STATE OF NEW JERSEY VS. ERNEST MIGNOLI (19-011, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1502-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNEST MIGNOLI,

Defendant-Appellant.
________________________

Submitted March 1, 2021 – Decided July 7, 2021

Before Judges Messano and Hoffman.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.
19-011.

Daniels & Davis-Daniels, attorneys for appellant
(Kevin E. Daniels, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Following a trial de novo of his municipal court appeal in the Law

Division, defendant Ernest Mignoli appeals from the October 30, 2019 order

finding him guilty of two counts of petty disorderly persons harassment,

N.J.S.A. 2C:33-4(b), (c). We affirm.

I.

This appeal arises from an altercation between defendant and Captain

Robert Fahnholz of the Asbury Park Fire Department (APFD). On January 7,

2018, Captain Fahnholz responded to defendant's report concerning two young

girls without heat in their apartment located on Deal Lake Drive. Captain

Fahnholz checked multiple units and spoke with several residents, including

defendant, but could not find the two girls. At that point, Captain Fahnholz

again spoke with defendant, hoping to obtain more information. Defendant

became angry, stating Captain Fahnholz did not care about the residents of

Asbury Park because he lived in another town, which he identified, and only

cared about his own children. Captain Fahnholz ultimately left the area without

finding the two girls.

Later that evening, defendant went to the APFD to file a complaint against

Captain Fahnholz. Because Captain Fahnholz worked a twenty-four-hour shift,

he was still on duty at the firehouse when defendant arrived. Captain Fahnholz

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provided defendant with a complaint form. Defendant then made threatening

statements; according to Captain Fahnholz, defendant "stated he was going to

take my kids, make them live with him" in Asbury Park, so that "I would

understand what it's like to live in the Santander." The altercation escalated as

defendant raised his voice, approached Captain Fahnholz with a closed fist, and

threatened him with physical violence. Captain Fahnholz recounted that

defendant "said he was going to kick my ass and punch me in the face."

Defendant was subsequently charged with two counts of petty disorderly

persons harassment.

On March 8, 2019, defendant appeared pro se in Freehold Borough

Municipal Court, the matter having been moved from Asbury Park Municipal

Court due to conflicts. Despite having previously appeared before the court with

counsel and despite the fact that trial had been scheduled one month prior,

defendant fired his attorney the preceding week and appeared pro se. Before the

trial began, defendant made two motions, seeking 1) the municipal court judge's

recusal, alleging bias stemming from an unrelated complaint and 2) an

adjournment of the trial because of defendant's recent decision to discharge his

counsel. The judge first denied defendant's request for a postponement, noting

the matter had been pending for over a year and the trial date was "scheduled

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approximately a month ago." The judge also denied the recusal motion, finding

that his presiding at a prior trial against defendant was not preclusive to him

hearing the current matter as the judge had "no personal animus toward"

defendant.

At trial, the municipal court judge heard testimony from Captain Fahnholz

and defendant. After Captain Fahnholz provided the testimony previously

summarized, defendant cross-examined him about specific details of the

altercation and alleged bias; however, many of defendant's questions were

improper and were barred by the court. The judge found Captain Fahnholz's

testimony credible and defendant guilty of both counts of petty disorderly

persons harassment. The judge imposed the following sentence on each count:

a $500 fine and $168 in costs and mandatory penalties.

Defendant appealed his conviction to the Law Division, arguing the

municipal court judge erred when he denied his motions for recusal and

adjournment, limited his cross-examination of Captain Fahnholz, and found his

threatening statements met the statutory elements of harassment. On October

30, 2019, following a trial de novo, the Law Division judge issued an order and

a comprehensive written opinion, rejecting defendant's arguments and finding

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him guilty as charged. The judge imposed the same sentence as the municipal

court. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

JUDGE O’BRIEN COMMITTED REVERSIBLE
ERROR WHEN HE FOUND THAT JUDGE BASEN
DID NOT ABUSE HIS DISCRETION BY DENYING
DEFENDANT'S MOTION FOR RECUSAL.

POINT II

JUDGE O’BRIEN COMMITTED REVERSIBLE
ERROR WHEN HE FOUND THAT JUDGE BASEN
DID NOT ABUSE HIS DISCRETION BY DENYING
DEFENDANT'S MOTION FOR AN
ADJOURNMENT.

POINT III

JUDGE O’BRIEN COMMITTED REVERSIBLE
ERROR WHEN HE FOUND THAT JUDGE BASEN
DID NOT ABUSE HIS DISCRETION BY
INFRINGING UPON DEFENDANT’S
FUNDAMENTAL AND CONSTITUTIONAL RIGHT
TO CONFRONT THE WITNESS AGAINST HIM
AND CROSS-EXAMINE CPT. FAHNHOLZ ABOUT
HIS RECOLLECTION AND ULTERIOR MOTIVE
AND HIS BIAS, PREJUDICE, HOSTILITY
TOWARDS DEFENDANT.

