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State v. Dickerson

Decided: October 29, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VIRGINIA L. DICKERSON, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Camden County.

Petrella, Baime and Villanueva. The opinion of the court was delivered by Baime, J.A.D.

Baime

Defendant appeals from the Law Division's denial of her motion to withdraw her plea of guilty to driving while intoxicated (N.J.S.A. 39:4-50). She asserts that both the municipal court and Law Division Judges mistakenly exercised their discretion by refusing to consider newly discovered evidence regarding the misconduct of the arresting police officer in similar cases. We agree and reverse.

On November 25, 1990, defendant was arrested for drunk driving by Patrolman Robert Kane of the Oaklyn Police Department. Kane allegedly discovered a small amount of marijuana and methamphetamine in the vehicle. After transporting defendant to police headquarters, Kane conducted a breathalyzer test which allegedly yielded a reading of .16% blood alcohol content. Defendant was issued summonses for drunk driving (N.J.S.A. 39:4-50) and possession of a controlled dangerous substance (N.J.S.A. 2C:35-10(a)(4) and N.J.S.A. 2C:35-10(a)(1)), and was released to the custody of her mother.

On January 10, 1991, defendant pleaded guilty to drunk driving and was conditionally discharged on the controlled dangerous substance charges. Defendant filed a timely motion to retract her plea based on newly discovered evidence. See State v. Hill, 267 N.J. Super. 223, 225, 631 A.2d 150 (App.Div.1993); R. 7:4-7. In her accompanying affidavit, dated May 29, 1991, defendant asserted that she was not intoxicated on the day of her arrest and had pleaded guilty only because her attorney advised her that it would be virtually impossible to challenge the accuracy of the breathalyzer reading. She claimed that a twenty dollar bill was missing from her wallet and that Kane had stolen it. According to her affidavit, defendant contacted the Camden County Prosecutor's

Office three days after her plea. Accompanied by her mother, defendant was then interviewed by Assistant Prosecutor Richard Wilson to whom she conveyed her complaint that Kane had lied in charging her with drunk driving.

Although Wilson appeared noncommittal, defendant subsequently learned that Kane had been arrested for falsifying breathalyzer results and stealing small amounts of cash from his victims. On August 29, 1991, Patrolman Kane entered guilty pleas to charges of misconduct in office involving falsification of breathalyzer test results and taking money from arrested drivers. The accusations referred to use of the same modus operandi in fifteen separate instances. Upon learning of these events, defendant contacted Assistant Prosecutor Wilson and thanked him for pursuing the investigation.

The prosecutor did not contest the facts contained in defendant's affidavit, which were substantially corroborated by other accompanying certifications. Instead, he contended that Kane's conviction could not be considered newly discovered evidence because it was not in existence at the time defendant was prosecuted. The municipal court Judge agreed and in a lengthy written opinion in November 1991, denied defendant's motion to retract.

In her appeal to the Law Division, defendant asserted that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny by failing to apprise her attorney of the investigation of Kane prior to her plea of guilty. Specifically, defendant claimed that the prosecutor was aware of numerous complaints against Kane and was duty-bound to disclose the internal investigation surrounding those allegations. In an oral opinion, the Law Division disagreed and sustained the municipal court's decision. This appeal followed.

We have no occasion to consider defendant's claim of a Brady violation. Instead, we analyze defendant's challenge to her conviction in the context of our well-settled rules regarding newly discovered evidence. The municipal court limited its consideration of this issue to the question of whether Kane's conviction constituted

newly discovered evidence. Although the Law Division's decision regarding this point is not altogether clear, we are persuaded that both courts reviewed defendant's contention too narrowly. The more critical aspect of these events is whether Kane's misconduct in other cases represents material evidence ...


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