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State v. Giordano

April 18, 1995


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

Approved for Publication April 18, 1995.

Before Judges Michels, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern


Defendants pled guilty to driving while intoxicated, N.J.S.A. 39:4-50, in separate proceedings before the same municipal court. They each reserved the right to appeal the denial of their motion to suppress the results of breathalyzer tests. Their convictions were "affirmed" in a consolidated trial de novo in the Law Division, which held that the case was controlled by State v. Samarel, 231 N.J. Super. 134, 555 A.2d 40 (App. Div. 1989). We agree and read nothing in State v. Maure, 240 N.J. Super. 269, 573 A.2d 186 (App. Div. 1990), aff'd o.b., 123 N.J. 457 (1991), as rejecting our prior opinion that

a test result may be admissible without a post-test certification if, as here, there is a pretest certification made within a month before the test that the machine was in proper working order and there is no evidence that the machine gave inaccurate results when used for the test.

[Samarel, supra, 231 N.J. Super. at 142.]

See also State v. Sandstrom, 277 N.J. Super. 354, 357-58, 649 A.2d 901 (App. Div. 1994).

We also hold that the municipal court ruling on the admission of defendants' breathalyzer test results was not properly considered under the motion to suppress rule, R. 7:4-2(f), and, therefore, could not be appealed to the Law Division following a guilty plea.

On June 9, 1989, the Rules were amended to give municipal courts jurisdiction to entertain motions to suppress evidence obtained by warrantless searches "in matters subject to trial within the municipal court." R. 7:4-2(f). See also R. 3:5-7(a); R. 3:24. Hence, R. 7:4-2(f) gave municipal courts such jurisdiction theretofore cognizable only in the Superior Court under R. 3:5-7. But R. 3:5-7 was adopted in response to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and applies "only to state and federal constitutional claims of unlawful searches and seizure[s] of physical evidence." State v. Robinson, 224 N.J. Super. 495, 499-500, 540 A.2d 1313 (App. Div. 1988). See also State v. Keegan, 188 N.J. Super. 471, 474, 457 A.2d 1205 (App. Div.), certif. denied, 93 N.J. 320 (1983); State v. Morales, 182 N.J. Super. 502, 508, 442 A.2d 1012 (App. Div. 1981), certif. denied, 89 N.J. 421 (1982). *fn1

As motions to suppress breathalyzer test results do not generally involve constitutional claims that physical evidence was improperly obtained, R. 3:5-7 and R. 7:4-2(f) are not implicated. *fn2 In any event, no such claim is made in this case. Thus, the provision in R. 7:4-2(f) which states that "denial of a motion to suppress heard in the municipal court may be reviewed on appeal from a judgment of conviction pursuant to R. 3:23, notwithstanding that such judgment is entered following a guilty plea," is not applicable and does not preserve the issue for appeal. R. 7:4-2(f) therefore does not provide an exception in this case to the general rule that "a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial Judge before the guilty plea." Robinson, supra, 224 N.J. Super. at 498. See also, e.g., State v. Vasquez, 129 N.J. 189, 194, 609 A.2d 29 (1992); State v. Truglia, 97 N.J. 513, 522-24, 480 A.2d 912 (1984).

We admittedly interpret the scope of R. 7:4-2(f) narrowly because we believe that, unless R. 7:4-2(f) is clearly applicable, the entire record should be created before a de novo review occurs in the Law Division. There is a clear difference between the scope of a defendant's appeal to the Law Division from a conviction in municipal court, see R. 3:23, and an appeal to this court following conviction in the Law Division.

We also conclude that R. 3:9-3(f), which permits the preservation for appeal of adverse determinations on pretrial motions with the consent of the court and prosecutor, is not made applicable to municipal courts. See R. 7:1; R. 7:4-8. The Guidelines governing plea agreements in municipal courts, promulgated pursuant to R. 7:4-8(a), do not include conditional pleas, see Pressler, New Jersey Court Rules, Guideline 2 to R. 7:4-8(a) (1995), probably because of the difference between Superior Court practice, which generally involves a jury trial in the absence of a guilty plea, and the practice in municipal courts where cases are tried non-jury. Authorized plea agreements in municipal courts involve dismissal of charges upon guilty plea to another offense or lesser offenses, or in exchange for a sentence recommendation. Id. Guideline 4 to R. 7:4-8(a) expressly provides, however, that "no plea agreements whatsoever will be allowed in drunken driving ... offenses." If preservation of the issue for purposes of appeal was part of a "plea agreement" in a DWI case, it was unlawful. *fn3 If it was not so viewed, it was nevertheless unauthorized by the Rule.

Here, there was no objection to preservation of the issue when the plea was entered. To the contrary, the municipal prosecutor and municipal court Judge acknowledged that the issue could be preserved for appeal to the Law Division. In this respect they erred. We will not ...

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