STATE OF NEW JERSEY VS. RICHARD LYNCH (020-15-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0304-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD LYNCH,

Defendant-Appellant.
_________________________________

Argued November 8, 2017 – Decided August 16, 2018

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Municipal Appeal
No. 020-15-16.

Richard Lynch, appellant, argued the cause pro
se.

Michael R. Philips, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Mr. Philips, of counsel and on the brief).

PER CURIAM

Defendant Richard Lynch appeals the August 8, 2016 order by

the Law Division finding defendant guilty of traffic offenses upon

de novo review of his Municipal Court conviction. We affirm.
 I.

The following facts appear in the Law Division's opinion and

in the transcripts. On July 18, 2015, in the Borough of

Rutherford, defendant make a left turn from Glen Road onto Park

Avenue. Several signs at the intersection warned motorists that

left turns from Glen Road onto Park Avenue were prohibited.

Officer Matthew Van Dyk saw defendant's Jeep making the left

turn, and effectuated a motor vehicle stop. He asked defendant

for his driver's license, registration, and insurance card.

Defendant presented his driver's license and expired insurance

card, but did not provide his registration, saying he had a copy

at home. Van Dyk issued defendant a summons for making an illegal

left turn in violation of Borough of Rutherford Municipal Ordinance

§ 126-51. That ordinance states in pertinent part: "No vehicle

shall make a left turn at any of the following locations[:] . . .

(18) Vehicles moving in a northwesterly direction along Glen Road

shall not turn left at the intersection of Glen Road and Park

Avenue." Borough of Rutherford Municipal Ordinance § 126-51(A).

Van Dyk also issued a summons for failing to possess and exhibit

his registration card in violation of N.J.S.A. 39:3-29, which

N.J.S.A. 39:3-29 provides in pertinent part that "the registration

certificate of a motor vehicle . . . shall be in the possession

of the driver or operator at all times when he is in charge of a

2 A-0304-16T4
motor vehicle," and that "the operator or driver of a motor vehicle

. . . shall also exhibit the registration certificate, when

requested so to do by a police officer."

At the December 10, 2015 trial before the Municipal Court,

defendant was represented by his counsel Miles Feinstein, Esq.

Defendant unsuccessfully moved for the judge to recuse himself.

After hearing testimony from Officer Van Dyk and defendant, the

judge convicted defendant of the two traffic violations.

Defendant appealed, seeking a trial de novo in the Law

Division. See R. 3:23-8. Feinstein filed a brief on defendant's

behalf, but after a disagreement defendant petitioned the court

to proceed pro se. In a July 25, 2016 colloquy, defendant waived

his right to counsel.

The Law Division held a trial de novo on August 8, 2016. The

court convicted defendant of the two traffic violations. The

court rejected defendant's argument that traffic cones near the

curb on the right side superseded the posted signs because "the

traffic cones were located adjacent to hash-marked 'no-parking'

zones" to prevent parking, "not to redirect traffic." The court

also rejected defendant's argument that it was sufficient that he

was in constructive possession of his registration at his home.

The court assessed $303 in fees and court costs.

Defendant appeals, arguing (as originally spelled):

3 A-0304-16T4
 POINT I - MUNICIPAL COURT DENIED DEFENDANT HIS
RIGHT TO COUNSEL.

POINT II - THE MUNICIPAL COURT ENTERED A
RULING BASED UPON HERASAY AND PRIVELDGED
WRITTEN COMMUNICATION BETWEEN THE DEFENDANT
AND HIS ATTORNY THAT WAS BROUGHT FORTH BY
OPPOSING COUNSEL.

POINT III - THE MUNICIPAL COURT ENTERED A
RULING BASED ON OPINION AND EVIDANCE NOT
ARGUED OR BROUGHT FORTH BY THE STATE.

POINT IV - THE MUNICIPAL COURT SHOULD HAVE
RECUSED ITSELF.

II.

Defendant first claims he was denied his right to counsel at

a December 3, 2015 hearing in the Municipal Court. The State

cites the rule that when a defendant appeals from Municipal Court

to the Law Division, "[t]he appeal shall operate as a waiver of

all defects in the record[.]" R. 3:23-8(c). However, we have

held "the waiver does not apply in respect of defects of a

constitutional or jurisdictional nature." State v. Ross, 189 N.J.

