SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO . A

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STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

JEFFREY HOLDEN,

Defendant

- Appellant.

Argued December 19, 2019

– Decided

Before Judges Alvarez and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No.
18

- 017.

Matthew W halen Reisig argued the cause for ap pellant (Reisig Criminal Defense and DWI Law, LLC, attorneys; Matthew W halen Reisig, on the brief).

Monica Lucinda do Outeiro, Assistant Prosecutor, argued the cause for respondent (Christopher J.
Gramiccio ni, Monmouth County Prosecutor, attorney;
Monica Lucinda do Outeiro, of counsel and on the brief
and Heather A. Muh, Legal Assis tant, on the brief ).

NOT FOR P UBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the
internet

, this opinion is binding only on the parties in the case and its us e in other cases is limited

. R

. 1:36

- 3.

January 10, 20202 A

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PER CURIAM

On November 14, 2018, the Honorable Paul Escandon issued a cogent and

thorough written decision , after a trial de novo on the record, denying d efendant

Jeffrey Holden's appeal of a driving while intoxicated (DWI), N.J.S.A. 39:4

- 5 0

,

conviction

. See R. 3:23

- 8. Defendant's principal argument at the trial de novo

was that the municipal court judge erred on June 12, 2018 , when he deni ed

defendant's motion f

o r recus al . Immediately following the judge's denial of the

motion , defendant entered a conditional guilty plea to his third DWI. The

municipal court judge stayed defendant's service of the statute's mandatory

penalties, including a ten

- year susp ension of driving privileges and a 180

- day

period of incarceration. See N.J.S.A. 39:4

- 50(a)(3) (2015)

. 1 Judge Escandon's

November 14, 2018 de ci s ion and order affirming the decision remanded the

matter "to the M unicipal C ourt for the imposition of the def endant's sentence,"

e ffectively continuing the stay. We affirm, relying upon J udge Escandon 's

dec i s ion

, with the following comments. Defendant is to promptly arrange with

the municipal court to begin the sentence. The trial courts' stay s are dissolved

a s of one week f

rom the date of this decision.

1 On December 1, 2019, the statute was amended and reduced the suspension from ten years to eight years. See N.J.S.A. 39:4

- 50(a)(3).3 A

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Defendant was charg ed on December 5, 2017. When the matter was

relisted for hearing on May 8, 2018, defendant's attorney was absent due to a

medical issue. The municipal court had been provided with a May 7 letter from

counsel's doctor stating that due to "severe back pain," counsel was to "refrain

from work

- related duties for the next two weeks."

An associate from counsel's office had written to the court on May 6, the

day before, that no one f rom the offi ce would appear on defendant's behalf. Th e

associate indic ated that he was committed to appear in another municipal court

on behalf of a client facing a more recent DWI charge.

Counsel underwent an MRI on May 8. The MRI report was completed

May 9. It wa s not provided to the municipal court judge on the trial date because

it did not exist at that time

.

The objected

- to material, the heart of defendant's application to recuse the

municipal court judge , follows :

THE COURT:

. . . Okay. Mr. H olden, come

on up. We'll get you on your way shortly. Mr. Holden is here. I was about to issue a bench warrant to him, but he was here, and then we thought he left. But he's come back, so that's fine.

. . . I will have to adjourn the matter. The Cou rt will

-- it' s not Mr. Holden's fault. I am very concerned

as [counsel's associate] traveled to Pompton Lakes today on a newer DWI. They were told by my staff this4 A

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- 18T2 morning that that matter was newer, but they decided to go there anyway.

Mr. Holden has been waiting here patiently.
We've received numerous letters from [counsel] , many of them to my mind, at best, skate the truth as to the
circumstances of this matter as it was scheduled I believe in April, maybe March. We scheduled it for May 1st for a conference and May 8th, today, for the
trial.

. . . [N] o one was available to come to the
conference. We let [counsel] know that today was the trial date, as we told him previously. The officers

. . . are here and have been here, at least one of them. Mr.
Holden ha s been here.

