                        NOT FOR PUBLICATION WITHOUT THE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-1433-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SURAJ R. DESAI,
a/k/a SURAJ DESSAI,

     Defendant-Appellant.
_____________________________

              Argued July 31, 2018 – Decided August 16, 2018

              Before Judges Sabatino, Mayer, and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              15-01-0065.

              Stephen P. Hunter, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Stephen P. Hunter, of counsel and on the
              brief).

              David M. Liston, Assistant Prosecutor, argued
              the cause for respondent (Andrew C. Carey,
              Middlesex County Prosecutor, attorney; David
              M. Liston, of counsel and on the brief).

PER CURIAM
      Defendant Suraj R. Desai appeals from a judgment of conviction

following a jury trial in which he was found guilty of fourth-

degree operating a motor vehicle during a period of license

suspension, N.J.S.A. 2C:40-26(b).           Subsequent to sentencing on his

conviction, defendant pled guilty to motor vehicle summonses of:

operating    under   the   influence,      speeding,    unsafe   lane    change,

disregarding a stop sign regulation or yield sign, and driving

with a suspended license.        We affirm.

      The following facts are taken from the trial record.                In the

early   morning   hours    of   November     16,   2013,   Woodbridge     Police

Department Officer Bryan Dorward observed a black BMW enter U.S.

Route 1 at a high rate of speed and cross into the middle right

lane without signaling.          Officer Dorward stopped the vehicle,

which was operated by defendant.           When the officer asked defendant

for   identification,      he   produced    a   valid   Connecticut     driver's

license.     Defendant informed Officer Dorward he had been coming

from a family party in Edison and that he owned a business in New

Jersey.     As a result, Officer Dorward performed a record check,

which revealed defendant's driving privileges in New Jersey were

suspended.     The officer issued defendant a summons for driving

while suspended.

      Defendant was subsequently indicted under N.J.S.A. 2C:40-

26(b) for operating a motor vehicle with a suspended license and

                                      2                                  A-1433-16T2
issued the aforementioned summonses.      At trial, in addition to

testimony from Officer Dorward, the State presented testimony from

a Motor Vehicle Commission employee, Andrew Feller.     Defendant did

not testify, but adduced expert testimony from a retired New Jersey

State Police Trooper regarding police procedures relating to the

motor vehicle stop in this case.1

      Feller testified defendant's driver's abstract stated his

driver's license was suspended on June 5, 2013, because defendant

was convicted of driving under the influence (DUI), N.J.S.A. 39:4-

50.   Feller further explained defendant was previously convicted

of a DUI on July 22, 2009, which resulted in suspension of his

license.   Feller testified a suspended license "means that you

have lost the privilege to drive in the [S]tate of New Jersey."

Feller further stated the possession of an out-of-state license

"doesn't affect [a] New Jersey license suspension at all.     However

if someone receives a suspension of their driving privilege,

they're not permitted to drive in our state with or without any

other kind of license."

      Following   Feller's   testimony,   the   State   admitted   its

documentary evidence, including evidence defendant had signed an

acknowledgment when his New Jersey license was suspended in 2013,


1
 Because it is irrelevant to the issue on appeal, we do not discuss
the testimony by defendant's expert.

                                  3                           A-1433-16T2
prior   to    committing    the    offense   in    this   case.    Thereafter,

defendant's expert testified, counsel provided summations, the

jury deliberated and returned a guilty verdict.                   This appeal

followed.

     On appeal, defendant raises the following argument:

             THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT
             TO PRESENT THE DEFENSE THAT HE DID NOT ACT
             KNOWINGLY BECAUSE HE BELIEVED THAT HIS VALID
             OUT-OF-STATE LICENSE ALLOWED HIM TO DRIVE IN
             NEW JERSEY VIOLATED HIS CONSTITITUTIONAL
             RIGHTS.

                                        I.

     "Trial        judges   have     broad   discretion     in    setting     the

permissible boundaries of summations."               State v. Muhammad, 359

N.J. Super. 361, 381 (App. Div. 2003).             "The scope of defendant's

summation argument must not exceed the 'four corners of the

evidence.'"        State v. Loftin, 146 N.J. 295, 347 (1996) (quoting

State v. Reynolds, 41 N.J. 176, 195 (1963)).              "The 'four corners'

include      the    evidence   and    all    reasonable     inferences      drawn

therefrom."        State v. Jones, 308 N.J. Super. 174, 185 (1998)

(quoting Loftin, 146 N.J. at 347).                "Thus, it is proper for a

trial court to preclude references in closing arguments to matters

that have no basis in the evidence."              Ibid.

     As to a trial judge's discretion whether to give a particular

charge to a jury, the Supreme Court has held:


                                        4                                A-1433-16T2
            It is not incumbent upon the trial court to
            give any requested instruction which is an
            erroneous statement of the law or is otherwise
            improper under the facts of the case or does
            not    state    the   law   with    substantial
            correctness.     The trial court may properly
            refuse    a    requested   charge    which   is
            unintelligible or incomplete, or which might
            prove misleading or confusing to the jury; a
            requested instruction requiring the jury to
            decide    questions   of   law;   a   requested
            instruction in conflict with instructions
            given; a requested instruction which has no
            evidence to support it; an instruction which
            is too general or too broad or omits some
            qualification or limitation necessary to make
            it properly applicable to the facts of the
            case; or a request not broad enough to cover
            the whole law of the case on the point.

            Failure   to  honor   proper   requests  will
            ordinarily be deemed prejudicial error when
            the   subject  matter   is   fundamental  and
            essential or is substantially material to the
            trial. In any other situation the objecting
            party must establish an abuse of discretion.

            [State v. Green, 86         N.J.   281,   291   (1981)
            (citation omitted).]

                                       II.

     Defendant argues the trial judge erred by refusing to allow

him to present a defense that he did not knowingly violate N.J.S.A.

2C:40-26(b).        Defendant contends he was entitled to present a

defense that he believed his Connecticut license was valid and

permitted     him    to   drive   in   New   Jersey   notwithstanding     his

suspension.     Defendant argues the trial judge erred by requiring

defendant to testify in order to present a defense, and that a

                                        5                            A-1433-16T2
jury could infer he did not "knowingly" drive a vehicle in New

Jersey in violation of the statute, and therefore lacked the

requisite mens rea to violate the statute without his testimony.

Defendant also argues the trial judge should have issued the model

charge on ignorance and mistake to aid the jury in understanding

his defense.

     Fundamentally, a defendant possesses a "right to present a

defense, the right to present the defendant's version of the facts

as well as the prosecution's to the jury so it may decide where

the truth lies."   Washington v. Texas, 388 U.S. 14, 19 (1967); see

also State v. Jenewicz, 193 N.J. 440, 451 (2008) (holding the

fundamental right to present a defense is protected by the United

State Constitution and the New Jersey Constitution).

     In New Jersey, ignorance of the law may provide a defendant

with a defense in certain limited circumstances.   Indeed, N.J.S.A.

2C:2-4 states: "Ignorance or mistake as to a matter of fact or law

is a defense if the defendant reasonably arrived at the conclusion

underlying the mistake and: (1) It negatives the culpable mental

state required to establish the offense[.]"

     N.J.S.A. 2C:40—26(b) states:

          It shall be a crime of the fourth degree to
          operate a motor vehicle during the period of
          license suspension in violation of R.S.39:3-
          40, if the actor’s license was suspended or
          revoked for a second or subsequent violation

                                 6                          A-1433-16T2
         of R.S.39:4-50 or section 2 of P.L.1981, c.512
         (C.39:4-50.4a).    A person convicted of an
         offense under this subsection shall be
         sentenced by the court to a term of
         imprisonment.

    N.J.S.A. 2C:2-2(c)(3) states:

         Although no culpable mental state is expressly
         designated in a statute defining an offense,
         a culpable mental state may nevertheless be
         required for the commission of such offense,
         or with respect to some or all of the material
         elements thereof, if the proscribed conduct
         necessarily involves such culpable mental
         state.   A statute defining a crime, unless
         clearly indicating a legislative intent to
         impose strict liability, should be construed
         as defining a crime with the culpability
         defined in paragraph b.(2) of this section.
         This provision applies to offenses defined
         both within and outside of this code.

    N.J.S.A. 2C:2-2(b)(2) states:

         A person acts knowingly with respect to the
         nature of his conduct or the attendant
         circumstances if he is aware that his conduct
         is of that nature, or that such circumstances
         exist, or he is aware of a high probability
         of their existence. A person acts knowingly
         with respect to a result of his conduct if he
         is aware that it is practically certain that
         his conduct will cause such a result.
         "Knowing," "with knowledge" or equivalent
         terms have the same meaning.

