STATE OF NEW JERSEY VS. ZIA SHAIKH (14-17 AND 21-17, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4209-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZIA SHAIKH,
Defendant-Appellant.
_______________________________
Submitted June 5, 2019 – Decided July 9, 2019
Recalled July 11, 2019
Resubmitted January 30, 2020 – Decided June 30, 2020
Before Judges Accurso and Moynihan.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Municipal Appeal
Nos. 14-17 and 21-17.
Zia Shaikh, appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Erin M. Campbell, Assistant
Prosecutor, on the briefs).
PER CURIAM
Following a trial in municipal court, defendant Zia Shaikh was convicted
of careless driving, N.J.S.A. 39:4-97, and for violating N.J.S.A. 39:4-97.3 by
using a cell phone while operating a motor vehicle in Bayonne on the
afternoon of March 12, 2017. In a separate matter, he pleaded guilty to a
Bayonne parking ticket issued seven months later by paying the $58 ticket
online. On trial de novo in the Law Division, the court issued an order on
April 20, 2018, finding defendant guilty of illegal cell phone use, not guilty of
careless driving and denying his motion to withdraw his guilty plea to the
parking ticket.1
On defendant's appeal to this court, we vacated defendant's convictions
because defendant advised us there was no appearance in the de novo
proceeding in the Law Division and no transcript of any decision on the
1
The judge's order states defendant's conviction for illegal cell phone use is
"affirmed" and his conviction for careless driving "vacated." That, of course,
is incorrect. A trial de novo in the Law Division based on the record in the
municipal court is not an appellate proceeding. "[T]he Superior Court judge
does not affirm or reverse what occurred in the municipal court. Rather, the
Superior Court judge reviews the transcript and makes an independent
determination of the sufficiency of the evidence presented, giving appropriate
deference to any credibility assessments that the municipal court judge may
have made." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd
o.b., 180 N.J. 45 (2004).
A-4209-17T1
2
record, leaving us with no reasons for the order appealed. 2 Following our
remand to the trial court for findings of fact and conclusions of law on the
record made in the municipal court, the Law Division judge advised us he had
put his reasons on the record in 2018 on the same day he entered the order.
We accordingly entered a sua sponte order recalling our opinion and direct ing
defendant to secure the transcript. We thereafter issued a new briefing
schedule. The matter is now fully briefed on a complete record.
At the municipal trial, the officer who issued the summons testified, as
did defendant and his girlfriend. Because her testimony was limited to a
summons dismissed in the Law Division, we do not recount it. The officer
testified he was on patrol on a March afternoon in Bayonne in a marked police
cruiser traveling west on North Street when he passed defendant, who was
driving in the opposite direction. According to the officer, defendant caught
his attention because he was holding a cell phone up to his left ear while
driving through traffic, five feet away from him. When defendant saw that the
officer had spotted him, he "abruptly pulled to the side of the road" and
continued to talk on the phone. The officer made a U-turn, passed defendant
2
Neither the State nor defendant was aware the court had put its findings on
the record. The court's order is silent on that point.
A-4209-17T1
3
and likewise pulled over and continued to watch defendant in his rearview
mirror.
When defendant reentered the travel lanes, the officer likewise pulled
into traffic a couple of cars behind defendant. The officer testified defendant
stopped at a light and turned left "at a high rate of speed." The officer
followed him and watched as defendant "made a couple of quick lane
changes," eventually turning left and pulled into a driveway where the officer
stopped him as he was getting out of his car. When defendant turned over his
credentials, the officer believed he recognized the address on defendant's
license being a commercial building. The officer confirmed his suspicion on
return to headquarters and issued defendant summonses for improper use of a
cell phone, careless driving, failure to wear a seatbelt and an improper address
on his driver's license.
Defendant testified he was not holding his cell phone to his ear as the
officer testified. Defendant claimed he was using a headset as he'd "done for
25 years." He testified he never holds the phone to his head "because of
radiation and whatever they say it causes." He also testified he was "following
the traffic pattern that all the other cars [were] following. So [he] couldn’t
possibly go faster or slower, even if [he] wanted." Defendant asserted that if
A-4209-17T1
4
he was driving carelessly under those circumstances, "then the whole Avenue
C was careless[ly] driving."
The prosecutor dismissed the license charge and the municipal court
judge found defendant guilty of improper use of a cell phone and careless
driving. The judge stated he found the officer's testimony about his attention
having been drawn to defendant because he was holding a phone to his ear
credible and defendant's testimony to the contrary not credible. He also
accepted the officer's testimony as to defendant having cut in and out of traffic
and speeding. Specifically, the judge found the officer testified that at one
point in his pursuit of defendant, the officer noted his own speed to be 40
miles per hour in a 25 mile per hour zone. The municipal court judge found
defendant not guilty of the seat belt charge, noting the officer had only
testified he saw defendant without a seatbelt as he was switching off the
engine and getting out of his car and not while driving in traffic. Reasoning
that defendant may have already released his belt in the 10 or 15 seconds it
took the officer to get out of his squad car and approach defendant, the judge
found insufficient evidence to support the seatbelt violation.
