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State v. Kain

New Jersey Supreme Court


Decided: February 26, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERIC JOSEPH KAIN, DEFENDANT-APPELLANT

For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None.

Per Curiam

[44 NJ Page 149] The defendant was convicted in the municipal court and on a trial de novo in the county court of

[44 NJ Page 150]

drunken driving. He appealed to the Appellate Division and we certified the appeal before it was heard there.

The case was so certified because it purported to present a substantial constitutional question as to whether the defendant had been denied access to others and thereby deprived of the opportunity of establishing his defense that he was not under the influence of intoxicating liquor while operating a motor vehicle. The record, however, shows the issue is not in the case. Defendant sought in the county court by a pretrial motion supported by ex parte affidavits to assert that claim. That court very properly refused to decide the matter on naked affidavits without cross-examination and therefore denied the motion with leave to reassert the claim on the basis of live testimony. Defendant did not do so and, in fact, the testimony at the trial dissipated any basis for defendant's charge.

We see no substance in any of the other issues advanced on this appeal.

The judgment is accordingly affirmed.

19650226


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