STATE OF NEW JERSEY v. BALLARD L. RICCI

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5986-07T45986-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BALLARD L. RICCI,

Defendant-Appellant.

____________________________________________

 

Argued May 19, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0026-08.

John Menzel argued the cause for appellant.

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

PER CURIAM

In this appeal, defendant Ballard L. Ricci contends that, due to the ruling in State v. Chun, 194 N.J. 54 (2008), cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), he may withdraw his conditional plea to driving while under the influence (DWI) in violation of N.J.S.A. 39:4-50. He also asserts that he had a right to a jury trial on the DWI charge and that he should have been sentenced as a second time offender rather than as a third time offender.

On September 17, 2006, defendant was charged with DWI, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. He was given the Alcotest breath test that resulted in a reading of 0.25% which is above the legal limits. See N.J.S.A. 39:4-50 (providing that a person operating a vehicle with "a blood alcohol concentration of 0.08% or more by weight of alcohol" in their blood is subject to the penalties of DWI). This was defendant's fourth DWI offense. He had previously been convicted of DWI on May 26, 1979, September 8, 1989, and November 3, 1995. The September 8, 1989, conviction was treated as a first offense due to operation of N.J.S.A. 39:4-50, because more than ten years had passed since the first offense in 1979.

During the pendency of the DWI charge, defendant was provided with substantial discovery by the State. He requested additional discovery, including certain data on the Alcotest machine, but the request was denied. The trial court also denied defendant's motion for a jury trial.

On March 13, 2008, defendant appeared in municipal court to plead guilty to DWI and for sentencing. At the time of the plea, the case of State v. Chun, challenging the reliability of the Alcotest, was pending before the Supreme Court. The Supreme Court's order dated January 10, 2006, allowing conditional pleas in DWI cases, was also in effect. That order provided in pertinent part that "a 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."

Defendant entered a conditional plea as allowed by the Chun order. His attorney placed on the record that the plea was "conditional in the sense that we would be reserving our rights to appeal on the jury trial issue and of course any issues that may arise in connection with State v. Chun." The municipal prosecutor agreed, stating that "[w]e have agreed that the plea would be conditional based on the outcome of State v. Chun and, additionally, upon the defendant's request for a jury trial." The plea agreement provided that the careless driving charge would be dismissed.

At the plea hearing, defendant was able to tell the municipal court that he "may have had a few beers after breakfast" on the day of the charges and had been driving the vehicle that day, but he could not otherwise provide a factual basis for the plea. However, his attorney placed on the record the Alcotest reading. Nonetheless, in order to establish a further factual basis for the plea and relying on Rule 7:6-2(a)(1), the municipal court called the arresting officer to testify. The officer explained that he saw defendant's vehicle travel on a road closed for the Multiple Sclerosis City to Shore Bike-A-Thon. Defendant's vehicle touched the shoulder, crossed over the solid yellow line, disregarded the officer's hand and verbal signals to stop, and drove through barrels barricading the road. Once the vehicle stopped and defendant exited the vehicle, the officer observed that defendant staggered when he walked, swayed when he stood, held onto his vehicle for balance, had droopy, watery and bloodshot eyes, and at the police station the officer noticed that defendant had the odor of alcohol about him. When the municipal prosecutor began to cross-examine the officer, defense counsel objected, and neither attorney questioned the officer.

The municipal court accepted the plea and proceeded to sentencing. Although defense counsel argued that defendant should be sentenced as a second time offender, the municipal court sentenced defendant as a third time offender. The municipal court imposed a 180 day jail sentence with credit up to ninety days if he attended an inpatient rehabilitation facility, suspended defendant's driving privileges and registration privileges for ten years, and imposed the requisite monetary penalties, assessments, surcharges and a fine of $1,006. The careless driving charge was dismissed.

Defendant filed his notice of appeal dated March 14, 2008, to the Superior Court Law Division. On March 17, 2008, four days after defendant's guilty plea and sentence, the Supreme Court decided State v. Chun, supra, 194 N.J. 54. The Court found the Alcotest generally reliable, but it did impose certain modifications, writing:

In summary, we conclude that the Alcotest, utilizing New Jersey Firmware version 3.11, is generally scientifically reliable, but that certain modifications are required in order to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. Some of these conditions upon admissibility we impose as a matter of constitutional imperative, others as a matter of addressing certain of the device's mechanical and technical shortcomings that were revealed during the proceedings on remand. Within the framework for admissibility that we here establish, pending prosecutions should be able to proceed in an orderly and uniform fashion.

[Id. at 65.]

Among its provisions, the Chun decision requires the State to produce certain data not heretofore provided by the State to defendants and it requires that the operator of the Alcotest machine be made available for cross-examination. Id. at 140-41, 150-54.

