                        NOT FOR PUBLICATION WITHOUT THE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-4270-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HANY ABRAHAM,

     Defendant-Appellant.
—————————————————————————————

              Submitted August 1, 2017 – Decided August 23, 2017

              Before Judges Hoffman and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Municipal Appeal
              No. 6149.

              Hanny Abraham, appellant pro se.

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (N. Christine Mansour,
              Special    Deputy   Attorney     General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Hany Abraham was convicted of impermissibly using

a cell phone while operating a motor vehicle, N.J.S.A. 39:4-97.3,

after a trial de novo in the Law Division.                On appeal, defendant
argues    we   should   overturn        his    conviction,    claiming   (1)   the

municipal judge had an improper ex parte communication with the

municipal prosecutor, (2) the testifying officer said "Halloween

came early this year" while the municipal trial was in recess, and

(3) his car has Bluetooth capability.                 Defendant did not assert

any of these claims or defenses in the municipal court.                       After

reviewing      the   record   and       applicable    law,   we    disagree    with

defendant's contentions and affirm the Law Division.

                                          I.

     At   the    municipal    court       trial,     the   State   presented   the

testimony of Officer Daniel Kranz of the Fanwood Police Department.

Officer Kranz testified that on July 10, 2015, he parked his patrol

car behind a large sign in a parking lot "by the intersection of

South Avenue and Martine."              The sign blocked westward-traveling

drivers from seeing his vehicle as they drove past him, so he

could see whether they were using their cell phones "before they

[had] a chance to put down their phone."

     At around 1:22 p.m., Officer Kranz saw defendant drive by

with "his [right] hand up to his ear [holding] a rectangular device

unmistakable for a cell phone."               Officer Kranz also observed that

defendant "was moving his body in the way that you would be on a

phone," but the cell phone blocked Officer Kranz from seeing

defendant's mouth.      Officer Kranz explained, "From my experience,

                                    2                                     A-4270-15T4
people who talk on their cell phones tend to move their entire

head[,] and [defendant] displayed those characteristics."

     After waiting "until there was a break in traffic," Officer

Kranz stated, "I activated my lights, pulling over . . . defendant

approximately half [a] mile down the road." Defendant told Officer

Kranz that "he was talking to his wife on the phone."             Defendant

also "talked a little bit about some personal issues he ha[d]

going on."     Officer Kranz consequently issued defendant a summons

for impermissibly using a cell phone while operating a motor

vehicle.

     At the beginning of his cross-examination of Officer Kranz,

defendant stated he had seen a video of his car stopped, asserting

this contradicted the officer's testimony that defendant's car was

moving while he was using his phone.            At that point, based upon

Officer    Kranz's   direct    testimony,   the   municipal    court     judge

explained that the video was of the traffic stop and not from when

Officer Kranz observed defendant driving while using his cell

phone.     Nevertheless, when defendant told the judge he wanted to

have the video played, the judge went into recess to allow the

State    to   retrieve   the   video,   which    the   court   played.     As

represented, the video only showed the traffic stop, and not the

violation.     The municipal court ultimately found Officer Kranz



                                 3                                  A-4270-15T4
credible and defendant guilty of impermissibly using a cell phone

while operating a motor vehicle, N.J.S.A. 39:4-97.3.

      On March 7, 2016, the Law Division held a trial de novo on

the record of the municipal court.            For the first time, defendant

argued    that    his   vehicle,   a   2014    Corolla,   "has   a   Blue     Tooth

capability."       In addition, defendant also told the trial court

that, while the municipal court was in recess, Officer Kranz said,

"Halloween came early this year."             The trial judge said she could

not consider that because it was not in the transcript of the

municipal court trial, and she added, "But I hear what you're

saying.     And you're upset and I get it.          I do.    I understand."

      Defendant also alleged that during the recess to obtain the

video, the municipal court judge left the courtroom and entered

the same room as the prosecutor.              He said they must have had an

improper ex parte communication while they were in the room.                     The

Law Division judge said, "[I]t seems completely unreasonable to

me   that   the   [j]udge    and   the   [p]rosecutor       would    have    had    a

discussion off the record about you when you could see where they

went and you're sitting right in the courtroom."                     She further

explained:

            I think it's speculation on your part.     No
            offense. I hope you're not offended. But the
            [j]udge and the [p]rosecutor could have taken
            a break, especially the [j]udge to handle
            other matters; to use the restroom. And I'm

                                   4                                        A-4270-15T4
            not trying to be funny. It's just sometimes
            [j]udges take breaks for those reasons.

     After    reviewing    the   record    and     considering      defendant's

arguments,   the   trial   court   found   Officer        Kranz   credible   and

defendant    guilty   of   impermissibly    using     a    cell    phone   while

operating a motor vehicle, N.J.S.A. 39:4-97.3.                    Defendant now

appeals.

                                    II.

     Our standard of review is clear.               When the Law Division

conducts a trial de novo on the record developed in the municipal

court, our appellate review is limited.            State v. Clarksburg Inn,

375 N.J. Super. 624, 639 (App. Div. 2005).                 "The Law Division

judge was bound to give 'due, although not necessarily controlling,

regard to the opportunity of a [municipal court judge] to judge

the credibility of the witnesses.'"              Ibid. (quoting State v.

Johnson, 42 N.J. 146, 157 (1964)).           "Our review is limited to

determining whether there is sufficient credible evidence present

in the record to support the findings of the Law Division judge,

not the municipal court."        Ibid.

     Since the trial court is not in a position to judge the

credibility of witnesses, it should defer to the credibility

findings of the municipal court.           Ibid.     Furthermore, when the

trial court agrees with the municipal court, we must consider the

two-court rule.       "Under the two-court rule, appellate courts
                              5                           A-4270-15T4
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."      Locurto,

supra, 157 N.J. at 474.

     N.J.S.A. 39:4-97.3(a) states:

          The use of a wireless telephone or electronic
          communication device by an operator of a
          moving motor vehicle on a public road or
          highway shall be unlawful except when the
          telephone is a hands-free wireless telephone
          or the electronic communication device is used
          hands-free, provided that its placement does
          not interfere with the operation of federally
          required safety equipment and the operator
          exercises a high degree of caution in the
          operation of the motor vehicle.

     In this case, both courts found Officer Kranz credible, and

Officer Kranz testified he saw defendant driving and holding his

cell phone up to his head and moving in a manner consistent with

someone using a cell phone.        This testimony clearly supports the

finding that defendant violated N.J.S.A. 39:4-97.3.         The record

lacks any support for defendant's contention that he was using his

cell phone in hands-free mode, utilizing the vehicle's Blue Tooth

capability, when Officer Kranz observed him.       Nor does the record

support defendant's other two allegations regarding improper ex

parte communications in the municipal court or improper comments

attributed to Officer Kranz.       We therefore affirm the trial court.

     Affirmed.

                               6                                A-4270-15T4
