State v. Hill , 267 N.J. Super. 223 ( 1993 )

The opinion of the court was delivered by

BRODY, J.A.D.

On September 8, 1988, defendant was convicted in a Municipal Court of operating a motor vehicle (a motorcycle) while under the influence of liquor (DWI). N.J.S.A 39:4-50. Patrolman Robert Kane testified for the State. He reported that defendant’s breath registered .14% on the breathalyzer and described his observations of defendant’s erratic driving. The Municipal Court judge found that defendant was guilty both per se because he registered a breathalyzer reading of .10% or more by weight of alcohol in his blood and because the manner in which he operated his motorcycle bespoke intoxication. The judge suspended defendant’s driver’s license for six months and imposed the mandatory minimum fine of $250. Defendant did not appeal the conviction.

He now appeals from an order denying his motion for a new trial based on newly discovered evidence that on August 29, 1991, Officer Kane pled guilty to the crime of official misconduct, a violation of N.J.S.A 2C:30-2. Defendant filed his motion in the Municipal Court on October 15,1991, more than three years after his conviction. He submitted no evidence to support the motion. He claimed in his brief, however, that Kane’s misconduct was “falsifying breathalyzer test results and stealing money from citizens subject to investigation and arrest.” Defendant did not claim that Kane admitted having falsified defendant’s breathalyzer reading. Municipal Court Judge Rand and later, on appeal, Superior Court Judge Natal denied the motion. Judge Natal held that the motion was time-barred. He added that even if it were not time-barred, Kane’s plea in 1991 was not probative of whether he testified truthfully at defendant’s trial in 1988.

We agree that defendant’s motion for a new trial was barred by the two-year limitations period of R. 7:4-7, a period that may not be enlarged by the parties or the court. R. l:3-4(c).

The criteria for granting a new trial and the limitation periods for seeking such relief differ depending on whether the judgment sought to be vacated had been entered in a criminal matter in the Superior Court (R. 3:20-1), in a Municipal Court matter (R. 7:4-7) or in a civil matter in the Superior Court (R. 4:50).

We first compare the Rule pertaining to criminal matters in the Superior Court with the Rule pertaining to Municipal Court matters. Rule 3:20-1, the Superior Court Rule, provides in relevant part:

The trial judge on defendant’s motion may grant him a new trial if required in the interest of justice. If the trial was by the judge without a jury, he may, on defendant’s motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment.

Rule 3:20-2 provides in relevant part that a “motion for a new trial based on the ground of newly-discovered evidence may be made at any time....” By contrast R. 7:4-7, the Municipal Court rule, provides in relevant part:

The court may, on defendant’s motion, giant him a new trial if required in the interest of justice. The court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before, or within 2 years after, final judgment____ In no event shall this rule be construed to limit the right of a defendant to apply to the court for a new trial on the ground of fraud or lack of jurisdiction.

Thus, although in both kinds of cases the standard for granting a new trial is “if required in the interest of justice,” there is no limitations period for making such a motion in a Superior Court criminal matter but there is a two-year limitations period in Municipal Court matters such as a DWI conviction. See Romano v. Kimmelman, 96 N.J. 66, 92, 474 A.2d 1 (1984) where the Court declined to relax or enlarge the two-year limitations period even for a defendant who had been convicted of DWI by a false breathalyzer reading caused by radio frequency interference. We must therefore address the threshold issue, not presented in criminal matters in the Superior Court, of whether the two-year limitations period applies in light of the exception for “fraud,” a term not defined in .the Rule.

That brings us to the Rule for obtaining relief from a civil judgment on the ground of “fraud.” Caselaw has interpreted what fraud means as used in that Rule. Rule 4:50-1 provides in relevant part:

On motion, with briefs, and upon such terms as are just, the court may relieve a party ... from a final judgment or order for the following reasons: ... (c) fraud (whether heretofore denominated intrinsic or extrinsic)....

Rule 4:50-2, incidentally, imposes a one-year limitations period for making such a motion on the ground of fraud.

Justice Brennán, then writing for our Supreme Court, held that pez-jurious testimony may constitute fraud warranting a new trial under the civil practice Rule. Shammas v. Shammas, 9 N.J. 321, 328, 88 A.2d 204 (1952). He cautioned, however, that to warrant relief the party claiming that an issue was decided on the basis of perjurious testimony must do much more than raise a reasonable question respecting the witness’s credibility:

And in any event, a court may not set aside a final judgment merely because some testimony is perjured. All perjury is an affront to the dignity of the court and to the integrity of the judicial process, but the law is not without other effective means to punish the perpetrator of the crime. [Citation omitted.] Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. [Id. at 330, 88 A.2d 204.]

See also Pavlicka v. Pavlicka, 84 N.J.Super. 357, 202 A.2d 200 (App.Div.1964).

