STATE OF NEW JERSEY v. ANTHONY P. DENISI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4728-08T44728-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANTHONY P. DENISI,

Defendant-Respondent.

__________________________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 50-08.

Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

Mario J. D'Alfonso, attorney for respondent.

PER CURIAM

Defendant was charged in the Somerdale Municipal Court with driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50. Defendant filed a motion in the municipal court to suppress the evidence against him on the grounds that the stop of his car was unlawful because the police did not have a reasonable suspicion that he had violated any provision of the motor vehicle statutes and that his arrest was unlawful because the police did not have probable cause to believe he had been driving his car while under the influence. All of the evidence presented at the hearing in municipal court related to defendant's operation of his car and his conduct immediately after he was stopped including his performance of field sobriety tests. The municipal court concluded based on this evidence that the police had the reasonable suspicion defendant had operated his car in violation of the motor vehicle statutes required to justify the stop and the probable cause to believe he had operated his car while under the influence of alcohol required to arrest him and request him to submit to a breath test. Accordingly, the court denied defendant's motion to suppress.

Following this denial, defendant entered into a conditional guilty plea under which he pled guilty to the charge of driving under the influence, but reserved the right to appeal the denial of his motion to suppress to the Law Division. The municipal court imposed a 210-day suspension of defendant's motor vehicle license and required him to spend twelve hours in the Intoxicated Drivers Resource Center. The court also imposed the statutorily mandated fine, penalties and fees.

On his appeal to the Law Division, defendant argued for the first time that the results of his breath test should be suppressed because the police failed to advise him of his right to independent testing, as required by N.J.S.A. 39:4-50.2(c) and (d). See State v. Howard, 383 N.J. Super. 538, 550 (App. Div. 2006). The Law Division initially advised the parties that it would conduct an evidentiary hearing on this new argument, but subsequently remanded the case to the municipal court for this purpose.

The State moved for leave to appeal from the order remanding the case to the municipal court on the ground that defendant's conditional guilty plea only preserved his right to appeal to the Law Division from the denial of his motion to suppress based on the arguments presented to the municipal court. We granted the State's motion and now reverse.

Rule 7:6-2(c) provides in relevant part:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty, reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be afforded the opportunity to withdraw the guilty plea.

Under this rule and its analogues in Point III of the court rules governing criminal practice, "a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988).

Defendant could have moved in the municipal court to suppress the results of his breath test on the ground that the police failed to advise him of his rights to independent testing. However, he failed to do so, instead limiting his motion to the grounds that the police did not have the reasonable suspicion of a motor vehicle offense required to justify a stop of his car or the probable cause to believe he had been driving his car while under the influence of alcohol required to arrest him and request him to submit to a breath test. And when his motion to suppress on those grounds was denied, he entered into a conditional guilty plea under Rule 7:6-2(c). This plea constituted a waiver of any defenses to the charges except for the arguments he had presented in support of his motion to suppress because Rule 7:6-2(c) only authorizes a defendant to "reserve on the record the right to appeal from the adverse determination of any specified pretrial motion." (Emphasis added). When defendant pled guilty, he only reserved the right to appeal what his counsel characterized as "the issue of probable cause." Therefore, the trial court erred in allowing him to raise a new issue on his appeal from the denial of his motion to suppress that had not been raised before the municipal court.

Accordingly, the order remanding this case to the municipal court to conduct a hearing on defendant's new argument that the results of his breath test should be suppressed because the police failed to advise him of his right to independent testing is reversed, and the case is remanded to the Law Division to decide the issues defendant properly reserved through his conditional guilty plea.

 

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A-4728-08T4

October 27, 2009