STATE OF NEW JERSEY v. EMILIO ABALLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1109-08T41109-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMILIO ABALLO,

Defendant-Appellant.

________________________________________________________________

 

Argued August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court, Law Division, Atlantic County, Municipal Appeal No. 47-08.

John Menzel argued the cause for appellant.

Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

This is an appeal from a finding of guilt in a

trial de novo in the Law Division, in which the judge found defendant Emilio Aballo guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. In addition to the imposition of appropriate fines and penalties, defendant was sentenced to a driver's license suspension of seven months; the suspension was stayed on December 8, 2008. We affirm.

I.

On November 5, 2006, an Atlantic City police officer charged defendant with DWI; careless driving, N.J.S.A. 39:4-97; and driving in the wrong direction on a one-way street, N.J.S.A. 39:4-85.1. On December 14, 2006, defendant entered a conditional plea of guilty to the DWI charge pursuant to the Supreme Court's unpublished order dated January 10, 2006 in State v. Chun.

In relevant part, the Court's order in Chun specified that "first offender [DWI] prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as the relevant Alcotest readings[.]" That order further specified that any defendant "who challenges the use of Alcotest-related evidence may enter a conditional guilty plea pursuant to Rule 7:6-2(c), reserving the right to apply for relief from the municipal court should the appeal before the Court result in a determination that the Alcotest devices are not reliable[.]"

When defendant entered his conditional guilty plea in the Atlantic City municipal court on December 14, 2006, he acknowledged that he operated his vehicle under the influence of alcohol. After the prosecutor recited a detailed summary of the officer's observations on the day in question, defendant acknowledged that those observations were accurate. Those observations included operation of his vehicle in the wrong direction down a one-way street, staggering, swaying, slurred speech, bloodshot eyes, fumbling hands, and an odor of alcoholic beverage on his breath. The psycho-physical tests were limited to counting backwards from seventy-six to sixty-seven because defendant told the officer he had back, neck and knee problems and was unable to complete the other tests. Defendant did not follow the officer's instructions; rather than count back only to sixty-seven, he "counted slowly to sixty-three." When defendant entered his guilty plea, he also acknowledged the Alcotest reading exceeded 0.10. In short, defendant's guilty plea was based not only on the Alcotest readings, but also on objective observational evidence.

When the Court decided State v. Chun, 194 N.J. 54, 158, cert. denied, ___ U.S. , 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), it held the Alcotest device "is sufficiently scientifically reliable that its reports may be admitted in evidence." The Court did, however, impose certain modifications and conditions, including a requirement that the Alcotest machine be recalibrated semiannually, rather than annually. Id. at 123. After finding the Alcotest results reliable, the Court dissolved the stay effected by its January 10, 2006 order, and directed municipal courts to proceed with sentencing for those defendants who had previously entered conditional guilty pleas. Id. at 149.

During the remand proceedings in the municipal court, defendant raised a number of procedural and substantive claims. Because of a transcription error, a considerable portion of the proceedings were not transcribed on appeal; however, we are able to determine that defendant sought to withdraw the conditional guilty plea he had previously entered. The municipal court denied defendant's motion and proceeded to sentencing. On appeal to the Law Division, defendant raised the same claims. In a written opinion, Judge Neustadter denied each of those claims, and found defendant guilty of the N.J.S.A. 39:4-50 violation based not only on the Alcotest results, but also on the observational evidence presented in the municipal court.

On appeal, defendant raises the following claims:

I. CONDITIONAL PLEAS AND STAYS: THE SUPREME COURT CREATED A PROTECTED CLASS OF DEFENDANTS WITH ITS DECEMBER 10, 2006, ORDER IMPLEMENTING CONDITIONAL PLEAS AS AN INTERIM PROCEDURE BALANCING THE INTERESTS OF DEFENDANTS, THE STATE, AND THE MUNICIPAL COURTS.

II. RETROACTIVE APPLICATION: WITH ITS DECISION IN STATE V. CHUN, THE SUPREME COURT EXPRESSED FOR THE FIRST TIME A RULE OF LAW INTENDED TO PROTECT ALL DEFENDANTS WHOSE CASES WERE PENDING WITH STATE V. CHUN.

III. PROTECTING A DEFENDANT'S RIGHTS: THE SUPREME COURT'S PRINCIP[AL] AIM -- TO PROTECT DEFENDANT'S RIGHTS IN THE WAKE OF THE IMPLEMENTATION OF NOVEL SCIENTIFIC ALCOTEST EVIDENCE -- WARRANTS RETROACTIVE APPLICATION OF ITS DIRECTIVES, EXCEPT WHERE IT EXPRESSLY DIRECTED PROSPECTIVE APPLICATION.