Super. 67, 74 (App. Div. 1983); see, e.g., State v. Abbondanzo,

201 N.J. Super. 181, 184-85 and n.1 (App. Div. 1985) (considering

a defendant's claim that he was deprived of his right to counsel

because he represented himself in his Municipal Court trial, even

though he was represented by counsel at his trial de novo in the

Law Division). We will assume that Rule 3:23-8(c)'s waiver rule

does not apply here.

4 A-0304-16T4
 Defendant filed a pro se subpoena duces tecum to the

Rutherford Municipal Court Administrator, commanding her to appear

to testify but not listing any documents for her to bring. The

Borough attorney, on behalf of the Court Administrator, filed a

motion to quash.

At the December 3, 2015 hearing on the motion to quash, the

prosecutor was not present. Defendant said "I'm here without

Miles Feinstein, he's having [a medical treatment] today, it was

scheduled." The judge acknowledged that Feinstein had recently

notified the judge that he was having a medical treatment that day

in New York. The judge stated he had declined to adjourn the

matter because "this is the last court session before the trial.

This is the only opportunity this Court has to hear" the motion

to quash the subpoena.

This exchange followed:

THE COURT: Yes, Mr. Lynch you want to be
heard?

MR. LYNCH: All right, You Honor, now it was
served actually about this –

THE COURT: Okay, I wasn't really getting into
the substance of it –

MR. LYNCH: Okay.

The judge reported that Feinstein was notified by court staff

that he either had to send an associate or colleague, or had to

5 A-0304-16T4
send a written response for the judge to decide on the papers.

The Borough attorney represented that Feinstein's office told him

Feinstein was sending an associate, but the associate did not

appear. The Borough attorney further represented that when he had

called to ask why, Feinstein called back, stating "that he had an

associate available, [and] was sending him today, but his client

refused to have anyone but Mr. Feinstein appear today. So for

that reason he advised the associate not to come."

This exchange followed:

THE COURT: I see, okay. You want to be heard
on that.

MR. LYNCH: Well, then I guess we'll be heard
on this – the – the matter.

THE COURT: Well, no – no do you want to be
heard on . . . that statement.

Defendant responded that he "hired Miles Feinstein," and that

he sent Feinstein an email "that I wanted Miles," "I hired Miles

and I would expect Miles to be here." Defendant said he "didn't

get a response" to his email, so he did not know "that nobody was

going to show up today." Hearing that, the judge accepted the

Borough attorney's representations of his conversations with

Feinstein and his office. The judge stated he would let defendant

himself oppose the motion to quash.

6 A-0304-16T4
 Defendant said he had a tape he wanted to play of the Court

Administrator discussing a change of venue.1 He said he subpoenaed

the Court Administrator to testify "how [the tickets] were

processed and how they were generated and how they were sent to

the county and how it was sent to the prosecutor's office." He

alleged "these interactions have been malicious." He admitted he

had not paid a fee for her to appear. He argued the motion to

quash was served in an untimely way because it gave him less than

seven days to respond, but the judge noted it was an emergent

application and was not untimely.

The judge found that the subpoena duces tecum had to be

quashed because: it did not request any documents; defendant did

not pay the transportation fee for the witness; there was no basis

to believe she had relevant knowledge; and the subpoena was

unreasonable and oppressive.

On appeal, defendant now claims that the Municipal Court

denied his right to counsel. However, as the Law Division noted,

"neither defense counsel nor the defendant directly raised this

issue at the motion to quash hearing, the recusal motion, the

trial, or, in defendant's brief filed in th[e] appeal" to the Law

Division, even when defendant was represented by counsel.

1
The judge stated that the Assignment Judge issued an August 14,
2015 order "transferring venue to this court."

7 A-0304-16T4
 Defendant mentioned the December 3 hearing when he waived

counsel in the Law Division on July 25, 2016. Steven Braun, Esq.

appeared in Feinstein's stead and reported that defendant wanted

to proceed pro se, and that Feinstein, who had not been paid, had

no objection to being relieved. Defendant stated that Feinstein's

brief in the Law Division was inadequate and that he would prefer

to have Feinstein relieved as long as defendant was given two

weeks to prepare, which the court granted.

The trial court conducted a thorough colloquy in which

defendant stated that he went to college for two years, owned a

towing and trucking company, "dabble[d]" in the law, had been a

criminal defendant, had represented himself in a prosecution for

driving while intoxicated and obtained an acquittal, and had

represented himself successfully in federal bankruptcy court.

