STATE OF NEW JERSEY v. ROGER J. WATKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4094-04T14094-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER J. WATKINS,

Defendant-Appellant.

_________________________________

 

Argued February 28, 2006 - Decided June 28, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Municipal Appeal

No. 04-2818.

Richard J. Simon argued the cause for appellant

(Mr. Simon, of counsel; Jeffrey Zajac, on the

brief).

Mark P. Stalford, Assistant Prosecutor, argued

the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent; Mr. Stalford, of counsel and on the brief).

PER CURIAM

On March 14, 2004, between 1 a.m. and 8:30 a.m., Sean Watkins, a son of defendant Roger J. Watkins, was at defendant's house drinking beer and vodka with friends. Defendant testified that he arrived home from playing cards between 4 and 4:30 a.m., hollered downstairs to notify his son he was home, and then went to bed. At trial he acknowledged that he believed Sean and his friends were drinking alcohol at that time, and Sean testified that defendant "probably" observed him drinking. Sean also stated that when he finished drinking at 8:30 a.m. he felt "drunk."

According to defendant, Sean knocked on defendant's locked bedroom door around 9:40 a.m., waking him up and asking for a ride to his girlfriend's house. Defendant testified that he told Sean he would get him a ride later. Sean said he never spoke with defendant after their 4:30 a.m. encounter but admitted that around 10 a.m. he took the spare key to defendant's pickup truck from a kitchen or family room drawer. Later, Sean said, he lost control of the vehicle and flipped it on its side on the front lawn of a nearby home. An ambulance took Sean to the hospital, where a blood alcohol test disclosed a reading of three times the legal limit. New Jersey State Trooper Joseph Mahoney, who responded to the accident scene and was at the hospital, testified that Sean was placed under arrest at the hospital.

Trooper Mahoney also said that at the hospital, defendant told him Sean had asked for a ride to his girlfriend's house and since defendant's license was suspended, defendant gave Sean permission to drive himself. At trial, defendant denied making this statement, but Judge Debra J. Gelson of the Millstone Municipal Court found Trooper Mahoney's account more credible than defendant's, convicting defendant of allowing another person to operate a motor vehicle while under the influence of alcohol, contrary to N.J.S.A. 39:4-50.

On September 27, 2004, defendant filed a motion for a new trial with the municipal court, asserting newly discovered evidence in the form of defendant's phone bill showing a call to a taxi service defendant says he made to request a car pick up his son. The municipal court denied defendant's motion that same day. On October 15, 2004, defendant filed with the Law Division an appeal from his municipal court conviction and from the denial of his motion for a new trial.

In November 2004, in a different case before Judge Gelson in which defendant faced charges of driving while his license was revoked, the judge granted defendant's motion that she recuse herself from that case. In August 2004, defendant was issued a ticket for driving while revoked on his way to court for a hearing related to a temporary retraining order Judge Gelson had issued earlier that month on August 16. According to Judge Gelson, defendant had called the State Police and alleged that his estranged wife had entered his house and damaged a door frame. Upon investigating the home, the police discovered that defendant had injured, bleeding knuckles while his wife was unharmed, and thought that defendant had damaged his own house to set up his wife. His wife requested a restraining order, and based upon the information the police gave Judge Gelson and the wife's testimony, the judge issued a TRO against defendant. As a result of the August 16 incident, the police charged defendant with criminal mischief and with making false reports to police officers. Judge Gelson arraigned the defendant on the criminal mischief charge on August 24, 2004, and the matter was adjourned in September and later heard at the Superior Court level. On November 5, 2004, a summons was issued against defendant for the false reports charge.

The trial for the instant matter took place on September 7, 2004. At the beginning of trial, Judge Gelson denied defendant's motion for recusal. On November 23, 2004, in the driving while revoked case, the judge found that she could be prejudiced by information she had received about defendant on August 16 regarding the TRO, so she recused herself from the driving while revoked case and any other matters arising from the August TRO incident, namely the criminal mischief and false reports cases. She later explained that,

this was something out of the ordinary because I had received information with regard to these matters from the State Police, who were relating physical evidence relating to blood on Mr. Watkins' knuckles. At that time, because of the information, because of the degree of information that I had received regarding this specific TRO, and the charges that stemmed from this particular incident on August 16, [2004], I made a decision on November 23 not to hear this matter. I felt that it was appropriate for another judge to hear it since I had been privy to information that ... far exceeded what normally would come forward as far as a TRO, and ... I felt that the appropriate thing to do was to have another judge hear this matter.

That was a decision I came to on November 23, 2004. It was not something that was in this Court or even thought about on September 7. In fact, these charges were not even founded. All I had was information that had been related to me...

It was not until November when they actually charged Mr. Watkins with the false information that [it] even occurred to me, that this information even came towards me that I would have additional, essentially had become a witness to some degree, to some of that information.

