STATE OF NEW JERSEY v. JOSEPH PETERS

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1441-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSEPH PETERS,

     Defendant-Appellant.
_________________________

                    Submitted December 17, 2019 – Decided January 29, 2020

                    Before Judges Yannotti and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Municipal Appeal No. 18-28.

                    Joseph Peters, appellant pro se.

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (Nicole Paton, Assistant Prosecutor, of
                    counsel and on the brief).

PER CURIAM

          Defendant appeals from an order of the Law Division dated October 19,

2018, which dismissed without prejudice defendant's appeal. We affirm.
      On October 20, 2017, officers from the Hackensack Police Department

charged defendant with driving while intoxicated,  N.J.S.A. 39:4-50 (Summons

911167); reckless driving,  N.J.S.A. 39:4-96 (Summons 911169); and possession

of an open container of an alcoholic beverage,  N.J.S.A. 39:4-51a (Summons

911170). The matter was scheduled for trial on January 31, 2018 in the

Hackensack Municipal Court.

      Defendant's attorney informed the judge that defendant was moving to

suppress because the police allegedly did not have probable cause to stop

defendant's vehicle. The judge did not have a copy of the motion papers but

agreed to hear testimony on the motion. The hearing continued on April 2, 2018.

The judge denied the motion to suppress. The trial on the charges followed and

concluded on April 11, 2018.

      The judge found defendant guilty of driving while intoxicated, but not

guilty of reckless driving and possession of an open container of an alcoholic

beverage. Defendant was sentenced as a second-time DWI offender. The judge

imposed a $506 fine, and required defendant to pay court costs and other

monetary penalties. The judge ordered a two-year suspension of defendant's

driving privileges. In addition, the judge required defendant to use an interlock




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device on his vehicle for one year, spend forty-eight hours at an Intoxicated

Drivers Resource Center, and perform thirty hours of community service.

      Defendant filed an appeal to the Law Division and asserted that he had

been denied the effective assistance of counsel. Defendant claimed his attorney

was deficient because he failed to: file a motion to suppress evidence based on

an alleged unlawful stop; prepare adequately for trial; subpoena available police

digital data records; identify outdated calibration test data on the Alcotest unit;

have knowledge of relevant case law; act on information defendant relayed

to him during the trial; and review certain video recordings with defendant for

his input and clarification. Defendant also claimed he was denied his right to

equal protection under the law because he was transported to the New Milford

police station for the Alcotest, but there were no cameras at that location to

record the test.

      The State moved to dismiss the matter on the ground that defendant was

asserting claims for ineffective assistance of counsel, which should be raised in

a petition for post-conviction relief (PCR) and first presented to the municipal

court. The Law Division judge agreed and entered an order dated October 19,

2018, which dismissed the appeal without prejudice and stated that defendant




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"is permitted to file a petition for [PCR] in the Hackensack Municipal Court."

This appeal followed.

      On appeal, defendant argues:

            I. THE LAW DIVISION ERRED BY DISMISSING
            DEFENDANT'S APPEAL WITHOUT TAKING INTO
            CONSIDERATION[] THAT THE PROSECUTOR
            FILED   A   LETTER   IN   RESPONSE        TO
            DEFENDANT'S BRIEF WITHOUT INCLUDING
            [AN] AFFIDAVIT OF SERVICE TO THE
            DEFENDANT. DEFENDANT WAS DENIED THE
            OPPORTUNITY TO REPLY. (Not raised below).

            II. THE LAW DIVISION ERRED BY DISMISSING
            DEFNDANT'S APPEAL WITHOUT TAKING INTO
            CONSIDERATION THAT THE TRIAL RECORD
            WAS MORE THAN SUFFICIENT FOR REVIEW OF
            THE DEFENDANT'S CLAIM OF INEFFECTIVE
            ASSISTANCE OF COUNSEL [RE: SUPPRESSION
            HEARING].

            III. THE LAW DIVISION FAILED TO REVIEW THE
            CLAIM THAT THE ALCOTEST CALIBRATION
            REQUIREMENTS WERE NOT MET.

      We have carefully considered the record and conclude that defendant's

arguments on appeal lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). However, we add the following.

      As we have explained, in his direct appeal to the Law Division, defendant

asserted claims of ineffective assistance of counsel. Generally, the courts refuse

to entertain such claims on direct appeal because they involve allegations and

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evidence that lie outside the trial record. State v. Hess,  207 N.J. 123, 145 (2011).

Indeed, our courts have a general policy against addressing such claims on direct

appeal. See State v. Preciose,  129 N.J. 451, 460 (1992).

      Here, defendant argues that the trial record is sufficient to decide whether

he was denied the effective assistance of trial counsel. We disagree. The trial

record clearly is insufficient to address many of defendant's claims, such as his

allegations that counsel was deficient because he did not file a motion to

suppress based on the stop, failed to act on information that defendant relayed

to him during the trial, was unfamiliar with the applicable law, and did not

prepare adequately for trial.

      The Law Division judge correctly determined that, under our court rules,

defendant's claims must first be raised in a PCR petition and decided by the

municipal court. Rule 7:10-2(a) provides that, "[a] person convicted of an

offense may, pursuant to this rule, file with the municipal court administrator of

the municipality in which the conviction took place, a petition for [PCR]

captioned in the action in which the conviction was entered." The Law Division

judge did not err by dismissing the appeal without prejudice.

      Affirmed.




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