Defendant said he understood the charges and the burden of proof,

and knew he was bound by the rules of evidence and criminal

procedure. Defendant voluntarily waived counsel despite the

court's warning that it was a serious choice, that it would be far

better to have counsel, that proceeding without counsel may impair

his ability to defend himself, and that the court strongly urged

him not to go pro se.

Representing himself at his trial in the Law Division,

defendant again mentioned the December 3 hearing, but argued Braun

8 A-0304-16T4
should not have been allowed to appear in Feinstein's stead, and

that he had no interest in being represented by anyone but

Feinstein. However, defendant again stated that Feinstein's brief

was inadequate and questioned whether Feinstein was capable of

representing him. Defendant then argued he was denied his right

to private counsel because the Municipal Court instructed

Feinstein to send another attorney in Feinstein's absence, and

therefore he had no choice but to defend himself.

Under these circumstances, the Law Division concluded that

defendant had to show plain error under Rule 2:10-2. We agree.

See State v. Hannah, 448 N.J. Super. 78, 92-93 (App. Div. 2016);

State v. Avena, 281 N.J. Super. 327, 334 (App. Div. 1995); see

also N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super.

322, 343, 351 (App. Div. 2007). He failed to show plain error.

Defendant first argues that the Municipal Court erred in

moving forward on December 3 because he should not be liable for

Feinstein not adhering to the judge's instruction to send a

substitute counsel. However, the judge found that Feinstein did

try to send counsel to represent defendant but defendant refused

to be represented by anyone but Feinstein. That finding was

supported not only by Feinstein's statements to the Borough

attorney but also by defendant's own statements to the judge that

he hired Feinstein and would accept representation only by

9 A-0304-16T4
Feinstein. That finding was subsequently corroborated by

defendant's belated but vehement objection to the counsel sent by

Feinstein appearing at the Law Division hearing at which defendant

waived counsel. Even in his brief before us, defendant argues

that "had Mr. Feinstein elected to send a substitute attorney, the

retainer agreement Mr. Feinstein had with the defendant would not

support an unnamed colleague."

Defendant quotes Rule 1:11-2(a)(3) that "[i]n a criminal

action, no substitution shall be permitted unless the withdrawing

attorney has provided the court with a document certifying that

he or she has provided the substituting attorney with the discovery

that he or she has received from the prosecutor." However,

Feinstein was not withdrawing from being defendant's counsel, nor

was the counsel he attempting to send a "substituting attorney,"

which refers to an attorney permanently replacing a withdrawing

attorney. See R. 1:11-2(a)(2), (3). Feinstein was sending the

attorney only to cover a hearing when Feinstein was temporarily

unavailable but was continuing to represent defendant.

Citing Rule 1:2-4(a), defendant argues that Feinstein "failed

to give reasonable attention to the fact that his medical

appointment conflicted with the Notice to Appear he received for

December 3, 2015." However, as defendant admits, Feinstein sought

an adjournment, which was denied by the judge, a ruling defendant

10 A-0304-16T4
has not challenged. Moreover, the judge found Feinstein tried to

send counsel to represent defendant. Thus, Feinstein had just

excuse for his absence and gave "reasonable attention to the

matter." R. 1:2-4(a).

Defendant rejected such representation by another counsel.

Moreover, rather than protesting Feinstein's absence, defendant

twice immediately began to discuss the merits of his pro se

subpoena duces tecum. Those circumstances, and defendant's

subsequent criticism of Feinstein's representation and his

decision to proceed pro se after a thorough colloquy, belie his

current contention he was forced to represent himself. See State

v. Crisafi, 128 N.J. 499, 517-18 (1992) (holding a defendant's

rejection of representation by trained counsel and proceeding pro

se "can produce a valid waiver of counsel").

Nonetheless, defendant contends the judge erred by failing

to conduct a colloquy under Crisafi and State v. Reddish, 181 N.J.

553 (2004). Such a colloquy is required for criminal defendants

who have a Sixth Amendment right to counsel. Reddish, 181 N.J.

at 587; Crisafi, 128 N.J. at 508-09. However, defendant had no

constitutional right to assistance of counsel regarding these

minor traffic offenses. State v. Smith, 408 N.J. Super. 484, 491

(App. Div. 2009). The penalty for each offense was limited to a

$150 fine. N.J.S.A. 39:3-29; Borough of Rutherford Municipal

11 A-0304-16T4
Ordinance § 126.65(B)(17). A defendant has a right to assistance

of counsel only where the penalties include imprisonment, license

suspension, or aggregate monetary sanctions of $800 or greater.

