NOT FOR PUBLICATION WITHOUT THE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-3467-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH VIZCAYA,
Defendant-Appellant.
________________________
Argued October 15, 2025 – Decided December 29, 2025
Before Judges Susswein and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Municipal Appeal No. 24-
128.
Luke C. Kurzawa argued the cause for appellant (Reisig
Criminal Defense & DWI Law, LLC, attorneys;
Michael H. Ross, of counsel; Luke C. Kurzawa and
Matthew W. Reisig, on the brief).
Emily M. M. Pirro, Assistant Prosecutor, argued the
cause for the respondent (John P. McDonald, Somerset
County Prosecutor, attorney; Alyssa N. Biamonte,
Assistant Prosecutor, of counsel and on the brief).PER CURIAM
Defendant Joseph Vizcaya appeals the July 9, 2024 Law Division order
affirming, on de novo review, his municipal court conviction for Driving While
Intoxicated (DWI) and several related traffic offenses. Defendant was
represented by counsel at the municipal court trial and did not testify. He
contends the municipal court judge violated his rights by not advising him of
the right to testify. After reviewing the record in light of well-settled legal
principles, we affirm.
I.
We discern the following facts and procedural history from the record. In
April 2023, defendant was stopped while making an illegal U-turn and
eventually charged with DWI, N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-
97; making an illegal U-turn, N.J.S.A. 39:4-125; and failing to exhibit his
driver's license, registration, and insurance card, N.J.S.A. 39:3-29. On
December 18, 2023, defendant was tried in municipal court, where he was
represented by counsel. The court heard testimony from the arresting officer,
the second responding officer, and defendant's expert.
2 A-3467-23Defendant did not testify in his own defense. The State does not dispute
that the record on appeal contains no evidence that the municipal court judge
advised defendant of his right to testify in his own defense.
The court concluded that the evidence showed that defendant was guilty
of DWI, making an illegal U-turn, careless driving, and failing to produce his
license and registration. The court sentenced defendant to $1,390 in fines and
eight years of license suspension pursuant to N.J.S.A. 39:4-50(a)(3), as this was
defendant's third DWI offense.
Defendant appealed the municipal court convictions to the Law Division,
and on July 9, 2024, the Law Division judge heard oral argument. The judge on
de novo review affirmed the convictions. In her written opinion, the Law
Division judge determined that the municipal court did not violate defendant's
constitutional rights when it failed to inform him of his right to testify, holding:
Where a defendant is represented by counsel, a court
does not have an obligation to advise a defendant of his
rights regarding testifying, although it may give such
advisements in its discretion. State v. Savage, 120 NJ.
594, 630 (1990); State v. Bogus, 223 N.J. Super. 409,
426 (App. Div. 1988); State v. Dwyer, 229 N.J. Super.
531, 539 (App. Div. 1989). Nor does a court have an
obligation to explain the consequences of electing to or
declining to testify. Dwyer, 229 N.J. Super. at 539;
Bogus, 223 N.J. Super. at 426 ("[W]here a defendant is
represented by counsel the trial court does not have a
duty to advise defendant of his right not to testify or to
3 A-3467-23explain the consequences that his testimony may
produce.").
. . . .
. . . As such, [defendant]'s constitutional rights
were not violated when the court did not advise him of
his right to testify at trial.
This appeal follows. Defendant raises the following contention for our
consideration:
DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO TESTIFY IN HIS
OWN DEFENSE DURING HIS 3RD OFFENSE DWI
TRIAL IN MUNICIPAL COURT. THIS
CONSTITUTIONAL IMPERATIVE IS AN
INHERENT PART OF SUBSTANTIVE AND
PROCEDURAL DUE PROCESS GUARANTEED BY
BOTH THE FEDERAL AND NEW JERSEY STATE
CONSTITUTIONS.
II.
When a defendant appeals a municipal court conviction, a Law Division
judge conducts a de novo trial on the municipal court record. R. 3:23-8(a)(2).
On appeal, we owe no deference to either the Law Division or municipal court
judge with respect to legal determinations. State v. Handy, 206 N.J. 39, 45
(2011) ("[A]ppellate review of legal determinations is plenary.") (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)). Here, defendant raises a pure question of law: whether a municipal
4 A-3467-23court judge has a constitutional obligation to advise a represented defendant of
their right to testify. Our standard of review is therefore de novo.
As the Law Division correctly recognized, the law is well settled that a
trial court has no obligation to inform a defendant represented by counsel of the
right to testify. Savage, 120 N.J. at 630 ("[W]e hold that when a defendant is
represented by counsel, the trial court is not required to inform defendant of his
right to testify or explain the consequences of that choice."); accord State v.
Bogus, 223 N.J. Super. 409, 426 (App. Div. 1988); State v. Ball, 381 N.J. Super.
545, 556 (App. Div. 2005) (recognizing that, while it would be "the better
practice" to do so, a court is not obligated to advise a represented defendant of
their right to testify) (quoting Savage, 120 N.J. at 631); State v. Cusumano, 369
N.J. Super. 305, 314 (App. Div. 2004).1 Cf. State v. Dwyer, 229 N.J. Super.
531, 539-40 (App. Div. 1989) (holding that self-represented defendants must be
advised by the trial judge of their right not to testify).
1 Federal courts are in accord. See United States v. Rodriguez-Aparicio, 888
F.3d 189, 193-94 (5th Cir. 2018) (recognizing that "[a]n overwhelming majority
of the circuits have held that a district court generally has no duty to explain
. . . [the] right to testify or to verify that the defendant . . . has waived the right
voluntarily" and that "virtually all" of the exceptions to this rule involve self-
represented defendants or manifest conflicts between the defendant and their
counsel) (collecting cases) (citations omitted).
5 A-3467-23We are unpersuaded by defendant's reliance on Rule 7:14-1(a), which
requires municipal court judges to give an opening statement "concerning court
procedures and rights of defendants." Defendant appears to suggest that the rule
in Savage is abrogated because a NJCourts.gov model opening statement for in-
person criminal and traffic municipal court sessions includes, in its sample
language, an advisement that the defendant may testify at their trial. However,
Rule 7:14-1 has never been interpreted to require a municipal court judge to
advise a defendant represented by counsel of their right to testify, and we decline
to embrace any such principle. As explained in Ball, while "the better practice"
is to advise represented defendants of that right, 381 N.J. Super. at 556, a court
is not obligated to do so. The model opening statement defendant relies on
reflects that better practice but does not create a constitutional mandate or afford
a basis to overturn defendant's DWI conviction, which is amply supported by
the trial proofs.
Affirmed.
6 A-3467-23
