State v. Kaye

Decision Date21 November 1980
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Marvin KAYE, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Robert E. Zwengler, Mount Holly, for defendant-appellant (Hersh Kozlov, Cherry Hill, attorney).

Patrick C. Byrne, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

Before Judges MICHELS, ARD and FURMAN.

The opinion of the court was delivered by

MICHELS, P. J. A. D.

Defendant Marvin Kaye appeals from his conviction entered on a plea of guilty to causing death by automobile in violation of N.J.S.A. 2A:113-9. On appeal, defendant solely challenges the trial judge's denial of his pretrial motion to exclude the results of a blood-alcohol test on the ground that the State allegedly failed to comply with the provisions of R. 3:13-3(a)(4) by not preserving a portion of the blood sample for discovery purposes. Essentially, he claims that the failure of the State to furnish the blood sample violated his right to due process of law.

On January 8, 1977, at about 2:31 a. m., defendant was operating his automobile in the southbound lane of Route No. 168 in Runnemede, New Jersey. When defendant's automobile was at or near the entrance to the New Jersey Turnpike, it crossed the centerline and entered the northbound lane. Defendant's vehicle then collided head-on with an automobile driven by John J. Welsh IV. Welsh was taken to J.F.K. Hospital where he was pronounced dead. Defendant was taken to the West Jersey Hospital.

Patrolman Scott of the Runnemede Police went to the West Jersey Hospital to interview defendant. Patrolman Scott detected a strong odor of alcohol on defendant's breath and requested that a blood sample be taken for purposes of determining the alcoholic content of defendant's blood. Patrolman Scott also advised defendant of his right to have a second blood sample drawn at his own expense for his independent testing. Defendant refused to exercise his right to have a second sample taken but signed the hospital request form in which he consented to the taking of the sample Patrolman Scott had requested. The blood was drawn under the supervision of a hospital physician, and the blood sample was sent to the New Jersey State Police Laboratory at Hammonton, New Jersey, for analysis. The analysis revealed that the alcoholic content of defendant's blood was .145%. Under N.J.S.A. 39:4-50.1(3), a defendant is presumed to be under the influence of intoxicating liquor if the weight of alcohol in his blood is .10% or more. According to established procedure, the blood sample was also tested for drugs. This test proved to be negative. The two testings consumed the entire blood sample.

Defendant was arrested and charged with careless driving and driving while under the influence of alcohol. Subsequently, he was indicted by the Camden County grand jury and charged with causing the death of Welsh by driving an automobile carelessly and heedlessly, in willful and wanton disregard of the right or safety of others, in violation of the provisions of N.J.S.A. 2A:113-9. Defendant entered a plea of not guilty and requested in pretrial discovery that the prosecutor furnish him with authorization to procure for independent laboratory testing the blood sample drawn from him. The prosecutor furnished defendant with a copy of the blood-alcohol test, but was unable to furnish defendant with the blood sample because it had been consumed during the testing by the State Police Laboratory. Defendant thereupon moved for an order "excluding all evidence relating to a blood sample drawn" from him on the ground that "the State had failed to furnish discovery of the sample despite defendant's timely written request therefor pursuant to R. 3:13-3." At the conclusion of the hearing Judge Bigley in the Law Division denied the motion and held that the results of the blood-alcohol test were admissible in evidence. The judge found that since defendant had been advised of his right to have a sample of his blood taken and chemically tested by a physician of his own choice, as required by N.J.S.A 39:4-50.2(c), and had been furnished with a copy of the record of the taking of the sample, disclosing the date and time thereof as well as the result thereof, as required by N.J.S.A. 39:4-50.2(b), defendant's due process guarantees were more than adequately protected.

Defendant then entered a retraxit plea of guilty to causing death by automobile and was sentenced to State Prison for one to three years. His motion for reconsideration of the sentence was denied, and this appeal followed.

I

Preliminarily, the State argues that defendant's plea of guilty to the indictment constitutes a waiver of all nonjurisdictional objections to the State's pre-plea conduct, and therefore this challenge to his conviction is not cognizable on appeal. We agree.

It is fundamental that a guilty plea precludes a defendant from raising any nonjurisdictional claims as to deprivation of his constitutional rights before the entry of the plea. The rule was clearly stated in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973), as follows:

... We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

The waiver effect of a guilty plea has been uniformly recognized by our courts. See, e. g., State v. Garoniak, 164 N.J.Super. 344, 349, 396 A.2d 360 (App.Div.1978), certif. den. 79 N.J. 481, 401 A.2d 236 (1979); State v. Rosenberg, 160 N.J.Super. 78, 80, 388 A.2d 1298 (App.Div.1978), certif. den. 78 N.J. 332, 395 A.2d 201 (1978); State v. Ternaku, 156 N.J.Super. 30, 35, 383 A.2d 437 (App.Div.1978), certif. den. 77 N.J. 479, 391 A.2d 494 (1978). See also State v. Taylor, 140 N.J.Super. 242, 244-245, 356 A.2d 31 (App.Div.1976); State v Raymond, 113 N.J.Super. 222, 226-227, 273 A.2d 399 (App.Div.1971), and State v. Humphreys, 89 N.J.Super. 322, 326, 215 A.2d 32 (App.Div.1965), which were decided before the adoption of R. 3:5-7(d).

Since defendant knowingly and intentionally pleaded guilty in open court with the assistance of counsel, we are satisfied that he waived his right to challenge his conviction on the ground asserted here.

Contrary to defendant's claim, R. 3:5-7(d) does not apply to preserve his right to appeal from the conviction following his guilty plea. The rule which amended R. 3:5-7, dealing specifically with motions to suppress evidence based on a claim of an unlawful search and seizure, and engrafted a limited exception to the guilty plea-waiver rule in New Jersey was adopted by our Supreme Court on January 28, 1977. The rule provides:

(d) Appellate Review. Denial of a motion made pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty.

Paragraph (d) was added to the 1977 revision of R. 3:5-7 to permit the preservation of an appellate challenge to denial of a suppression motion despite the entry of a plea of guilty. Pressler, Current N. J. Court Rules, Comment R. 3:5-7(d) (1981). The right of appeal under this rule is limited to motions made pursuant to R. 3:5-7(a) challenging a search and seizure as unlawful. The rule does not expressly or by fair implication permit appellate review of pretrial motions in general, such as those relating to the admissibility of evidence. Here, defendant challenged the admissibility of the results of a blood-alcohol test solely on grounds that the State failed to furnish him with a blood sample, as required by R. 3:13-3(a)(4), and therefore violated his due process rights. He did not challenge the taking of the blood sample as an unlawful search and seizure.

Accordingly, we hold that defendant waived his right to challenge his conviction on due process grounds by virtue of his plea of guilty.

We simply point out that in the future the proper procedure for a defendant to follow to challenge the admissibility of evidence prior to his trial on grounds other than an unlawful search and seizure (R. 3:5-7(a)), is set forth in R. 3:13-1(b), adopted on July 16, 1979. This rule provides:

(b) Pretrial Hearings. Hearings to resolve issues relating to the admissibility of statements by defendant, pretrial identifications of defendant and sound recordings may be held immediately prior to jury selection and, upon a showing of good cause, hearings as to admissibility of other evidence may also be held. (Emphasis added).

Now, under our rules, if at the conclusion of such a pretrial hearing pursuant to R. 3:13-1(b), the court determines that the challenged evidence is admissible, a defendant may, with the approval of the court and the consent of the prosecutor, enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of such pretrial motion. If the defendant prevails on the appeal, he is afforded the opportunity to withdraw his plea. R. 3:9-3(f), adopted July 21, 1980 to be effective September 8, 1980. See Pressler, Current N. J. Court Rules,...

To continue reading

Request your trial
11 cases
  • De Vitis v. New Jersey Racing Com'n
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 15, 1985
    ...v. Heiden, 508 F.2d 898, 902-903 (9th Cir.1974); State v. Serret, supra, 198 N.J.Super. at 26, 486 A.2d 345; State v. Kaye, 176 N.J.Super. 484, 490-492, 423 A.2d 1002 (App.Div.1980), certif. den., 87 N.J. 316, 434 A.2d 69 (1981). In the absence of a showing of bad faith by the State, case l......
  • State v. Giordano
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 18, 1995
    ...and seizure violations only." Keegan, supra, 188 N.J.Super. at 475, 457 A.2d 1205 (emphasis added). See also State v. Kaye, 176 N.J.Super. 484, 489, 423 A.2d 1002 (App.Div.1980), certif. denied, 87 N.J. 316, 434 A.2d 69 (1981) (challenge to failure to provide blood sample in discovery). Com......
  • State v. Robinson
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 12, 1988
    ...N.J.Super. at 48-49, 503 A.2d 903; State v. Morales, supra, 182 N.J.Super. at 507-509, 442 A.2d 1012; see also State v. Kaye, 176 N.J.Super. 484, 489, 423 A.2d 1002 (App.Div.1980), certif. den. 87 N.J. 316, 434 A.2d 69 (1981) (taking of blood sample); State v. Keegan, supra, (wiretaps statu......
  • State v. Casele
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 4, 1985
    ...to cross-examine expert witnesses was affected. 3 Defendant's arguments fail based on our prior decision in State v. Kaye, 176 N.J.Super. 484, 423 A.2d 1002 (App.Div.1980), certif. den. 87 N.J. 316, 434 A.2d 69 (1981). In that case defendant had been convicted of causing death by automobile......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT