May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PRABAKARA KESAVAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-35-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 2, 2009
Before Judges Reisner and Alvarez.
Defendant, Prabakara Kesavan, appeals from his de novo conviction for refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.4a, and leaving the scene of an accident, N.J.S.A. 39:4- 129. We vacate his guilty pleas and remand.
On October 23, 2007, through his counsel, defendant advised the municipal court of his intent to enter guilty pleas to refusal and leaving the scene of an accident. A charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50, was merged with the refusal. Charges of careless driving, N.J.S.A. 39:4- 97, failure to exhibit registration documents, N.J.S.A. 39:3-29, and delaying traffic, N.J.S.A. 39:4-56, were dismissed as part of the plea agreement. The municipal court imposed a $206 fine and $36 in court costs and suspended defendant's license for 180 days on the charge of leaving the scene of an accident. On defendant's conviction for refusal, on which he was sentenced as a third time DWI offender, the court imposed a fine of $1006, court costs of $33, twenty-four hours at the Intoxicated Driver Resource Center, a $100 surcharge and a ten-year loss of license.
During the entry of the guilty pleas, the court engaged in the following exchange with defendant and his attorney:
[THE COURT]: Sir, were you driving a 2002 Honda here in Clementon back on August 19th?
[DEFENDANT]: Yes, sir.
[THE COURT]: And did you have occasion to come into contact with one of the officer[s] at approximately 11:10 in the morning on that date?
[DEFENDANT]: Yes, sir.
[THE COURT]: And before the time of that stop, sir, had you drank (sic) any alcoholic beverages?
[DEFENDANT]: No, I don't.
[THE COURT]: You had nothing to drink?
[THE COURT]: How about the night or morning before that?
[THE COURT]: Okay. And what type of alcohol had you drank (sic)?
[DEFENDANT]: I had Bud Light, two beers.
[THE COURT]: Bud Light?
[THE COURT]: And what time did you have the Bud Light, sir?
[DEFENDANT]: I had 11:00.
[THE COURT]: 11:00 - -
[DEFENSE COUNSEL]: This is for the refusal, Your Honor?
[THE COURT]: Yes.
[DEFENSE COUNSEL]: Okay.
[THE COURT]: Okay. And at ll:11, the officer asked you to take - - stopped you, is that correct?
[DEFENDANT]: The office came after forty-five minutes. I was in the flea market, Your Honor.
[THE COURT]: Oh, I see. So there was an accident and then - -
[DEFENSE COUNSEL]: Right. He came, I think, around 11:45.
[THE COURT]: I see.
[DEFENSE COUNSEL]: I think he consumed the alcohol, according to his testimony, around 11:00.
[THE COURT]: Okay. And, at some point, I assume you were placed under arrest for driving while under the influence of alcohol?
[DEFENDANT]: I - - I - - at that time, he came, 11:10 - - 11:40, the officer came. I had my doggie with me. He said - -
[THE COURT]: Your what with you?
[DEFENDANT]: My puppy - -
[THE COURT]: Your dog?
[DEFENDANT]: - - doggie. Yes. So - -
[DEFENSE COUNSEL]: The discussion was at some point in time he put you under arrest. The answer is yes.
[THE COURT]: Okay. And did the officer ask you to take an Alcotest? A test to see if you had been drinking?
[THE COURT]: And did you agree to do that or did you refuse to do that?
[DEFENDANT]: He was asking different way. I didn't understand properly. I said refuse - - I don't want to take any blood test because I was not driving at that time, I said.
[THE COURT]: Because you were what?
[DEFENDANT]: I was not driving at the time. I said, why you are forcing me to do that, I said to the officer.
[THE COURT]: And were you involved in an accident?
[DEFENDANT]: There was a - - yes. The mirror was hit.
[THE COURT]: The mirror was hit?
[THE COURT]: And did you stop at that - - that accident scene or did you leave?
[DEFENDANT]: No, no, Your Honor. It was loud noise. My doggie was hit me (sic). I didn't realize it at the time. So then I kept driving, Your Honor.
[THE COURT]: And where did the accident take place?
[DEFENDANT]: It's Route 534, before the Berlin Farmer's Market.
[THE COURT]: All right. Is there anything else you'd like to tell me, Mr. Kesavan?
[DEFENDANT]: Your Honor, I am on several depression medications. I just wanted to tell you that. That's all.
[THE COURT]: Okay. And with regard to the refusal, you are pleading guilty, is that correct?
[DEFENDANT]: Yes, sir.
[THE COURT]: And also with the leaving the scene of an accident you plead guilty?
[DEFENDANT]: Yes, sir.
[THE COURT]: All right. Anything further, counsel.
[DEFENSE COUNSEL]: No, Your Honor.
Defendant subsequently appealed the convictions de novo pursuant to Rule 3:23. The Law Division judge found that defendant's answers were "for the most part . . . responsive." He characterized defendant's statement regarding his refusal as merely "a minor bit of confusion with the comment about a blood test." In his analysis, the judge relied heavily on the fact that defendant was represented by counsel and on the negotiations that were presumably consummated prior to the entry of the pleas. Because defendant was represented and did not assert his innocence, the Law Division judge concluded that "tak[ing] the contents of the transcript as a whole, this defendant knew what he was doing. He did it voluntarily. He did it in a knowing way, represented by competent counsel." Relying upon defendant's two prior convictions of driving while intoxicated, the judge also concluded that defendant understood the nature, meaning and consequences of the guilty pleas.
Municipal courts can accept a plea of guilty only after determining whether it is being entered voluntarily, with an "understanding of the nature of the charge and the consequences of the plea." R. 7:6-2(a)(1). There must be a factual basis for the plea. Ibid.
In this case, there was no questioning of defendant to ensure that prior to the entry of his guilty pleas, he understood the sentencing consequences. Rule 7:6-2(a) tracks Rule 3:9-2. It is intended to provide defendants with virtually identical protections upon the entry of a guilty plea in municipal court as are extended to a defendant on an indictable matter. See State v. Colon, 374 N.J. Super. 199, 212 (App. Div. 2005). The record is entirely devoid of any reference by anyone, prosecutor, defense attorney or judge, as to the penal consequences of the entry of defendant's guilty pleas. Furthermore, defendant was not asked if he understood the nature of the rights that he was waiving, including, most significantly, his right to a trial.
In this instance, the guilty plea to refusal triggered loss of driving privileges for ten years. N.J.S.A. 39:4-50.4a. Defendant is not a native speaker and does not appear, based on our review of the record, to be particularly fluent in the English language. As a result, the absence of any discussion on the record about the waiver and its consequences is particularly troubling.
Despite advising the court that he was taking medications for depression, defendant was not asked whether he was nonetheless mentally capable of making the important decision to waive his right to a trial and undergo the mandatory ten-year loss of driver's privileges. Defendant was not asked if his plea was being made voluntarily or whether he was being forced or coerced.
Our review of the municipal court transcript does not even yield any clear understanding of the sequence of events that resulted in the issuance of the traffic tickets. More explicitly stated, we literally do not know what happened that warranted a conviction for either refusal or leaving the scene. No testimony was taken to establish defendant's knowing, intelligent and voluntary waiver of his right to a trial. Nothing in the record establishes an adequate factual basis. Accordingly, we are constrained to vacate the guilty pleas and remand the matter for trial.
Reversed and remanded.
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