March 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH FEDERICO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4657.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2008
Before Judges Grall and Chambers.
Defendant Joseph Federico appeals from a judgment of conviction for leaving the scene of an accident, N.J.S.A. 39:4-129. That conviction was entered by the Law Division on de novo review of a judgment entered by the Municipal Court of Totowa. For the reasons stated below, we affirm.
On May 19, 2006, Mario Batelli, who is an attorney, left his office for home. He stopped at a traffic light in Totowa, and his car was hit from behind by a minivan. Batelli put his car in park, got out and noticed that the front license plate of the minivan was on the tailpipe of his car and that the rear of his car was damaged. Although it was dark and the driver raised both of his hands to his mouth, "as if an oh, my God sort of reaction," Batelli was able to see the driver's face when the man opened the door, put one foot on the ground and leaned out of the minivan. Batelli spoke to the driver and asked him to turn at the intersection so that they could pull off the road and discuss the accident. Batelli returned to his car, turned and stopped on the shoulder. The driver of the minivan did not stop. Batelli called the police and awaited their arrival.
The minivan is owned by defendant's wife; the couple was separated at the time of this accident. Batelli did not know either defendant or his wife prior to this accident. On the date of the first appearance in municipal court, however, Batelli walked into the courtroom and immediately recognized defendant as the driver of the minivan. There were more than fifty people in the courtroom at the time, and the case had not been called when Batelli saw defendant among the group of persons standing in line.
At trial, defendant acknowledged that he did not have a driver's license at the time of the accident. Defendant presented an alibi defense. According to defendant, his co-worker, and his father, defendant was at work and with them at the time of the accident. Defendant's father drove him to and home from work on the day in question.
After considering the testimony and motivation of the witnesses, the municipal court judge found Batelli's testimony credible. On that basis, the judge found that the State had established defendant's guilt beyond a reasonable doubt.
Prior to the commencement of defendant's trial de novo in the Law Division, the judge advised the attorneys that the complaining witness, Batelli, had appeared before the judge on motions and settlement conferences in civil cases. After giving both the State and defense counsel an opportunity to address the question of recusal, the judge concluded that he would not exercise his discretion to recuse himself because his contact with Batelli as an advocate would not have an impact on his ability to decide the case fairly based upon the evidence in the record.
After considering the record developed in the municipal court and relying upon the municipal court's determination that Batelli's testimony was credible, the judge concluded that the State had "established beyond a reasonable doubt that the defendant was the person who operated" the minivan, was involved in the accident with Batelli and left the scene. The judge used the term "equipoise" only once, when he was explaining that the municipal court judge would have found defendant not guilty if he believed the testimony of defendant and his witnesses.
Defendant raises the following issues on this appeal:
I. THE REVIEWING COURT JUDGE SHOULD HAVE RECUSED HIMSELF BECAUSE OF HIS FORMER ACQUAINTANCE WITH THE COMPLAINING WITNESS.
II. THE TRIAL JUDGE'S RULING WAS ERRONEOUS BECAUSE OF REFERENCES TO AN INAPPROPRIATE STANDARD OF PROOF IN THIS CASE.
III. THE COURT IMPROPERLY CONSIDERED EVIDENCE REGARDING THE DEFENDANT'S DRIVER'S LICENSE STATUS WHEN DECIDING THE CASE.
IV. THE DEFENDANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
After review of the record in light of the issues raised in points I, II and III, we conclude that the arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). On this record, we cannot resolve defendant's claim that he did not have the benefit of effective assistance of counsel in the municipal court. See State v. Preciose, 129 N.J. 451, 459-60 (1992). Defendant may raise the issue in Point IV by way of petition for post-conviction relief. See R. 7:10-2.
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