STATE OF NEW JERSEY VS. ERIC MENZZOPANEÂ (2014-10, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5732-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC MENZZOPANE,
Defendant-Appellant.
Argued April 26, 2017 – Decided July 11, 2017
Before Judges Alvarez, Accurso, and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Municipal
Appeal No. 2014-10.
Matthew Whalen Reisig argued the cause for
appellant (Law Office of Reisig & Associates,
LLC, attorneys; Mr. Reisig, on the brief).
Alycia Pollice Beyrouty, Assistant
Prosecutor, argued the cause for respondent
(Angelo J. Onofri, Mercer County Prosecutor,
attorney; Michael D. Grillo, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Eric Menzzopane entered a conditional guilty plea
in the Lawrence Township Municipal Court to driving while
intoxicated (DWI), N.J.S.A. 39:4-50, specifically preserving his
right to appeal the denial of two motions: for a change of venue
and for the recusal of the conflict judge. We now affirm the Law
Division's July 10, 2015 decision also denying the motions.
In the beginning of the plea colloquy in the municipal court,
counsel said:
Oh, the defendant at this point Judge is
going to enter a conditional guilty plea
pursuant to New Jersey Court Rule 7:6-2C which
provides that the defendant will be pleading
guilty, albeit reserving his right to appeal
the denial of the motions that the Court
denied sua sponte here this morning without
hearing argument that the defense wished to
offer therein.
. . . .
[W]hile defendant's preserving his right to
appeal the Court's pretrial denials of two
motions on this morning's date, we'd ask that
the motion filed on May 21st, 2014 and the
correspondence in lieu of motion dated May
22nd, 2014 be marked for the record and
received by the Court as D-1 and D-2
respectively.
Counsel engaged in the following exchange when reviewing the
rights defendant was waiving because of his entry of a conditional
guilty plea:
Q. And you're waiving certain
constitutional rights.
A. Yes.
2 A-5732-14T3
Q. And the Court alluded to this.
You're waiving your right to go to trial
and/or in this case to go forward on your
motion to suppress.
A. Yes.
Q. And you're waiving that right
freely, voluntarily and intelligently.
A. Yes, sir.
Q. You're waiving your right to have me
confront Sgt. Dimeglio. We had a flavor of
that on March 28th, 2014, although I certainly
didn't get to ask all of the questions that I
wished to do so of Sgt. Dimeglio before that
case was terminated.
A. Yes.
Q. And by pleading guilty, you're
waiving your constitutional right to have me
confront that Sergeant.
A. Yes.
After defendant's sentence, the other motor vehicle charges
against him were dismissed, including: failure to maintain lane,
N.J.S.A. 39:4-88(b); reckless driving, N.J.S.A. 39:4-96; DWI in a
school zone, N.J.S.A. 39:4-50(g); and driving while on the revoked
list, N.J.S.A. 39:3-40.
At the earlier March 28, 2014 pretrial suppression hearing,
Officer Christopher DiMeglio of the Lawrence Township Police
Department testified that the stop occurred on September 21, 2012,
at approximately 2:11 a.m. He "observed [defendant's] vehicle
3 A-5732-14T3
entering the traffic circle at a high rate of speed, high enough
that [he could] hear the tires squealing." DiMeglio had been
speaking to another motorist he had pulled over when he made the
observation. DiMeglio immediately followed, and saw the vehicle
proceeding through a red light as the color was changing. He
continued to follow, and noticed defendant drove "on the right fog
line and then mov[ed] within the lane, right to left."
DiMeglio could not recall if the vehicle "actually touched
the double yellow line," however, he saw it move from the right
fog line to near the left. He sped up "significantly," but could
not estimate the speed at which defendant was traveling.
DiMeglio acknowledged that he did not observe the vehicle for
very long and saw it on the fog line only once. On cross-
examination, he was questioned regarding the police report he
authored and the video recording of the stop.
DiMeglio's report stated that the vehicle had gone over the
fog line, but he testified that the vehicle was simply on it.
Defense counsel extensively questioned DiMeglio regarding this
distinction and his use of the terms "over" and "on."
As cross-examination continued, the municipal court judge
interjected, concerned that counsel was being argumentative with
the witness, and was otherwise engaging in improper cross-
examination. A few minutes later, defense counsel accused the
4 A-5732-14T3
judge of raising his voice to him, and from the transcript, it
appears defense counsel and the judge had a somewhat heated
exchange. The defense attorney demanded that the judge recuse
himself. The judge acceded to the request, and terminated the
hearing to allow for the appointment of a replacement or conflict
judge and prosecutor.
In the interim, on April 3, 2014, counsel requested that the
municipal prosecutor provide him with DiMeglio's last twenty-five
motor vehicle narrative police reports prepared prior to
defendant's stop. When no response was received, defendant filed
a motion to compel discovery. The parties then met with the
conflict judge in chambers, and discussed the matter. The conflict
municipal prosecutor asked for an opportunity to review the motion.
On May 19, 2014, defense counsel's law office received a
phone call from the deputy court administrator asking if defense
counsel's office had received the reports. According to a
certification supplied by the attorney who took the call, when
asked at whose behest she was calling, the administrator responded
that she was calling at the request of the municipal prosecutor.
The deputy court administrator also asked if counsel was satisfied
with the extent of the discovery provided given that the matter
was scheduled for trial at a special sitting on May 23. Two days
later, defense counsel filed a motion for disqualification of the
5 A-5732-14T3
Lawrence Township Municipal Court on the basis of the phone call,
essentially a motion for change of venue, arguing that the call
violated the concept of separation of powers. See U.S. Const.
art. III, § 1; N.J. Const. art. III, ¶ 1.
Also on May 19, in open court, while the conflict judge was
presiding in the Trenton Municipal Court, the conflict judge had
asked the prosecutor, who was also serving as the conflict
prosecutor in this case, "whether or not the discovery had been
provided to [defense counsel]."
On May 22, the conflict judge also called defense counsel's
office asking if all discovery had been provided as he did not
wish to bring the parties to court unnecessarily. At that time,
counsel also alleges, the conflict judge stated he had asked a
member of court staff to speak with the municipal prosecutor to
confirm that discovery had been supplied.
The conflict judge summarily denied defendant's motion for
disqualification of the Lawrence Township Municipal Court by way
of a brief email. In it he explained that the court
administrator's phone call to defense counsel's office was at his
request, not that of the municipal prosecutor.
Defendant next submitted a letter seeking the recusal of the
conflict judge, claiming that the judge improperly engaged in ex
parte communication with the State.
6 A-5732-14T3
Thereafter, at the next court date, the conflict judge
repeated what he had previously said in emails —— that he had
asked the conflict prosecutor as to whether discovery had been
provided because the court date was a special session scheduled
for this particular matter, and he did not wish to bring in the
participants unnecessarily. He reiterated that he had called the
Lawrence Township Municipal Court and asked the deputy court
administrator to reach out to defense counsel because he was on
the bench and he would not have the time to do so himself. The
conflict judge again explained that the clerk did not speak
directly with the prosecutor, that she made the inquiry at the
court's direction, and that these were not ex parte communications
that were at all consequential, but merely contacts in aid of
scheduling. He therefore denied defendants' two motions.
After the judge's ruling, defense counsel asked for the
opportunity to make further arguments in addition to those
contained in his briefs. His request for further argument was
denied, and the judge said again that the motions were denied. He
responded to defense counsel's questions regarding his
conversation with the prosecutor in open court. The judge added
that he did not know if his in-the-courtroom inquiry in the Trenton
municipal court was recorded, as the prosecutor was before him on
other matters, and that the inquiry "was a simple one sentence
7 A-5732-14T3
request." After the two motions were denied —— the motion for
change of venue and the judge's recusal —— defendant entered his
conditional guilty plea.
In the trial de novo in the Law Division, defense counsel
commenced argument by stating that "this defendant is before this
[c]ourt on two motions for recusal in the Lawrence Township
Municipal Court below which were denied without argument, allowed
by defendant in pursuit of his own motion, wherein a conditional
guilty plea was entered pursuant to Rule 7:6-2(c). That's why
we're here today." After arguing that the appeal was focused on
the conflict judge's failure to recuse himself or change venue,
and being told that the Law Division was preliminarily denying the
appeal but would issue a more detailed written decision to that
effect later on, counsel and the court engaged in the following
discussion on the record:
[DEFENSE COUNSEL]: It's the motions for
recusal, that's plural, that were denied below
which compelled defendant to enter a
conditional guilty plea pursuant to Rule
7:6-2(c). It is also the --
THE COURT: There is no compulsion.
There is no finding of compulsion. It was a
conditional guilty plea ---
[DEFENSE COUNSEL]: Which he entered ---
THE COURT: With the exception to
appeal the issues of recusal.
8 A-5732-14T3
[DEFENSE COUNSEL]: Okay. As I was
speaking, what is also before this [c]ourt,
which was not addressed by this [c]ourt, is
the record of the aborted truncated never
decided motion to suppress because ---
THE COURT: Which you failed to raise
below.
[DEFENSE COUNSEL]: That's not true.
[1]
Pursuant to State versus McLendon, M C L --
-
THE COURT: Sir, there is nothing in
the record asking on your part for a decision
in that matter. You pled guilty, you never
sought the motion further, you didn't ask for
clarification, and your client entered a
guilty plea reserving his right to appeal on
the recusal.
[DEFENSE COUNSEL]: You're right as far
as you go. But actually I was saying, pursuant
to State versus McLendon, we provided to Your
Honor for purposes of this [m]unicipal appeal
the MVR. And we made argument that the denial
of the recusal motions was injurious to
defendant's due process rights because there
was no basis to stop his motor vehicle in the
first place. That is absolutely part of this
Municipal appeal.
And pursuant to State versus McLendon,
Your Honor can sua sponte consider that which
is why we gave you the MVR. And why we
provided that transcript to Your Honor which
was the previous transcript, which in this
record is March 28, 2014. And why I spend in
the brief submitted on behalf of this
Municipal appeal from pages 18 through 20,
argument about the underlying aborted
truncated never concluded motion to suppress.
1
State v. McLendon, 331 N.J. Super. 104 (App. Div. 2000).