As I said earlier, defense counsel chose to go to Pompton Lakes on a newer matter when he should have appeared here.

Also, I have some concerns as to the letter that I
received from

-- with a doctor's note as I have some

conc erns as to tha t.

So, at this point the Court will determine and will, at the appropriate time, will issue an appropriate order, will determine the appropriate sanction, if any, with regard to [counsel] . It's not Mr. Holden's fault, so I would in no way look to punish Mr. Holden for the conduct of his attorney.

All right. Let's try to see when our next date

-- I
don't know what else we can do.

COURT CLERK: Let's do the 22nd and I will subpoena the officers.5 A

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- 18T2 THE COURT: All right. At this point, sir, and I'm go ing to give you the notice, the matter is on for May 22nd at one. Okay. Here's a notice for you, Mr. Holden, okay?

[ Defendant]: Okay.

THE COURT: All right. We'll see you back here
then.

[Defendant]: Thank you.

THE COURT: Thank you.

W hen the matter was relisted May 22, counsel informed the court he

would be filing a motion for recusal. We repeat th at colloquy :

THE COURT: [Counsel] , whenever you can grab the Prosecutor, we'll start yours. I know we've kept you a long time. It's a horrible d ay, I do apologize.

(Court/clerk discussion)

[Counsel] : I'm actually holding it up in my right hand

--

THE COURT: That's fine.

[Cou nsel]: You're going to interrupt me again? Can I continue with your permission?

THE COURT: [Counsel] , once a gain, I suggest that you address the Court in the proper manner rather than attempting to scold the Court.

[Counsel]: Judge, I'm not

---6 A

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- 18T2 THE COURT: In any case, why don't you
continue?

[Counsel]: Judge, and you can I can, again, agree to disagree b ecause I haven't done anything
of the kind and this record would reflect that.

THE COURT: You have scolded the Court, so, but in any case

-- -

[Counsel]: Again, you and I can agree to disagree on that. I'm not agreeing with you and I can do so respect fully.

THE COURT: In any case, proceed please.

[Counsel]: Thank you. On two occasions on May 8, 2018, you questioned the veracity of bot h my medical condition and my doctor's note. So when I
received

-- I actually read for the first time the certifi ed transcript of proceedings for that court appearance, that date of May 8, 2018, in this Freehold Borough Municipal Court, which was today.

I then directed correspondence to Your Honor dated today with three attachments, which is the
doctor's note of Ma y 7, 2018, the certified transcript of proceedings on May 8, 2018 and my MRI radiology report, which occurred on May 8, 2018.

Based on Your Honor's comments, based on your attitude toward defense counsel today

-- I would note it's 4:21 p.m.

-- we are alm ost the last case here so for some reason we're being punished by the Municipal
Court.

THE COURT: Not at all.7 A

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- 18T2 [Counsel]: Well, the record is clear that
it's 4:21 now.

THE COURT: I have a full calendar here today. And the court here is paying for an interpreter here today. We have numerous interpreter cases.

[Counsel]: Judge, if you think

--

THE COURT: I have a Prosecutor who is

out side conferencing numerous cases including using the interpreter.

[Counsel]: Judge if you think that the

court rule on adjourning matters with an attorney would be such that the last attorney in the courtroom is me
based on a case that cannot be tried today because of an officer's unavailability, if you think keeping an attorney around on a 1 o'clock listing to 4:2 2 p.m. is in accordance with the foregoing and appropriate court rule, then you and I are going to agree to disagree.

The point is, J udge, your comments on the record on May 8, 2018, at a minimum would strongly suggest an appearance of a conflict of inte rest such that you're required to recuse yourself from this case. We will file a formal motion forthwith regarding that application to
have Your Honor recused. It will be filed before this new trial date of Tuesday, June 12, 2018.

THE COURT: Okay. Tha nk you.

[Counsel]: And you're welcome.

THE COURT: All right. So, at this point the trial date is June 12th 2018. We're doing tha t a t 4
o'clock?8 A

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- 18T2 COURT CLERK: Yes.

