STATE OF NEW JERSEY v. NIJAZ HASANAGIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01897-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NIJAZ HASANAGIC,

Defendant-Appellant.

ArguedDecember 8,2014 - Decided May28, 2015

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 27-10.

Robert J. Pinizzotto argued the cause for appellant (Law Offices of Robert J. Pinizzotto, LLC, attorneys; Mr. Pinizzotto, on the brief).

Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction, after a trial de novo in the Law Division, for the disorderly persons offense of theft by unlawful taking, N.J.S.A. 2C:20-3(a), for which he was assessed a $100 fine and court costs. On appeal he argues

POINT I: THE COURT'S FAILURE TO PROPERLY USE AN INTERPRETER IN THE MUNICIPAL COURT LED TO THE DEFENDANT NOT BEING ABLE TO GET A FAIR HEARING IN THE CITY OF ATLANTIC CITY MUNICIPAL COURT

POINT II: THE STATE FAILED TO PROVE THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT

POINT III: NEW JERSEY'S MUNICIPAL COURT STATUTORY SCHEME IS UNCONSTITUTIONAL AS BEING VIOLATIVE OF DEFENDANT'S RIGHT TO DUE PROCESS (NOT ARGUED BELOW).

We have considered all of defendant's arguments in light of the record and applicable law, and we affirm.

On March 1, 2009, defendant was issued a complaint for cheating and swindling at table games, contrary to the Casino Control Act, N.J.S.A. 5:12-113(a), in connection with his activities that day at Caesar's Hotel and Casino (Caesar's) in Atlantic City. This charge was later amended to the disorderly persons offense of theft by unlawful taking, N.J.S.A. 2C:20-3(a). See also N.J.S.A. 2C:20-2(b)(4)(a) (theft constitutes a disorderly persons offense if the amount involved was less than $200).

Defendant appeared before the Atlantic City Municipal Court, represented by a deputy public defender. He pled not guilty and was tried before a municipal court judge. The State's case consisted of: testimony from a Caesar's roulette dealer, who observed defendant remove his losing bet of $125 after the ball had landed and after she had waved her hand across the table and called "no more bets"; and a surveillance video of the gaming table, which showed defendant removing his bet after the dealer had signaled there were to be no more bets, but which did not show the ball dropping.

Defendant testified through a Russian interpreter, and used some English. He stated he was familiar with the rules of roulette, and that he had not intended to cheat because when he removed his bet he did not think the ball had dropped. He claimed he removed his bet because the dealer screamed and frightened him.

After considering this evidence, the municipal court rejected defendant's version of the events and found him guilty because the State proved "[the dealer] definitely called no more bets. And gave the universal hand signal for no more bets. And defendant took his losing bet off the table, not because he was scared but because it was a losing bet." It imposed a $100 fine, a two-year ban on defendant's return to Caesar's, and $158 in court costs.

Defendant appealed to the Superior Court, Law Division, where he was represented by assigned counsel, and assisted by a Bosnian interpreter. Defense counsel complained that defendant had not fully understood the municipal court proceedings because he had been assisted by a Russian interpreter rather than a Bosnian interpreter, and asked that defendant be able to clarify his testimony as to why he had removed his bet. The court granted that request, and defendant testified that the dealer had screamed at him when he placed his bet, causing him to think he had made a mistake, which is why he removed the bet. The court asked whether defendant had been able to understand the municipal court proceedings with the assistance of the Russian interpreter, and defendant responded "Not as well, but I did gather something." He explained that he had understood the questions directed to him, but he was "not sure" whether the interpreter had properly translated his responses.

After considering the evidence and arguments made by counsel, the court made its own findings of fact based on the record, essentially accepting the dealer's testimony that she saw defendant remove his bet after there were to be no more bets and rejecting defendant's explanation. The court affirmed defendant's conviction and sentence, except it removed the two-year ban from Caesar's. This appeal followed.

Our standard of review is clearly understood. 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)) (alteration in original), as the Law Division judge is not in a position to "observ[e] the character and demeanor of witnesses and common human experience that are not transmitted by the record," ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). "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. (citing Johnson, supra, 42 N.J. at 161-62).

Furthermore, "[u]nder the two-court rule, appellate courts 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 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). In this case, the Law Division judge clearly understood that his role was to make independent findings, as ultimately reflected in his oral opinion. We, therefore, defer to those findings. However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) ("[A]ppellate review of legal determinations is plenary.").

Before we address whether there was sufficient, credible evidence to support defendant's conviction, we first turn our attention to defendant's argument regarding his use of a Russian rather than a Bosnian interpreter. "[W]hen a defendant seeks reversal of his conviction based upon the alleged inadequacy of the interpretation of trial proceedings, a reviewing court must decide 'whether any inadequacy in the interpretation 'made the trial fundamentally unfair.''" State v. Guzman, 313 N.J. Super. 363, 379 (App. Div.) (quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.), cert. denied, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534 (1990)), certif. denied, 156 N.J. 424 (1998).

Here, defendant testified fully in the municipal court proceedings, and never complained about the assigned Russian interpreter. On appeal, defendant conceded to the Law Division judge that he had been able to communicate with the Russian interpreter, and mostly understood the municipal court proceedings. Nevertheless, the court granted his request to clarify his testimony. In the present appeal, defendant does not allege any error in the translation of his testimony, nor does he argue that his defense would have been any different had he been assisted by a Bosnian interpreter in municipal court. Thus, defendant has not established any violation of his rights warranting a reversal of his conviction.

Regarding the sufficiency of the evidence, our review is limited to determining whether, viewed in its entirety and giving the State the benefit of all favorable inferences, the evidence was adequate for a reasonable factfinder to find guilt beyond a reasonable doubt. State v. Dekowski, 218 N.J. 596, 608 (2014); State v. D.A., 191 N.J. 158, 163 (2007); State v. Reyes, 50 N.J. 454, 458-59 (1967). Applying this standard, the evidence established that defendant removed his bet from the roulette table after the dealer had called for no more bets and used a hand motion to confirm her words, and after the ball had dropped, with a reasonable inference being that he did so with the intent of avoiding a loss to the casino. See N.J.A.C. 13:69F-5.1(d) ("Each wager shall be settled strictly in accordance with its position on the layout when the ball falls to rest in a compartment of the wheel."). Thus, defendant's theft conviction was supported by the evidence. N.J.S.A. 2C:20 3(a) ("A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.").

Finally, we decline to address defendant's argument regarding the constitutionality of New Jersey's municipal court system, because it is unnecessary to do so to resolve this appeal. N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 564 (2006); Teamsters Local 97 v. State, 434 N.J. Super. 393, 417 (App. Div. 2014). Suffice it to say that the statutory scheme is presumed to be constitutional, Teamsters Local 97, supra, 434 N.J. Super. at 415, and the cases upon which defendant relies are inapposite because they are not reflective of the municipal court system in New Jersey.

Affirmed.