We conclude that the same test must be applied to the adequacy of the proof of perjurious testimony offered to avoid the two-year limitations period in R. 7:4-7. A defendant must present “clear, convincing and satisfactory evidence” of perjury. Here, defendant presented no evidence at all. He merely claimed in his brief that three years after his conviction for DWI, Kane pled guilty to misconduct in office based on making false breathalyzer readings.

Defendant’s attorney conceded the point. The following excerpt from the argument before Judge Natal demonstrates the total absence of evidence before the court and ultimately the concession by defendant’s attorney that he was unable to avoid the time bar:

[DEPENDANT’S ATTORNEY]: Well, in that regard, your Honor, there was nothing presented to Judge Rand that evidences the fraud. Mr. Hill would hope—

THE COURT: (Interposing) Okay.

[DEFENDANT’S ATTORNEY]: (Interposing) In the retrial of this matter to use evidence rules 47 and 55.

THE COURT: I know, Counsel, but you would not even get to a retrial if you have not made a showing there was any fraud to warrant going beyond the two-year bar.

Do you follow what I am saying? You have to get past that before you get to a retrial.

[DEFENDANT’S ATTORNEY]: Yes, your Honor.

THE COURT: What you are conceding to me at this point is there was nothing shown to Judge Rand on your motion to warrant him setting aside the verdict.

[DEFENDANT’S ATTORNEY]: That’s correct, your Honor.

THE COURT: Okay. Anything else you want to tell me?

[DEFENDANT’S ATTORNEY]: No, your Honor, that’s it.

We must affirm the order denying defendant’s motion. The motion was barred by the two-year limitations period of the Rule.

Ordinarily there would no point in extending the discussion beyond our holding. However, another Part of this court recently affirmed orders denying new trial motions in four other cases where Officer Kane’s readings of breathalyzer test results led to DWI convictions. State v. Gookins, 263 N.J.Super. 58, 621 A.2d 968 (App.Div.1993) (Wallace, J., dissenting).¹ There the defendants presented evidence of the crimes to which Kane had pled guilty and evidence of when he committed them. If this Part had heard those appeals with this one, we probably would have considered that evidence even though defendant had failed to present it in his case. Also, we now have a copy of the transcript of the retraxit hearing at which Kane entered his guilty pleas.² We will therefore discuss whether defendant would have overcome the time bar had he presented below the evidence that we now have.

We first emphasize that given the threshold issue we must consider, our approach to the evidence is not the same as the approach in Gookins. There the evidence of Kane’s misconduct had to be evaluated in terms of whether “the interest of justice” required giving those four defendants a new trial. Before we can reach that issue we must consider whether that evidence is “clear, convincing and satisfactory” proof that Kane committed perjury at defendant’s trial with respect to both the accuracy of the breathalyzer reading and his description of defendant’s driving, the alternate bases for the DWI judgment.

The transcript of Kane’s retraxit hearing reveals that he entered pleas to sixteen counts of a seventeen-count accusation pursuant to a plea agreement. The transcript does not indicate the crime charged in the count that was to be dismissed.³ Kane pled guilty to one count of second-degree misconduct in office, described as falsifying a breathalyzer reading on May 7, 1991— thirty-two months after he testified at defendant’s trial. The remaining pleas were to fifteen counts of third-degree misconduct in office, each described as unlawfully taking cash, in amounts ranging from $5.12 to $150, from people he had arrested. Although not revealed in the transcript, we gather from the dissenting opinion in Gookins, Id. at 65, 621 A.2d 968, that the accusation shows the earliest theft to have occurred on August 19, 1989— almost a year after he testified at defendant’s trial.

Kane did not give a detailed factual account of his crimes, but he agreed with the assistant prosecutor’s following summary of his criminal conduct:

Your Honor, I don’t know if you want specific details as to each one which may take some time. We have the files but I would have to read them. These are all basically car stops, some for drunk driving, others for motor vehicle violations, expired tags, that sort of thing, but they are all car stops. They are all situations where the driver would be removed from the car, he would be searched, his wallet would be taken, his or her wallet would be taken and then they would be taken to the station and when the wallets would be returned certain moneys would be missing. So the scenario is almost identical in each ease to the one that the prosecutor’s office orchestrated.[⁴]

It thus appears that Kane’s primary motive in committing these crimes was to steal money from the wallets of people he had arrested. He falsified the breathalyzer reading in 1991 to mask the fact that he had no basis for making that arrest.

From our reading of defendant’s trial transcript, we find no evidence that Kane ever had possession of defendant’s wallet. He arrested defendant at his home with the help of two back-up police officers.

