STATE OF NEW JERSEY v. MARK TILSON

NOT FOR PUBLICATION WITHOUT THE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-4781-14T4

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

MARK TILSON,

     Defendant-Respondent.
_______________________________

              Argued telephonically April 9, 2018 —
              Decided April 23, 2018

              Before Judges Nugent, Currier, and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Municipal Appeal
              No. 6011.

              John Vincent Saykanic argued the cause for
              appellant.

              Mark A. Festa, Assistant Prosecutor, argued
              the cause for respondent (Camelia M. Valdes,
              Passaic County Prosecutor, attorney; Tom
              Dominic Osadnik, Assistant Prosecutor, of
              counsel and on the brief).

PER CURIAM

        Defendant appeals his conviction of disorderly persons simple

assault and his sentence of a ninety-day jail term and one year
probation.        Finding    none   of       his    five    appellate      arguments

meritorious, we affirm.

      The victim charged defendant with disorderly persons simple

assault, 
N.J.S.A. 2C:12-1(a)(1), on June 27, 2013.                      Thereafter,

defendant filed a cross-complaint against the victim, which the

court dismissed before the April 2, 2014 trial.

      Before trial, defendant also demanded the prosecution produce

video from three surveillance cameras at a public area and two

businesses in the vicinity of the incident.                  The prosecution did

not obtain the videos and the municipal court denied defendant's

subsequent motion to dismiss the charge against him because the

prosecutor did not "turn over . . . video that we don't know . .

. exists."

      At trial on April 2, 2014, defendant renewed his motion to

dismiss because of the State's failure to turn over the video.

The   municipal    court    judge   considered        the    motion   as    one   for

reconsideration, denied it, and proceeded to trial.                        The judge

noted   she   previously     addressed       each    of     defendant's     motions,

"including [a] motion to recuse, which I'm not hearing again

tonight."1




1
   The record does not indicate when defendant filed a motion to
recuse the municipal court judge.

                                         2                                   A-4781-14T4
     Defendant and the victim were the only witnesses to testify

at the municipal trial.    The incident resulting in the charge

against defendant occurred on the afternoon of June 27, 2013, on

Main Street in Paterson, where defendant was selling downloadable

music and movies for phones, iPods, and MP3 players.     The victim

knew defendant as "the download guy."

     The victim testified she was walking on the sidewalk when

defendant "shoved [a] paper in [her] face" and said, "download."

She replied, "no.   No thank you."   When she told him to "get this

paper out of my face," he began to call her illiterate and dumb.

She said "[your] mother, and he hit[] [her]."

     According to the victim, defendant punched her in the chin.

Her chin began to bleed.   She ran down the street and called the

police.   Emergency medical personnel arrived and treated her for

a gash under her chin, but the injury was not serious.

     The victim filed a complaint against defendant. The complaint

stated:

          [Defendant] did commit the act of simple
          assault specifically by striking the victim
          in the mouth with a closed hand causing a minor
          injury which consisted of a small laceration,
          swelling, and redness on her lower lip. She
          received medical attention on scene.        The
          incident occurred after the victim refused to
          purchase downloaded music.




                                3                           A-4781-14T4
     In    response    to    defense   counsel's     cross-examination,      the

victim said she swung her pocketbook at defendant and hit him

after he punched her.           Defense counsel also brought out some

inconsistencies between the complaint and the victim's direct

testimony.

     Defendant testified that on the afternoon of the incident he

"pitched [his] services" to the victim by showing her a flyer and

making a verbal pronouncement.              Defendant stated, "[t]hat's a

general announcement I make while walking around. I may be showing

the flyers to whoever.          Somebody walk[s] past me, I show the

flyers, make the pitch."

     According to defendant, the victim said something rude to

him, he verbally responded, the two got into an argument, and the

victim put her hand in defendant's face and "mushed" his face.

When asked if the victim actually touched defendant's face, he

stated the victim pushed him with her hand and, in response, he

hit the victim.       Defendant denied the victim swung her pocketbook

at him.    He said she struck him with an open hand.

     The     municipal      court   judge    found   defendant   guilty      and

sentenced him to a ninety-day custodial term followed by a one-

year probationary period and the condition defendant complete

anger   management     counseling.      The    judge   also   imposed    fines,

penalties, and costs.        The jail term was stayed pending appeal.

                                       4                                A-4781-14T4
     Defendant appealed to the Law Division.    The court assigned

pro bono counsel for the appeal.     Before the de novo trial took

place, defendant moved to have his attorney relieved and a new

attorney appointed.   Defendant also moved to have the Law Division

judge recuse himself.    The judge denied both motions in an oral

opinion he delivered from the bench on March 11, 2015.

