STATE OF NEW JERSEY v. ROBERT J. DULIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4703-04T24703-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. DULIN,

Defendant-Appellant.

___________________________________________

 

Argued June 13, 2006 - Decided July 13, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, 18-A-04.

John Menzel argued the cause for appellant.

Katharine L. Errickson argued the cause for respondent (J. Patrick Barnes, Hunterdon County Prosecutor, attorney; Ms. Errickson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals his Superior Court Law Division convictions, premised upon guilty pleas, of N.J.S.A. 39:4-126, N.J.S.A. 39:3-29 and N.J.S.A. 39:4-50.4. The necessary fines, penalties and license revocation were imposed, with the license revocation stayed pending appeal. On appeal, defendant contends:

POINT I: BECAUSE DEFENDANT SIGNALED AT THOSE PLACES WHERE THE LAW REQUIRED HIM TO, THIS COURT SHOULD ACQUIT HIM OF THE CHARGE THAT HE FAILED TO SIGNAL.

POINT II: BECAUSE THE POLICE HAD NO REASONABLE BASIS ON WHICH TO BELIEVE THAT DEFENDANT VIOLATED THE LAW, THIS COURT SHOULD DECLARE THE STOP INVALID AS LACKING PROBABLE CAUSE, SUPPRESS ALL EVIDENCE, AND ACQUIT DEFENDANT OF ALL CHARGES.

POINT III: THIS COURT SHOULD ACQUIT DEFENDANT OF BREATH TEST REFUSAL BECAUSE THE EVIDENCE DEMONSTRATES THAT NO ONE ADVISED DEFENDANT OF HIS STATUTORY RIGHTS ACCORDING TO A STANDARD STATEMENT FROM THE DIRECTOR OF THE DIVISION OF MOTOR VEHICLES.

POINT IV: IN LIGHT OF THE RECENT SUPREME COURT DECISION IN STATE V. CUMMINGS AND ASSUMING THIS COURT DOES NOT RESOLVE THIS MATTER ON OTHER GROUNDS, THIS COURT SHOULD VACATE DEFENDANT'S CONVICTION AND REMAND FOR A FULL TRIAL WITH APPLICATION OF A BURDEN OF PROOF REQUIRING PROOF BEYOND A REASONABLE DOUBT.

We have considered these contentions in light of the record, applicable law and Superior Court judge's findings and conclusions. We are convinced points I, II and III are of insufficient merit to require further opinion. R. 2:11-3(e)(1)(A),(E). As to point IV, the State concedes that State v. Cummings, 184 N.J. 84 (2005), requires a reversed N.J.S.A. 39:4-50.4 charge.

 
The convictions and sentences on N.J.S.A. 39:4-126 and N.J.S.A. 39:3-29 are affirmed. The conviction and sentence imposed on N.J.S.A. 39:4-50.4 are reversed. The matter is remanded to the municipal court "where defendant may elect either to withdraw his plea and proceed to trial under the proof beyond a reasonable doubt standard of proof, or to accept his earlier conviction and sentence." State v. Cummings, supra, 184 N.J. at 100. In light of this reversal, the stay of defendant's license revocation previously entered should be vacated. We do not retain jurisdiction.

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A-4703-04T2

July 13, 2006