9 A-5732-14T3
That is my complete answer to Your Honor's
inquiry.
THE COURT: All right. I'll provide
a written decision covering all the issues in
your brief. The appeal in whole is denied.
Thank you, Counsel.
In his thorough and cogent analysis, the Law Division judge
began by discussing Rule 1:2-1, which is interpreted as prohibiting
ex parte communications. He noted that the rule does permit ex
parte communication relating "only to ministerial scheduling
matters." State v. Morgan, 217 N.J. 1, 15 (2013). The judge also
expounded upon the fact that motions for recusal are entrusted to
the discretion of the judge to whom they are made, and require a
showing of prejudice or potential bias.
The judge found the communications between the recusal judge
and the recusal prosecutor were related solely to the judge's
ministerial scheduling function, and were not barred by Rule 1:2-1.
He added that defendant failed to identify any evidence whatsoever
of either bias or prejudice as a result of the communication.
Furthermore, with regard to the motion to suppress issue, the
judge distinguished McLendon, supra, 331 N.J. Super. at 104, the
case counsel relied upon. There the defendant appealed a DWI
conviction after a trial in the municipal court. Id. at 106. The
Law Division judge, concerned about the constitutionality of the
road block which led to the stop, reversed the conviction and
10 A-5732-14T3
remanded the matter back to the municipal court for a new trial,
at which the constitutionality of the road block would be
addressed. Ibid. In that case, however, the remand arose after
conviction, not a plea. Ibid. The judge in this case found those
circumstances too dissimilar to the ones at hand.
As the judge explained, in this case:
[t]he defendant made a conscious decision to
abandon the motion to suppress. The record
is devoid of any suggestion that his waiver
was involuntary or that the municipal court
improperly denied him the opportunity to raise
the suppression issue. Because he has failed
to provide any showing [of] good cause, the
court declines to address the merits of
defendant's suppression motion.
Now on appeal, defendant raises the following points:
POINT I
THE LAW DIVISION'S DETERMINATION THAT THE
MUNICIPAL COURT JUDGE WAS NOT REQUIRED TO
RECUSE HIMSELF UPON DEFENDANT'S MOTION AFTER
AN ACKNOWLEDGED EX PARTE COMMUNICATION WITH
THE MUNICIPAL PROSECUTOR SHOULD BE REVERSED
BY THE APPELLATE DIVISION IN APPLYING THE
CORRECT LEGAL STANDARD.
POINT I-A
THE DISCUSSION BETWEEN THE CONFLICT JUDGE AND
THE CONFLICT MUNICIPAL PROSECUTOR ON MONDAY,
MAY 19, 2014 IN THE TRENTON MUNICIPAL COURT
CONSTITUTED AN EX PARTE COMMUNICATION, THE
SUBSTANCE OF WHICH IS UNKNOWN.
POINT I-B
THE EX PARTE COMMUNICATION BETWEEN THE
CONFLICT JUDGE AND THE CONFLICT MUNICIPAL
PROSECUTOR REQUIRED THE FORMER'S RECUSAL AS
THE MOTION/TRIAL JUDGE.
11 A-5732-14T3
POINT I-C
THE CONFLICT JUDGE ERRED BY FAILING TO UTILIZE
THE THREE-PERSON TECHNIQUE UNDER N.J.S.A.
2A:15-50 TO DECIDE THE DEFENDANT'S MOTIONS FOR
DISQUALIFICATION.
POINT II
THE FACT OF THE IMPROPER EX PARTE
COMMUNICATION BETWEEN THE CONFLICT JUDGE AND
CONFLICT MUNICIPAL PROSECUTOR IS PARTICULARLY
DISTURBING SINCE THE DEFENDANT'S UNDERLYING
CASE ON THE CONSTITUTIONALITY OF THE
WARRANTLESS MOTOR VEHICLE STOP WAS
MERITORIOUS.
We consider the issues raised to be so lacking in merit as
to not warrant further discussion in a written opinion, Rule
2:11-3(e)(2), and deny this appeal essentially for the reasons
stated by the Law Division judge.
We add only the following. Rule 7:6-2(c) controls the entry
of conditional pleas. It states that "a defendant may enter a
conditional plea of guilty, reserving on the record the right to
appeal from the adverse determination of any specified pretrial
motion." In our view, the rule's plain language limits the
contours of any such appeals, including this one.
It is apparent from the sections of the transcript that we
have quoted that when the conditional plea was entered, defendant
specifically waived his right to address the motion to suppress
any further, while preserving his right to address the denial of
two motions: one for recusal and the other for a change of venue.
12 A-5732-14T3
Having preserved only those issues, and having gained the benefit
of substantial dismissals, it would be inequitable to now reach
the suppression motion. This is a very different situation, one
in which defendant gained a substantial benefit and deliberately
abandoned a claim, than the scenario in McLendon. There, the
remand was allowed to allow the defendant to "raise a
constitutional issue belatedly asserted, rather than deem it
waived because not properly raised." McLendon, supra, 331 N.J.
Super. at 109. Here, defendant abandoned his suppression motion.
Affirmed.
13 A-5732-14T3