     At the de novo trial, defendant renewed his motion to dismiss

based on the State's failure to produce video surveillance tapes.

The judge denied the motion.   In a thorough and well-reasoned oral

opinion, the judge found defendant guilty of simple assault and

imposed the same sentence the municipal court judge had imposed.

Defendant filed this appeal.

     On appeal, defendant argues:

          POINT I

          THE DEFENDANT WAS DENIED HIS FOURTEENTH
          AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL
          BY THE STATE'S FAILURE TO PRESERVE AND TO
          PROVIDE RELEVANT EXCULPATORY VIDEOS.

          POINT II

          THE COURT BELOW ERRED IN FINDING THE DEFENDANT
          GUILTY DE NOVO OF ASSAULT AS THE STATE FAILED
          TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE
          DOUBT.

          POINT III

          THE REFUSAL BY THE LAW DIVISION JUDGE TO GRANT
          DEFENSE COUNSEL'S MOTION TO BE RELIEVED WAS
          AN   ABUSE  OF   DISCRETION;   THIS   DECISION

                                 5                          A-4781-14T4
            IRREPARABLY   PREJUDICED   DEFENDANT   AS   IT
            RESULTED IN THE DENIAL OF EFFECTIVE ASSISTANCE
            OF COUNSEL AS GUARANTEED BY THE SIXTH
            AMENDMENT TO THE UNITED STATES CONSTITUTION
            AND BY THE NEW JERSEY CONSTITUTION MANDATING
            A REVERSAL OF HIS CONVICTION.

            POINT IV

            DEFENDANT WAS DENIED HIS STATE AND FEDERAL
            CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE
            OF COUNSEL AS GUARANTEED BY THE SIXTH
            AMENDMENT TO THE UNITED STATES CONSTITUTION
            AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW
            JERSEY STATE CONSTITUTION; A PRESUMPTION OF
            PREJUDICE IS JUSTIFIED.

            POINT V

            THE COURTS BELOW (BOTH TRIAL AND DE NOVO
            APPEAL) ERRED IN DENYING THE RECUSAL MOTION
            IN VIOLATION OF THE DEFENDANT'S DUE PROCESS
            RIGHTS.

       We reject defendant's arguments in Points I through III and

Point V as it applies to the trial de novo substantially for the

reasons expressed by the Law Division judge in his March 11 and

April 30, 2015 oral opinions.         To the extent Point V pertains to

the recusal of the municipal court judge, the record is inadequate

for proper appellate review.        We note defendant's argument on this

point is of questionable merit, because when reviewing an "appeal

from   a   de   novo   trial   on   the       record,   [the   appellate    court]

consider[s] only the action of the Law Division and not that of

the municipal court."      State v. Oliveri, 
336 N.J. Super. 244, 251

(App. Div. 2001) (citation omitted).

                                          6                                A-4781-14T4
     Nonetheless, even if there is merit to defendant's argument

— that if the municipal court judge was biased because she found

in a previous trial defendant was not a credible person, the Law

Division's deference to her credibility findings in the present

trial tainted the de novo proceeding — there is no record on which

to evaluate defendant's contention.2           The extent of the record

concerning defendant's motion for the municipal court judge to

recuse herself is a passing reference by the judge to earlier

motions.    If defendant filed a written motion, it is not included

in the record.    Nor does the record contain a transcript of either

the motion or the municipal court judge's decision.

     Moreover, as appellant's counsel conceded at oral argument,

the argument on this point is in essence a claim that trial counsel

was ineffective for not obtaining transcripts and making a proper

record.     We decline to consider the argument.           "Our courts have

expressed    a   general   policy    against   entertaining    ineffective-

assistance-of-counsel claims on direct appeal because such claims

involve    allegations     and   evidence   that   lie   outside   the     trial

record."     State v. Preciose, 
129 N.J. 451, 460 (1992) (citing

State v. Dixon, 
125 N.J. 223, 262 (1991)).


2
   We note the appeal of the previous conviction was argued back-
to-back with the current appeal. Today, we affirmed defendant's
conviction and sentence in that matter. State v. Tilson, No. A-
2995-16 (App. Div. Apr. 23, 2018).

                                      7                                  A-4781-14T4
     We reject defendant's argument in Point IV for the same

reason.    In Point IV, defendant argues his trial counsel was

ineffective for failing to properly investigate the municipal

court   proceedings,   obtain   relevant   transcripts,   and   properly

advocate for defendant against the assault charge at the trial de

novo. Defendant must seek post-conviction relief on this argument.

Ibid.

     Affirmed.




                                   8                             A-4781-14T4