SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1433-16T2

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

SURAJ R. DESAI,

a/k/a SURAJ DESSAI,

Defendant-Appellant.

_____________________________

Argued July 31, 2018 – Decided

Before Judges Sabatino, Mayer, and Mawla.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 

15-01-0065.

Stephen P. Hunter, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, attorney; 

Stephen P. Hunter, of counsel and on the 

brief).

David M. Liston, Assistant Prosecutor, argued 

the cause for respondent (Andrew C. Carey, 

Middlesex County Prosecutor, attorney; David 

M. Liston, of counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

August 16, 2018
2 A-1433-16T2

Defendant Suraj R. Desai appeals from a judgment of conviction 

following a jury trial in which he was found guilty of fourthdegree operating a motor vehicle during a period of license 

suspension, N.J.S.A. 2C:40-26(b). Subsequent to sentencing on his 

conviction, defendant pled guilty to motor vehicle summonses of: 

operating under the influence, speeding, unsafe lane change, 

disregarding a stop sign regulation or yield sign, and driving 

with a suspended license. We affirm.

The following facts are taken from the trial record. In the 

early morning hours of November 16, 2013, Woodbridge Police 

Department Officer Bryan Dorward observed a black BMW enter U.S. 

Route 1 at a high rate of speed and cross into the middle right 

lane without signaling. Officer Dorward stopped the vehicle, 

which was operated by defendant. When the officer asked defendant 

for identification, he produced a valid Connecticut driver's 

license. Defendant informed Officer Dorward he had been coming 

from a family party in Edison and that he owned a business in New 

Jersey. As a result, Officer Dorward performed a record check, 

which revealed defendant's driving privileges in New Jersey were 

suspended. The officer issued defendant a summons for driving 

while suspended. 

Defendant was subsequently indicted under N.J.S.A. 2C:40-

26(b) for operating a motor vehicle with a suspended license and 
3 A-1433-16T2

issued the aforementioned summonses. At trial, in addition to 

testimony from Officer Dorward, the State presented testimony from 

a Motor Vehicle Commission employee, Andrew Feller. Defendant did 

not testify, but adduced expert testimony from a retired New Jersey 

State Police Trooper regarding police procedures relating to the 

motor vehicle stop in this case.1 

Feller testified defendant's driver's abstract stated his 

driver's license was suspended on June 5, 2013, because defendant 

was convicted of driving under the influence (DUI), N.J.S.A. 39:4-

50. Feller further explained defendant was previously convicted 

of a DUI on July 22, 2009, which resulted in suspension of his 

license. Feller testified a suspended license "means that you 

have lost the privilege to drive in the [S]tate of New Jersey." 

Feller further stated the possession of an out-of-state license 

"doesn't affect [a] New Jersey license suspension at all. However 

if someone receives a suspension of their driving privilege, 

they're not permitted to drive in our state with or without any 

other kind of license." 

Following Feller's testimony, the State admitted its 

documentary evidence, including evidence defendant had signed an 

acknowledgment when his New Jersey license was suspended in 2013, 

 

1 Because it is irrelevant to the issue on appeal, we do not discuss 

the testimony by defendant's expert. 
4 A-1433-16T2

prior to committing the offense in this case. Thereafter, 

defendant's expert testified, counsel provided summations, the 

jury deliberated and returned a guilty verdict. This appeal 

followed.

On appeal, defendant raises the following argument:

THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT 

TO PRESENT THE DEFENSE THAT HE DID NOT ACT 

KNOWINGLY BECAUSE HE BELIEVED THAT HIS VALID 

OUT-OF-STATE LICENSE ALLOWED HIM TO DRIVE IN 

NEW JERSEY VIOLATED HIS CONSTITITUTIONAL 

RIGHTS.

I.

"Trial judges have broad discretion in setting the 

permissible boundaries of summations." State v. Muhammad, 359 

N.J. Super. 361, 381 (App. Div. 2003). "The scope of defendant's 

summation argument must not exceed the 'four corners of the 

evidence.'" State v. Loftin, 146 N.J. 295, 347 (1996) (quoting 

State v. Reynolds, 41 N.J. 176, 195 (1963)). "The 'four corners' 

include the evidence and all reasonable inferences drawn 

therefrom." State v. Jones, 308 N.J. Super. 174, 185 (1998) 

(quoting Loftin, 146 N.J. at 347). "Thus, it is proper for a 

trial court to preclude references in closing arguments to matters 

that have no basis in the evidence." Ibid.

