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

• Court: New Jersey Superior Court Appellate Division
• Decided: July 9, 2019
• Docket: A-4209-17T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4209-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZIA SHAIKH,

Defendant-Appellant. __________________________

Submitted June 5, 2019 - Decided July 9, 2019

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 brief).

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 defendant's appeal, the Law Division issued an order on April 20,

2018, affirming defendant's conviction for illegal cell phone use, vacating his

conviction for careless driving and denying his appeal of the parking ticket,

stating defendant's guilty plea for the parking summons could not be

withdrawn. 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.

V. LACK OF JURISDICTION.

VI. THE COMPLAINT IS UNFIT FOR ADJUDICATION.

A-4209-17T1 2 VII. NO EVIDENCE OF PRESENCE WITHIN PLAINTIFF AND THAT LAWS APPLY TO ME.

VIII. COURTS JURISDICTION NOT ENLARGED BY POLICE AUTHORITY.

Despite our doubts as to the merits of defendant's arguments after having

reviewed the municipal court transcript, we are, nevertheless, constrained to

vacate defendant's convictions and remand for further proceedings. 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.

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.

Unfortunately, we have no record of any proceedings in the Law Division

beyond the order the Law Division judge issued, which gives us no hint of the

A-4209-17T1 3 reasons for its entry. Rules 1:7-4 and 3:29 require the court to place on the

record, whether written or oral, its findings of fact and conclusions of law

supporting entry of an order appealable as of right, as this one was. See State

v. Turcotte, 239 N.J. Super. 285, 300 (App. Div. 1990). This record is devoid

of any findings whatsoever.

Defendant is, of course, deserving of the reasons for his convictions.

Further, without those reasons, our review is entirely frustrated. See Salch v.

Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); State v. Singletary, 165 N.J.

Super. 421, 426-27 (App. Div. 1979). Accordingly, the only avenue available

to us is to vacate defendant's convictions in the Law Division and remand to

the judge for findings of fact and conclusions of law on the record made in the

municipal court.

Vacated and remanded. We do not retain jurisdiction.

A-4209-17T1 4