POINT IV

SUFFICIENT CREDIBLE EVIDENCE DOES NOT
EXIST IN THE RECORD BELOW TO UPHOLD THE

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 FINDINGS OF DEFENDANT'S GUILT BEYOND A
REASONABLE DOUBT ON EACH OF THE
ELEMENTS UNDER SUBSECTION C OF THE
HARASSMENT STATUTE.

II.

Our 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. Joas,

34 N.J. 179, 184 (1961). "We defer to the judge's fact finding, and our 'review

is limited to "whether the findings made could reasonably have been reached on

sufficient credible evidence present in the record."'" State v. L.S., 444 N.J.

Super. 241, 247-48 (App. Div. 2016) (quoting State v. Kuropchak, 221 N.J. 368,

382-83 (2015)). "We owe no deference, however, to the 'trial court's

interpretation of the law . . . and the consequences that flow from established

facts[,]' which we review de novo." Id. at 248 (quoting State v. Hubbard, 222

N.J. 249, 263 (2015)).

A.

First, defendant contends the Law Division judge erred in finding no abuse

of discretion in the municipal court judge's decision not to recuse himself. The

municipal court judge presided over a previous, unrelated matter wherein he

made credibility findings against defendant and found defendant guilty.

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Therefore, defendant maintains the municipal court judge was biased and should

have recused himself.

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) (citing Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)). The

grounds for disqualifying a judge are set out in Rule 1:12-1. Primarily, they

focus on the judge having a familial relationship with the parties or the attorneys

or having an interest in the subject of the litigation. R. 1:12-1(a) to (f). The rule

also provides that a judge can be disqualified "when there is any other reason

which might preclude a fair and unbiased hearing and judgment, or which might

reasonably lead counsel or the parties to believe so." R. 1:12-1(g).

Under Rule 1:12-1(g), "it is not necessary to prove actual prejudice on the

part of the court[;]" rather, "the mere appearance of bias may require

disqualification." State v. Marshall, 148 N.J. 89, 279 (1997). "However, before

the [judge] may be disqualified on the ground of an appearance of bias, the belief

that the proceedings were unfair must be objectively reasonable." Ibid. "[B]ias

is not established by the fact that a litigant is disappointed in a court's ruling on

an issue." Id. at 186.

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 Here, we discern no abuse of discretion. Defendant offers no proof of the

municipal court judge's bias against him. Dissatisfaction with a judge's rulings

does not warrant recusal. Marshall, 148 N.J. at 186.

B.

Defendant next contends the Law Division judge erred in finding no abuse

of discretion in the municipal court judge's decision not to adjourn the trial.

Defendant motioned to adjourn the trial because he decided to discharge his

counsel a few days before trial. Defendant alleges his counsel failed to subpoena

witnesses favorable to his defense leading up to trial and that he was unable to

retain new counsel before trial.

We review the denial of a motion for an adjournment, which involves the

court's ability to manage its own calendar, under a deferential standard. State v.

Miller, 216 N.J. 40, 65 (2013). "[W]hether a trial court should grant or deny a

defendant's request for an adjournment . . . requires a balancing process

informed by an intensely fact-sensitive inquiry." State v. Hayes, 205 N.J. 522,

538 (2011).

On a defendant's motion to adjourn, "'there are two conditions which must

exist to warrant' reversal of the conviction." Miller, 216 N.J. at 66 (quoting

Hayes, 205 N.J. at 539). First, "'the judicial action must have been clearly

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unreasonable in the light of the accompanying and surrounding circumstances.'"

Ibid. (quoting Hayes, 205 N.J. at 539). Second, the decision must have

prejudiced the defendant such that "'the defendant suffered manifest wrong or

injury.'" Id. at 66-67 (quoting Hayes, 205 N.J. at 537).

In Hayes, our Supreme Court outlined "some" factors to be weighed in

deciding whether to grant a defendant's motion to adjourn the trial to retain

counsel. 205 N.J. at 538. The factors include:

the length of the requested delay; whether other
continuances have been requested and granted; the
balanced convenience or inconvenience to the litigants,
witnesses, counsel, and the court; whether the requested
delay is for legitimate reasons, or whether it is dilatory,
purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the
request for a continuance; whether the defendant has
other competent counsel prepared to try the case,
including the consideration of whether the other
counsel was retained as lead or associate counsel;
whether denying the continuance will result in
identifiable prejudice to defendant's case, and if so,
whether this prejudice is of a material or substantial
nature; the complexity of the case; and other relevant
factors which may appear in the context of any
particular case.

