MICHAEL COOK FOR THOMAS ING ZINGIS. SO YOUR HONOR BASED ON WHAT YOU ASKED FOR EARLIER
I'M GOING TO STICK TO THE THINGS THAT WE DISAGREE WITH AND THEN I THINK CLARIFY I THINK
THERE'S ONE MORE POINT THAT WE DO AGREE ON, MYSELF AND THE STATE. I'M GO
ING TO A LOT OF TRAPS SPIERD TODAY THOOS DO WITH MORE WHAT'S GOING TO TRANSPIRE I THINK
GOING FORWARD THAT THIS CASE. I'LL LEAVE THAT MARRIAGE R LARGELY TO THE BAR ASSOCIATION.
THEY'RE REALLY HERE TO SEE IF CORRECT FIND A RESOLUTION TO THIS GOING FORWARD FOR BOTH
MR. GOLD HAS POINTED OUT IN THE PAST THE DEFENSE BAR AND THE PROSECUTION BAR. THEY DON'T
REPRESENT ONE SIDE OR THE OTHER. SO THEY'RE PROBABLY IN THE BEST PLACE TO ANSWER SOME OF
THOSE QUESTIONS, ALL TOE I KNOW THE COURT ASKED BEFORE I FORGET, ONE THING ABOUT IS THE
BLOOD ALCOHOL AMOUNT ON COMPLAINT. THE COMPLAINTS ARE JUST ORDINARY TICKETS, THEY
JUST GENERALLY SAY THE STATUTE NUMBER, THE 4:50 STATUTE NUMBER. THEY DO NOT HAVE THE BLOOD
ALCOHOL, WE DO TEND TO GO THROUGH A FAIR AMOUNT OF HE HAVE TO NOT HAVE THAT BEFORE THE
COURT BECAUSE IT'S EVIDENCE, YOU KNOW, IT'S BEYOND THE MERE ACCUSATION. IT'S SOMETHING
THAT THE COURT WOULD HAVE TO FIND AS A MATTER OF FACT IF DID IT TRY IT. WHAT
WE DIDN'T SPEAK ABOUT WAS THE BURDEN OF PROOF AT TRIAL OF THE STATE IN A FOR:50 TRIAL.
SO ONE, IN THE CASE OF HAD A SECOND OR SUBSEQUENT DWI, THE STATE DOES HAVE TO PROVE THE
EXISTENCE OF A PRIOR DUI. THAT'S USUALLY EASILY ENOUGH DONE BY ENTERING A CERTIFIED COPY
OF THE DRIVER'S ABSTRACT IN A THE RECORD AND THEN THAT ABSTRACT WOULD INDICATE IF THERE WAS
A DUI. INSIDE A 10-YEAR PERIOD BECAUSE IT'S GENERALLY A STEP DOWN IF YOU DON'T, IF AETS
BEEN MORE THAN 10 YEARS. THE ISSUE HERE IS THAT FOR THAT 10-YEAR PERIOD,
THE ABSTRACT IS JUST NO LONGER RELIABLE. AND I'LL POINT YOU TO RULE OF EVIDENCE 802 C
8 THE LAST PARAGRAPH, THE EXCEPTION TO ENTERING A PUBLIC RECORD INTO EVIDENCE WITHOUT,
WITHOUT IT BEING HEARSAY IS IF THE SOURCE OF INFORMATION OR OTHER CIRCUMSTANCES INDICATE
THAT SUCH STATISTICAL FINDINGS ARE NOT TRUSTWORTHY, THEN IT DOES NOT, IT'S NOT
SOMETHING THAT COULD BE PUT INTO EVIDENCE. NNL IN THIS CASE, THERE IS 10,
THOUSANDS OF, 10S OF THOUSANDS OF RECORDS IN THAT PERIOD THAT ARE POTENTIALLY INCORRECT.
SO NOW THE STATE IN THE TRIAL OF MR. ZINGIS DID NOT ENTER INTO EVIDENCE ANY PROOF REGARDING
THE PRIOR, IF THEY HAD ENTER THE ABSTRACT, IT WOULD BE FACED WITH THE EVIDENTIARY ISSUE
AND, YOU KNOW, IN THAT CASE, TRYING TO RESOLVE THAT MATTER, TRYING TO CURE THAT PROBLEM
PT OF THE ABSTRACT, THEY ALSO DID NOT ENTER ANY EVIDENCE INTO THE RECORD THAT INDICATED
THAT MR. ZINGIS WAS NOT ACHTHED BY THE TROOPER DEVEN NIS CASES. MEMBER IT MIGHT BE THE
CASE CERTAINLY GOING FOR THE APPROPRIATE WAY TO DEAL WITH THESE OLD CASES IS TO DEAL THESE
PCRS, BUT THAT IN THIS CASE DID NOT OBVIATE THE STATE'S RESPONSIBILITY TO PUT ON ITS CASE.
IT'S NOT THE DEFENDANT'S BURDEN TO DISPROVE THEIR CULPABILITY UNDER THE LAW. IT'S NOT
THE DEFENDANT'S BURDEN TO NECESSARILY TO GO AND DO A PCR. AHEAD OF TIME. THAT BURDEN
IS ON THE STATE WITH SET TORJ BY THE APPELLATE DIVISION BELOW AND BY JUDGE FALL IN HIS
VOLUMINOUS REPORT. PARAGRAPH OF THE STATE HAD THEIR OPPORTUNITY TO OFFER THAT EVIDENCE.
