On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. M-2006-557.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Collester.
We again review defendant's conviction in September 2004 for allowing another person to operate a motor vehicle while under the influence of alcohol, contrary to N.J.S.A. 39:4-50.
The recitation of facts and procedural history were set forth in our decision of June 28, 2006. We concluded as follows:
[T]he Law Division judge correctly entered an order dismissing defendant's appeal from his municipal court conviction based on the fact that it was not timely filed and denying on trial de novo defendant's motion for new trial based on newly discovered evidence in the form of phone records. But the order does not address defendant's motion for a new trial based on the municipal court judge's bias, which the Law Division judge erroneously thought was not before her.
We hold that the issue of Judge Gelson's recusal was properly before the Law Division at the March 4, 2005, hearing. Defendant amended his notice of appeal fourteen days after the limited remand hearing to include a claim for a new trial based on newly discovered evidence of bias by Judge Gelson. Appeals of municipal court orders must be filed within twenty days after the entry of judgment. R. 3:23-2. Here, the municipal court did not enter a written order, but it is clear from the transcript of the February 1, 2005, remand hearing that Judge Gelson refused to recuse herself. Hence, it was properly before the Law Division judge, who recognized the municipal court judge's refusal to recuse herself, but incorrectly stated that the issue was not before the court. If the Law Division was satisfied that Judge Gelson did not err in refusing to recuse herself, then the court should have made such a finding. R. 1:7-4(a); Ronan v. Adely, 182 N.J. 103, 110-111 (2004); Concerned Citizens of Princeton, Inc. v. Mayor and Council of Princeton, 370 N.J. Super. 429, 450 (App. Div.), certif. denied, 182 N.J. 139 (2004); Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005). See also Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000)("an articulation of reasons is essential to the fair resolution of a case").
Accordingly, we remand this case to the Law Division for a determination of whether there should be a new trial based on defendant's allegations of Judge Gelson's bias. The court should permit oral argument on the matter.
The Law Division judge issued an opinion following our remand. She concluded that after the September DWI trial, the municipal court judge learned she might have to be a witness in a criminal mischief case which was related to a temporary restraining order she issued and recused herself from everything related thereto, including a charge against defendant of driving while suspended when defendant allegedly drove to the municipal court for proceedings on the criminal mischief complaint.
According to the Law Division judge, the municipal court judge recused herself "because of the issues raised regarding her knowledge of the allegations supporting the TRO entered on August 16, 2004, and the additional charges alleging that [defendant] provided false information to the State Police, which charges were arraigned on November 5, 2004," and all matters related to the TRO "including the driving while suspended which occurred within the same time period, . . . [were subjects] separate and distinct from the DWI."
We affirm substantially for the reasons set forth in the opinion by the Law Division judge. Defendant's argument that the Law Division judge erroneously denied his motion to supplement the record is at most harmless error. His remaining arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2).