See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971); R. 7:3-2(b);

Guidelines for Determination of Consequences of Magnitude,

Pressler & Verniero, Current N.J. Court Rules, App. to Part VII

to R. 7:3-2 at 2754 (2018).2

Courts have not required full Crisfali colloquies for

defendants lacking such rights. E.g., In re Adoption of J.E.V.,

226 N.J. 90, 114 (2016) (defendants facing termination of parental

rights); D.N. v. K.M., 429 N.J. Super. 592, 607-08 (App. Div.

2013) (defendants in domestic violence actions). Moreover,

defendant was not "proceed[ing] to trial without an attorney."

Cf. R. 7:8-10. Nor was he being deprived of "the right to counsel

of choice" at his trial. Cf. United States v. Gonzalez-Lopez, 548

U.S. 140, 150 (2006); State v. Kates, 426 N.J. Super. 32, 51 (App.

Div. 2012), aff'd o.b., 216 N.J. 393 (2014).

2
In his reply brief, defendant contended "points" were charged
against his driver's license, making it ineligible for commercial
insurance coverage. However, we are aware of no basis under which
the Motor Vehicle Commission could assess points for these
violations. See N.J.A.C. 13:19-10.1. Any actions of defendant's
insurance company would be irrelevant to the consequences-of-
magnitude inquiry. In any event, we "decline to consider arguments
raised for the first time in a reply brief." Bacon v. N.J. State
Dep't of Educ., 443 N.J. Super. 24, 38 (App. Div. 2015); see State
v. Lenihan, 219 N.J. 251, 265 (2014).

12 A-0304-16T4
 Rather, defendant's counsel of choice, who represented him

at trial, was simply absent from a brief, inconsequential hearing.

The absence of counsel does not "require[] reversal of the

conviction, no matter how brief the deprivation or how trivial the

proceedings that occurred during the period of deprivation."

Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 2009); see United

States v. Roy, 855 F.3d 1133, 1150-51 (11th Cir. 2017); see also

United States v. Gordon, 710 F.3d 1124, 1139 n.19 (10th Cir. 2013).

In any event, we agree with the Law Division that defendant

has not shown that any error was "clearly capable of producing an

unjust result." R. 2:10-2. The only topic of the December 3

hearing was defendant's pro se subpoena duces tecum, which failed

to seek any documents and failed to tender the required fee for

the witness's appearance. See R. 1:9-2, 1:9-3. Defendant was

unable to offer a valid reason why he sent the subpoena to the

Court Administrator. Defendant's assertion that the Court

Administrator could testify about how tickets were processed and

copied to various agencies "was wholly irrelevant to the motor

vehicle offenses," as the Law Division found. The Municipal Court

properly quashed the subpoena as "unreasonable [and] oppressive."

R. 1:9-2.

Given that defendant's subpoena was pro se and meritless, the

hearing concerned a motion by the subpoenaed person rather than

13 A-0304-16T4
the state, and the prosecutor was not present, the hearing was not

a "'critical stage'" of a prosecution where "the substantial rights

of the accused may be affected." State v. A.O., 198 N.J. 69, 82

(2009). In any event, even if a defendant has a right to assistance

of counsel, the counsel is temporarily absent from a critical

stage, and the defendant objects, New Jersey courts do "not presume

prejudice" from the temporary absence of counsel but, "instead,

analyze the error in accordance with the harmless error standard."

State v. Dennis, 185 N.J. 300, 302 (2005); see State v. Scherzer,

301 N.J. Super. 363, 454-59 (App. Div. 1997) (finding no prejudice

from counsel's absence from parts of jury selection and trial).

Feinstein was absent from a hearing quashing a facially-

improper pro se subpoena which sought irrelevant information. "It

is unlikely that defense counsel, if present at the hearing, would

have been able to persuade the judge not to" quash the subpoena.

See Dennis, 185 N.J. at 302. Moreover, "[t]he presence of

[defendant's] attorney would, beyond any doubt, have made no

difference to the outcome of the trial." See Scherzer, 301 N.J.

Super. at 457. Further, defendant was represented by counsel

throughout his Municipal Court trial. See State ex rel. L.R., 382

N.J. Super. 605, 619-21 (App. Div. 2006) (finding the absence of

counsel from an earlier hearing was harmless because he was

represented by counsel at the later dispositive hearing); cf.