In December 2004, defendant sought leave from the Law Division to file a motion in municipal court for a new trial in the instant case, based on Judge Gelson's November recusal in the driving while revoked, false reports, and criminal mischief cases, asserting she should have recused herself in this case as well.

On December 17, 2004, the Law Division judge entered an order granting defendant "leave for a limited remand to the Millstone Municipal Court to file a motion on the issue of recusal." Defendant did so, and at the February 1, 2005, remand hearing, the municipal court judge explained that her recusal related only to issues that arose from the August 2004 TRO. Judge Gelson was clear that she was impartial in deciding this case in early September:

So by clarification with regard to [the Law Division judge], there is no question in this Court's mind that the trial [on] September 7th, that at that time this Court conducted a fair trial. This Court conducted a trial that was based upon nothing other than the evidence that was presented.

***

[A]s far as this Court is concerned, this is still the matter that's being reviewed by the Superior Court. The Superior Court has jurisdiction, and this matter will be held in abeyance pending those decisions.

The Municipal Court did not enter an order with regard to the limited remand hearing on recusal. Thus, on February 15, 2005, defendant filed an amended notice of his Law Division appeal to include a claim for a new trial based on Judge Gelson's refusal to recuse herself during the February 1 remand hearing.

On March 4, 2005, the Law Division heard defendant's appeal, dismissing his appeal of the underlying conviction as untimely. The Law Division judge also denied defendant's appeal of the municipal court's refusal to grant him a new trial based on the newly discovered evidence of phone records. At the hearing, the Law Division judge refused to consider the recusal matter, finding that aspect of the defendant's case was not properly before her.

My decision is that the appeal for the reasons I've already placed on the record is not timely of the underlying conviction.

***

So I'm not granting a stay from that. The other issue is the motion for a new trial that was made in timely appeal, and I'm not talking about recusal. I'm talking about the newly discovered evidence (of phone records). I've already indicated that I think there's not newly discovered evidence, and that it isn't evidence in the sense that it's going to prove that the defendant was not guilty. And it just wasn't available to him.

So, I am therefore deciding that there is not a basis to grant a stay pending appeal of the motion for a new trial. I'm finding that the limited remand for the [municipal court judge] to decide whether she wanted to recuse herself is not a motion for a new trial. It didn't matter what you called it. My limited remand was only to send it down to say, "Do you want to recuse yourself on this case? If so, I want to know that."

She didn't recuse herself. [Defendant's counsel is] saying she didn't do anything. [The prosecutor] is saying she decided that she would clarify that when she recused herself on those other two matters, she knew she had this case and she wasn't going to do that. That's up to her. And if you want to make that an issue, and have a motion for her refusing to recuse that's a whole different issue.

But before me today is the motion for the stay pending appeal, the motion for a new trial that had been filed on newly discovered evidence (of phone records), and I'm denying it.

***

I don't find that that appeal [from] the limited remand is before me. I'm not going to grant a stay based on it because I don't think it's before me.

We conclude that the Law Division judge correctly entered an order dismissing defendant's appeal from his municipal court conviction based on the fact that it was not timely filed and denying on trial de novo defendant's motion for new trial based on newly discovered evidence in the form of phone records. But the order does not address defendant's motion for a new trial based on the municipal court judge's bias, which the Law Division judge erroneously thought was not before her.

We hold that the issue of Judge Gelson's recusal was properly before the Law Division at the March 4, 2005, hearing. Defendant amended his notice of appeal fourteen days after the limited remand hearing to include a claim for a new trial based on newly discovered evidence of bias by Judge Gelson. Appeals of municipal court orders must be filed within twenty days after the entry of judgment. R. 3:23-2. Here, the municipal court did not enter a written order, but it is clear from the transcript of the February 1, 2005, remand hearing that Judge Gelson refused to recuse herself. Hence, it was properly before the Law Division judge, who recognized the municipal court judge's refusal to recuse herself, but incorrectly stated that the issue was not before the court. If the Law Division was satisfied that Judge Gelson did not err in refusing to recuse herself, then the court should have made such a finding. R. 1:7-4(a); Ronan v. Adely, 182 N.J. 103, 110-111 (2004); Concerned Citizens of Princeton, Inc. v. Mayor and Council of Princeton, 370 N.J. Super. 429, 450 (App. Div.), certif. denied, 182 N.J. 139 (2004); Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005). See also Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000)("an articulation of reasons is essential to the fair resolution of a case").

Accordingly, we remand this case to the Law Division for a determination of whether there should be a new trial based on defendant's allegations of Judge Gelson's bias. The court should permit oral argument on the matter.

Defendant's request for this Court to stay the sentence of the suspension of his driver's license pending resolution of his amended appeal is denied.

Reversed and remanded for the reasons set forth in this opinion.

 

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A-4094-04T1

June 28, 2006