Before the Law Division, defendant argued that he should be permitted to withdraw his guilty plea due to the Supreme Court's holding in Chun, that he is entitled to a jury trial on the underlying charges, and that he should not have been sentenced as a third time offender.

In a written decision, the Law Division judge rejected these arguments. The judge concluded that defendant was not entitled to withdraw his conditional guilty plea based on the outcome of the Chun case. He also refused to allow the plea to be withdrawn because the factual basis set forth in the police officer's testimony provided an independent basis for the conviction. He further ruled that defendant was not entitled to a jury trial and that defendant was properly sentenced as a third time offender.

On appeal, defendant raises the following issues:

I. Conditional Pleas and Stays:

The Supreme Court Created a Protected Class of Defendants with Its [January] 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 Defendant's [sic] Whose Cases Were Pending with State v. Chun.

III. Protecting a Defendant's Rights:

The Supreme Court's Principle 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. No Knowing Intelligent Voluntary Plea:

Treating Defendant's Conditional Guilty Plea as Final Undermines the Constitutional Requirement that Such Pleas Should Be Knowing, Voluntary, And Intelligent.

VI. Downloaded Data:

This Court Should Vacate Defendant's Conviction and Remand His Case Because He Was Entitled to Data Downloaded from the Alcotest Used to Test His Breath.

VII. Alcotest Administration:

This Court Should Vacate Defendant's Conviction and Remand His Case Because Defendant Should Be Permitted to Challenge Whether the Alcotest Operator Properly Administered His Breath Tests.

VIII. Jury Trial:

The Court Should Vacate Defendant's Conviction and Remand His Case for a Jury Trial Because He Faces More than Six Months in Jail and Serious Quasi-Criminal and Civil Consequences as a Direct Result of the Trial Court Proceedings.

IX. Second Offender Status:

Under the Most Rational Reading of the Statutes, Defendant Should Be Considered a Second Offender for Sentencing Purposes Rather than a Third Offender, Given the Timing of His Prior Convictions.

We affirm substantially for the reasons set forth by the Law Division judge in his written opinion, with one important caveat and some comments.

We reject the State's argument, accepted by the Law Division judge, that the police officer's testimony placed on the record at the behest of the municipal judge forms an independent factual basis to support the plea. The record is clear that defendant was entering into a conditional plea as permitted by the Chun order. Both the defense attorney and the municipal prosecutor state that defendant was entering into a conditional plea subject to the outcome of Chun. As a result, his plea could be withdrawn if the Chun court had found the Alcotest unreliable. If the plea could independently be upheld due to the officer's observations, then the Chun reservation would be rendered meaningless. Defendant's plea was based on the Alcotest reading which was placed on the record. It would be unfair to bind defendant to his plea because of additional evidence placed on the record at the insistence of the municipal court judge. Defendant did not agree to that factual basis. That evidence was not placed on the record in an adversarial proceeding intended to be binding on defendant irrespective of the outcome of Chun. Indeed, defense counsel objected to any direct or cross-examination of the officer, saying it was not appropriate because they were not engaged in a trial.

Defendant contends that his plea should be set aside in order that he may question the Alcotest operator as allowed in Chun. Indeed, the Chun court did recognize that a defendant has the right to cross-examine the Alcotest operator. State v. Chun, supra, 194 N.J. at 140-41. This ruling is consistent with a defendant's right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). However, nothing in this record indicates that defendant's right to cross-examine the Alcotest operator was ever denied. Thus, his plea was not expressly or implicitly conditioned upon recognition of a right to cross-examine the Alcotest operator.

The Court in State v. Chun also requires the State to "forthwith . . . [c]reate and maintain a centralized statewide database, comprised of downloaded Alcotest results, and shall make the data following appropriate redactions of personal identification as needed, available to defendants and counsel." State v. Chun, supra, 194 N.J. at 153. Defendant argues that his discovery requests fall within the scope of this data and that his conviction should be vacated because he is entitled to this data. We reject this argument. The creation and provision of the database is prospective only, the discovery of the data does not raise issues of constitutional dimensions, and the Chun case and its companion order do not require that conditional pleas be set aside because this data was not available earlier. As with the future firmware revisions, the database discovery appears to be a matter that is beneficial but will not defeat proof of a per se violation. See State v. Chun, supra, 194 N.J. at 90 (discussing the firmware revisions and then treating the database discovery "[s]imilarly"); see also State v. Pollock, __ N.J. Super. __ (App. Div. 2009) (slip op. at 12) (concluding that the requirement in Chun for semi-annual recalibration of the Alcotest machine is applied prospectively only).

 
Affirmed.

The appeal was stamped filed on March 18, 2008.

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A-5986-07T4

June 15, 2009