                        NOT FOR PUBLICATION WITHOUT THE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-5732-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIC MENZZOPANE,

        Defendant-Appellant.


              Argued April 26, 2017 – Decided July 11, 2017

              Before Judges Alvarez, Accurso, and Manahan.

              On appeal from the Superior Court of New
              Jersey, Law Division, Mercer County, Municipal
              Appeal No. 2014-10.

              Matthew Whalen Reisig argued the cause for
              appellant (Law Office of Reisig & Associates,
              LLC, attorneys; Mr. Reisig, on the brief).

              Alycia     Pollice    Beyrouty,    Assistant
              Prosecutor, argued the cause for respondent
              (Angelo J. Onofri, Mercer County Prosecutor,
              attorney;   Michael  D.    Grillo, Assistant
              Prosecutor, on the brief).

PER CURIAM

        Defendant Eric Menzzopane entered a conditional guilty plea

in     the   Lawrence    Township     Municipal     Court    to   driving    while
intoxicated (DWI), N.J.S.A. 39:4-50, specifically preserving his

right to appeal the denial of two motions:   for a change of venue

and for the recusal of the conflict judge.   We now affirm the Law

Division's July 10, 2015 decision also denying the motions.

     In the beginning of the plea colloquy in the municipal court,

counsel said:

               Oh, the defendant at this point Judge is
          going to enter a conditional guilty plea
          pursuant to New Jersey Court Rule 7:6-2C which
          provides that the defendant will be pleading
          guilty, albeit reserving his right to appeal
          the denial of the motions that the Court
          denied sua sponte here this morning without
          hearing argument that the defense wished to
          offer therein.

                . . . .

          [W]hile defendant's preserving his right to
          appeal the Court's pretrial denials of two
          motions on this morning's date, we'd ask that
          the motion filed on May 21st, 2014 and the
          correspondence in lieu of motion dated May
          22nd, 2014 be marked for the record and
          received by the Court as D-1 and D-2
          respectively.

     Counsel engaged in the following exchange when reviewing the

rights defendant was waiving because of his entry of a conditional

guilty plea:

               Q.   And    you're    waiving    certain
          constitutional rights.

                A.   Yes.



                                2                          A-5732-14T3
                Q.   And the Court alluded to this.
           You're waiving your right to go to trial
           and/or in this case to go forward on your
           motion to suppress.

                A.      Yes.

                Q.   And you're waiving that               right
           freely, voluntarily and intelligently.

                A.      Yes, sir.

                Q.   You're waiving your right to have me
           confront Sgt. Dimeglio. We had a flavor of
           that on March 28th, 2014, although I certainly
           didn't get to ask all of the questions that I
           wished to do so of Sgt. Dimeglio before that
           case was terminated.

                A.      Yes.

                Q.   And by pleading guilty, you're
           waiving your constitutional right to have me
           confront that Sergeant.

                A.      Yes.

After   defendant's   sentence,     the   other   motor    vehicle    charges

against him were dismissed, including:          failure to maintain lane,

N.J.S.A. 39:4-88(b); reckless driving, N.J.S.A. 39:4-96; DWI in a

school zone, N.J.S.A. 39:4-50(g); and driving while on the revoked

list, N.J.S.A. 39:3-40.

     At the earlier March 28, 2014 pretrial suppression hearing,

Officer   Christopher    DiMeglio    of   the   Lawrence   Township    Police

Department testified that the stop occurred on September 21, 2012,

at approximately 2:11 a.m.          He "observed [defendant's] vehicle


                                      3                               A-5732-14T3
entering the traffic circle at a high rate of speed, high enough

that [he could] hear the tires squealing."           DiMeglio had been

speaking to another motorist he had pulled over when he made the

observation.     DiMeglio immediately followed, and saw the vehicle

proceeding through a red light as the color was changing.                  He

continued to follow, and noticed defendant drove "on the right fog

line and then mov[ed] within the lane, right to left."

      DiMeglio could not recall if the vehicle "actually touched

the double yellow line," however, he saw it move from the right

fog line to near the left.      He sped up "significantly," but could

not estimate the speed at which defendant was traveling.

