STATE OF NEW JERSEY VS. HANY ABRAHAM(6149, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4270-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HANY ABRAHAM,
Defendant-Appellant.
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Submitted August 1, 2017 – Decided August 23, 2017
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Municipal Appeal
No. 6149.
Hanny Abraham, appellant pro se.
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (N. Christine Mansour,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Hany Abraham was convicted of impermissibly using
a cell phone while operating a motor vehicle, N.J.S.A. 39:4-97.3,
after a trial de novo in the Law Division. On appeal, defendant
argues we should overturn his conviction, claiming (1) the
municipal judge had an improper ex parte communication with the
municipal prosecutor, (2) the testifying officer said "Halloween
came early this year" while the municipal trial was in recess, and
(3) his car has Bluetooth capability. Defendant did not assert
any of these claims or defenses in the municipal court. After
reviewing the record and applicable law, we disagree with
defendant's contentions and affirm the Law Division.
I.
At the municipal court trial, the State presented the
testimony of Officer Daniel Kranz of the Fanwood Police Department.
Officer Kranz testified that on July 10, 2015, he parked his patrol
car behind a large sign in a parking lot "by the intersection of
South Avenue and Martine." The sign blocked westward-traveling
drivers from seeing his vehicle as they drove past him, so he
could see whether they were using their cell phones "before they
[had] a chance to put down their phone."
At around 1:22 p.m., Officer Kranz saw defendant drive by
with "his [right] hand up to his ear [holding] a rectangular device
unmistakable for a cell phone." Officer Kranz also observed that
defendant "was moving his body in the way that you would be on a
phone," but the cell phone blocked Officer Kranz from seeing
defendant's mouth. Officer Kranz explained, "From my experience,
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people who talk on their cell phones tend to move their entire
head[,] and [defendant] displayed those characteristics."
After waiting "until there was a break in traffic," Officer
Kranz stated, "I activated my lights, pulling over . . . defendant
approximately half [a] mile down the road." Defendant told Officer
Kranz that "he was talking to his wife on the phone." Defendant
also "talked a little bit about some personal issues he ha[d]
going on." Officer Kranz consequently issued defendant a summons
for impermissibly using a cell phone while operating a motor
vehicle.
At the beginning of his cross-examination of Officer Kranz,
defendant stated he had seen a video of his car stopped, asserting
this contradicted the officer's testimony that defendant's car was
moving while he was using his phone. At that point, based upon
Officer Kranz's direct testimony, the municipal court judge
explained that the video was of the traffic stop and not from when
Officer Kranz observed defendant driving while using his cell
phone. Nevertheless, when defendant told the judge he wanted to
have the video played, the judge went into recess to allow the
State to retrieve the video, which the court played. As
represented, the video only showed the traffic stop, and not the
violation. The municipal court ultimately found Officer Kranz
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credible and defendant guilty of impermissibly using a cell phone
while operating a motor vehicle, N.J.S.A. 39:4-97.3.
On March 7, 2016, the Law Division held a trial de novo on
the record of the municipal court. For the first time, defendant
argued that his vehicle, a 2014 Corolla, "has a Blue Tooth
capability." In addition, defendant also told the trial court
that, while the municipal court was in recess, Officer Kranz said,
"Halloween came early this year." The trial judge said she could
not consider that because it was not in the transcript of the
municipal court trial, and she added, "But I hear what you're
saying. And you're upset and I get it. I do. I understand."
Defendant also alleged that during the recess to obtain the
video, the municipal court judge left the courtroom and entered
the same room as the prosecutor. He said they must have had an
improper ex parte communication while they were in the room. The
Law Division judge said, "[I]t seems completely unreasonable to
me that the [j]udge and the [p]rosecutor would have had a
discussion off the record about you when you could see where they
went and you're sitting right in the courtroom." She further
explained:
I think it's speculation on your part. No
offense. I hope you're not offended. But the
[j]udge and the [p]rosecutor could have taken
a break, especially the [j]udge to handle
other matters; to use the restroom. And I'm
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not trying to be funny. It's just sometimes
[j]udges take breaks for those reasons.
After reviewing the record and considering defendant's
arguments, the trial court found Officer Kranz credible and
defendant guilty of impermissibly using a cell phone while
operating a motor vehicle, N.J.S.A. 39:4-97.3. Defendant now
appeals.
II.
Our standard of review is clear. When the Law Division
conducts a trial de novo on the record developed in the municipal
court, our appellate review is limited. State v. Clarksburg Inn,
375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division
judge was bound to give 'due, although not necessarily controlling,
regard to the opportunity of a [municipal court judge] to judge
the credibility of the witnesses.'" Ibid. (quoting State v.
Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to
determining whether there is sufficient credible evidence present
in the record to support the findings of the Law Division judge,
not the municipal court." Ibid.
Since the trial court is not in a position to judge the
credibility of witnesses, it should defer to the credibility
findings of the municipal court. Ibid. Furthermore, when the
trial court agrees with the municipal court, we must consider the
two-court rule. "Under the two-court rule, appellate courts
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ordinarily should not undertake to alter concurrent findings of
facts and credibility determinations made by two lower courts
absent a very obvious and exceptional showing of error." Locurto,
supra, 157 N.J. at 474.
N.J.S.A. 39:4-97.3(a) states:
The use of a wireless telephone or electronic
communication device by an operator of a
moving motor vehicle on a public road or
highway shall be unlawful except when the
telephone is a hands-free wireless telephone
or the electronic communication device is used
hands-free, provided that its placement does
not interfere with the operation of federally
required safety equipment and the operator
exercises a high degree of caution in the
operation of the motor vehicle.
In this case, both courts found Officer Kranz credible, and
Officer Kranz testified he saw defendant driving and holding his
cell phone up to his head and moving in a manner consistent with
someone using a cell phone. This testimony clearly supports the
finding that defendant violated N.J.S.A. 39:4-97.3. The record
lacks any support for defendant's contention that he was using his
cell phone in hands-free mode, utilizing the vehicle's Blue Tooth
capability, when Officer Kranz observed him. Nor does the record
support defendant's other two allegations regarding improper ex
parte communications in the municipal court or improper comments
attributed to Officer Kranz. We therefore affirm the trial court.
Affirmed.
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