    The model jury charge for N.J.S.A. 2C:40-26 describes the

elements, which must be met by the State to prove the offense:

         In order for defendant to be convicted of this
         offense, the State must prove the following
         elements beyond a reasonable doubt:


                               7                          A-1433-16T2
          1.   That the defendant knowingly operated a
          motor vehicle;

          2.   That   the   defendant's   license         was
          suspended or revoked for his/her

          (a) first    violation   of   [driving   while
          intoxicated] or [refusal to submit to a
          chemical breath test] and the actor had
          previously been convicted of operating a motor
          vehicle   during   the   period   of   license
          suspension while under suspension for that
          first offense;

               OR

          (b) second    or  subsequent   violation of
          [driving while intoxicated] or [refusal to
          submit to a chemical breath test]; and

          3.   That the defendant knew that         his/her
          license was suspended or revoked.

          [Model Jury Charges (Criminal), "Driving While
          License is Suspended or Revoked for DWI or
          Refusal to Submit to a Chemical Breath Test
          (N.J.S.A. 2C:40-26)" (rev. April 11, 2016)
          (emphasis added).]

     The gravamen of defendant's appeal centers on his claim he

was deprived of the ability to assert he did not know his right

to drive in New Jersey remained suspended, and that his valid

Connecticut license did not authorize him to drive in this state.

Defendant filed a pre-trial motion to suppress the evidence from

the motor vehicle stop, arguing Officer Dorward lacked reasonable

suspicion to make the stop, which the trial judge denied.       Officer

Dorward   testified   at   the   suppression   hearing,   and   offered


                                   8                            A-1433-16T2
testimony    consistent   with     our    summary     above,      specifically

testifying defendant had presented a valid Connecticut driver's

license during the stop.

      Following the suppression hearing, defense counsel objected

to the jury charges proposed by the State, and argued the charges

should not mention defendant possessed a Connecticut driver's

license because it was not a part of the model charge.                      The

prosecutor noted she had crafted the charge to inform the jury

"that just because [defendant had a valid out-of-state license]

doesn't mean he had the right to drive [in New Jersey]."                    The

prosecutor   further   explained    "I'm    not     trying   to    argue   that

[defendant] should have known or he shouldn't have known either

way with that charge, just so [the jury is] aware of what the law

is.   That was the purpose of that charge."

      The trial judge inquired of defense counsel: "Are you going

to assert as part of your trial that [defendant's] possession of

a Connecticut license is a defense to these charges?"                 Defense

counsel responded: "Not directly, Judge, but it can be inferred

that that's his understanding."          Appropriately, the trial judge

did not adjudicate the dispute over the charge before the State

presented the evidence, and instead advised defense counsel as

follows:



                                     9                                 A-1433-16T2
          [I]t depends on what you are asserting as a
          defense.   [The State] might be entitled to
          something based on what you assert for a
          defense. I'll wait and see what you assert.
          If you assert something that [the State has]
          a right to respond to . . . the [c]ourt is
          always free to craft additional jury charges.

     The following day, prior to jury selection, the trial judge

advised that, based on his research, defendant could not assert

possession of a valid out-of-state license as a defense at trial.

Specifically, the trial judge stated: "I will give you two cases

. . . State of New Jersey v. McDonald . . . and State of New Jersey

v. William Nemesh[.]"

     After   the   jury   was   empaneled   and   given   preliminary

instructions, they were released.     Thereafter, the trial judge and

counsel continued to discuss the issue of defendant's Connecticut

license. The prosecutor requested the judge's permission to elicit

testimony from Officer Dorward that defendant had handed him the

Connecticut license during the stop.      The trial judge held "[The

State] can mention it, but [defendant] can't argue that it’s a

defense to the driving while suspended."          The judge reasoned

permitting such a defense was a "misstatement of the law."

     The trial testimony occurred the following day.      Over defense

counsel's objections, Officer Dorward testified defendant had

handed him a Connecticut license during the stop, and explained,

notwithstanding the valid Connecticut license, he issued defendant

                                 10                            A-1433-16T2
a summons because his license had been suspended in New Jersey.

As   we   noted,   Feller   also    testified,    over   defense   counsel's

objections, and explained a valid out-of-state license does not

affect one's ability to operate a vehicle in New Jersey.

      Following    submission      of    the   State's   case,   and    before

commencement of the defense case, as the trial judge and counsel

reviewed the proposed jury charges offered by the State, defense

counsel again noted both of the State's witnesses had testified a

valid Connecticut license did not give defendant license to drive

in New Jersey.     Defense counsel asserted this objection to argue

it should not be a part of the jury charge.         The trial judge stated

he did not intend to give such a charge.