THE COURT: Okay. At 4 o'clock. I'm going to give a notice to everyone. Here's a notice for [counsel] as well as Mr. Holden.

[Counsel]: Thank you.

THE COURT: And the matter will be on on that date. Thank you.

[Counsel]: You're welcome.

At the next scheduled date, t he municipal court judge denied the motion

for recusal on the basis that his comments reflected only his frustration with the

scheduling problem, the brevity of the doctor's note supporting counse l's

postponement request , and the fact the associate chose to go to another court

when this defendant's matter was older. H e said:

[It] was simply a scheduling matter. To my mind, it is water under the bridge. I have no personal animus
toward Mr. Holde n or to [counsel]. I was simply expressing the Court's frustration and the Court's desire, the Court's responsibility wi th regard to scheduling which is clearly the Court's matter, the Court's responsibility.

The judge added that he was confident that he could address the matter fairly.

Counsel applied for leave to file an interlocutory appeal, which request

was denied. C ounsel then stated that given denial of the motion and denial of

the request for an interlocutory appeal, defendant would enter a conditional9 A

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guilty plea. Defendant the n pursued the matter by way of the trial de novo before

Judge Escandon.

D efendant rais es the following point:

THE LAW DIVISION ERRED IN DENYING
DEFENDANT'S MOTION FOR DISQUALIFICATION ON DE NOVO REVIEW
BECAUSE THE MUNICIPAL COURT WAS REQUIRED TO DISQUALIFY ITSELF SINCE IT
HAS EVINCED AN ACTUAL BIAS AGAINST DEFENSE COUNSEL, WHICH CREATES AT
LEAST AN APPEARANCE OF A CONFLICT OF
INTEREST.

Our review of the record satisfies us that Judge Escandon did not err in

his factual or legal determination s. T here is sufficient credible evidence in the

record support ing his factual conclusions. State v . Powers , 448 N.J. Super. 69,

72 (App. Div. 2016). The municipal court judge's determination that he could

be fair and impartial to defendant, despite his expr essed frustration with the

scheduling problem he fa ced, is not contradicted either by the words he used,

any action he took, or anything else on the record.

Where both the municipal court judge and the Law Division judge reach

the same conclusions of fac t, we defer "absent a very obvious and exceptional

showing of error." State v. Robertson , 228 N.J . 138, 148 (2017) (quoting State

v. Locurto , 157 N.J. 463, 474 (1999))

. No such showing has been made.10 A

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Judge Escandon held that since the record did not supp ort a claim that the

municipal court judge was bias ed , his decision not to recuse himself was prop er.

Judge Escandon noted that at the time the municipal court judge expressed

skepticism about counsel's medical excuse, he did not have the MRI report.

Onc e he had it, no sanction was imposed.

Judge Escandon did not consider the municipal court's delay on May 22

in hearing the matter

, from 1:00 p.m. to 4:20 p.m.

, to demonstrate actual bias.

The delay was the product of several interpreter cases also schedul ed that day

,

and the costs such cases engender . Under Rule 7:14

- 3(a), a municipal court

judge is required to the extent possible to give priority to attorney matters that

are summary in nature. That rule cannot apply to a DWI trial because it is not a

su mmary matter.

Judge Escandon also concluded that a four and a half

- minute gap in the

transcript wa s entirely innocent. The court turned off the recording system while

counsel attempted to locate the prosecutor so th e matter could be addressed

.

A t oral argument on appeal , counsel asserted that the standard for deciding

recusal motions is the defendant' s subjective thought process. To the contrary,

the appearance of impropriety is tested by whether "a reasonable fully informed

person" would doubt the judge's impartiality. See State v. Dalal , 221 N.J. 601,11 A

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606 (2015) (quoting DeNike v. Cupo , 196 N.J. 50 2, 517 (2008)) . No reasonable

person would assume from this record that the municipal judge's expressions of

skepticis m about counsel's excuse meant he could not thereafter be impartial.

Judge Escandon's legal conclusion is also sound.

Affirmed.