On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 62-2001.
Before Judges Stern, Coburn and Collester. *fn1
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Gerardo Perez, was charged in municipal court with driving while intoxicated, N.J.S.A. 39:4-50; failure to keep to the right, N.J.S.A. 39:4-82; and refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. Before trial, defendant moved for recusal of the trial judge on the ground that he had demonstrated bias against "Spanish people," a group to which defendant belonged. The judge denied the motion without findings of fact or conclusions of law. Following trial, the judge found defendant guilty and sentenced him. Subsequently, the judge found defendant not guilty of the last charge. Defendant appealed to the Law Division, requesting a full testimonial trial on the ground that the municipal court judge's behavior evidenced bias against "Spanish people." The Law Division judge refused the request, conducted a trial de novo on the remaining charges, and found defendant guilty. On appeal, defendant argues:
POINT ONE: DEFENDANT SHOULD HAVE BEEN ACQUITTED OF THE CHARGE OF FAILING TO KEEP TO THE RIGHT BECAUSE NO PROOF WAS OFFERED REGARDING THE STATUTORY CHARACTERISTICS OF THE ROADWAY.
POINT TWO: DEFENDANT SHOULD HAVE BEEN ACQUITTED OF THE CHARGE OF DRIVING WHILE INTOXICATED BECAUSE THE STATE DID NOT PROVE THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT.
POINT THREE: A NEW TRIAL SHOULD BE CONDUCTED WHERE THE ORIGINAL TRIAL WAS TAINTED BY THE TRIAL COURT'S APPEARANCE OF BIAS AGAINST THE DEFENDANT.
After carefully considering the record and briefs, we are satisfied that defendant's first two points are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we turn to the third point, which requires reversal of the convictions and remand for a plenary trial.
In light of our disposition of the first two points, we will not set forth the facts bearing on those convictions other than to note that the State's case was opposed by testimony from defendant and others called on his behalf. In short, resolution of this case turned on the credibility of witnesses, and the Law Division judge accorded the usual deference to the municipal court judge's findings in that regard.
On August 23, 2000, the case was called for trial in the municipal court, and the following remarks were made:
[DEFENSE COUNSEL]: My client says he wants an interpreter.
THE COURT: For what language?
THE COURT: How do you know what I just said?
THE COURT: You speak English.
[DEFENSE COUNSEL]: He - he understands English. It's not ...