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State of New Jersey v. Yakov Bukhman

May 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
YAKOV BUKHMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 71-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2012

Before Judges Fisher and Baxter.

Following a trial de novo in the Law Division, defendant Yakov Bukhman appeals from his January 20, 2011 conviction on a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant's conviction results from a conditional plea of guilty in the Springfield Township municipal court, in which he reserved the right to challenge on appeal the State's use of a temperature probe manufactured by Control Company, even though the Supreme Court in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), had only referenced the use of a temperature probe manufactured by the Ertco-Hart company. In State v. Holland, 422 N.J. Super. 185, 195-97 (App. Div. 2011), we rejected the very claim defendant reserved at the time he entered his conditional plea of guilty, concluding that the use of the Control Company temperature probe did not render the Alcotest results invalid as a matter of law. Because the precise issue defendant preserved when he entered his conditional guilty plea has now been decided in favor of the State, we affirm defendant's conviction.

In reaching that conclusion, we decline to consider the additional issue defendant presents for our consideration, as he did not properly preserve that issue for appeal as required by Rule 7:6-2(c).

I.

On September 28, 2010, following his arrest on the DWI charge, defendant appeared in the Springfield Township municipal court and entered a conditional plea of guilty to DWI. His attorney described the single issue that was preserved for purposes of appeal, stating:

[It is a] State v. Holland-type issue with regard[] to the discovery provided [about] the calibration temperature probe. It was a

[C]ontrol [C]ompany temperature probe where[as] State v. Chun provides that [the] . . . Earp Dilhart (phonetic) [Ertco-Hart] Temperature Probe should be provided, and that would be the one issue that we would like to preserve. [(Emphasis added).]

Before the Law Division in the trial de novo, defendant pressed the same argument he had preserved as part of his conditional plea of guilty. In particular, he argued:

[T]his is a very narrow legal issue. . . .

The State v. Chun decision [is] . . . the black letter of the law. . . . [But] the State for some reason has substituted the Ertco-Hart temperature probe with a Control Company temperature probe. They did so without authorization from the Chun court and they've . . . broken what the order in Chun was.

The Law Division rejected defendant's argument, anticipating the reasoning we adopted a few months later in State v. Holland. The judge held that the use of a Control Company temperature probe did not render the Alcotest results per se inadmissible. Because this was at least defendant's third DWI conviction, the judge sentenced him to a 180-day term of imprisonment, suspended ...


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