THEY DID MAKE AN ATTEMPT, BUT IT WAS A REFERENCE TO A SCREEN GRAB THAT WAS NOT PROVIDED
TO THE DEFENSE AS IT'S MEANT TO BE UNDER RULE 807. WE DIDN'T HAVE AN OPPORTUNITY TO
OBSERVE, TO LOOK AT IT AND TO DETERMINE IF WE HAD ANY OBJECTION TO IT. IN FACT, THAT DID
NOT HAPPEN UNTIL WE WENT THROUGH THE SPECIAL MASTER HEARING THIS PAST SUMMER. AS THE
STATE HAS KANTSED, THEY WERE, THEY BASICALLY INSTRUCTED THE MUNICIPAL COURTS NOT TO
PROVIDE THAT INFORMATION FOR, YOU KNOW, REASONS THAT I APPRECIATE BUT. CHIEF
JUSTICE RABNER: CAN YOU CLARIFY PRECISELY WHAT THEY PUT IN IN SUPPORT OF THE BURDEN THEY
HAD? MICHAEL B. COOKE: I DON'T, MY UNDERSTANDING IS WHAT HE REPRESENTED
WAS A SCREEN GRAB OF SOME LIST. I ASSUME -- WELL, I CAN MAKE ASSUMPTIONS OF WHAT IT WAS,
BUT I SAW IT SORT OF, YOU KNOW, AND OBJECTED AND SAID, YOU'LL HAVE TO, THIS IS NOT SUFFICIENT,
I RENEW MY OBJECTION TO THIS GOING FORWARD WITHOUT EVIDENCE OF, YOU KNOW, THE LIST. I
OBJECTED BASED ON THAT WHAT JUDGE LISA'S ORDER SAID AND I ACKNOWLEDGE THAT THEY EVEN THE
APPELLATE DIVISION BELOW SAID THE JUDGE LISA ORDER WAS NO LONGER VALID BECAUSE OF THE
CASSIDY LITIGATION THAT WAS DONE, BUT MADE THE SAME ARGUMENT THAT THE APPELLATE DIVISION
MADE, YOU KNOW, THIS IS WHAT MAKES SENSE, YOU KNOW, THE RATIONALE IS NOT ANY LESS VALID,
THE RATIONALE SET FORTH IN THE BOTH IN THE ORDER AND IN THE ANALYSIS OF THE STATE IN THEIR
MEMO TO THE PROSECUTOR IS THAT THE DOCUMENTED AREA OF EVIDENCE IS WHAT'S REQUIRED TO PROVE
THIS GIVEN THE WITHIN THE ABSTRACT. I DID LOOK AT IT BUT I ONLY SAW IT AS
I WAS STANDING THERE DURING THE SENTENCING. CHIEF JUSTICE RABNER: GO BACK
A STEP DID, THEY INTRODUCE AN AB STRAKTS. MICHAEL B. COOKE: THEY DID NOT.
CHIEF JUSTICE RABNER: JUST THE SCREEN GRAB YOU'RE REFERRING TO AND COULD YOU
TELL US GENERALLY WHAT IT CONTAINED? MICHAEL B. COOKE: I ASSUME, I HONESTLY
DOPE RECALL. I WOULD GUESS WHAT IT MUST HAVE BEEN, BUT I DON'T HAVE THE RECOLLECTION
OF IT BECAUSE I SAW IT FOR A MOMENT AND IT ENDED UP, THAT WAS FOUR YEARS AGO P I ASSUME
IT WAS A PAGE FROM THE LIST THAT THE STATE, YOU KNOW, THAT THE STATE CIRCULATED RGS TO THE
PROSECUTOR, TO THE PROSECUTORS BUT THEY ALSO DIDN'T MOVE MOVE IT INTO EFT. APARTMENT
AMOUNT YOU SAID A PRIOR. JUSTICE WAINER APTER: ENTER THE DRIVER'S ABSTRACT,
CORRECT. MICHAEL B. COOKE: YES. JUSTICE WAINER APTER: BUT
THERE WAS NO DRIVERS ABSTRACT HERE? MICHAEL B. COOKE: THAT WAS NOT ONE
ENTERED INTO EVIDENCE. I BELIEVE THERE WAS DISCUSSION OF IT. IT WAS A REPRESENTATION
MADE BY THE STATE. CHIEF JUSTICE RABNER: WHAT WAS THE REPRESENTATION.
MICHAEL B. COOKE: THAT THIS IS A SECOND OUT OF KOL LINGS WORTH. KOL LING
S WORTH KOLINGS WORTH. JUSTICE WAINER APTER: YOU'RE SAYING THERE WAS NO
EVIDENCE OF PRIOR COULDN'T VIC IN THE RECORD, PERIOD. SO EVEN NOT HAVING TO DO WITH MR.
DENNIS YOU'RE SAYING IN THIS CASE THERE WAS NO EVIDENCE OF PRIOR COULD THAT VIC INTO THE
RECORD. MICHAEL B. COOKE: MR. ZINGIS. JUSTICE WAINER APTER:
NO MR. DENNIS IS THE KAL BRATD, HE HAD NEVER A THERE WAS NEVER ANY KAL BRATHS ISSUE EVER,
YOU'RE SAYING HIGHER THIS IS FUM MENTAL FUNDAMENTAL PROBLEM THERE WAS NO EVIDENCE OF
A. JUSTICE SOLOMON: OTHER THAN THE REPRESENTATION OF THE PROSECUTOR.
MICHAEL B. COOKE: CORRECT. JUSTICE SOLOMON: THAT YOU OBJECTED TO?
MICHAEL B. COOKE: WELL, WHY HAVE TO LOOSHG AT THE RECORD. JUSTICE SOLOMON:
IF THERE WAS AN AGREEMENT THAT WAS ONE THING. MICHAEL B. COOKE: THE BIGGER
ISSUE IS I DID OBJECT TO THE REPRESENTATION MADE TO THE, ABOUT THE LIST, THE ZINGIS LIST,
I'M SORRY THE CASSIDY LIST, WHEN I SAY CASSIDY LIST, WHATEVER LIST THEY WERE REFERRING
TO THAT THEY SHOWED MY CLIENT FWHUT A CASSIDY CASE. JUSTICE WAINER APTER:
THAT'S ASSUMING THERE IS A PRIOR COULDN'T VIC THAT IS ENTERED INTO THE ROAR AND YOU'RE
CHALLENGING WHETHER OR NOT IT CAN BE USED NNL CASE, CORRECT? MICHAEL B.
COOKE: CORRECT. AND PART OF THE ISSUE IS THAT THIS IS A LIST THAT WAS MADE AT THE BEHEST
OF, ONCE THE ISSUE ARROWS, THIS LIST WAS MADE AT THE BEHEST OF THE ATTORNEY GENERAL'S
OFFICE, BY REQUEST TO THE STATE POLICE, THEY PRODUCED THE LIST, SENT IT TO THE ATTORNEY
GENERAL'S OFFICE, THEY DID SOME THINGS TO IT. THEY SENT IT TO AOC TO GET -- I'M SORRY,
THE COURT OFFICE TO GET THE ADDRESSES. FLAW ANOTHER ISSUE WITH REGARD TO THE ADDRESSES,
IT CAME BACK FROM THE COURT OFFICE WITH IN, A SPREADSHEET WITH MULTIPLE SHEETS. THERE WAS
WUVEN SHEET THAT SHOWED WHAT THEY THOUGHT WAS A HIGHER RELATIONSHIP BETWEEN THE CASES
AND THE NAMES AND ADDRESSES, AND THE SECOND SHEET THAT THEY WERE A LITTLE UNSURE OF.
JUSTICE WAINER APTER: REGARDLESS OF ANY ISSUES WITH THE LIST, NNL CASE JUDGE
FALL EXPLICITLY FOUND THAT YOUR CLIENT PROVIDED A BREATH SAMPLE, AN ASS R A U H 0042 AND
THAT ALCOTEST A U R U 0042 "IS NOT AN TRUMENT THAT WAS CALCULATED BY SERGEANT DENNIS.
ARE YOU ARGUE RG THAT THAT FACTUAL FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE?
MICHAEL B. COOKE: NOW? NO. MY ARGUMENT IS THAT I THINK JUDGE FALL SORT
OF COUCHED IT IN A SENSE WAS THERE WAS AN ABILITY -- WELL, THERE WOULD HAVE BEEN AN ABILITY
TO GO INTO THESE TWO DATABASES THAT EXIST AND FIND THAT INFORMATION OUT AND PROVIDE IT
AND PUT IT INTO EVIDENCE AT THE TIME AND THAT DID NOT HAPPEN. JUSTICE WAINER
APTER: YOU ARE AGREEING THAT THE AL TOE TEST TRUMENT INSTRUMENT THAT YOUR CLIENT PROVIDED
THE INSTRUMENT ON WAS NOT CALIBRATED BY DIDN'T NIS YOUR NOT CHAL LEFRMING IT WAS NOT
CALIBRATED BY SERGEANT DENNIS? MICHAEL B. COOKE: AT THIS POINT WITHIN THE
SCOPE OF WHAT WE'RE TALKING ABOUT HERE, NO. I DO HAVE OTHER ISSUES WITH IT, BUT THAT'S
SORT OF BEYOND WHAT WE'RE DOING HERE. CHIEF JUSTICE RABNER: SOUNDS LIKE
WHAT HAPPENED AT TRIAL THE FOCUS WAS PLACED ON THE CASSIDY DENNIS ISSUE.
MICHAEL B. COOKE: CORRECT. CHIEF JUSTICE RABNER: AND COUNSEL TOGETHER SORT
MUCH GLAUFTED GLOSSED OVER WITH AN AGREEMENT OR NOT AN AGREEMENT AND IT REPRESENT TATS
THIS WAS A SECOND OH FEPS RGS IS THAT A FAIR CHARACTERIZATION? MICHAEL B. COOKE: GLOSSED OIFR IT, I THINK IT WAS NOT, WHAT WE WERE REALLY CONCENTRATING ON.
THE PROSECUTOR STOOD UP AND SAID, JUDGE, I RECHT, THIS A SECOND OFFENSE, THERE'S PRIOR
DWI AND YOU DO NOT RECALL ANY OBJECTION BEING LEVELLED OR ANY, ACHE FURTHER ON THAT POINT?
P. MICHAEL B. COOKE: NO, I DON'T THINK I EXPLICITED OBJECTED TO THE
REPRESENTATION THAT THERE WAS A PRIOR. JUSTICE FASCIALE: MY UNDERSTANDING
IS THAT THE DEFENDANT HAD MOVED IN MUNICIPAL COURT TO BE SENTENCE THE AS A FIRST TIME
OFFENDER, ARGUING THAT THE JUDGE SHOULD DISREGARD THE 2012 DWI CONVICTION BECAUSE THE
STATE FAILED TO PRODUCE DOCUMENTARY EVIDENCE THAT THE 2012 CONVICTION WAS NOT BASED ON
ALCOTEST BREATH SAMPLE, TEST RENDERED INADMISSIBLE BY CASSIDY. THE
JUDGE DENIED THE MOTION AND SENTENCED HIM AS A SECOND TIME OH FINGER. MICHAEL
B. COOKE: THAT'S ACCURATE. OF. CHIEF JUSTICE RABNER: VOE COUNSEL,
OFTENTIMES IN THIS CASE, THE MUNICIPAL COURT P THE LAW DIVISION BOTH IMPOSED A SENTENCE
AS A SECOND OFFENDER, OFTENTIMES JUDGMENTS WILL BE AFFIRMED AS MODIFIED. DOES
THIS FALL IN THAT CATEGORY, THE DESCRIPTION OF THE JUDGE FALL'S FINDINGS THAT JUSTICE
WAINER APTER JUST READ, WOULD BE AN ADAPT TAGS, IS THAT A APPROPRIATE WAY TO LOOK AT THAT,
IF NOT, WHY NOT? MICHAEL B. COOKE: THE STATE HAD THIS BURDEN TO PRODUCE
THIS EVIDENCE AT TRIAL, TO ADD THIS EVIDENCE BACK INTO THE CASE I THINK RAISES THE SORT
OF DOUBLE JEOPARDY CONCERNS THAT WE WERE DISCUSSING EARLIER BUT OBVIOUSLY IN A
DIFFERENT WAY. YOU KNOW, THE STATE HAD THEIR OPPORTUNITY AND JUST TO, I DON'T WANT TO
GO TOO FAR AFIELD BUT JUST TO EXPLAIN HOW, A LITTLE BIT ABOUT WHAT HAPPENED ON THE GROUND
IN I DO RECALL, THE CONVICTION WAS IN DECEMBER, THE COURT FOR REASONS OF CASE VOLUME DECIDE
D TO ADJOURN IT FOR SENTENCING AND THAT WAS DONE IN JANUARY. WE HAD SOME TIME TO DISCUSS
IT BEFORE, I DID INDICATE THAT I HAD THIS OBJECTION ON THAT DAY OF, I DID, I HAD THIS
OBJECTION ON THE RECORD WHEN WE FIRST CONVENED ON I BELIEVE IT WAS SDWRAN 8TH JANUARY 8TH.
THE COURT GAVE THE STATE THE OPPORTUNITY AND SEE IF THEY CAN FIND SOME INFORMATION TO
HELP CURE THE ISSUE. AND THEN THE STATE WAS, YOU KNOW, UNABLE, THEY HAD AN TUVENT TO
BRING SOMETHING IN THAT WAS UNTIL ADMISSIBLE FORM AND THEY DID NOT DO THAT.
JUSTICE NORIEGA: THIS WAS THAT A TRIEM THIS WAS AT THE SENTENCING ARGUMENT, YEKT?
MICHAEL B. COOKE: THIS WAS, YES, IF I IF YOU REMEMBER BIFURCATED IT ENDED UP BEING B
IFURCATED BECAUSE OF THE SCHEDULING KERPS, THE TRIAL AS TO THE FACT OF GUILT WAS DONE I
BELIEVE IT WAS THE 20TH OF DECEMBER AND THEVEN THE SENTENCING WAS A JUFRNED TO THE 8TH
OF JANUARY THE FOLLOWING YEAR. JUSTICE NORIEGA: HAD THE JUDGE EVERY LIGHTER
ON AN ABSTRACT THAT THE R PRODUCED THE DRM NATHS AVENUE SECOND OFFENDER WITHOUT THE STATE
FORMALLY ADMITTING IT ATS A PIECE OF EVIDENCE AT SENTENCING? MICHAEL B. COOKE:
I BELIEVE THEY COULD HAVE DONE A, IT'S AN ABSTRACT, A FAIRLY WELL KNOWN THING THOT
ATTORNEYS. IT'S SOMETHING THEY COULD HAVE FOUND JUDICIAL NOTICE OF. JUSTICE
NORIEGA: OFTEN TYPES THAT'S WHAT HAPPENS, THE CLERK WILL PRIVENT OUT THE ABSTRACT, THE
JUDGE WILL TAKE A LOOK AT IT AND DISCUSS THE PARTY AND DECIDE HOW TO SENTENCE.
MICHAEL B. COOKE: SUMMONS IT'S DONE. JUSTICE NORIEGA: IN THIS CASE THE APPELLATE
DIVISION VACATED THE SENTENCE STLSHGS NO SENTENCE RIGHT NOW, CORRECT? MICHAEL B.
COOKE: CORRECT. JUSTICE NORIEGA: SO IF THE MATTER IS SENT BACK FOR
RESENTENCING EITHER WAY, WHY WOULDN'T THE PROSECUTOR HAVE THE OPPORTUNITY TO THEN RELY
ON THE ABSTRACT OR THE COURT RELY ON THE ABSTRACT TO DETERMINE THE SECOND DWI TAKING INTO
ACCOUNT THE DENNIS FACTORS NOW? MICHAEL B. COOKE: WELL, I THINK THAT WOULD
HAVE BEEN APPROPRIATE AT THE TIME TO TAKE JUDICIAL NOTICE OF IT. BUT, AGAIN, IT'S STL
SOMETHING THE STATE WOULD THEORETICALLY HAVE TO PROFFER, I MEAN THE EVIDENCE IS GENERALLY
KOCHLS FROM THE PARTIES AND THE JUDGE DOES, MAKE ITS DETERMINATIONS, MAKE THE DERNL NATION;.
JUSTICE WAINER APTER: WHY WOULD THEY NOT PROFFER THE EVIDENCE THAT WE SPOKE
ABOUT HOW YOUR CLIENT PROVIDED A SAMPLE ON AN ALCOTEST, 0042 THAT WAS NOT CALIBRATED BY
DENNIS AS JUSTICE NORIEGA SUTHD SUGGESTED, A RESENTENCING, NOT A TROIL, WHY COULD THE
STATE NOT PROFFER THAT EVIDENCE THEN? MICHAEL B. COOKE: I'M NOT CERTAIN
I UNDERSTAND WHY THEY WOULD HAVE AN OPPORTUNITY TO RETRY IT. JUSTICE NORIEGA:
NOT RETRY, JUST RESENTENCE. MICHAEL B. COOKE: OR RESENTENCE. I DON'T
THINK ANYBODY BRIEFED THAT SO I DON'T, IECHL NOT SEEING THAT. BUT, YOU KNOW, HE WAS STEVENSED
AT THE TIME THAT THE STATE HAD AMPLE OPPORTUNITY TO PROVIDE THE INFORMATION THAT THEY
NEEDED TO PROVE OF HIS PRIOR DUI. I ALSO DON'T SEE IT AS SOLELY A SENTENCING
SISH, IN THE SENTENCE THAT IT'S NOT QUITE A (DEIN THE SENSE THAT FIRST IS A CERTAIN RANGE
OF SENTENCING, A SECOND DUI IS A CERTAIN RANGE OF SENTENCING, A THIRD IS A CERTAIN RANGE
OF SENTENCING. IT'S NOT PRECISELY A RANGE OF SENTENCING, IT'S MORE LIKE THREE DIFFERENT
RGS EVEN THOUGH A LOT OF THE FACTS ARE THE SAME, IT'S REALLY THREE SEPARATE DEFINITIONS
OF A CRIME. PARK. JUSTICE WAINER APTER: AP (DY SEEMS TO TAKE NOTE OF THE
A ANY FACT THAT INCREASES THE PENALTY HAS TO BE PROVEN TO THE JURY WARD. THIS IS A FACT OF A
PRIOR CONVICTION. MICHAEL B. COOKE: I'M NOT QUIBBLING WITH THE PRIOR CONVICTION
PART AS I'M QUIBBLING WITH A LEVEL OF SENTENCING. UPG, THE HE A THE FINE RANGE FOR THE
FIRST IS, YOU KNOW, A FEW HUNDRED DOLLARS, A MINIMUM TO MAXIMUM IDRC, A MINIMUM TO MAXIMUM
-- A MINIMUM TO MAXIMUM SUSPENSION, INTER LOSHG DEVICES, THINGS LIKE THAT CHLD THERE'S
NO, ACTUALLY NO WAY TO DOVE KWAT FROM THAT BY STATUTE. THE CASE WAS MORE
ABOUT DEVIATING FROM A MAXIMUM, MINIMUM, DEVIATING BEYOND A MAXIMUM WHICH IS NOT
SOMETHING YOU CAN DPO WITH. JUSTICE WAINER APTER: PRIOR CONVICTION CAN
COME IN DOEVEN EVEN NEED BEYOND A REASONABLE DOUBT, JUST NEED PEFD POINT PLEASANT EFT
EVIDENCE. MICHAEL B. COOKE: I'M LESS QUIBBLING ABOUT THAT PART, I WILL SAY
THAT Z AND I GO BACK TO THE POINT THAT I MADE ABOUT, YOU KNOW, YOU DOPE HAVE A CLEAR
RECORD OF CONVICTION ANYMORE BECAUSE DURING THAT TIME PERIOD YOU HAD, YOU KNOW, A NUMBER
OF CASES THAT WERE NOT ACCURATE. JUSTICE SOLOMON: DO YOU HAVE A CLEAR RECORD
OF CONVICTION. THE ISSUE IS THAT NOBODY HAS EVER ATTACKED THE PRIOR CONVICTION IN ANY
PROCEEDING LIKE A PCR, MOTION TO CORRECT AN ILLEGAL SENTENCE, THAT'S NEVER HAPPENED.
AS YOU STOOD BEFORE THE COURT ON A SECOND DUI, HAD HE A PRIOR COULD HAVE BEEN VIKZ.
MICHAEL B. COOKE: CORRECT. JUSTICE SOLOMON: NOTHING HAPPENED
AFTER THAT TO UNDERMINE THE PRIOR COULDN'T VIC. NOW WE'RE SITTING SHOULD WE SEND IT BACK
FOR THAT PROCESS AND THE STHAIT HAS EXPLAINED AND JUDGE FALL NOUND THAT, NO, BECAUSE THERE'S
NOTHING TO ATTACK IT ON. MICHAEL B. COOKE: AND I DISAGREE ON TWO POINTS.
ONE I DPOE BACK TO OF 802 C 8. WE DID HAVE REASON TO BELIEVE THAT THERE WAS AN ISSUE
WITH THE PUBLIC DEFENDER BLIK RECORD. THERE WAS, A SIGNAL CAPTAIN FRAUD PERPETRATED ON
THE STATE. JUSTICE WAINER APTER: DIDN'T TRY TO ATTACK THE PUBLIC RECORD
IN ANY PROCEEDING ABOUT THAT PRIOR COULDN'T VIKDZ, THE FACT OF A PRIOR COULD HAVE BEEN
VIKZ WAS PROVEN. YOU COULD ATTACK THAT PRIOR COULD HAVE BEEN VIC FOR FILING, BY FILING
A PCR, BUCHLT YOU DID NOT DO SO AND OH THE PRIOR COULDN'T VIC CONTINUES TO STAND AND
IF YOU THINK IT'S UNRELIABLE FOR SOME REASON, YOU CAN ATTACK IT AND IT CAN BE VACATED AND
THEN THERE WOEVEN BE A PRIOR COULDN'T VIKD ANYMORE, BUT WHILE THERE IS, THAT'S ALL THAT
MATTERS. COCK COOK AND I GTS IAGREE NEW JERSEY I DID ATTACK THE PRIOR CONVICTION THEY
TRIED TO OFFER A PUBLIC RECORD AND THE PUBLIC ROURPD 802 C 8, THERE'S, THERE ARE, THERE WAS
SIGNIFICANT HEARINGS HELD, ENTIRE, YOU KNOW, DECISION OF THIS COURT SAYING THAT THERE WAS
PROBLEMS, PHONE SHULLY WITH THOUSANDS OF COULDN'T VIGZS. JUSTICE WAINER APTER:
THAT'S WHY THIS COURT LENT THE TIME THEN WILL LENGTHEN THE TIME SOMEONE CAN FILE A P K
R, THE COURT DID NOT EXPUNGE ALL OF THOSE COULDN'T VIC, THIS COURT LENGTHENED A 5 YEERT
PERIOD SOMEONE CAN FILE A PCR TO ATTACK THE CONVICTION AND THAT WAS IN OTHER WORDS DONE
HERE. MICHAEL B. COOKE: RIGHT, AGAIN, TWO THINGS, I CAN SHAPE AMONG THE
PEOPLE WHO DO THIS WORK, OH DIDN'T NECESSARILY SEE IT THAT WAY. THERE'S OBVIOUSLY THE
COURT WOULD HE ADDRESS, YOU KNOW, THE COURT MEVENT, YOU OBVIOUSLY KNOW MORE WELL THAN
I DO WHAT THE COURT MEANT, BUT HOW IT WAS PERCEIVED, IF I'D MAY, AND CERTAINLY BY
MYSELF, IS OF COURSE RS YOU WOULD ADDRESS THE PCR QUESTION, THESE KIND OF CASES WOULD GIVE
RISE TO A SIGNAL KAVENT NUMBER OF PCRS, SO YOU DO ABSOLUTELY HAVE TO ADDRESS THAT PARTICULAR
MECHANISM. BUT IT STILL DOESN'T ADDRESS THE ISSUE OR THE BURDEN OF PROOF
USING SOMETHING THAT DOESN'T NECESSARILY HOLD UP ANYMORE AS A PIECE OF PROOF.
CHIEF JUSTICE RABNER: SOUNDS LIKE YOU'RE ARGUING TWO DIFFERENT STRANDS AND I WANT TO MOIK
SURE I'M NOT MISTAKING THIS, ONE THAT THE STATE UTTERLY FAILED AT THE BEGINNING TO INTRODUCE
ANY EVIDENCE OF THE FIRST CONVICTION AND YOU'VE SUGGESTED THTD RECORD IS MUDDY ABOUT THAT.
AND TWO WHAT THI INTROEFR DUFD WAS NOT RELIABLE, WAS NOT TRUSTWORTHY, CHIT APPEARS JUDGE
FALL'S FINDINGS UNDERMINE BECAUSE OF WHAT WE'VE ALREADY COVERED. THERE ARE OBVIOUSLY
GENERAL KERPS WITH RELIABILITY BUT IN THIS PARTICULAR CASE, AS JUDGE TIS WAINER APTER
WENT COULD, KL TEST ENDED 0042 WHICH WAS NOT CALIBRATED BY DENNIS, WHICH CLAIM ARE YOU
ADVANCING, WHICH CLAIM? MICHAEL B. COOKE: I WOULD SAY BOTH, BUT I DISAGREE,
AND IT'S IN MY PAPERS, I READ JUDGE FALL TO INDICATE IT WAS SOMETHING THAT COULD HAVE
BEEN PROPERLY DONE, THE STATE COULD HAVE MET ITS BURDEN AT THAT TIME WITH THE PROPER EVIDENCE.
THE WAY, SPEAKING ABOUT IT WE ALL MAY HAVE WATCHED WOODY WOOD PECKER AT THE, IF WOODY
HAD ONLY GONE TO THE POLICE NONE OF THIS WOULD HAVE HAPPENED. IF THE STATE HADN'T DONE
THIS WE WOULDN'T BE HERE. CHIEF JUSTICE RABNER: FEM US YOUR EXPERIENCE
AND MR. GOLD CAN AS WELL, WHEN IT COPS TO SENTENCING WHAT HAPPENS IN COURT IS THERE A
FORMAL PROFFER OF THE ABSTRACT, SF STICK KERD AND INTRO DOIFD OR IS IT JUST REFERRED TO
OR SOMETHING ELSE ALTOGETHER? MICHAEL B. COOKE: I THINK IF THERE'S NOT
AN ISSUE, AS WITH ANY TRIAL, IF YOU HAVE AN ISSUE THAT NOBODY DISAGREES UPON, THEN YOU
OBVIOUSLY DON'T WASTE THE COURT TS TIME, WE WILL OFTEN STIPULATING THAT ABOUT WHICH THE
PARTIES DON'T DISAGREE. OBVIOUSLY THE VAST MAJORITY OF THESE CASES ARE RESOLVED BY PLEA
IN WHICH CASE, YOU KNOW, OFTEN YOU CHECK IT ON A SCREEN, YOU GET A COACH IN STUFFER RE
AND YOU KNOW THIS IS THE WAY IT IS AND WE'VE DECIDED TO ROW SOLVE IT, YOU KNOW, IN THIS
MANNER. THE COURT IS TYPICALLY MORE CONCERNED WITH HOW YOU GOT THAT PLEA INCLUDING, YOU
KNOW, PARTICULARLY IF YOU'RE NOT USING A READING FOR SOME REASON, THERE'S SOME DEFECT IN THE
ALCOTEST THAT YOU'RE GOING TO DO A LOWER TIER, YOU KNOW, A NONREADING, USUALLY IN FIRST
OFFENSES WHERE, YOU KNOW, A NONREADING COULD SIGNAL KAVENTLY HELP YOU. I THINK ETS A
LIKE ANY COURT IN THAT REGARD, IF IT'S NOT CONTESTED, IT'S SOMETHING THE PARTIES CAN
USUALLY STIPULATE TO. BUT NM CASE OBVIOUSLY WE HAD A DIFFERING OPINION AS TO THE VALUE
OF THAT INFORMATION. RAB RACK ANYTHING I WOULD LIKE TO ADD TO YOUR PRESENTATION?