[Ibid. (quoting State v. Furguson, 198 N.J. Super. 395,
402 (App. Div. 1985)).]

But "a lengthy factual inquiry is [not] required." State v. Kates, 216 N.J. 393,

397 (2014).

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 Here, defendant made his motion on the day of trial, but he provides no

exceptional circumstance justifying the timing of replacing his former counsel.

Nor does he provide specific information about the witnesses his former counsel

allegedly failed to subpoena or other evidence of prejudice. Further, defendant,

in part, contributed to the last-minute nature of the motion by waiting a week

between discharging his attorney and seeking an adjournment. Therefore, we

discern no abuse of discretion.

C.

Defendant further contends the Law Division judge erred in finding the

municipal court judge's constraints on his cross-examination of Captain

Fahnholz did not implicate his right "to be confronted with the witnesses against

him," guaranteed by the Sixth Amendment of the United States Constitution.

Defendant maintains the municipal court judge stopped him from showing

Captain Fahnholz's bias and motive.

The Confrontation Clause permits a defendant to explore, in cross-

examination, a prosecution witness's alleged bias. State v. Bass, 224 N.J. 285,

301 (2016). "[T]he credibility of a witness may be impeached on cross-

examination"; however ,"[t]he scope of cross-examination is a matter resting in

the broad discretion of the trial court." State v. Martini, 131 N.J. 176, 255

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(1993), overruled on other grounds by State v. Fortin, 178 N.J. 540, 843 (2004).

"[A] defendant's confrontation right must accommodate legitimate interests in

the criminal trial process, such as established rules of evidence and procedure

designed to ensure the efficiency, fairness, and reliability of criminal trials."

State v. Branch, 182 N.J. 338, 349 (2005) (quotations and citations omitted).

With these principles in mind, we find the municipal court judge's rulings

were consistent with the applicable rules of evidence and did not deny defendant

of his right to confront Captain Fahnholz. While the municipal court judge

stopped defendant from asking procedurally improper questions, his rulings did

not improperly interfere with defendant's use of cross-examination for the

desired purpose of questioning Captain Fahnholz's bias and motive.

D.

Finally, defendant contends the Law Division judge erred in finding the

State proved his guilt beyond a reasonable doubt for violating of N.J.S.A. 2C:33-

4(c). 1 Defendant relies upon State v. Burkert, 231 N.J. 357 (2017), to argue that

1
Defendant's brief does not address his conviction of N.J.S.A. 2C:33-4(b),
which proscribes subjecting "another to striking, kicking, shoving, or other
offensive touching, or threaten[ing] to do so." Defendant apparently concedes
that he violated this section of the harassment statute when he approached
Captain Fahnholz with a closed fist, and threatened him with physical violence,
stating "I'm going to kick [your] ass and punch [you] in the face."

11 A-1502-19
the Law Division judge erred in finding that his threats to kidnap Captain

Fahnholz's children, coupled with statements indicating that he knew where the

captain lived, were "pure, protected expressive activity that would not

reasonably place a person in fear for his safety or security" and, therefore, not

violative of the harassment statute, N.J.S.A. 2C:33-4(c).

N.J.S.A. 2C:33-4(c) provides: "a person commits a petty disorderly

persons offense if, with purpose to harass another, he: . . . [e]ngages in any

other course of alarming conduct or of repeatedly committed acts with purpose

to alarm or seriously annoy such other person." Our Supreme Court has

construed "'any other course of alarming conduct' and 'acts with purpose to alarm

or seriously annoy' as repeated communications directed at a person that

reasonably put that person in fear for [her] safety or security or that intolerably

interfere with that person's reasonable expectation of privacy." Burkert, 231

N.J. at 284-85. A judge may use "[c]ommon sense and experience" when

determining a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997)

(citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div. 1978)).

Here, the Law Division judge concluded the State had met its burden in

proving the harassment charges against defendant beyond a reasonable doubt for

harassment, finding that

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 [d]efendant made several comments criticizing Captain
Fahnholz'[s] commitment to his duties, which
continued later in the day when [d]efendant appeared at
the fire station. This conduct alone, shows that
[d]efendant clearly intended to seriously annoy Captain
Fahnholz, but it went much further than a mere
annoyance when [d]efendant repeatedly referenced the
Captain's children, where they lived, and essentially
threatened to kidnap them. Coupled with the threats of
physical violence towards Captain Fahnholz,
[d]efendant's conduct certainly violated N.J.S.A.
2C:33-4, placing Captain Fahnholz in fear of the safety
or security of his children and himself, and therefore, is
not protected under the First Amendment.

Sufficient credible evidence in the record clearly supports the challenged

verdict. We see no reason to disturb the judge's findings or conclusions.

Affirmed.

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