14 A-0304-16T4
Johnson v. United States, 520 U.S. 461, 468-69 (1997)

(distinguishing "a total deprivation of the right to counsel");

J.E.V., 226 N.J. at 114-15 (reversing due to "a complete denial

of counsel"); Abbondanzo, 201 N.J. Super. at 184 (reversing where

the defendant was not represented at his Municipal Court trial).

Thus, defendant cannot show plain error.

III.

Defendant now contends that at the December 3 hearing on the

motion to quash, the Municipal Court improperly relied on the

Borough attorney statements that "I learned today from Mr.

Feinstein that the basis of [the subpoena] likely had to do with

an opposition, or a concern or an issue with the change of venue,"

and that Feinstein said he tried to send an associate to the

hearing but defendant said that was unacceptable, as related above.

Defendant contends Feinstein's statements were inadmissible

hearsay because they were not a party's own statement or adopted

by him under N.J.R.E. 803(b)(1) or (2). However, it is unclear

that the Rules of Evidence apply to a proceeding about a subpoena.

See N.J.R.E. 101(a)(2)(E) (relaxing the evidence rules in

"proceedings to determine the admissibility of evidence"). Nor

is it clear the rules which provide "[h]earsay is not admissible"

apply to discussion between court and counsel on procedural matters

where no evidence is being admitted. See N.J.R.E. 802.

15 A-0304-16T4
 Regardless, defendant's statements to Feinstein were a

party's own statements, and Feinstein's statements as defendant's

counsel were statements by a party's authorized representative or

agent. N.J.R.E. 803(b)(1), (3), (4); see State v. Mauti, 448 N.J.

Super. 275, 330-32 (App. Div. 2017); Howard Sav. Bank v. Liberty

Mut. Ins. Co., 285 N.J. Super. 491, 497 (App. Div. 1995).

Moreover, Feinstein's statements concerned "the management of the

litigation," a topic on which counsel's statements are clearly

admissible. 4 Wigmore, Evidence § 1063(1) (Chadbourne rev. 1972);

Dumont v. Dinallo, 4 N.J. Super. 371, 375 (App. Div. 1949); see

McCormick on Evidence § 259 at 286-87 (7th ed. 2013).

Defendant also claims his email to Feinstein was privileged.

"For a communication to be privileged it must initially be

expressed by an individual in his capacity as a client in

conjunction with seeking or receiving legal advice from the

attorney in his capacity as such, with the expectation that its

content remain confidential." Fellerman v. Bradley, 99 N.J. 493,

499 (1985); see N.J.R.E. 504(a). Here, the only identified

statement by defendant to Feinstein was defendant's refusal to

accept another attorney. That was not a communication "in which

legal advice is sought." Hedden v. Kean Univ., 434 N.J. Super.

1, 10 (App. Div. 2013).

16 A-0304-16T4
 In any event, defendant did not object in the Municipal Court

to the Borough attorney's relation of Feinstein's statements, and

must show plain error. He cannot do so, as he told the judge he

sent an email to Feinstein stating he had hired Feinstein and

wanted Feinstein. Defendant also told the judge his pro se

subpoena was intended to obtain the County Administrator's

testimony on how tickets were processed and where they were sent.

The judge rejected defendant's stated purpose for the subpoena as

having "nothing to do with the case." Because defendant's

statements to the judge provided ample basis for the judge's

actions, defendant cannot show the Borough attorney's repetition

of Feinstein's statements was "clearly capable of producing an

unjust result." R. 2:10-2.

IV.

Defendant now complains that the Municipal Court erred in

relying on a photograph he admitted at trial. During defendant's

testimony, he introduced through counsel several photos of Glen

Road's intersection with Park Avenue. Defendant testified he took

the photos on the day he made the left turn to show the traffic

cones. Defendant got the photos admitted into evidence. In

issuing his decision, the judge stated: "What wasn't mentioned

by anyone and it's very apparent on D-13 is that right at this

intersection on Glen, going on - going to Park there's a huge

17 A-0304-16T4
white arrow painted on the ground. Right turn - it doesn't say

right turn only, it's pointed in the right direction, only."

Defendant claims the Municipal Court erred in referencing the

right-turn arrow on the pavement because the arrow was not

discussed in testimony. However, there was no error because the

photo clearly depicted the arrow, defendant testified the photo

accurately represented the scene at the time of his left turn, and

the photo had been admitted into evidence without limitation.

