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State v. Abeskaron

November 24, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EMAD A. ABESKARON, LANCE D. BATES, MARTIN A. LEBSON, AND JAY PALMER, DEFENDANTS-APPELLANTS.
IN THE MATTER OF: THE ADMISSIBILITY HEARING OF THE LTI MARKSMAN 20-20 LASER SPEED DETECTION SYSTEM.



Before Judges Petrella, Conley and Coburn.

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 1999

On appeal from Superior Court of New Jersey, Law Division, Morris County, whose opinion is reported at 314 N.J. Super. 233 (1998), and from Municipal Court of Township of Parsippany, Morris County, on leave granted.

The procedural posture of this appeal is somewhat unusual because it is based on the grant of leave to appeal by another panel of this court in part from adjudications in the Municipal Court of Parsippany. Defendants appeal both from a prior proceeding entitled In the Matter of the Admissibility of Motor Vehicle Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection Sys., 314 N.J. Super. 233 (Law Div. 1998) (Laser II) and from the entry of conditional guilty pleas to speeding (N.J.S.A. 39:4-98) which preserved their right to appeal from the Laser II decision. Laser II was essentially a continuation of proceedings arising from earlier speeding cases. It approved the use of the LTI Marksman 20-20 Laser Speed Detection System (LTI Marksman) in the affected counties to aid the enforcement of motor vehicle speeding laws. The order granting leave to appeal *fn1 granted the request to consolidate the four appeals from the speeding convictions and to appeal the judgment approving the use of the laser detector.

In their point headings defendants raise the following issues:

I. [The Law Division Judge's] decision permitting the use of evidence obtained through use of LTI 20-20 Marksman was jurisdictionally defective and as such it shall not be binding on any court. (Partially raised below).

II. Readings produced by LTI Marksman 20-20 should not be admitted in the prosecution of any motor vehicle cases since the LTI Marksman 20-20 has not been proven to be scientifically reliable and accurate.

The background of the challenge to the use of the LTI Marksman is contained in two reported opinions entitled In the Matter of the Admissibility of Motor Vehicle Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection Sys., 314 N.J. Super. 211 (Law Div. 1996) (Laser I) and id. at 233 (Laser II). In Laser I Judge Stanton determined, after an evidentiary hearing in the spring of 1996, that despite the presentation of expert testimony the LTI Marksman detector had not been shown to be reliable or accurate enough to be used in the prosecution of speeding violations in the cases involving the individual named defendants. Judge Stanton initially prohibited the use of the lasers essentially because the manufacturer refused to disclose details of how the equipment's error-trapping function operated since it wanted to protect proprietary information. In addition, there was inadequate performance testing of the Marksman to ensure its accuracy and reliability. Laser I, supra (314 N.J. Super. at 227-228).

No appeal was taken from the decision in Laser I. Subsequently, after additional testing of the detector, the State applied to Judge Stanton to reopen the Laser I evidentiary proceedings. When the results of the additional testing were submitted to the court in the fall of 1997 with a request for reconsideration, the speeding complaints against the four named defendants in this appeal were still pending. Defendants had not participated in the Laser I proceedings; however, one of their attorneys had participated on behalf of another defendant. The cases of the Laser I defendants were resolved before the second hearing. As a result, Judge Stanton invited several attorneys for those defendants in the prior speeding violation cases who participated in Laser I, including the instant defendants' current attorney, to participate as amici curiae in the subsequent hearings in Laser II.

A new evidentiary hearing was conducted in October 1997, with the participation of attorneys for the Laser I defendants without any objection on jurisdictional grounds. Thereafter, in his March 20, 1998 opinion in Laser II (314 N.J. Super. 233) Judge Stanton concluded that the State had established the reliability and accuracy of the laser detector and that speed readings obtained by it would henceforth be admissible, subject to certain conditions and restrictions, in the prosecution of motor vehicle speeding cases in municipal courts in Morris and Sussex Counties, including the Municipal Court of Parsippany where the speeding charges of defendants were pending. The order allowing use of the laser detector listed certain restrictions and conditions referred to in the Judge's decision in Laser II.

The underlying summonses of the defendants herein were resolved by conditional pleas of guilty, see R. 7:6-2(c), in the municipal court on May 18, 1998, to reduced charges of speeding and were memorialized by orders of July 17, 1998, that reserved their right to appeal the March 20, 1998 Laser II decision approving the laser detection device. The payment of fines and costs were stayed pending the outcome of the appeal.

Defendants appeal to this court, on leave granted, from the orders entering conditional pleas, and they seek to include the judgment in Laser II. *fn2 The attorney for appellants, who also participated as one of the amici regarding Laser II at Judge Stanton's request, and had represented other defendants in Laser I, asserts for the first time that the Law Division lacked jurisdiction to hear the case because there was no pending controversy. In addition, appellants argue that the laser detection device was not proven to be scientifically reliable and accurate. The State argues that we should nonetheless consider the matter because the issue of the admissibility of speed readings from the laser detector is a matter of great public importance and likely to recur.

We are of the view that defendants' entry of the conditional pleas and their motion which sought leave to appeal and relief related to Judge Stanton's ruling resolved any jurisdictional deficiency. We deem the actions of the defendants in this appeal by their conditional pleas and the requests in their motions for leave to appeal as in effect a request to be considered as having participated in the proceedings in Laser II. Their attorney had participated not only in Laser II, but also in Laser I. Moreover, although there is no notice of appeal because leave to appeal was granted, see R. 2:5-1(g), defendants' Case Information Statement likewise treats the March 20, 1998 decision of Judge Stanton permitting the use of readings produced by the LTI Marksman 20-20 as part of the judgment now being challenged. *fn3 In addition, they obtained and submitted extensive transcripts of the lengthy videotaped hearings before Judge Stanton in October 1997 as part of the record of this appeal. Thus, we bypass procedural irregularities and consider these appeals as if defendants participated in Laser II or had directly challenged the admissibility of the Marksman 20-20 Laser Speed Detector System in the municipal court and in the Law Division on a trial de novo on the record and as if it were conceded that the ...


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