      Defendant also argued a document admitted in evidence, which

demonstrated on its face that defendant had been served with notice

of his New Jersey license suspension at his Connecticut address,

warranted the opportunity to explain to the jury he did not

understand he could not drive in New Jersey.                 The following

colloquy occurred:

            [DEFENSE COUNSEL]: . . . the [c]ourt has
            already admitted into evidence the notice
            . . . which I think is confusing, I will be
            arguing to the jury that that is a legal
            document and that he may not have understood
            the implications as a Connecticut driver and
            I –



                                        11                             A-1433-16T2
          [COURT]: You can't do that because there's no
          evidence   to  support   that   he  did   not
          understand.

               . . . .

          You can't create that argument. So you can't
          say he did not understand unless he takes the
          stand and says he did not understand.

When the trial resumed, defendant advised the trial judge he would

not testify, and adduced only the testimony of his expert.

     Having reviewed the record, we agree with the trial judge the

facts presented did not permit defendant the ability to argue he

lacked the requisite mens rea to violate N.J.S.A. 2C:40—26(b).

Thus, although it is the better practice that trial judges avoid

imparting any instruction, which may be perceived as suggesting a

defendant waive the privilege against self-incrimination2, the

facts here do not demonstrate the trial judge abused his discretion

in curtailing defense counsel's closing argument to the jury

concerning mens rea issues.

     As we noted, the trial judge relied on our holding in State

v. Nemesh, 228 N.J. Super. 597 (App. Div. 1988).    In Nemesh, the

defendant appealed from his conviction of DUI, N.J.S.A. 39:4-


2
  "From its beginnings as a State, New Jersey has recognized the
right against self-incrimination and has consistently and
vigorously protected that right.      The right against self-
incrimination is an integral and essential safeguard in the
administration of criminal justice." State v. Reed, 133 N.J. 237,
250 (1993) (citations omitted).

                               12                            A-1433-16T2
50(a)(3), and driving while suspended.    When Nemesh was stopped

by police, his New Jersey driver's license was suspended, but he

produced a valid Maryland license.   The State had adduced a copy

of the notice of suspension of defendant's New Jersey license and

a certificate of mailing demonstrating proof of service of the

notice.

     On appeal, we stated:

          While it is true that the evidence showed
          defendant had a valid Maryland driver's
          license, there is nothing to support his
          speculation   that    the   notice   of   [the
          suspension] had been resolved and he simply
          had not bothered to obtain another New Jersey
          license. On the contrary, defendant testified
          on direct examination: "I was scared that I
          was driving without a driver's license. . . ."

          Defendant's driving privileges in this state
          had been suspended. His possession of a valid
          Maryland driver's license did not authorize
          him to operate a motor vehicle in this state,
          particularly where he was working full time
          in this state and residing with his daughter.
          We agree with the trial judge that the
          Maryland license seems to have been obtained
          and used by defendant to divert the attention
          of police officers in the event he was stopped
          and to avoid their learning that his New
          Jersey driving privileges had been suspended.

          [Nemesh, 228 N.J. Super. at 609.]

     The defendant in Nemesh could argue a lack of mens rea defense

because the record contained defendant's testimony that he feared

driving without a license as the reason he had obtained a Maryland


                               13                           A-1433-16T2
license, to permit an inference he lacked the requisite mens rea.

Here, defendant made no such admission and the record lacked any

evidence,     circumstantial       or   otherwise,    to   permit    defendant   a

defense of mistake or ignorance.

      Furthermore,        defendant's          proffered   defense     was    the

presentation of a valid Connecticut driver's license as evidence

he believed he could drive in New Jersey.              However, this argument

would not negate an element of N.J.S.A. 2C:40—26(b).                 Indeed, the

State had only to prove defendant was driving in New Jersey and

knew his New Jersey license was suspended or revoked.                Thus, under

the   facts   of   this    case,    the    circumstantial    evidence    of   the

presentation of a Connecticut license                 was not state of mind

evidence of a legally valid defense to the offense charged, and

the trial judge correctly concluded defense counsel's argument the

jury could make such an inference was a "misstatement of the law."

For these reasons, the judge was neither required to charge the

jury nor wrong to deny defense counsel the ability to argue in

summation an untenable defense of the sort asserted by defendant.

      Affirmed.




                                          14                             A-1433-16T2