As to a trial judge's discretion whether to give a particular 

charge to a jury, the Supreme Court has held:
5 A-1433-16T2

It is not incumbent upon the trial court to 

give any requested instruction which is an 

erroneous statement of the law or is otherwise 

improper under the facts of the case or does 

not state the law with substantial 

correctness. The trial court may properly 

refuse a requested charge which is 

unintelligible or incomplete, or which might 

prove misleading or confusing to the jury; a 

requested instruction requiring the jury to 

decide questions of law; a requested 

instruction in conflict with instructions 

given; a requested instruction which has no 

evidence to support it; an instruction which 

is too general or too broad or omits some 

qualification or limitation necessary to make 

it properly applicable to the facts of the 

case; or a request not broad enough to cover 

the whole law of the case on the point.

Failure to honor proper requests will 

ordinarily be deemed prejudicial error when 

the subject matter is fundamental and 

essential or is substantially material to the 

trial. In any other situation the objecting 

party must establish an abuse of discretion.

[State v. Green, 86 N.J. 281, 291 (1981)

(citation omitted).]

II.

Defendant argues the trial judge erred by refusing to allow 

him to present a defense that he did not knowingly violate N.J.S.A. 

2C:40-26(b). Defendant contends he was entitled to present a 

defense that he believed his Connecticut license was valid and 

permitted him to drive in New Jersey notwithstanding his 

suspension. Defendant argues the trial judge erred by requiring 

defendant to testify in order to present a defense, and that a 
6 A-1433-16T2

jury could infer he did not "knowingly" drive a vehicle in New 

Jersey in violation of the statute, and therefore lacked the 

requisite mens rea to violate the statute without his testimony. 

Defendant also argues the trial judge should have issued the model 

charge on ignorance and mistake to aid the jury in understanding 

his defense.

Fundamentally, a defendant possesses a "right to present a 

defense, the right to present the defendant's version of the facts 

as well as the prosecution's to the jury so it may decide where 

the truth lies." Washington v. Texas, 388 U.S. 14, 19 (1967); see 

also State v. Jenewicz, 193 N.J. 440, 451 (2008) (holding the 

fundamental right to present a defense is protected by the United 

State Constitution and the New Jersey Constitution). 

In New Jersey, ignorance of the law may provide a defendant 

with a defense in certain limited circumstances. Indeed, N.J.S.A. 

2C:2-4 states: "Ignorance or mistake as to a matter of fact or law 

is a defense if the defendant reasonably arrived at the conclusion 

underlying the mistake and: (1) It negatives the culpable mental 

state required to establish the offense[.]" 

N.J.S.A. 2C:40—26(b) states: 

It shall be a crime of the fourth degree to 

operate a motor vehicle during the period of 

license suspension in violation of R.S.39:3-

40, if the actor’s license was suspended or 

revoked for a second or subsequent violation 
7 A-1433-16T2

of R.S.39:4-50 or section 2 of P.L.1981, c.512 

(C.39:4-50.4a). A person convicted of an 

offense under this subsection shall be 

sentenced by the court to a term of 

imprisonment.

N.J.S.A. 2C:2-2(c)(3) states: 

Although no culpable mental state is expressly 

designated in a statute defining an offense, 

a culpable mental state may nevertheless be 

required for the commission of such offense, 

or with respect to some or all of the material 

elements thereof, if the proscribed conduct 

necessarily involves such culpable mental 

state. A statute defining a crime, unless 

clearly indicating a legislative intent to 

impose strict liability, should be construed 

as defining a crime with the culpability 

defined in paragraph b.(2) of this section. 

This provision applies to offenses defined 

both within and outside of this code.

N.J.S.A. 2C:2-2(b)(2) states: 

A person acts knowingly with respect to the 

nature of his conduct or the attendant 

circumstances if he is aware that his conduct 

is of that nature, or that such circumstances 

exist, or he is aware of a high probability 

of their existence. A person acts knowingly 

with respect to a result of his conduct if he 

is aware that it is practically certain that 

his conduct will cause such a result. 

"Knowing," "with knowledge" or equivalent 

terms have the same meaning.

