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State v. Falcone

Decided: January 8, 1992.

STATE OF NEW JERSEY, PLAINTIFF,
v.
FRANCISCO FALCONE, DEFENDANT



Giles, J.s.c.

Giles

GILES, J.S.C.

I. PROCEDURAL HISTORY

Defendant, Francisco Falcone, appealed his convictions in Municipal Court pursuant to R. 3:23-8 of operating a vehicle while his license was suspended, N.J.S.A. 39:3-40; failure to exhibit a driver's license, N.J.S.A. 39:3-29 (merged for purposes of sentencing) and parking in a "no parking" area, N.J.S.A. 39:4-138. The court sentenced the defendant as follows: Remanded to county jail ten (10) days, a fine of one thousand dollars ($1,000) and, a "further" or consecutive suspension of his driver's license for one (1) year, consecutive to a prior suspension. Defendant appeared pro se in the Municipal Court and presented his case through a court assigned Spanish-English interpreter.

There was no prosecutor below, and the state's case was presented through one witness, a Port of Authority of New York and New Jersey police officer. On this appeal, the defendant filed two memoranda of law through counsel. The State filed no memorandum or brief.

II. DECISION

Pursuant to R. 3:23-8(a), this court reviewed the transcript of the hearing below, reviewed the submissions of counsel and, conducted a hearing to allow counsel the opportunity to supplement the record.

After this court's review and consideration of the transcript, and of the submissions and arguments of counsel; pursuant to R. 3:23-8(a), I find that the rights of the defendant were prejudiced below and I reverse and remand the matter for Disposition consistent with the reasons for remand set out in the opinion that follows.

III. FACTS

Before the presentation of testimony, relevant facts summarized as follows appear from the record: When the case was

initially called, Alexandro Falcone, the son of the defendant, Francisco Falcone, (hereinafter referred to as son) (T 1/9-10), claimed that he (the son) was driving the car at the time of the incidents in question. T 1/22-23; T 2/1-3

The son also advised the court that the defendant did not speak English (T 2/9-13), whereupon the court called for an interpreter. When the interpreter arrived, the court instructed him to inform the defendant of the charges, and a brief colloquy about the defendant waiving his right to counsel appears. T 2/19-T 3/5

The court then proceeded to take pleas to three charges in an exchange that is unclear and, in some instances, contradictory. T 3/6-24.

It is noted, that while reference is made in the record to three charges, no record appears of precisely what statutory violations are involved.

This court infers from the record that N.J.S.A. 39:3-40; N.J.S.A. 39:3-29; and N.J.S.A. 39:4-138 are the charges that pertain.

The record (T 4/15-16) indicates that summons numbers I-1877956 and 1877958 were issued, however, there is no indication of how these two summonses addressed the three charges involved.

The file provided to this court contained summons Number I-1877958, charging a violation of N.J.S.A. 39:3-40, driving while license revoked, and no other summons.

The State's case consisted of the testimony of one witness, Port Authority Police Officer William Rowan.

Officer Rowan testified that he issued three summonses, including the two noted summonses, 956 and 958, on October 9, 1990 at 1:55 a.m. after he had observed a brown Cadillac, registration N.J. ENV50Y pull in and park illegally in front of Terminal C (Newark International Airport). This observation

was made from approximately 150 feet away while he was driving his unmarked ...


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