On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 2010-18.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Carchman and Fisher.
Following an incident at a holiday celebration at the Battleground Country Club in Manalapan, defendant was charged with: harassment, N.J.S.A. 2C:33-4; disorderly conduct, N.J.S.A. 2C:33-2a(1); and resisting arrest, N.J.S.A. 2C:29-2a(1). At the conclusion of a trial, the municipal judge found defendant guilty of all charges. Defendant appealed to the Law Division, where he was acquitted of harassment but convicted of the other offenses. A $1,000 fine and $66 in court costs were imposed.
Defendant appeals to this court, arguing:
I. THE LOWER COURT IMPROPERLY DENIED DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT DUE TO A FAMILY EMERGENCY.
II. THE APPELLANT WAS DEPRIVED OF PROCEDURAL DUE PROCESS, AS THE CRIMINAL COMPLAINT WAS IMP[RO]PERLY ALLOWED TO PROCEED IN MANALAPAN MUNICIPAL COURT AFTER A NOTICE OF CLAIM WAS FILED AGAINST MUNICIPALITY AND ITS POLICE DEPARTMENT.
III. APPELLANT IS NOT GUILTY OF DISORDERLY CONDUCT, CONTRARY TO THE PROVISIONS OF [N.J.S.A.] 2C:33-2.
IV. APPELLANT DID NOT RESIST ARREST, CONTRARY TO N.J.S.A. 2C:29-2a1.
V. THE COURT IMPROPERLY DISALLOWED MRS. MCGRIFF'S TESTIMONY AS AN EXPERT, WHILE ALLOWING THE STATE'S WITNESS TO TESTIFY ABOUT HIS MENTAL CONDITION AND STATEMENT OF MIND, DESPITE BOTH WITNESSES BEING REGISTERED NURSES.
In his oral opinion, Law Division Judge Anthony J. Mellaci, Jr., rejected defendant's argument, asserted again in Point I, that defendant was prejudiced by the municipal judge's denial of an adjournment of the last day of trial. In fully discussing the circumstances, the judge explained how the municipal matter had been adjourned or delayed numerous other times because of defendant's purported illnesses or defendant's unexplained failure to appear on another occasion. The judge also found that the municipal judge properly exercised his considerable discretion in denying defense counsel's request for an adjournment based on a reason personal to defense counsel. Judge Mellaci further examined the transcript of that last day of the municipal trial and concluded that defense counsel was not impeded and defendant was not prejudiced by the judge's refusal to grant a continuance.
Judge Mellaci also considered defendant's argument, reprised in Point II here, that because defendant had served a notice of claim indicating an intent to sue Manalapan and its police force that the Manalapan Municipal Judge was required to recuse himself and transfer the matter to another municipality. Judge Mellaci determined, for reasons fully amplified in his oral decision, that there was no evidence of actual bias or prejudice. In addition, the judge correctly recognized that the mere appearance of bias compels disqualification only when it is objectively reasonable to conclude that the proceedings were unfair. See State v. McCabe, 201 N.J. 34, 43-44 (2010); State v. Perez, 356 N.J. Super. 527, 531-32 (App. Div. 2003). The judge found no evidence in the record to support such a conclusion.
In finding defendant guilty of disorderly conduct and resisting arrest, Judge Mellaci described at length and in great detail the credible evidence. He found that members of the first aid squad were called to the Battleground Country Club during the evening of December 21, 2008 to assist a victim of a fall. Even though, as Judge Mellaci observed, first aid workers are "trained never to go anywhere by themselves," upon their arrival the workers were warned that "it might be better if only one of them went into the room" where defendant was located "because [he] was slightly agitated." Consequently, one first aid squad member approached defendant alone. Defendant advised that he had slipped and ...