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State v. Ferry

May 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN FERRY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 56-2006.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 22, 2008

Before Judges Stern and C.L. Miniman.

Defendant pled guilty in the South Plainfield Municipal Court to driving while intoxicated (DWI), reserving for appeal the question of his "operation" of the vehicle. On trial de novo, Judge James Mulvihill found sufficient evidence of "operation" and entered a judgment of conviction,*fn1 subject to defendant's ability to apply to the municipal court for relief "should the Supreme Court . . . find that the Alcotest is unreliable." See State v. Chun, 194 N.J. 54 (2008), which was subsequently decided on March 17, 2008. Defendant's brief states that defendant "wished to take advantage of his right to argue at a future date that there are problems relative to the Alcotest, 7110 MKIII C, once the issue of the reliability . . . is ultimately decided by our Supreme Court in State v. Chun."

The State agreed to this procedure. We do not comment on the scope of such a "reservation."*fn2 Nor do we comment on the ability of a defendant to enter the type of conditional plea of guilty entered here, while challenging the sufficiency of the proofs concerning an element of the offense but accepting the judge's findings for purposes of the plea. See R. 7:6-2(c); see also R. 3:9-3(f).

Defendant's brief before us details the stipulation before the municipal court:

1. The Court to review the videotape that deals with the officer's stop and questioning of the Defendant up to the point where he commences his field sobriety testing. The Municipal Court advised that it shall be reviewing the videotape and shall advise as to the Court's determination.

2. Submission of the police report, which the Court is to review up to the point where counsel has black lined it, which takes the Court to the point where the officer starts giving Defendant field sobriety test instructions. The Court was advised that said stipulation "ends with the line that says 'He said that he did.'" The Court was asked to stop reading at said point.

3. Defense counsel's "motion, procedural history, statement of facts, and his legal arguments to come in."

4. Defense counsel advised the Court that there is a typographical error on page 2 of his legal brief, that being that the Court is to ignore any reference in the brief to the fact that Defendant was merely sitting in the vehicle for a time. The State concurred when the State advised the Court that "it actually refers to a person sitting behind the wheel, and this was not the fact. But our statement of facts controls." It is my understanding that the Court's copy of the brief has the appropriate language crossed out.

5. The South Plainfield Police Officer acknowledges that it was Defendant who called Piscataway police, and Piscataway police then called South Plainfield police.

6. That for purposes of the motion, Defendant was on ...


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