Moreover, any error was invited by defendant, who introduced

the photo for the judge's consideration. Under the invited-error

doctrine, "trial errors that '"were induced, encouraged or

acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal."'" State v. A.R., 213 N.J.

542, 561-62 (2013) (citations omitted) (finding invited error when

the defendant encouraged the factfinder to watch a video); N.J.

Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010)

(finding invited error where the "defendant consented to the

admission of the relevant documents").

In any event, the Law Division made no reference to the right-

turn arrow in reaching its decision. The court could rely on

defendant's own testimony that he was aware of the signs

prohibiting left turns, and that he knew left turns were

prohibited. See State v. Kashi, 360 N.J. Super. 538, 545 (App.

18 A-0304-16T4
Div. 2003) (citation omitted) (upholding a traffic conviction for

which the Law Division gave a different basis than the Municipal

Court), aff'd o.b., 180 N.J. 45, 47-48 (2004).

"[A]ppellate review of a municipal appeal to the Law Division

is limited to 'the action of the Law Division and not that of the

municipal court.'" State v. Palma, 219 N.J. 584, 591-92 (2014)

(citations omitted). "For that reason, we [need] not consider

defendant's arguments in respect of the municipal court judge's

actions." Ibid.; see Hannah, 448 N.J. Super. at 93-94.

V.

Defendant finally claims the Municipal Court judge should

have granted his motion for the judge's recusal at the beginning

of the December 10, 2015 trial. Motions for recusal "are entrusted

to the sound discretion of the judge and are subject to review for

abuse of discretion." State v. McCabe, 201 N.J. 34, 45 (2010).

We must hew to that standard of review. "[T]he mere appearance

of bias may require disqualification. However, before the court

may be disqualified on the ground of an appearance of bias, the

belief that the proceedings were unfair must be objectively

reasonable." State v. Marshall, 148 N.J. 89, 279 (1997) (citation

omitted); see R. 1.12-1(g); Code of Judicial Conduct, Canons 2,

3.17, Pressler & Verniero, Current N.J. Court Rules, App. to Pt.

I (2018). "The proper standard to assess defendant's request for

19 A-0304-16T4
recusal is set forth in DeNike v. Cupo, 196 N.J. 502, 517 (2008):

'Would a reasonable, fully informed person have doubts about the

judge's impartiality?'" State v. Dalal, 221 N.J. 601, 606 (2015).

Defendant argues that the judge should have recused himself

because he had heard two prior cases involving defendant, one of

which involved the unlawful sale of a boat. The judge stated: "I

didn't even remember that I had [defendant] in front of me, until

[counsel] said it earlier today." Defendant raised "a second case

involving his son's maternal grandmother," but the judge said he

did not remember it, and counsel noted the judge had found in

defendant's favor. The judge denied the motion, explaining:

I don't have any recollection of the cases
that – you are telling me about now. I
remember something about a boat, but I didn't
know that that involved [defendant] until
[counsel] just recited it. So I have no
knowledge of any prior matters that would
cause me not to be able to hear this case
. . . in a just way.

Defendant's recusal claim was properly rejected. Even "[a]n

adverse ruling in prior proceedings does not warrant

disqualification." Marshall, 148 N.J. at 276; see Strahan v.

Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot

be inferred from adverse rulings against a party."). Further,

"[a]n error by the court in the previous proceeding does not

necessarily justify an inference of bias and will not, by itself,

20 A-0304-16T4
furnish a ground for disqualification." Marshall, 148 N.J. at

276. As the Law Division found, "no fully informed person would

question [the Municipal Court judge's] impartiality."

In any event, "[a]t a trial de novo, the [Law Division] makes

its own findings of fact and conclusions of law but defers to the

municipal court's credibility findings." State v. Robertson, 228

N.J. 138, 147 (2017). The Municipal Court made no credibility

findings because the testimony of Officer Van Dyk and defendant

were "very consistent." As the Law Division found, "credibility

was not at issue." Thus, the Law Division "consider[ed] the matter

anew," State v. Kashi, 180 N.J. 45, 48 (2004), so defendant's

claim against the Municipal Court judge cannot invalidate the Law

Division's decision.

Defendant's remaining claims lack sufficient merit to warrant

discussion. R. 2:11-3(e)(2).

Affirmed.

21 A-0304-16T4