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State v. Aballo

August 24, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EMILIO ABALLO, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Atlantic County, Municipal Appeal No. 47-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 4, 2009

Before Judges Lihotz and Baxter.

This is an appeal from a finding of guilt in a trial de novo in the Law Division, in which the judge found defendant Emilio Aballo guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. In addition to the imposition of appropriate fines and penalties, defendant was sentenced to a driver's license suspension of seven months; the suspension was stayed on December 8, 2008. We affirm.

I.

On November 5, 2006, an Atlantic City police officer charged defendant with DWI; careless driving, N.J.S.A. 39:4-97; and driving in the wrong direction on a one-way street, N.J.S.A. 39:4-85.1. On December 14, 2006, defendant entered a conditional plea of guilty to the DWI charge pursuant to the Supreme Court's unpublished order dated January 10, 2006 in State v. Chun.

In relevant part, the Court's order in Chun specified that "first offender [DWI] prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as the relevant Alcotest readings[.]" That order further specified that any defendant "who challenges the use of Alcotest-related evidence may enter a conditional guilty plea pursuant to Rule 7:6-2(c), reserving the right to apply for relief from the municipal court should the appeal before the Court result in a determination that the Alcotest devices are not reliable[.]"

When defendant entered his conditional guilty plea in the Atlantic City municipal court on December 14, 2006, he acknowledged that he operated his vehicle under the influence of alcohol.*fn1 After the prosecutor recited a detailed summary of the officer's observations on the day in question, defendant acknowledged that those observations were accurate. Those observations included operation of his vehicle in the wrong direction down a one-way street, staggering, swaying, slurred speech, bloodshot eyes, fumbling hands, and an odor of alcoholic beverage on his breath. The psycho-physical tests were limited to counting backwards from seventy-six to sixty-seven because defendant told the officer he had back, neck and knee problems and was unable to complete the other tests. Defendant did not follow the officer's instructions; rather than count back only to sixty-seven, he "counted slowly to sixty-three." When defendant entered his guilty plea, he also acknowledged the Alcotest reading exceeded 0.10.*fn2 In short, defendant's guilty plea was based not only on the Alcotest readings, but also on objective observational evidence.

When the Court decided State v. Chun, 194 N.J. 54, 158, cert. denied, ___ U.S. , 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), it held the Alcotest device "is sufficiently scientifically reliable that its reports may be admitted in evidence." The Court did, however, impose certain modifications and conditions, including a requirement that the Alcotest machine be recalibrated semiannually, rather than annually. Id. at 123. After finding the Alcotest results reliable, the Court dissolved the stay effected by its January 10, 2006 order, and directed municipal courts to proceed with sentencing for those defendants who had previously entered conditional guilty pleas. Id. at 149.

During the remand proceedings in the municipal court, defendant raised a number of procedural and substantive claims. Because of a transcription error, a considerable portion of the proceedings were not transcribed on appeal; however, we are able to determine that defendant sought to withdraw the conditional guilty plea he had previously entered. The municipal court denied defendant's motion and proceeded to sentencing. On appeal to the Law Division, defendant raised the same claims. In a written opinion, Judge Neustadter denied each of those claims, and found defendant guilty of the N.J.S.A. 39:4-50 violation based not only on the Alcotest results, but also on the observational evidence presented in the municipal court.

On appeal, defendant raises the following claims:

I. CONDITIONAL PLEAS AND STAYS: THE SUPREME COURT CREATED A PROTECTED CLASS OF DEFENDANTS WITH ITS DECEMBER 10, 2006, ORDER IMPLEMENTING CONDITIONAL PLEAS AS AN INTERIM PROCEDURE BALANCING THE INTERESTS OF DEFENDANTS, THE STATE, AND THE MUNICIPAL COURTS.

II. RETROACTIVE APPLICATION: WITH ITS DECISION IN STATE V. CHUN, THE SUPREME COURT EXPRESSED FOR THE FIRST TIME A RULE OF LAW INTENDED TO PROTECT ALL DEFENDANTS ...


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