Before Judges Kestin and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 12, 2000
On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
On June 19, 1998, defendant June McLendon was charged, in Clifton, with violating N.J.S.A. 39:4-50 by driving a motor vehicle while intoxicated. She had been stopped in a "DWI roadblock". She was found guilty in the Clifton Municipal Court. The municipal court judge imposed the appropriate penalties, surcharges, and assessments.
Pursuant to R. 3:23-8(a), defendant appealed to the Law Division. After conducting a trial de novo on the record, the Law Division judge, sua sponte, questioned the validity of the roadblock. He reserved decision and subsequently issued an order reversing the conviction and remanding for a new trial consistent with his opinion which was set forth in a statement of reasons. In that statement, the judge observed that:
The Municipal Court record lacks sufficient evidence that the State proved that the roadblock instituted was established within the purview of Kirk *fn1 and its progeny. The record before this Court does not reflect who established this roadblock, and whether this designated site, time and date was chosen based on data justifying the site selection for reasons of public safety and efficacious law enforcement goals. The only testimony in the record is that of the officer in which he stated that there were three officers present along with a sergeant. As for the requirement of notice, the record indicates, through the testimony of the officers, that signs were posted at each end of the roadblock.
Accordingly, the judge reversed and remanded to the Clifton Municipal Court for a new trial. *fn2
The sole issue raised by the State on appeal is that the Law Division judge erred in sua sponte raising the issue of the validity of the roadblock since defendant had not challenged the roadblock in the municipal court. In her cross-appeal defendant raises the following arguments:
POINT I THE LAW DIVISION JUDGE SHOULD HAVE ACQUITTED DEFENDANT RATHER THAN REMANDING THE MATTER TO THE MUNICIPAL COURT FOR A NEW TRIAL.
POINT II THE LAW DIVISION JUDGE WAS CORRECT IN CONSIDERING THE ISSUE OF THE POLICE ROADBLOCK BECAUSE IT WAS A CONSTITUTIONAL ISSUE.
POINT III THE LAW DIVISION JUDGE WAS CORRECT IN CONSIDERING THE CONSTITUTIONAL VALIDITY OF THE POLICE ROADBLOCK BECAUSE THE MUNICIPAL COURT'S RULING ON THIS ISSUE AMOUNTED TO PLAIN ERROR.
Ordinarily, a defendant's failure to make a pretrial motion to the municipal court seeking to suppress evidence constitutes a waiver of an objection during trial to the admission of the evidence on the ground that the evidence was unlawfully obtained. R. 7:5-2(d); State v. Colapinto, 309 N.J. Super. 132, 136-37 (App. Div. 1998). Indeed, even constitutional claims, such as Fourth Amendment rights, may be waived unless properly and timely asserted. State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989). However, for good cause shown, the court can entertain a late application to suppress. R. 7:5-2(d). Although a literal reading of R. 7:5-2(d) compels a conclusion that the failure to move to suppress before the municipal court ordinarily constitutes a waiver, we conclude that the Law Division judge did not mistakenly exercise his discretion when, in light of his concern regarding the constitutionality of the stop, he ordered a remand for consideration of that important issue, particularly since the record understandably contained very little evidence regarding the roadblock. Where the record does not provide a sufficient basis to satisfy a Law Division judge's concern, the judge has the right to order a remand. Although in Colapinto, supra, 309 N.J. Super. at 137-38, we concluded that the Law Division judge erred when he permitted defendant to raise a suppression issue at a trial de novo, we were also able to determine, from the record presented, that the contention raised by defendant was clearly without merit. Here, the present record does not permit that conclusion to be made.
Defendant contends that the Law Division judge should have acquitted defendant, rather than remanding to the municipal court for a new trial. We disagree. Although appeals from municipal court convictions are heard de novo on the record pursuant to R. 3:23-8(a), the rule also authorizes a reversal and remand for a new trial if the rights of defendant were prejudiced below. Defendant's insistence that she is entitled to a trial of the appeal on the original record overlooks the fact that the remand is for her benefit, and for her benefit alone, to permit her to belatedly assert a claim that otherwise would have been waived, and is consistent with the letter and spirit of R. 3:23-8(a). After all, she never raised the issue of the constitutionality of the roadblock in the municipal court, or in the Law Division. Therefore, understandably, the record regarding the validity of the roadblock is sparse. The remand was not ordered in order to afford the State the opportunity to supply an essential element of proof not previously offered, such as the applicable speed limit, State v. Tropea, 78 N.J. 309, 316 (1978), or to permit the State to provide evidence ...