MICHAEL B. COOKE: I DID WANT TO SAY THAT IT SEEMS THAT, TWO THINGS, JUDGE FALL AGAIN
MY READING OF THE REPORT TWHAU THE NOTICE AT THE TIME, AT THE TIME THAT WE WERE OF LITIGATING
THE ZINGIS MATTER, WAS NOT ADEQUATE FOR PEOPLE TO UPDZ THAT THEY MAY HAVE, THEY MAY BE
AFFECTED BY THIS CASE, THERE WAS A LOT OF ISSUES WITH THE MAILING. LY THERE WAS SOME ISSUES
WITH THE LISTS. CHIEF JUSTICE RABNER: WAS YOUR CLIENT HARMED BY ANY OF
THAT? MICHAEL B. COOKE: MY CLIENT WAS HARMED. JUSTICE WAINER
APTER: IN A PERFECT WORLD HE WOULDN'T HAVE BEEN ON THE LFT TO ANY OF THE PEOPLE TO NOTICE,
IS THAT CORRECT? MICHAEL B. COOKE: THAT'S TRUE. BUT AGAIN, SO THE POINT
I MAKE IN BRINGING THIS UP IS THAT IT SEEMS THAT THERE'S GROEMENT SHTHS I MIGHT BE WRONG,
BETWEEN, YOU KNOW, MY POSITION, JUDGE FALL'S POSITION P EVEN THE STATE'S POSITION THAT
THERE NEEDS TO BE A NOTICE AT THE TIME OF TRIAL. THAT ALSO DID NOT HAPPEN. AND MAJOR
REASON FOR THAT IS THAT MOST OF, IN THESE CASES, YOU KNOW, IF YOU'VE GOT TEP A DUI AND
YOU HAVE NO, UCHG, NO SUBSEQUENT DUI, YOU'VE PAID YOUR FINE, IT'S A FEW HUNDRED DOLLARS,
YUCH SIFSHED YOUR SUS SPEPGS, SPENT YOUR TIME IN THE IDRC, REEL LOIFKLY SPEAKING, THE
LEFT YOU CAN HOPE FOR IS TO DPET YOUR MONEY BACK AND YOU'LL OFTEN, UNLESS YOU QUALIFY
FOR A PUBLIC DEFENDER, YOU KNOW, YOU'RE GOING TO PAY AN ATTORNEY TO DO THAT, UNLESS YOU CAN
FIGURE OUT HOW TO DO IT YOURSELF AND SPEND THAT TIME. SO REALISTICALLY
SPEAKING, THE NOTICE, SENDING SORT OF BLANKET NOTICING OUT, WHILE ETS A, I WOULD SAY IT'S
PROBABLY LEGALLY REQUIRED AND IT'S SOMETHING WE SHOULD DEFINITELY DO BECAUSE SOME PEOPLE
MIGHT FOR WHATEVER REASON FIND IT IN THEIR INTEREST UNDO THE CONVICTION THAT, BECAUSE
MAYBE IT WAS WRONGFULLY HELD AND THE FIRST TIME MOEFT OF THESE PEOPLE ARE GOING TO SEE
THE NEED TO DO SOMETHING ABOUT THIS IS AT THE TIME OF TRIAL. AND EVEN THE SUGGESTION
THAT THE STATE SEEMS TO, IF I UNDERSTOOD THEM PROBLEM PERLY PROPERLY IN THE AT THE TIME
OF TRIAL WE'LL HAPPENED YOU A PIECE OF PAPER, WET THAT'S THE RIGHT WAY TO DO IT SHTHS
I'LL LEAVE IT TO THE BAR ASSOCIATION TO COVER. BUT THE TIME TO NOTIFY THE DPEFT RGS EACH
IF WORRY GOING TO HAVE THAT DEM THEM DID A P C R. IS AT THE TIME OF TRIAL WHEN IT WOULD
MOST AFFECT THEM. SO NO HE DIDN'T GET A NOTIFICATION BUT THAT WAS ONE OF THE
BASES THAT THE STATE HAD MET THEY MET THEIR BURDEN WAS, YOU KNOW, IF YOU HADN'T GT 10
A LETTER MEANS THAT YOU WEREN'T AFFECTED. IT MIGHT HAVE TURPD OUT THAT WAY, BUT THAT'S
NOT ACTUALLY TRUE AND ALSO ET SEEMS LIKE WE'RE GOING DOWN THE ROAD OF DOING THE PCRS,
MAKE NOT AT THE SAME TIME OF TRIAL BUT AR ROUP THE TIME THE TRIESHLGS OR THE 2ND OR
SUBSEQUENT DUI. CHIEF JUSTICE RABNER: DON'T READ ANSWERS INTO THE
QUESTIONS. P THAT MIGHT BE A GOOD PLACE FOR US TO STOP IF THAT'S ALREADY. MICHAEL
B. COOKE: ONE THING I WAVEN TO BRING OUT I POL JOYCE, I DID, THE COURT DID ASK THE STATE
THEIR OPINION ON WHETHER OR NOT THE. CHIEF JUSTICE RABNER: ANSWER WHATEVER