      DiMeglio acknowledged that he did not observe the vehicle for

very long and saw it on the fog line only once.                On cross-

examination, he was questioned regarding the police report he

authored and the video recording of the stop.

      DiMeglio's report stated that the vehicle had gone over the

fog line, but he testified that the vehicle was simply on it.

Defense counsel extensively questioned DiMeglio regarding this

distinction and his use of the terms "over" and "on."

      As cross-examination continued, the municipal court judge

interjected, concerned that counsel was being argumentative with

the   witness,   and   was   otherwise   engaging   in   improper    cross-

examination.     A few minutes later, defense counsel accused the

                                    4                               A-5732-14T3
judge of raising his voice to him, and from the transcript, it

appears defense counsel and the judge had a somewhat heated

exchange.    The defense attorney demanded that the judge recuse

himself.    The judge acceded to the request, and terminated the

hearing to allow for the appointment of a replacement or conflict

judge and prosecutor.

     In the interim, on April 3, 2014, counsel requested that the

municipal prosecutor provide him with DiMeglio's last twenty-five

motor   vehicle   narrative    police           reports   prepared   prior     to

defendant's stop.    When no response was received, defendant filed

a motion to compel discovery.             The parties then met with the

conflict judge in chambers, and discussed the matter. The conflict

municipal prosecutor asked for an opportunity to review the motion.

     On May 19, 2014, defense counsel's law office received a

phone call from the deputy court administrator asking if defense

counsel's   office   had   received       the    reports.     According   to    a

certification supplied by the attorney who took the call, when

asked at whose behest she was calling, the administrator responded

that she was calling at the request of the municipal prosecutor.

The deputy court administrator also asked if counsel was satisfied

with the extent of the discovery provided given that the matter

was scheduled for trial at a special sitting on May 23.               Two days

later, defense counsel filed a motion for disqualification of the

                                      5                                A-5732-14T3
Lawrence Township Municipal Court on the basis of the phone call,

essentially a motion for change of venue, arguing that the call

violated the concept of separation of powers.                See U.S. Const.

art. III, § 1; N.J. Const. art. III, ¶ 1.

     Also on May 19, in open court, while the conflict judge was

presiding in the Trenton Municipal Court, the conflict judge had

asked    the   prosecutor,   who   was      also   serving   as   the   conflict

prosecutor in this case, "whether or not the discovery had been

provided to [defense counsel]."

     On May 22, the conflict judge also called defense counsel's

office asking if all discovery had been provided as he did not

wish to bring the parties to court unnecessarily.                 At that time,

counsel also alleges, the conflict judge stated he had asked a

member of court staff to speak with the municipal prosecutor to

confirm that discovery had been supplied.

     The conflict judge summarily denied defendant's motion for

disqualification of the Lawrence Township Municipal Court by way

of   a   brief   email.      In    it       he   explained   that   the     court

administrator's phone call to defense counsel's office was at his

request, not that of the municipal prosecutor.

     Defendant next submitted a letter seeking the recusal of the

conflict judge, claiming that the judge improperly engaged in ex

parte communication with the State.

                                        6                                 A-5732-14T3
     Thereafter,     at    the   next   court   date,    the   conflict     judge

repeated what he had previously said in emails —— that he had

asked the conflict prosecutor as to whether discovery had been

provided because the court date was a special session scheduled

for this particular matter, and he did not wish to bring in the

participants unnecessarily.        He reiterated that he had called the

Lawrence Township Municipal Court and asked the deputy court

administrator to reach out to defense counsel because he was on

the bench and he would not have the time to do so himself.                     The

conflict judge again explained that the clerk did not speak

directly with the prosecutor, that she made the inquiry at the

court's direction, and that these were not ex parte communications

that were at all consequential, but merely contacts in aid of

scheduling.    He therefore denied defendants' two motions.

     After the judge's ruling, defense counsel asked for the

opportunity    to   make    further     arguments   in   addition    to     those

contained in his briefs.          His request for further argument was

denied, and the judge said again that the motions were denied.                   He

responded     to    defense      counsel's      questions      regarding       his

conversation with the prosecutor in open court.                The judge added

that he did not know if his in-the-courtroom inquiry in the Trenton

municipal court was recorded, as the prosecutor was before him on

other matters, and that the inquiry "was a simple one sentence

                                        7                                 A-5732-14T3
request."    After the two motions were denied —— the motion for

change of venue and the judge's recusal —— defendant entered his

conditional guilty plea.