The State’s evidence at the DWI trial was presented through Kane’s testimony. He testified that on June 19, 1988, he was summoned from his home a few minutes after 3:00 a.m. “to assist Patrolman Horneff on a burglary in progress call at the corner of East Beeehwood and the White Horse Pike.” As he was driving his personal car northbound on White Horse Pike to the scene of the burglary, Kane slowed down to turn right onto East Beechwood:

At that point, as I was getting past the telephone pole to make the right turn, I heard a screech. I looked in my rear view mirror and I noticed that a motorcycle came along side of me. The brakes squealed, the vehicle turned sideways, and something — I hear something hit the side of my car. At that point, the vehicle continued skidding northbound on the Pike. It skidded one side and slid the other. It started rolling a little bit more without the brakes off and then hit the brakes again. It went into on-coming traffic, made a big gigantic U-tum striking the curb on the other side, shut off its lights, and then headed west on West Beechwood.

The officer then changed his direction and followed the motorcycle along West Beechwood and into defendant’s driveway. Defendant drove his motorcycle into his garage. Kane thereupon confronted defendant and accused him of having struck his car. Defendant then went inside his house, leaving Kane by the garage shouting for him to come outside. Kane asked a neighbor, who happened to be outside, to phone for police assistance. Defendant and his mother came out of the house. When two additional police officers arrived, one of whom was Officer Horneff, they arrested defendant. Kane testified that defendant had the appearance of being intoxicated, which included slurred speech, an unsteady walk and the aroma of alcohol on his breath. At headquarters defendant initially submitted to the breathalyzer test, but then refused to blow properly into the machine for the second reading. The first reading was .14%.

Officer Horneff testified respecting defendant’s failure to have an inspection sticker on his vehicle. Defendant admitted that offense and it was the subject of another conviction. The questioning of Officer Horneff, which was not extensive, did not produce answers that were in conflict with Kane’s testimony.

Defendant testified that he had not struck Kane’s ear, was not intoxicated at the time, did not drive erratically before turning onto West Beechwood, and did not turn off the lights of his motorcycle while Kane followed him. He testified that he did not overshoot the turn onto West Beechwood, but conceded that his turn was a “little bit wider than usual because of looking back to see what the light [of a vehicle behind him] was.” He testified that he was in his house over five minutes before he came outside with his mother. During that time he roused his mother and “took a tablespoon of codeine three, a cough syrup, DC with codeine and I took ampicillin 500. I took a nerve pill because when I get sick — a head cold and all, my nerves get all kind of jittery and I have to take a nerve pill.” Defendant suggested in his testimony that the medicine may have accounted for the high breathalyzer reading because it “had a high volume of alcohol in it.”

Defendant also admitted that earlier that evening, “around ten or eleven,” he had “[ajbout three drafts” of twelve-ounce frosted mugs of beer. He explained that he may have walked unsteadily that night because of a congenital foot defect that “throws my balance off.” He showed the trial judge X-rays that purported to depict the defect. “My toes were broken when I was born and they overlap each other some time.” The judge accepted the exhibit but stated that he did not have the expertise to give it any evidential weight. Finally, defendant suggested that his cold may have prevented him from blowing properly into the breathalyzer the second time.

The neighbor who summoned the back-up police, had known defendant and his mother for ten years. She testified that the motorcycle’s lights were on when it entered the driveway and went into the garage. Defendant’s mother corroborated her son’s testimony about taking cough medicine while he was in the house.

The only evidence at trial that Kane had a motive for testifying falsely was evidence that he had submitted a $150 damage claim to defendant’s insurance carrier for damage to his car. Defendant’s attorney insinuated that in the face of defendant’s denial that he had struck Kane’s car, the insurance claim gave Kane a personal stake in having defendant found guilty of the DWI charge.

The Municipal Court judge stated in his findings that defendant’s credibility was undermined by the testimony that he consumed alcoholic cough medicine knowing that a police officer was outside waiting to arrest him.

Even if defendant had submitted the transcript of Kane’s retraxit hearing on his motion for a new trial, the trial judge still would have had to deny the motion. That evidence is not “clear, convincing and satisfactory” proof that Kane committed perjury at defendant’s trial. It cannot reasonably be inferred that Kane falsely arrested defendant and fabricated his account of the events that night just so some insurance carrier would pay him $150 for damage he had previously sustained to his ear. That inference is not appreciably strengthened, certainly not to the level of clear and convincing evidence, by the evidence that over a year later Kane began to arrest people without probable cause in order to steal cash from their wallets and evidence that three years later he falsified a breathalyzer reading to justify one of his false arrests.

Affirmed.

1 The two-year time bar apparently was not raised as an issue in any of those cases.

2 Without seeking leave from this court, defendant included the copy in the appendix to his brief without objection from the State.

3 Defendant has not given us a copy of the accusation.

4 The supposed victim of the false breathalyzer reading and of one of the thefts was an undercover police officer.