Opinion
DOCKET NO. A-5720-13T2
02-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID J. RICCA, Defendant-Appellant.
Jay M. Arnesen, attorney for appellant. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6084. Jay M. Arnesen, attorney for appellant. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of his motion to contest his detention by police, defendant David J. Ricca pleaded guilty in municipal court to driving while intoxicated, N.J.S.A. 39:4-50, as well as to a municipal ordinance charge of disorderly conduct. He appealed his conviction in the Law Division contending "he was unlawfully detained by police prior to, and at the point of his arrest," in other words, contesting the denial of his pre-trial motion in municipal court.
The Law Division judge, Judge Caulfield, raised sua sponte whether the appeal could be maintained in the absence of a conditional plea. She allowed the parties an opportunity to brief the issue, asking that any such submission address the applicability of State v. Morales, 182 N.J. Super. 502, 508-09 (App. Div. 1981) (explaining that constitutional claims decided adversely to the defendant are only preserved for appeal following the entry of a guilty plea and subsequent judgment of conviction by "an express reservation either by court rule or in the plea"), certif. denied, 89 N.J. 421 (1982), and Rule 3:5-7(d) (providing that denial of a motion made to suppress evidence and return property seized pursuant to the Rule may be reviewed on appeal from a judgment of conviction notwithstanding that the judgment is entered following a guilty plea). The judge also advised defendant that any motion to withdraw his plea pursuant to State v. Slater, 198 N.J. 145 (2009), would have to be made in municipal court upon the withdrawal of the appeal in the Law Division.
Both parties briefed the issue. Defendant contended that Morales involved an indictable offense and had no applicability in municipal court, where Rule 7:5-2 governs appeals from suppression motions. The State argued that Rule 7:5-2 mirrors the language of Rule 3:5-7(d), and similarly limits municipal appeals following an unconditional guilty plea to claims arising out of the search and seizure of physical evidence. The State argued that defendant should either attempt to withdraw his plea in municipal court or be barred from relief on appeal to the Law Division.
After a full discussion and consideration of the facts and the parties' arguments, Judge Caulfield determined in a written opinion that defendant's appeal of the issue decided adverse to him in municipal court, that his initial seizure by the police was unlawful, was barred by his subsequent unconditional guilty plea. Relying on Morales and State v. Greeley, 178 N.J. 38, 50-51 (2003), along with several other cases to the same point, the judge found that defendant needed to have entered a conditional guilty plea in order to have preserved any claims other than those stemming from the unlawful search and seizure of physical evidence. As defendant was not attempting to suppress any physical evidence but was instead challenging the legality of his detention by police, the judge found the claim barred because it was not properly preserved for appeal.
Defendant appeals asserting the same issues he raised in the Law Division. Specifically, he claims:
POINT I
THE LOWER COURT MISINTERPRETED MORALES AND CRIMINAL PRACTICE RULE 3:5-7(d) INSTEAD OF APPLYING MUNICIPAL COURT RULE 7:5-2(c)(2), ORDER DENYING SUPPRESSION, IN THE TRIAL DE NOVO.
POINT II
PAST RECOLLECTION RECORDED VS. PAST RECOLLECTION REFRESHED. THE TESTIMONY OF THE STATE'S ONLY WITNESS CANNOT BE RELIED UPON BECAUSE HE ADMITTED HE DID NOT HAVE A CLEAR AND INDEPENDENT RECOLLECTION OF THE EVENTS AND THAT HE DID NOT WRITE AN ACCURATE POLICE REPORT.
POINT III
THE POLICE DID NOT HAVE ARTICULABLE SUSPICION OR PROBABLE CAUSE TO DETAIN AND ARREST APPELLANT.
POINT IV
THE STATE FAILED TO CALL THE OFFICER WHO DETAINED APPELLANT TO TESTIFY AS TO THE FACTS AND CIRCUMSTANCES THAT CAUSED HIM TO ACT.
POINT V
OFC. DEVLIN WAS WRONG TO BELIEVE HE HAD PROBABLE CAUSE TO STOP ANY WHITE MALE AS A RESULT OF THE CALL.
Defendant's claim that Rule 7:5-2(c)(2) permits him to appeal the issue of his allegedly unlawful detention by police notwithstanding his failure to preserve it by a conditional guilty plea is too well refuted to require discussion in a written opinion. R. 2:11-3(e)(2). As the Supreme Court explained in Greeley, a case in which the defendant entered a conditional guilty plea to driving under the influence to allow him to challenge the denial of his motion to suppress the breathalyzer readings:
Suppression motions are governed by Rule 3:5-7(d) and, in the case of municipal-court proceedings, by Rule 7:5-2(c)(2). Each rule provides that a denial of a motion to suppress may be reviewed on appeal irrespective of whether judgment of conviction is entered following trial or following the entry of a guilty plea. Ibid. As explained by the Appellate Division on several occasions, however, only motions for suppression on the grounds of unlawful search and seizure automatically survive the entry of a guilty plea. See, e.g., State v. Robinson, 224 N.J. Super. 495, 500-01 (App. Div. 1988) (recounting history of Rule 3:5); Pressler, Current N.J. Court Rules, comment 5 on R. 3:5-7 (2004).Because Greeley entered a plea conditioned on the right to appeal the denial of his motion to suppress the breathalyzer readings, the Law Division, as well as this court and the Supreme Court, could consider his claims. Id. at 51.
[Greeley, supra, 178 N.J. at 50-51.]
Defendant's failure to similarly preserve the issue of his alleged illegal detention by police precludes its review on appeal as correctly determined by Judge Caulfield.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION