STATE OF NEW JERSEY v. ROBERT F. KIRK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1993-08T41993-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT F. KIRK,

Defendant-Appellant.

_________________________________________________

 

Argued October 15, 2009 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 28-08.

John Menzel argued the cause for appellant.

Thomas Cannavo, Senior Assistant County Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Mr. Cannavo, on the brief).

PER CURIAM

In this appeal we consider whether the Court's directives in State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), regarding the timing of inspection and calibration of Alcotest devices, should be applied retroactively. We reject that contention by adhering to our recent decision in State v. Pollock, 407 N.J. Super. 100 (App. Div. 2009), and affirm.

The record reveals that, on September 9, 2007, defendant was arrested in Lacey Township and charged with driving while intoxicated, N.J.S.A. 39:4-50, and other motor vehicle offenses. On January 15, 2008, pursuant to an agreement with the State, and in accordance with the Supreme Court's initial order in State v. Chun, supra, 194 N.J. at 67-68, defendant entered a conditional guilty plea to driving while intoxicated with the reservation of the right to appeal if the Supreme Court later determined Alcotest to be unreliable. The State agreed to dismiss the other motor vehicle charges. The municipal judge found a factual basis for defendant's guilty plea from evidence of a 0.16 Alcotest reading, derived through the use of a device that had not been calibrated during the seven months prior to defendant's arrest. The judge imposed a fine of $306, court costs of $33, and other monetary assessments; the judge also ordered a seven-month revocation of defendant's driving privileges and defendant's attendance for twelve hours at an Intoxicated Driver Resource Center. Sentence was stayed pending the Court's decision in Chun.

Chun was decided on March 17, 2008. Defendant filed a motion questioning how Chun should apply in this case. He argued that relief from the guilty plea was warranted because the Alcotest was performed on a device that had not been calibrated for seven months whereas the Supreme Court held that calibration should occur every six months, Chun, supra, 194 N.J. at 153. In short, defendant argued that Chun's holding should be applied retroactively to his case.

The municipal judge rejected defendant's contention, as did the Law Division judge in ruling on defendant's de novo appeal. Defendant appeals the judgment of conviction entered in the Law Division, raising the following arguments for our consideration:

I. CONDITIONAL PLEAS AND STAYS: THE SUPREME COURT CREATED A PROTECTED CLASS OF DEFEN-DANTS 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 FOR THE FIRST TIME EXPRESSED 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 PRINCIPAL 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 APPLI-CATION OF THE PROTECTIONS MANDATED IN STATE V. CHUN.

V. ALCOTEST RELIABILITY AND SHORTCOMINGS: GIVEN THE IMPORTANCE OF ALCOTEST RESULTS IN DWI PROSECUTIONS, THE SUPREME COURT IMPLE-MENTED PROTECTIONS INCLUDING USE OF A "WORK-SHEET A," REQUIRING CALIBRATION WITHIN SIX MONTHS OF BREATH TESTS, AND PROPER TEST ADMINISTRATION.

VI. CALIBRATION, RECALIBRATION, AND FUEL CELL DRIFT: TO PROTECT DEFENDANTS AGAINST THE COMPROMISING EFFECTS OF FUEL CELL DRIFT, THE SUPREME COURT REQUIRED CALIBRATION WITH-IN SIX MONTHS FOR VALID ALCOTEST RESULTS.

VII. ALCOTEST OPERATION: THE SUPREME COURT HAS MAINTAINED THE HISTORIC REQUIREMENT THAT BREATH TESTS ARE VALID ONLY IF ADMINISTERED ACCORDING TO PROPER PROCEDURES DESIGNED TO ENSURE TEST RELIABILITY.

VIII. 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 AN OPPORTUNITY TO CHALLENGE THAT EVIDENCE FOR SENTENCING WOULD CONVERT HIS CONDITIONAL GUILTY PLEA INTO A FRAUD (NOT RAISED BELOW).

IX. INVALID PLEA: DEFENDANT'S PURPORTED CONDITIONAL GUILTY PLEA WAS NOT ENTERED KNOWINGLY AND INTELLIGENTLY AND SHOULD, THEREFORE, BE VACATED (NOT RAISED BELOW).

We find these arguments to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Following the filing of the appeal briefs in this case, we decided Pollock, holding in similar circumstances that Chun's inspection and calibration requirements should not be applied retroactively. At oral argument, defendant recognized Pollock is indistinguishable from this case and, if followed, required affirmance. Defendant, however, has correctly observed that we are not bound to follow our recent decision, see David v. Gov't Employees Ins., 360 N.J. Super. 127, 142 (App. Div.), certif. denied, 178 N.J. 251 (2003), and urges that we depart from Pollock and find Chun's inspection and calibration requirements applicable to this matter.

After careful consideration, we reject defendant's arguments and adhere to our holding in Pollock, supra, 407 N.J. Super. at 107, that Chun not be applied retroactively. Quite simply, the Supreme Court ordered the State, on March 17, 2008, to "forthwith . . . [c]ommence inspection and recalibration of all Alcotest devices every six months. . . ." Chun, supra, 104 N.J. at 153. The Court's use of the word "forthwith" together with its express direction that the State "commence" inspection and recalibration on a six-month basis unmistakably connote the Court's intention that its mandate only have prospective effect.

 
The judgment under review is affirmed and the stay of execution of the sentence is vacated.

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A-1993-08T4

October 26, 2009