STATE OF NEW JERSEY v. JOHN LANCE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0358-07T40358-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN LANCE,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Stern and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Municipal

Appeal No. 60-06.

Michael D. Miller, attorney for appellant.

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Stephen E. Raymond, Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant appeals from convictions on trial de novo of receiving stolen property and hindering his own apprehension. He was convicted of these charges and simultaneously found not guilty of harassment in the municipal court.

The underlying incident occurred in a rest stop on Interstate 295 after defendant's former girlfriend and her sister found defendant with her dog. The girlfriend had suspected him of stealing the dog, and after finding defendant with the dog, there was a physical confrontation during which police were called.

On this appeal defendant argues:

POINT I. THE MUNICIPAL COURT JUDGE SHOULD HAVE RECUSED HIMSELF.

a.) THE MUNICIPAL COURT JUDGE TOOK TESTIMONY FROM THE TWO PRIMARY WITNESSES AGAINST THE DEFENDANT OUTSIDE OF HIS PRESENCE AND WITHOUT REVEALING THE DETAILS OF THAT TESTIMONY.

b.) THE MUNICIPAL COURT JUDGE SHOULD HAVE RECUSED HIMSELF BECAUSE HE PREVIOUSLY REPRESENTED THE DEFENDANT'S STEPFATHER'S SPOUSE IN A DIVORCE AGAINST THE STEPFATHER.

POINT II. THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY FORCING HIM TO RETAKE THE WITNESS STAND AFTER HE HAD TESTIFIED IN HIS OWN DEFENSE.

POINT III. THE CHARGE OF HINDERING SHOULD BE DISMISSED AS A VIOLATION OF DEFENDANT'S 5TH AMENDMENT RIGHTS.

We reject these contentions and conclude that only the following comments are warranted. R. 2:11-3(e)(2).

A municipal court judge need not disqualify himself in the trial of disorderly person complaints merely because he took information from the former girlfriend and trooper from the scene in order to issue a temporary restraining order (TRO). That is true notwithstanding that the former girlfriend was also a defendant on cross-complaints in the same proceedings. Just as a judge can try a case non-jury after hearing a motion to suppress, issuing a warrant, determining probable cause or conducting a N.J.R.E. 104 hearing, so could the judge hear this case. There was no need to move the case to another municipal court because the judge heard a preliminary matter, which he knows was ex parte and non-adversarial. See R. 1:12-1. In fact, the municipal judge properly said he could, and does, distinguish between preliminary and ex parte matters, on the one hand, and contested or adversarial proceedings on the other. Moreover, as noted by the judge on trial de novo, the only matter related to the TRO was the harassment of which defendant was acquitted.

The defendant also claims the municipal judge should have recused himself because he had previously represented the spouse of defendant's stepfather in her prior divorce case. However, there was no recusal motion, R. 1:12-2, before or during the municipal court trial on this ground, and no suggestion at the time that the judge recalled the relationship of defendant and the stepfather who did not testify. The matrimonial proceedings involving Robert Zieniuk and the judge's former client ended prior to his marriage to defendant's mother in 1994. As Judge Wells concluded on the trial de novo, the claim "was completely untimely" as Zieniuk was present at the trial in municipal court, "as no motion was ever made until following the [conviction]," and "given the relationship of the parties, given the minimal involvement of Mr. Zieniuk in this particular case," there was no "basis for a disqualification."

In any event, we find no basis for disturbing the convictions on the trial de novo by Judge Wells based on the fact the municipal court judge took the testimony and made findings. See State v. Taimanglo, 403 N.J. Super. 112, 122-23 (App. Div. 2008), certif. denied, 197 N.J. 477 (2009).

Defendant claims prejudice at the trial because he was recalled to the stand. That was because counsel for the co-defendants didn't know that medical reports relating to defendant were going to be offered into evidence on defendant's case by stipulation with the prosecutor. The co-defendants' defense counsel was then given an opportunity to cross-examine defendant about his medical condition as it related to their case. The judge concluded that the reports and defendants' condition were critical to the co-defendants' attack on defendant's "credibility." The judge believed defendant's condition at the time might affect his ability "to remember and to relate when under pressure events that he experienced or recalled," that is, to "recall, perceive and relate." The judge emphasized that defendant testified only as a State's witness, invited objections to any questions "infringing upon [defendant's] rights against self-incrimination," and felt any problem could be cured at a bench trial because the judge could "distinguish" between what the evidence "can and cannot be used for."

The continued cross-examination was limited to the subject of the records and reports, and the municipal judge considered the additional testimony only in connection with the case against the co-defendants. Nothing in the testimony on recall can be deemed to have had significant impact on the receiving stolen property case, and it was defendant who wanted the records admitted into evidence on the hindering charge. In any event, defendant filed the cross-complaint and had to testify as the witness against the co-defendant girlfriend and her sister. He never objected to so doing, never moved for a severance and could be treated as a witness on that case without some pretrial application directed to preserving his Fifth Amendment rights. We find no basis in these circumstances to upset the conviction of the defendant who was counseled throughout the proceedings. See State v. Dwyer, 229 N.J. Super. 531, 538-41 (App. Div. 1989). Before being called as a State's witness, both the court and counsel advised defendant that he did not have to testify and that anything he said could be used against him.

With respect to the hindering conviction, defendant gave Sgt. Stephen Mahony of the State Police "three conflicting stories as to how he came to possess the dog." One of the inconsistent statements was given by defendant at the on-the-scene interview. The second was volunteered in the police vehicle, and the third was made at the Bordentown station after defendant's arrest. Based on the record before us following a confrontation resulting in cross-complaints and accusations, we find no Fifth Amendment violation. See State v. Falco, 60 N.J. 570, 585 (1972) (Fifth Amendment provides no privilege for witness to lie.)

Judge Wells thoughtfully considered all the issues presented to us, both procedural and substantive, and we affirm the convictions substantially for the reasons stated in his oral
opinion of September 7, 2007, as supplemented herein.

We are presented with a transcript of a proceeding in which the judge recognized the name of defendant Zieniuk, the former surname of his former client, in an unrelated matter.

Unfortunately, the briefs do not develop the procedural history in detail. Defendant was called by the State, examined by the prosecutor and cross-examined by counsel for the co-defendants. He thereafter exercised his right not to testify on his own case before being recalled after the medical reports were admitted into evidence. The judge did not let defendant's attorney cross-examine him, and there is no objection on that basis before us.

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A-0358-07T4

June 12, 2009