IV. RETROACTIVE APPLICATION REVISITED: THE COURT'S ROLE, THE STATE'S INCOMPETENCE, AND EQUAL PROTECTION WARRANT RETROACTIVE APPLICATION OF THE PROTECTIONS MANDATED IN STATE V. CHUN.

V. NEWLY DISCOVERED EVIDENCE: GUIDANCE PROVIDED IN STATE V. CHUN ON WHAT IS AND IS NOT RELEVANT EVIDENCE IS TANTAMOUNT TO NEWLY DISCOVERED EVIDENCE, AND DENYING DEFENDANT A TRIAL TO CHALLENGE THAT EVIDENCE WOULD CONVERT HIS CONDITIONAL GUILTY PLEA INTO A FRAUD.

VI. BAD PLEA: DEFENDANT'S PURPORTED CONDITIONAL GUILTY PLEA WAS NOT ENTERED KNOWINGLY, VOLUNTARILY, OR INTELLIGENTLY AND SHOULD, THEREFORE, BE VACATED.

VII. ALCOTEST SHORTCOMINGS: THIS COURT SHOULD VACATE DEFENDANT'S CONVICTION AND REMAND HIS CASE FOR TRIAL BECAUSE, WHILE THE SUPREME COURT FOUND THE ALCOTEST GENERALLY RELIABLE, IT ALSO IDENTIFIED SHORTCOMINGS THAT MAY HAVE AFFECTED DEFENDANT'S BREATH TEST RESULT.

VIII. EXPIRED CALIBRATION: DEFENDANT SHOULD BE PERMITTED TO CHALLENGE ALCOTEST OPERABILITY BECAUSE ITS CALIBRATION WAS DONE MORE THAN SIX MONTHS BEFORE THE PRESENT BREATH TESTS.

IX. DOWNLOADED DATA: DEFENDANT IS ENTITLED TO DOWNLOADABLE DATA, AMONG OTHER THINGS, TO DETERMINE WHETHER THE ALCOTEST USED TO TEST HIS BREATH WAS IN PROPER WORKING CONDITION.

X. ALCOTEST OPERATION: DEFENDANT SHOULD BE PERMITTED TO CHALLENGE WHETHER THE ALCOTEST OPERATOR PROPERLY ADMINISTERED HIS BREATH TESTS.

During oral argument, defendant emphasized these two claims: the Alcotest machine used here had not been recalibrated within the past six months as required by Chun; and defendant's acknowledgment during the plea colloquy of the accuracy of the officer's observations was the result of impermissible leading questions.

II.

In an appeal from a finding of guilt during a trial de novo, we are obliged to defer to the judge's findings of fact so long as those findings are based upon substantial and credible evidence in the record. State v. Locurto, 157 N.J. 463, 474 (1999). However, neither the judge's application of law to the facts nor his legal conclusions are entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have carefully considered defendant's claims in light of the record and the applicable law. We are satisfied that defendant's claims lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Neustadter in his comprehensive and well-reasoned written opinion of September 4, 2008. Suffice it to say, defendant's conditional plea of guilty was entered knowingly and voluntarily, and consequently there is no basis in law or in fact for his motion to withdraw that plea. R. 7:6-2(a)(1) and (c); State v. Slater, 198 N.J. 145, 157-58 (2009). We reject defendant's contention that the portion of the guilty plea colloquy in which he acknowledged the truth of the officer's observations should be ignored because it resulted from leading questions. The procedure utilized here -- a statement "by others, which a defendant acknowledges" -- was expressly authorized by the Court in State ex rel. T.M., 166 N.J. 319, 327 (2001) (holding there is no "prescribed or artificial ritual" for the taking of pleas, and "flexibl[e]" approaches, such as a defendant acknowledging the truth of facts stated by others, are permissible).

Moreover, we are satisfied that the Court -- having decided that the Alcotest device produces reliable results, Chun, supra, 194 N.J. at 148 -- never intended to permit the broad-ranging attack on the device's results that defendant seeks to mount here. As Judge Neustadter aptly observed, even if we were to disregard the Alcotest results, the objective observational evidence establishes defendant's guilt beyond a reasonable doubt.

 
Affirmed. The stay of defendant's driver's license suspension entered by the Law Division on December 8, 2008 is hereby dissolved.

His guilty plea to the DWI resulted in the dismissal of the other two violations.

The actual reading was 0.20.

Moreover, as we held in State v. Pollock, 407 N.J. Super. 100, 107 (App. Div. 2009), the Court did not intend in Chun to apply the semiannual recalibration requirement retroactively. So long as the Alcotest machine had been recalibrated "in conformity with the then existing annual requirement," its results are admissible in evidence. Ibid.

(continued)

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A-1109-08T4

August 24, 2009