STATE OF NEW JERSEY VS. BASSEM Z. BESHAY (MA-2019-006, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 4, 2020
• Docket: A-4404-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4404-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BASSEM Z. BESHAY,

Defendant-Appellant. _______________________

Submitted May 13, 2020 – Decided June 4, 2020

Before Judges Whipple and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. MA- 2019-006.

Fusco & Macaluso LLC, attorneys for appellant (Amie E. DiCola, on the brief).

Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Bassem Z. Beshay appeals from a May 1, 2019 judgment of

conviction for soliciting business, N.J.S.A. 32:1-146.6(1), and criminal trespass,

N.J.S.A. 2C:18-3(b), resulting from his arrest at Newark Liberty International

Airport on October 13, 2018. We affirm.

Defendant was charged with violating N.J.S.A. 32:1-146.6, which states:

"(1) No person, unless duly authorized by the Port Authority, shall, in or upon

any area, platform, stairway, station, waiting room or any other appurtenance of

an air . . . terminal, owned or operated by the Port Authority, . . . (b) solicit any

business or trade . . . ." He was also charged with violating N.J.S.A. 2C:18-3(b),

which states: "Defiant trespasser. A person commits a petty disorderly persons

offense if, knowing that he is not licensed or privileged to do so, he enters or

remains in any place as to which notice against trespass is given by: (1) Actual

communication to the actor."

A Newark Municipal Court judge, who attempted to take defendant's

guilty plea, first addressed this matter in December 2018. However, after

considering defendant's testimony and that of the arresting officer , the judge

rejected defendant's plea because defendant's testimony was not "honest and

truthful."

A-4404-18T4 2 A trial ensued following the failed plea. The State adduced testimony

from a Port Authority police sergeant who authenticated three prior warnings

issued to defendant for criminal trespass dated March 30 and November 16,

2017 and October 10, 2018. The State also presented testimony from the

arresting officer who stated she saw defendant ask four or five passengers if they

needed a ride before she arrested him for unauthorized solicitation of business

and criminal trespass. Defendant adduced testimony from a fact witness who

claimed to be with defendant on the day of his arrest, which contradicted the

officer's claims that defendant was soliciting business. Defendant was

convicted, fined, and sentenced to a period of community service.

Defendant filed a de novo appeal in the Law Division and argued the

municipal court judge should have recused himself, pursuant to Rule 1:12-1(d)

and (g), because he expressed an opinion regarding defendant's veracity during

the plea proceedings, which affected the outcome. Defendant also challenged

the convictions on grounds the State failed to meet the burden of proof.

The trial judge rejected defendant's arguments and concluded recusal was

unwarranted because the municipal court judge had the obligation to

independently evaluate the facts as part of deciding whether to accept the plea.

The trial judge also found there was no indication the municipal court judge was

A-4404-18T4 3 biased, had an interest in the outcome of the case beyond its adjudication, or

expressed his opinion on the matter in any context other than in the proceedings.

Regarding the charges, defendant argued the arresting officer's testimony

was not credible because she gave differing accounts when she testified at the

plea proceeding and later at the trial regarding the number of travelers she saw

defendant solicit on the day of his arrest. Defendant also argued the arresting

officer's testimony was unreliable because she did not recall that defendant's fact

witness was with defendant and whether defendant was inside his vehicle or

outside of it soliciting business when he was arrested.

The trial judge found defendant guilty of the charges. The judge rejected

defendant's challenges to the arresting officer's testimony, finding it was

possible she gave differing testimony yet remained credible because her

testimony at the plea proceeding was "spontaneous and unprepared" as she was

called to testify only after defendant struggled to give a factual basis. The judge

found the discrepancy in the officer's recollection of the number of people

defendant solicited in the airport irrelevant because the statute only required one

violation to establish his guilt.

The judge concluded defendant was guilty of defiant trespass because the

three warnings issued to him prior to his arrest advised he would be arrested if

A-4404-18T4 4 he failed to comply, which proved he knew he was unauthorized to solicit

business at the airport. The judge found defendant acknowledged receipt of the

March 2017 warning by signing it and the warning contained his social security

and driver's license numbers, address, and a photocopy of his driver's license.

Although defendant refused to sign the November 2017 and October 2018

warnings, both notices contained the same data as the March 2017 notice and

the judge concluded the testimony of the State's witness proved defendant was

served with the warnings.

On this appeal, defendant raises the following points:

POINT ONE – THE COURT SHOULD REVERSE THE [TRIAL JUDGE'S] DENIAL OF MR. BEHSAY'S MUNICIPAL APPEAL BECAUSE THE [MUNICIPAL COURT JUDGE] WAS REQUIRED TO RECUSE HIMSELF[ ]ON JANUARY 16, 2019 WHEN MR. BESHAY'S MATTER CAME BEFORE HIM FOR TRIAL, PURSUANT TO NEW JERSEY COURT RULE 1:12-1(d) and (g).

POINT TWO – THE COURT SHOULD REVERSE THE [LAW DIVISION JUDGE'S] DENIAL OF MR. BEHSAY'S MUNICIPAL APPEAL BECAUSE THE STATE FAILED TO MEET ITS BURDEN OF PROOF OF BEYOND A REASONABLE DOUBT WITH REGARD TO THE CHARGES OF CRIMINAL TRESPASS AND SOLICITATION FOR BUSINESS.

We review the Law Division judge's decision to determine whether there

is sufficient credible evidence in the record to support it. State v. Johnson, 42

A-4404-18T4 5 N.J. 146, 162 (1964). Unlike the trial court, which conducts a trial de novo on

the record pursuant to Rule 3:23-8(a)(2), we do not independently assess the

evidence. State v. Locurto, 157 N.J. 463, 471 (1999). Under the two-court rule,

only "a very obvious and exceptional showing of error" will support setting aside

the Law Division and municipal court's "concurrent findings of facts . . . ." Id.

at 474. When issues on appeal turn on purely legal determinations, our review

is plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). "We

do not weigh the evidence, assess the credibility of witnesses, or make

conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We

defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super.

374, 383 (App. Div. 2000).

Having considered defendant's arguments in light of the credible evidence

in the record, we conclude they are without merit. R. 2:11-3(e)(2). As the trial

judge noted, there was no basis either in fact or law for the municipal court judge

to recuse. The municipal court judge's role in deciding whether to accept or

reject defendant's plea required the judge to "evaluate the facts, both admitted

and debated, apply those facts that can be established to the law, and then test

the plea agreement against the facts, the law, and the range of permissible

sentences under the Code." State v. Madan, 366 N.J. Super. 98, 114 (App. Div.

A-4404-18T4 6 2004). Recusal was not mandated merely because the municipal court judge

articulated his reasons for rejecting defendant's plea.

Defendant also contends even though the trial judge's review was de novo,

he relied on the credibility findings of the municipal court judge. The record

belies this claim because defendant did not testify at trial and his plea testimony

was irrelevant at trial. Moreover, the trial judge adjudicated the matter

independent of the municipal court judge's findings and concluded the State met

the statutory elements for unauthorized solicitation at a Port Authority air

terminal and defiant trespass. The trial judge's findings regarding the elements

of the statutory offenses are unassailable and defendant's arguments to the

contrary are unpersuasive.

Affirmed.

A-4404-18T4 7