     In the trial de novo in the Law Division, defense counsel

commenced argument by stating that "this defendant is before this

[c]ourt on two motions for recusal in the Lawrence Township

Municipal Court below which were denied without argument, allowed

by defendant in pursuit of his own motion, wherein a conditional

guilty plea was entered pursuant to Rule 7:6-2(c).       That's why

we're here today."    After arguing that the appeal was focused on

the conflict judge's failure to recuse himself or change venue,

and being told that the Law Division was preliminarily denying the

appeal but would issue a more detailed written decision to that

effect later on, counsel and the court engaged in the following

discussion on the record:

                 [DEFENSE COUNSEL]: It's the motions for
            recusal, that's plural, that were denied below
            which   compelled   defendant   to   enter   a
            conditional guilty plea pursuant to Rule
            7:6-2(c). It is also the --

                 THE COURT:     There is no compulsion.
            There is no finding of compulsion. It was a
            conditional guilty plea ---

                 [DEFENSE COUNSEL]:   Which he entered ---

                 THE COURT:     With the    exception   to
            appeal the issues of recusal.


                                  8                          A-5732-14T3
                 [DEFENSE COUNSEL]: Okay.     As I was
            speaking, what is also before this [c]ourt,
            which was not addressed by this [c]ourt, is
            the record of the aborted truncated never
            decided motion to suppress because ---

                 THE COURT:     Which you failed to raise
            below.

                 [DEFENSE COUNSEL]: That's    not    true.
                                              [1]
            Pursuant to State versus McLendon,    M C L --
            -

                 THE COURT:     Sir, there is nothing in
            the record asking on your part for a decision
            in that matter. You pled guilty, you never
            sought the motion further, you didn't ask for
            clarification, and your client entered a
            guilty plea reserving his right to appeal on
            the recusal.

                 [DEFENSE COUNSEL]: You're right as far
            as you go. But actually I was saying, pursuant
            to State versus McLendon, we provided to Your
            Honor for purposes of this [m]unicipal appeal
            the MVR. And we made argument that the denial
            of the recusal motions was injurious to
            defendant's due process rights because there
            was no basis to stop his motor vehicle in the
            first place. That is absolutely part of this
            Municipal appeal.

                 And pursuant to State versus McLendon,
            Your Honor can sua sponte consider that which
            is why we gave you the MVR.       And why we
            provided that transcript to Your Honor which
            was the previous transcript, which in this
            record is March 28, 2014. And why I spend in
            the brief submitted on behalf of this
            Municipal appeal from pages 18 through 20,
            argument   about   the   underlying   aborted
            truncated never concluded motion to suppress.


1
    State v. McLendon, 331 N.J. Super. 104 (App. Div. 2000).

                                  9                            A-5732-14T3
            That is my complete answer to Your Honor's
            inquiry.

                 THE COURT:     All right. I'll provide
            a written decision covering all the issues in
            your brief. The appeal in whole is denied.
            Thank you, Counsel.

     In his thorough and cogent analysis, the Law Division judge

began by discussing Rule 1:2-1, which is interpreted as prohibiting

ex parte communications.     He noted that the rule does permit ex

parte   communication   relating   "only   to   ministerial   scheduling

matters."   State v. Morgan, 217 N.J. 1, 15 (2013).      The judge also

expounded upon the fact that motions for recusal are entrusted to

the discretion of the judge to whom they are made, and require a

showing of prejudice or potential bias.

     The judge found the communications between the recusal judge

and the recusal prosecutor were related solely to the judge's

ministerial scheduling function, and were not barred by Rule 1:2-1.

He added that defendant failed to identify any evidence whatsoever

of either bias or prejudice as a result of the communication.

