STATE OF NEW JERSEY v. JOSEPH HOO

NOT FOR PUBLICATION WITHOUT THE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-1803-15T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

JOSEPH HOO,

          Defendant-Appellant.
__________________________________

           Argued December 12, 2017 – Decided January 11, 2018

           Before Judges Fisher, Sumners and Moynihan.

           On appeal from Superior Court of New Jersey,
           Law Division, Bergen County, Municipal Appeal
           No. 003-03-15.

           Jane M. Personette argued the cause for
           appellant (Law Offices of Brian J. Neary,
           attorneys; Brian J. Neary, of counsel; S.
           Emile Lisboa, IV, on the brief).

           Suzanne E. Cevasco, Assistant Prosecutor,
           argued the cause for respondent (Gurbir S.
           Grewal, Bergen County Prosecutor, attorney;
           Suzanne E. Cevasco, of counsel and on the
           brief).

PER CURIAM
      After a municipal trial, followed by a trial de novo in the

Law   Division,   defendant   was   convicted   of   disorderly   conduct,


N.J.S.A. 2C:33-2(a)(2), and sentenced to a one-year period of

probation,1 a $506 fine, and $33 in court costs.

      The evidence found credible reveals that on Thanksgiving Day

2013, defendant – miffed at not being invited for dinner – drove

to the victim's New Milford home for an explanation. Defendant

exited his vehicle and approached the premises yelling and waving

a machete. Defendant's brother convinced defendant to put away the

machete, and defendant complied, but he continued to loudly berate

and threaten the victim with statements such as, "I will get you,

you better watch your back."

      Police were called. Defendant had started to drive away from

the area as police arrived. His vehicle was stopped, and defendant

was required to exit his vehicle. He was patted down in light of

the information the officers had received about a machete. A

detective walked around defendant's minivan and observed a machete

and two baseball bats in plain view as he looked through the rear

window. The machete and other irrelevant items were seized.




1
  According to the order under review, the one-year probationary
term was completed by the time the Law Division judge imposed
sentence.

                                     2                             A-1803-15T2
     Defendant moved to suppress the machete, arguing it was

recovered through an unconstitutional warrantless seizure; the

suppression motion was denied by both the municipal judge and the

Law Division judge.

     Although charged with other offenses, the Law Division judge

convicted defendant only of a violation of 
N.J.S.A. 2C:33-2(a)(2),

which provides that an actor is guilty of a petty disorderly

persons offense, "if with purpose to cause public inconvenience,

annoyance or alarm" the actor "[c]reates a hazardous or physically

dangerous condition by any act which serves no legitimate purpose

of the actor."

     In appealing, defendant argues:

          I. THE COURT SHOULD VACATE APPELLANT'S
          CONVICTION FOR VIOLATION OF 
N.J.S.A. 2C:33-
          2(a)(2), AS THERE IS NO EVIDENCE OF PUBLIC
          INCONVENIENCE, ANNOYANCE, OR ALARM, AND
          THEREFORE NO BASIS FOR SAID VIOLATION AND
          CONVICTION.

          II. THE COURT MUST EXCLUDE FROM EVIDENCE ANY
          ITEMS OBTAINED FROM MR. HOO'S VEHICLE BECAUSE
          THE OFFICERS' SEARCH OF MR. HOO'S CAR WAS
          WITHOUT PROBABLE CAUSES, A WARRANT OR CONSENT.

          III. THE COURT MUST VACATE APPELLANT'S
          CONVICTIONS BECAUSE FINDINGS OF FACT WERE
          TAINTED BY MUNICIPAL COURT JUDGE'S ADMITTED
          BIAS.




                                3                          A-1803-15T2
We find insufficient merit in these arguments to warrant discussion

in a written opinion. R. 2:11-3(e)(2). We add only the following

few comments.

       We reject defendant's first point because there can be no

doubt that the act of shouting and threatening another while waving

or    brandishing      a    machete     violates    
N.J.S.A.    2C:33-2(a)(2).

Defendant appears not to dispute that concept so much as he argues

an alternative version of the facts – that he only briefly wielded

a    machete.   We   are     satisfied    that,    however   brief,    the      mere

appearance of a machete in these circumstances was sufficient to

"cause public inconvenience, annoyance or alarm." And we find

meritless the argument that because the argument took place on

private property there could not be, as a matter of law, a "public"

inconvenience. The event did not take place behind closed doors

but out in the open and, therefore, had the capacity to concern

and unnerve nearby members of the public.

       Although the evidence adduced at the suppression hearing more

than adequately laid a foundation for application of the plain-

view exception, and our standard of review mandates deference to

such findings, State v. Locurto, 
157 N.J. 463, 470-71 (1999), we

need not consider defendant's second point except to add the

admission of the machete as an exhibit at trial had no bearing on

the   outcome.   The       pivotal    finding   didn't   turn   on    the    actual

                                         4                                  A-1803-15T2
admission of the machete itself but on the testimony that defendant

wielded or brandished a machete during the event in question.

     We also reject defendant's third point. Defendant would have

us conclude the municipal judge was biased and that his bias

infected the Law Division's later findings in convicting defendant

on de novo review. Defendant argues the municipal judge was biased

because he referred to the matter, on earlier occasions when it

was called but unready to be tried, as "the machete case" or "the

machete incident." In another instance, the municipal judge stated

that he was called about the matter as he "arrived at [his]

destination for Thanksgiving dinner" and, by that time, the event

was "already on CBS news, on the radio"; he further stated that

"after the notoriety that this matter got, [the public cannot] be

told that [t]he [c]ourt will give the minimums on this."

     We find no evidence of bias arising from the fact that the

judge referred to this matter by a shorthand label, such as "the

machete case." It would be unreasonable to assume from such

comments that the judge was biased any more than a judge could be

accused of bias for referring to a pending matter as "a murder

case" or "a robbery case." No objective view of such comments,

when uttered prior to the accused's conviction, would suggest a

bias.



                                5                           A-1803-15T2
     The municipal judge's comment about it being untoward to

"give the minimums on this" because the matter received some

notoriety is a little more disconcerting. But defendant appealed

and received a de novo trial in the Law Division. Whatever the

municipal   judge   may   have   mistakenly   expressed   was   rendered

harmless by the fact that a Law Division judge, who defendant does

not argue was biased, reviewed the matter de novo. Moreover, the

Law Division judge expressed his disagreement with the municipal

judge's utterances in this regard; we are, consequently, satisfied

that defendant received a fair trial before an unbiased judge.

     Affirmed.




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