The model jury charge for N.J.S.A. 2C:40-26 describes the 

elements, which must be met by the State to prove the offense:

In order for defendant to be convicted of this 

offense, the State must prove the following 

elements beyond a reasonable doubt:
8 A-1433-16T2

1. That the defendant knowingly operated a 

motor vehicle;

2. That the defendant's license was 

suspended or revoked for his/her

(a) first violation of [driving while 

intoxicated] or [refusal to submit to a 

chemical breath test] and the actor had 

previously been convicted of operating a motor 

vehicle during the period of license 

suspension while under suspension for that 

first offense; 

OR

(b) second or subsequent violation of 

[driving while intoxicated] or [refusal to 

submit to a chemical breath test]; and

3. That the defendant knew that his/her 

license was suspended or revoked.

[Model Jury Charges (Criminal), "Driving While 

License is Suspended or Revoked for DWI or 

Refusal to Submit to a Chemical Breath Test 

(N.J.S.A. 2C:40-26)" (rev. April 11, 2016) 

(emphasis added).]

The gravamen of defendant's appeal centers on his claim he 

was deprived of the ability to assert he did not know his right 

to drive in New Jersey remained suspended, and that his valid 

Connecticut license did not authorize him to drive in this state. 

Defendant filed a pre-trial motion to suppress the evidence from 

the motor vehicle stop, arguing Officer Dorward lacked reasonable 

suspicion to make the stop, which the trial judge denied. Officer 

Dorward testified at the suppression hearing, and offered 
9 A-1433-16T2

testimony consistent with our summary above, specifically 

testifying defendant had presented a valid Connecticut driver's 

license during the stop. 

Following the suppression hearing, defense counsel objected 

to the jury charges proposed by the State, and argued the charges 

should not mention defendant possessed a Connecticut driver's 

license because it was not a part of the model charge. The 

prosecutor noted she had crafted the charge to inform the jury 

"that just because [defendant had a valid out-of-state license] 

doesn't mean he had the right to drive [in New Jersey]." The 

prosecutor further explained "I'm not trying to argue that 

[defendant] should have known or he shouldn't have known either 

way with that charge, just so [the jury is] aware of what the law 

is. That was the purpose of that charge." 

The trial judge inquired of defense counsel: "Are you going 

to assert as part of your trial that [defendant's] possession of 

a Connecticut license is a defense to these charges?" Defense 

counsel responded: "Not directly, Judge, but it can be inferred 

that that's his understanding." Appropriately, the trial judge 

did not adjudicate the dispute over the charge before the State 

presented the evidence, and instead advised defense counsel as 

follows: 
10 A-1433-16T2

[I]t depends on what you are asserting as a 

defense. [The State] might be entitled to 

something based on what you assert for a 

defense. I'll wait and see what you assert. 

If you assert something that [the State has] 

a right to respond to . . . the [c]ourt is 

always free to craft additional jury charges. 

The following day, prior to jury selection, the trial judge 

advised that, based on his research, defendant could not assert 

possession of a valid out-of-state license as a defense at trial. 

Specifically, the trial judge stated: "I will give you two cases 

. . . State of New Jersey v. McDonald . . . and State of New Jersey 

v. William Nemesh[.]" 

After the jury was empaneled and given preliminary 

instructions, they were released. Thereafter, the trial judge and 

counsel continued to discuss the issue of defendant's Connecticut 

license. The prosecutor requested the judge's permission to elicit 

testimony from Officer Dorward that defendant had handed him the 

Connecticut license during the stop. The trial judge held "[The 

State] can mention it, but [defendant] can't argue that it’s a 

defense to the driving while suspended." The judge reasoned 

permitting such a defense was a "misstatement of the law." 

The trial testimony occurred the following day. Over defense 

counsel's objections, Officer Dorward testified defendant had 

handed him a Connecticut license during the stop, and explained, 

notwithstanding the valid Connecticut license, he issued defendant 
11 A-1433-16T2

a summons because his license had been suspended in New Jersey. 

As we noted, Feller also testified, over defense counsel's 

objections, and explained a valid out-of-state license does not 

affect one's ability to operate a vehicle in New Jersey.

Following submission of the State's case, and before 

commencement of the defense case, as the trial judge and counsel 

reviewed the proposed jury charges offered by the State, defense 

counsel again noted both of the State's witnesses had testified a 

valid Connecticut license did not give defendant license to drive 

in New Jersey. Defense counsel asserted this objection to argue 

it should not be a part of the jury charge. The trial judge stated 

he did not intend to give such a charge. 