     Furthermore, with regard to the motion to suppress issue, the

judge distinguished McLendon, supra, 331 N.J. Super. at 104, the

case counsel relied upon.      There the defendant appealed a DWI

conviction after a trial in the municipal court.       Id. at 106.    The

Law Division judge, concerned about the constitutionality of the

road block which led to the stop, reversed the conviction and

                                   10                            A-5732-14T3
remanded the matter back to the municipal court for a new trial,

at   which   the   constitutionality     of   the   road   block   would    be

addressed.     Ibid.   In that case, however, the remand arose after

conviction, not a plea.     Ibid.   The judge in this case found those

circumstances too dissimilar to the ones at hand.

      As the judge explained, in this case:

             [t]he defendant made a conscious decision to
             abandon the motion to suppress.    The record
             is devoid of any suggestion that his waiver
             was involuntary or that the municipal court
             improperly denied him the opportunity to raise
             the suppression issue. Because he has failed
             to provide any showing [of] good cause, the
             court declines to address the merits of
             defendant's suppression motion.

      Now on appeal, defendant raises the following points:

             POINT I
             THE LAW DIVISION'S DETERMINATION THAT THE
             MUNICIPAL COURT JUDGE WAS NOT REQUIRED TO
             RECUSE HIMSELF UPON DEFENDANT'S MOTION AFTER
             AN ACKNOWLEDGED EX PARTE COMMUNICATION WITH
             THE MUNICIPAL PROSECUTOR SHOULD BE REVERSED
             BY THE APPELLATE DIVISION IN APPLYING THE
             CORRECT LEGAL STANDARD.

             POINT I-A
             THE DISCUSSION BETWEEN THE CONFLICT JUDGE AND
             THE CONFLICT MUNICIPAL PROSECUTOR ON MONDAY,
             MAY 19, 2014 IN THE TRENTON MUNICIPAL COURT
             CONSTITUTED AN EX PARTE COMMUNICATION, THE
             SUBSTANCE OF WHICH IS UNKNOWN.

             POINT I-B
             THE EX PARTE COMMUNICATION BETWEEN THE
             CONFLICT JUDGE AND THE CONFLICT MUNICIPAL
             PROSECUTOR REQUIRED THE FORMER'S RECUSAL AS
             THE MOTION/TRIAL JUDGE.

                                    11                               A-5732-14T3
           POINT I-C
           THE CONFLICT JUDGE ERRED BY FAILING TO UTILIZE
           THE THREE-PERSON TECHNIQUE UNDER N.J.S.A.
           2A:15-50 TO DECIDE THE DEFENDANT'S MOTIONS FOR
           DISQUALIFICATION.

           POINT II
           THE   FACT   OF     THE   IMPROPER   EX    PARTE
           COMMUNICATION BETWEEN THE CONFLICT JUDGE AND
           CONFLICT MUNICIPAL PROSECUTOR IS PARTICULARLY
           DISTURBING SINCE THE DEFENDANT'S UNDERLYING
           CASE   ON   THE    CONSTITUTIONALITY    OF   THE
           WARRANTLESS     MOTOR    VEHICLE    STOP     WAS
           MERITORIOUS.

     We consider the issues raised to be so lacking in merit as

to not warrant further discussion in a written opinion, Rule

2:11-3(e)(2), and deny this appeal essentially for the reasons

stated by the Law Division judge.

     We add only the following.    Rule 7:6-2(c) controls the entry

of conditional pleas.     It states that "a defendant may enter a

conditional plea of guilty, reserving on the record the right to

appeal from the adverse determination of any specified pretrial

motion."    In our view, the rule's plain language limits the

contours of any such appeals, including this one.

     It is apparent from the sections of the transcript that we

have quoted that when the conditional plea was entered, defendant

specifically waived his right to address the motion to suppress

any further, while preserving his right to address the denial of

two motions:   one for recusal and the other for a change of venue.


                                  12                          A-5732-14T3
Having preserved only those issues, and having gained the benefit

of substantial dismissals, it would be inequitable to now reach

the suppression motion.       This is a very different situation, one

in which defendant gained a substantial benefit and deliberately

abandoned a claim, than the scenario in McLendon.                 There, the

remand   was   allowed   to    allow     the   defendant     to     "raise    a

constitutional   issue   belatedly      asserted,   rather   than    deem    it

waived because not properly raised."           McLendon, supra, 331 N.J.

Super. at 109.   Here, defendant abandoned his suppression motion.

     Affirmed.




                                   13                                 A-5732-14T3
