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State of New Jersey v. Roger Paul Frye

May 16, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGER PAUL FRYE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 43-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued January 18, 2012 -

Before Judges Carchman, Baxter and Nugent.

In this appeal from an order of the Law Division on a trial de novo from the Borough of Haddon Heights Municipal Court, affirming defendant Roger Paul Frye's conviction for Refusal to Submit to a Chemical Test, N.J.S.A. 39:4-50.4a (the refusal), the narrow issue presented in the Law Division was whether defendant could withdraw his guilty plea. The Law Division judge answered the question in the negative. While we agree that there were procedural defects in the various proceedings before the municipal court, we conclude that any errors were harmless, defendant was aware of the consequences of his plea, and the Law Division judge properly denied his motion to withdraw his plea, as well as his petition for post-conviction relief (PCR). Accordingly, we affirm.

These are facts relevant to the issues before us. On December 19, 2008, defendant, an attorney, was arrested and charged with Driving While Intoxicated (DWI), N.J.S.A. 39:4-50; the refusal statute; and Reckless Driving, N.J.S.A. 39:4-97. Following an unsuccessful motion to suppress, defendant, who was represented by counsel, entered into a plea agreement whereby the State agreed to dismiss the DWI and reckless driving offenses in exchange for defendant entering a guilty plea as to the refusal offense.

During the plea colloquy, defendant acknowledged his right to plead not guilty, his right to a trial, and the State's obligation to prove the charges beyond a reasonable doubt. He also indicated that he was waiving these rights.

The following colloquy ensued. Defendant confirmed that he had been stopped by a police officer, but then denied any recollection with respect to his subsequent interaction with police at the time of the motor vehicle stop under the premise that his poor memory was due to a medical condition. With respect to the administration of the Alcotest, defendant, once again, clearly recalled certain aspects and then claimed no recollection when questioned by the municipal court:

[Court]: . . . . At some point in time you were taken back to the police station on that evening?

[Defendant]: Yes, Your Honor.

[Court]: Okay. And were you asked to submit to a breath test, sir?

[Defendant]: Yes, Your Honor.

[Court]: . . . . And do you remember the officer reading to you a statement about the breath test?

[Defendant]: Yes, Your Honor.

[Court]: And advising you of what your obligation was under the law?

[Defendant]: Yes, Your Honor.

[Court]: And when he read that statement to you, Mr. Frye, what was your reply to that?

[Defendant]: I don't recall, but apparently I refused to take the test.

[Court]: Okay. And do you recall being read a second part of the statement after you did not agree to take the test the first time?

[Defendant]: Yes, Your Honor.

[Court]: Okay. And was there any change in . . . your position? That is, did you agree or not agree to take the test after that second statement was read?

[Defendant]: Apparently I did not agree to take the test.

[Court]: Okay. You're telling me that you don't have a clear recollection of this?

[Defendant]: Not . . . a hundred percent crystal clear recollection, no.

[Court]: Sir, do you feel that at the time the officer was reading this statement to you, and when he asked you to submit to the breath test that you understood what he was saying?

[Defendant]: Possibly, possibly I didn't.

Probably, probably I didn't.

Based upon defendant's responses to the municipal court's questions with regard to his performance or lack thereof with respect to the Alcotest, plea counsel then inquired of defendant:

[Plea Counsel]: Mr. Frye, did you [] even though you indicated to the [c]court that you refused to take the test, did you ...


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