On de novo review in the Law Division, the Law Division judge found
defendant guilty of the cell phone violation, based on the officer's testimony
A-4209-17T1
5
that defendant caught his attention because he was holding a cell phone to his
ear in traffic, but found him not guilty of careless driving. The judge rejected
the municipal court's finding that defendant was traveling 40 miles per hour in
a 25 mile per hour zone because the officer never estimated defendant's speed
for the record.3 The officer testified he was speeding trying to keep up with
defendant, but never estimated how fast defendant was driving. Because the
officer also testified that he was gaining on defendant, the Law Division judge
found that "create[d] a gap that the State never bridge[d]."
Defendant filed a second appeal from a parking ticket issued in an
unrelated matter months after the stop just discussed. Defendant pleaded
guilty in November 2017 to a parking ticket issued for his failure to have
3
The Law Division judge stated the municipal court judge "invented the
testimony" that defendant was traveling at 40 miles per hour "[a]nd then found
. . . defendant guilty based upon fabricated testimony." We agree the officer
testified that defendant was speeding based on the officer having glanced at his
speedometer, and noted that he was traveling faster than the posted limit of 25
miles per hour in pursuit of defendant. The transcript does not contain
testimony by the officer that defendant was traveling at 40 miles per hour.
Although we accept the municipal court judge mischaracterized the officer's
testimony on that point, we cannot conclude he "invented" or "fabricated"
testimony as did the Law Division judge. The municipal court proceeding
appears to have been audio recorded. There is a note from the transcriber at
the beginning of the transcript that reads: "Please note: Only the [c]ourt is
speaking into a working microphone. There is some indiscernible speech."
Because the Law Division judge found defendant not guilty of careless
driving, we need not further consider either judge's findings on this point.
A-4209-17T1
6
displayed a parking permit. He claimed he only pleaded guilty because he had
car trouble on the trial date and was advised by court personnel that a bench
warrant would be issued should he fail to appear for trial. Defendant claimed
he had a permit to park in the location at which he was ticketed.
The Law Division judge reviewed the documents defendant submitted in
support of his appeal and determined they did not establish the ticket was
issued in error. The judge noted the parking pass defendant presented "does
not on its face, correspond to the same lot defendant was ticketed for parking
illegally in," and does not state it was valid on the date defendant was ticketed.
In assessing the information defendant presented, including emails he sent to
the municipal court, the judge found defendant's proofs were insufficient to
permit the judge to conclude defendant would suffer a manifest injustice if not
permitted to withdraw his guilty plea.
Defendant appeals, raising the following issues.
I. THE TRIAL COURT IS IN VIOLATION OF
FAIR DECISIONAL PROCESS AND
IMPARTIAL DECISION MAKING.
II. NO PROOF OR EVIDENCE OF ANY
ALLEGED VIOLATIONS.
III. NO CASE, CRIME OR CAUSE OF ACTION.
IV. NO CORPUS DELECTI.
A-4209-17T1
7
V. LACK OF JURISDICTION.
VI. THE COMPLAINT IS UNFIT FOR
ADJUDICATION.
VII. NO EVIDENCE OF PRESENCE WITHIN
PLAINTIFF AND THAT LAWS APPLY TO
ME.
VIII. COURTS JURISDICTION NOT ENLARGED
BY POLICE AUTHORITY.
IX. APPELLANT WAS UNDER DURESS
PURSUANT N.J.S.A. 2C:2-9.
X. APPELLANT ALLEGED CONSENT UNDER
DURESS.
We find insufficient merit in defendant's arguments to warrant discussion in a
written opinion. R. 2:11-3(e)(2). We add only the following.
On appeal from a municipal court to the Law Division, the review is de
novo on the record. R. 3:23-8(a). The Law Division's "function is to
determine the case completely anew on the record made in the Municipal
Court." State v. Johnson, 42 N.J. 146, 157 (1964). The Law Division judge
must make independent findings of fact and conclusions of law based on the
evidentiary record made in municipal court, "giving due, although not
necessarily controlling, regard to the opportunity of the [municipal court
judge] to judge the credibility of the witnesses." Ibid.
A-4209-17T1
8
On appeal from the Law Division's decision, the issue is whether there is
"sufficient credible evidence present in the record" to uphold the findings
made by the Law Division — not the municipal court. Id. at 162. As an
appellate court, "we defer to findings that are supported in the record and find
roots in credibility assessments by the trial court." State v. Camey, 239 N.J.
282, 306 (2019). Of course, our deference is made more compelling where, as
here, "two lower courts have entered concurrent judgments on purely factual
issues. Under the two-court rule, appellate courts ordinarily should not
undertake to alter concurrent findings of facts and credibility determinations
made by two lower courts absent a very obvious and exceptional showing of
error." State v. Locurto, 157 N.J. 463, at 474 (1999).
Defendant offers us no basis to set aside the municipal court's and the
Law Division's finding that the officer credibly testified that defendant caught
his attention because he was holding a cell phone to his left ear in traffic as the
officer passed him five feet away driving in the opposite direction. The record
amply supports the Law Division judge's finding and his conclusion that
defendant was guilty of illegal use of a cell phone while driving beyond a
reasonable doubt.
A-4209-17T1
9
Likewise, we cannot conclude the Law Division judge erred in finding
defendant's proofs insufficient to establish defendant would suffer a manifest
injustice if not permitted to withdraw his guilty plea to the parking ticket under
Rule 7:6-2(b) and State v. Slater, 198 N.J. 145, 158-60 (2009). Because
nothing defendant offers convinces us the Law Division's denial of his motion
to vacate his plea to the parking violation was clearly erroneous, we are
compelled to affirm. See State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div.
2009).
Affirmed.
A-4209-17T1
10