STATE OF NEW JERSEY v. YAKOV BUKHMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2707-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YAKOV BUKHMAN,

Defendant-Appellant.

________________________________________________________________

May 8, 2012

 

Submitted May 1, 2012 - Decided

 

Before Judges Fisher and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 71-10.

 

The Brown DePinto Law Firm, L.L.C., attorneys for appellant (Lance D. Brown, of counsel; Salvatore D. DePinto, on the brief).

 

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, on the brief).

 

PER CURIAM

Following a trial de novo in the Law Division, defendant Yakov Bukhman appeals from his January 20, 2011 conviction on a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant's conviction results from a conditional plea of guilty in the Springfield Township municipal court, in which he reserved the right to challenge on appeal the State's use of a temperature probe manufactured by Control Company, even though the Supreme Court in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), had only referenced the use of a temperature probe manufactured by the Ertco-Hart company. In State v. Holland, 422 N.J. Super. 185, 195-97 (App. Div. 2011), we rejected the very claim defendant reserved at the time he entered his conditional plea of guilty, concluding that the use of the Control Company temperature probe did not render the Alcotest results invalid as a matter of law. Because the precise issue defendant preserved when he entered his conditional guilty plea has now been decided in favor of the State, we affirm defendant's conviction.

In reaching that conclusion, we decline to consider the additional issue defendant presents for our consideration, as he did not properly preserve that issue for appeal as required by Rule 7:6-2(c).

I.

On September 28, 2010, following his arrest on the DWI charge, defendant appeared in the Springfield Township municipal court and entered a conditional plea of guilty to DWI. His attorney described the single issue that was preserved for purposes of appeal, stating:

[It is a] State v. Holland-type issue with regard[] to the discovery provided [about] the calibration temperature probe. It was a [C]ontrol [C]ompany temperature probe where[as] State v. Chun provides that [the] . . . Earp Dilhart (phonetic) [Ertco-Hart] Temperature Probe should be provided, and that would be the one issue that we would like to preserve.

 

[(Emphasis added).]

 

Before the Law Division in the trial de novo, defendant pressed the same argument he had preserved as part of his conditional plea of guilty. In particular, he argued:

[T]his is a very narrow legal issue. . . . The State v. Chun decision [is] . . . the black letter of the law. . . . [But] the State for some reason has substituted the Ertco-Hart temperature probe with a Control Company temperature probe. They did so without authorization from the Chun court and they've . . . broken what the order in Chun was.

 

The Law Division rejected defendant's argument, anticipating the reasoning we adopted a few months later in State v. Holland. The judge held that the use of a Control Company temperature probe did not render the Alcotest results per se inadmissible. Because this was at least defendant's third DWI conviction, the judge sentenced him to a 180-day term of imprisonment, suspended his driving privileges for a period of ten years, and imposed the required fines and penalties.1

On appeal, defendant raises the following claim:

I. THE CASE SHOULD BE REMANDED FOR A FULL TRIAL TO DETERMINE THE ACCURACY OF THE CONTROL COMPANY TEMPERATURE PROBE USED IN REPLACE OF [SIC] THE ERTCO-HART TEMPERATURE PROBE TO CALIBRATE THE ALCOTEST USED IN THIS MATTER. (Not Addressed Below).

 

As we have noted, the very issue defendant preserved as part of his conditional plea of guilty was decided adversely to him in Holland, supra, 422 N.J. Super. at 195-97, when we held that Alcotest results are not rendered per se inadmissible based upon the use of a temperature probe other than the one specifically mentioned in Chun, supra, 194 N.J. at 89, 135, 152-53, namely, the Ertco-Hart. In particular, we rejected the defendant's argument "that only the Ertco-Hart device, to the exclusion of all others, was acceptable." Holland, supra, 422 N.J. Super. 195. We held that the Ertco-Hart Digital Temperature Measuring System was but one of a number of "similar devices" that was sufficiently reliable to be used in connection with the Alcotest. Id. at 195-96 (emphasis added). We concluded that "the Alcotest results [were] not rendered automatically inadmissible" merely because the Control Company temperature probe was used. Id. at 197. However, we remanded to the Law Division to determine whether the Control Company temperature probe was in "proper working order" on the day in question. Ibid. (internal quotation marks omitted).

Recognizing that he cannot succeed on the single issue he preserved as part of his conditional plea of guilty, defendant has now shifted gears and raises a different claim: his matter should be remanded for a full trial to determine whether the Control Company temperature probe used on the night of his arrest was in good working order.

Unlike the defendants in Holland,2 defendant Bukhman specifically limited his rights on appeal to the single issue of whether the use of the Control Company temperature probe rendered the Alcotest results per se inadmissible. He did so in accordance with the provisions of Rule 7:6-2(c) which provides:

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.

 

[R. 7:6-2(c) (emphasis added).]

 

The issue defendant now seeks to advance on appeal -- that a remand is required to determine if the particular temperature probe used on the day in question was in good working order -- was not argued or properly preserved in the municipal court when defendant entered his plea of guilty. For that reason, he is precluded by the express provisions of Rule 7:6-2(c) from pursuing such a claim on appeal. Unlike the defendant in Holland, who specifically raised in municipal court the issue of the propriety of the specific temperature probe used in her case, Holland, supra, 422 N.J. Super. at 188-89, defendant has not done so here.

As the State aptly argues, defendant "chose to 'put all of his eggs in one basket,'" and now attempts to assert on appeal an "issue he neither argued nor properly preserved" at the time he entered his conditional plea of guilty. He is barred from doing so. As the sole issue he did preserve has now been decided in favor of the State in Holland, we affirm defendant's conviction.

Affirmed. Remanded to the Law Division for an order revoking bail and requiring defendant to serve the balance of the 180-day jail term.

1 A different Law Division judge had earlier admitted defendant to bail and ordered his release from confinement after defendant had served approximately 75 of the 180 days of his jail term. The judge presiding over the trial de novo permitted defendant to remain free on bail pending appeal, provided that defendant secured an interlock device and installed it on the vehicle registered to his wife. No vehicle was registered in defendant's own name.

2 In Holland, there were two separate matters, consolidated for purposes of appeal.