Defendant also argued a document admitted in evidence, which 

demonstrated on its face that defendant had been served with notice 

of his New Jersey license suspension at his Connecticut address, 

warranted the opportunity to explain to the jury he did not 

understand he could not drive in New Jersey. The following 

colloquy occurred:

[DEFENSE COUNSEL]: . . . the [c]ourt has 

already admitted into evidence the notice 

. . . which I think is confusing, I will be 

arguing to the jury that that is a legal 

document and that he may not have understood 

the implications as a Connecticut driver and 

I –
12 A-1433-16T2

[COURT]: You can't do that because there's no 

evidence to support that he did not 

understand.

. . . .

You can't create that argument. So you can't 

say he did not understand unless he takes the 

stand and says he did not understand.

When the trial resumed, defendant advised the trial judge he would 

not testify, and adduced only the testimony of his expert. 

Having reviewed the record, we agree with the trial judge the 

facts presented did not permit defendant the ability to argue he 

lacked the requisite mens rea to violate N.J.S.A. 2C:40—26(b). 

Thus, although it is the better practice that trial judges avoid 

imparting any instruction, which may be perceived as suggesting a 

defendant waive the privilege against self-incrimination2, the 

facts here do not demonstrate the trial judge abused his discretion 

in curtailing defense counsel's closing argument to the jury 

concerning mens rea issues. 

As we noted, the trial judge relied on our holding in State 

v. Nemesh, 228 N.J. Super. 597 (App. Div. 1988). In Nemesh, the 

defendant appealed from his conviction of DUI, N.J.S.A. 39:4-

 

2 "From its beginnings as a State, New Jersey has recognized the 

right against self-incrimination and has consistently and 

vigorously protected that right. The right against selfincrimination is an integral and essential safeguard in the 

administration of criminal justice." State v. Reed, 133 N.J. 237, 

250 (1993) (citations omitted).
13 A-1433-16T2

50(a)(3), and driving while suspended. When Nemesh was stopped 

by police, his New Jersey driver's license was suspended, but he 

produced a valid Maryland license. The State had adduced a copy 

of the notice of suspension of defendant's New Jersey license and 

a certificate of mailing demonstrating proof of service of the 

notice. 

On appeal, we stated:

While it is true that the evidence showed 

defendant had a valid Maryland driver's 

license, there is nothing to support his 

speculation that the notice of [the 

suspension] had been resolved and he simply 

had not bothered to obtain another New Jersey 

license. On the contrary, defendant testified 

on direct examination: "I was scared that I 

was driving without a driver's license. . . ." 

Defendant's driving privileges in this state 

had been suspended. His possession of a valid 

Maryland driver's license did not authorize 

him to operate a motor vehicle in this state, 

particularly where he was working full time 

in this state and residing with his daughter. 

We agree with the trial judge that the 

Maryland license seems to have been obtained 

and used by defendant to divert the attention 

of police officers in the event he was stopped 

and to avoid their learning that his New 

Jersey driving privileges had been suspended.

[Nemesh, 228 N.J. Super. at 609.]

The defendant in Nemesh could argue a lack of mens rea defense 

because the record contained defendant's testimony that he feared 

driving without a license as the reason he had obtained a Maryland 
14 A-1433-16T2

license, to permit an inference he lacked the requisite mens rea. 

Here, defendant made no such admission and the record lacked any 

evidence, circumstantial or otherwise, to permit defendant a 

defense of mistake or ignorance.

Furthermore, defendant's proffered defense was the

presentation of a valid Connecticut driver's license as evidence 

he believed he could drive in New Jersey. However, this argument 

would not negate an element of N.J.S.A. 2C:40—26(b). Indeed, the 

State had only to prove defendant was driving in New Jersey and 

knew his New Jersey license was suspended or revoked. Thus, under 

the facts of this case, the circumstantial evidence of the 

presentation of a Connecticut license was not state of mind 

evidence of a legally valid defense to the offense charged, and 

the trial judge correctly concluded defense counsel's argument the 

jury could make such an inference was a "misstatement of the law." 

For these reasons, the judge was neither required to charge the 

jury nor wrong to deny defense counsel the ability to argue in 

summation an untenable defense of the sort asserted by defendant.

Affirmed.