NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1441-18T4
STATE OF NEW JERSEY,
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).
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
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
"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
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
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.