need one. He's a free
person. He's not under color of the law."
1
The officer identified S-1, defendant's driving abstract, which established
defendant's driving privileges were suspended at the time of the subject offense.
S-1 was entered into evidence without objection.
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After considering the testimony and S-1 in evidence, the judge determined
"the State has proved beyond a reasonable doubt that on November 13[], 2016[,]
. . . defendant was operating his vehicle while his privileges to drive were
suspended." This was defendant's ninth conviction for driving while suspended.
The judge found defendant guilty on all counts and ordered $1,006 in fines, $33
in court costs, a suspension of his driving privileges for six months, and ten days
in the Atlantic County jail.
On December 27, 2019, defendant appealed his conviction to the Law
Division. At the June 30, 2020, trial de novo, defendant, this time represented
by a public defender, asserted he "never really had a chance to have a fair trial"
because the municipal court judge failed to recuse himself. Defendant argued
the municipal court judge's statements that he was "very familiar" with
defendant because he had presided over several of his prior hearings and that
defendant was "in court more than anybody else that [he knows]" showed he
was biased.
At the conclusion of the Law Division hearing, and after review of the
record below, the judge found "Title [thirty-nine], which governs conduct on the
road, applies to [defendant,]" "a review of [defendant's] driving history indicated
that he was suspended[,]" "Rocco's testimony was credible[,]" and "[defendant]
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was pulled over for bad tinted windows." The judge found that the municipal
court judge was not unduly prejudiced against defendant by virtue of his
presiding over defendant's prior matters. The trial judge then found defendant
guilty on all three counts and issued the same fines and sentence as had the
municipal court judge. This appeal followed.
On appeal, defendant presents the following argument for our
consideration:
POINT I
THE SUPERIOR COURT ERRED BY NOT
REMANDING THE MATTER FOR A NEW TRIAL
GIVEN THE BIAS DEMONSTRATED BY THE
MUNICIPAL COURT
Our review of a de novo conviction in the Law Division following a
municipal court appeal is "exceedingly narrow." State v. Locurto, 157 N.J. 463,
470 (1999). Unlike the Law Division, we do not independently assess the
evidence. Id. at 471. In reviewing "a de novo verdict after a municipal court
trial," we must "'determine whether the findings made could reasonably have
been reached on sufficient credible evidence present in the record,' considering
the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005)
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). This court's review of a
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trial court's legal determinations is plenary. State v. Kuropchak, 221 N.J. 368,
383 (2015).
We conclude that the proofs are not only sufficient to sustain defendant's
conviction; they are virtually undisputed. Defendant freely admitted on the
record that he has tinted windows. He admitted that he does not possess a valid
driver's license. He did not object to the admission of S-1, his driving abstract,
showing his license was suspended at the time of the subject offenses. Nor did
he challenge its admission on trial de novo or on this appeal. He did not
challenge the officer's testimony that the reason he was stopped was for having
tinted windows; he simply disagrees with the law. We thus discern no error in
the judge's decision on de novo review rendering a guilty verdict.
We find defendant's claim of bias and prejudice to be wholly lacking in
merit. Neither the judge's comment that he is "very familiar" with defendant
based on defendant's prior appearances before him, nor his observation that
defendant had "been in court more than anybody else that [he knows]," is
sufficient to trigger a suggestion of bias. See Clawans v. Schakat, 49 N.J. Super.
415, 421 (App. Div. 1958) ("We are not to assay prejudice on the basis of [a
litigant's] oversensitivity to the rulings and comments of a trial judge, such as
normally occur in the course of any trial and which we find, in this case, were
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unexceptionable."); cf. State v. Perez, 356 N.J. Super. 527, 530, 533 (2003)
(finding recusal was required based on judge's statement about "[t]hese Spanish
people coming in here and saying, I want an interpreter.").
Defendant's dissatisfaction with the court's rulings that he had been
provided with all available discovery and with notice of the trial date is not
indicative of bias. See State v. Marshall, 148 N.J. 89, 186 (1997) ("[B]ias is not
established by the fact that a litigant is disappointed in a court's ruling on an
issue."). Regardless, defendant failed to present any competent evidence that
the judge's rulings were erroneous. Defendant conceded that he had appeared
in court on a prior occasion and was advised to appear on December 17, 2019,
which he did. He has not identified any additional discovery that was not
provided that would have aided in his defense. Indeed, given his admissions at
trial and the other documentary evidence, which went unchallenged, we are at a
loss to imagine how a new trial before another judge would change the outcome
of his trial.
To the extent we have not addressed defendant's remaining arguments, we
conclude that they are without sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(2).
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Affirmed.
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