IT IS AND BRING YOUR ARGUMENT TO A CLOSE. MICHAEL B. COOKE: AS THE COURT
MIGHT KNOW, MOST OF THE JUDGES ARE PART TIME, SOME HAVE MULTIPLE COURTS, THE PROSECUTORS
TEND TO BE PART TIME, I'M NOT SURE THAT IF THE COURT, I DON'T THINK THERE'S, IT WOULD
BE AN ENORMOUS PROBLEM IFFING DOCTOR THE COURT DO IT IN A BIFURCATED PROBLEM, I MEAN A
PCR TO DOLE WITH THE PRIOR IF THAT COMES UP. LOGISTICAL REASONS I'M SURE CAN BE WORK
OUT, I'M SURE SOME JUDGES MIGHT HAVE AP ISSUE AND SOME PROSECUTOR MIGHT HAVE AN ISSUE
BUT GENERALLY SPIKING IT'S A WORK VOLUME IRRELEVANT AND I DON'T KNOW THAT IT MATTERS
RAB RACK THANK YOU COUNCIL. JEFFREY EVAN GOLD: THANK YOU. MAY
IT PLEASE THE COURT, CHIEF JUSTICE AND ASSOCIATE JUSTICES IF I MAY I WOULD LIKE TO GO
OVER SIX POINTS REAL QUICK LIKE BULLET POINTS SO YOU CAN SEE THE WHOLE OF OUR POSITION,
THIS WOULD BE THE BULLET POINT VERSION ON ONE PIECE OF PAPER. THE CASE IS REALLY NOT ABOUT KAS AS I SAID DEE AND WHETHER -- IT REALLY IS ABOUT THE BURDEN AND DISCOVERY
MR. COOKE IS TALKING ABOUT IT LIKE A TRIAL BECAUSE IN APRIL PREND DEE, YES, APRIL PREND
DEE SAYS, THAT WHEN IT IS JUST A SENTENCING ISSUE THEN IT'S PREPONDERANCE, BUT THAT'S
NOT ALL WE HAVE HERE. WHAT WE HAVE IS A PERIOD OF TIME WHEN THE APPELLATE DIVISION AN
JUDGE FALL BOTH SAID DURING THIS PERIOD OF EIGHT YEARS APPROXIMATELY WHETHER THAT CONVICTION
IS SOMETHING A COURT SHOULD RELY ON IS SUBJECT TO QUESTION. IT'S NOT JUST A BUSINESS
RECORD. IT'S NOT JUST SOMETHING THAT IS PRINTED OUT ON THE BENCH. AND I THINK THE ANSWER
TO THE QUESTION ABOUT HOW IT WORKS IS AN A STATUTE THAT THE JUDGE HAAS TO RUN IN
MUNICIPAL COURT. I WASN'T THINKING ABOUT IT UNTIL THE QUESTION BUT THERE IS A STATUTE
THAT SAYS THE JUDGE FWETS THE ABSTRACT, THAT HE CAN'T SENTENCE WITHOUT DOING IT.
BUT, WHAT APPELLATE PREND DEE SAYS IF YOU WANT TO INCREASE THE PUNISHMENT, YES, WE'RE TALKING
ABOUT THAT, WE'RE TALKING ABOUT INCREASING THE PUNISHMENT THEN IT HAS TO BE BEYOND A
REASONABLE DOUBT UNLESS IT IS JUST MERELY A PRIOR RECORD BUT WE DON'T HAVE JUST MERELY
A PRIOR RECORD, WE HAVE A PRIOR RECORD THAT THE COURT AS THE GATEKEEPER OF EVIDENCE HAS
TO MAKE SURE IS NOT TAINTED BY MALFEASANCE. MARK DENNIS IS IN PRISON AS WE
SPEAK FOR, YOU KNOW, HIS DEEDS. IT WASN'T WHEN WE DID CASSIDY IN TWAT I WAS
HERE, HE WASN'T. THAT WAS YET TO BE DETERMINED DURING CASSIDY. THAT'S THE APRIL (DEE
PART OF IT. SO IT IS THE TIME PERIOD WHEN SOMEBODY WALKS INTO COURT AND THE JUDGE LOOK
S AT AN ABSTRACT AND I WILL LET MR. COOKE AND OUR ARGUMENTS SIT FOR THAT BUT DURING THE
TIME PERIOD BOTH THE APPELLATE DIVISION AND JUDGE FALL SAID WE KNOW THAT IF IT WAS DENNIS
HE HAS FALSELY CERTIFIED STATEMENTS IN THAT CASE, IF IT WAS DENNIS. JUSTICE WAINER
APTER: YOU SAY APPELLATE SAYS THAT, BUT APPELLATE PREND DEE DOESN'T SAY ANYTHING ABOUT
A POSSIBLE CONVICTION NOT BEING RELIABLE, CORRECT? JEFFREY EVAN GOLD:
Q. IT JUST SAYS? JEFFREY EVAN GOLD: IT DOES SAY THAT BUT MY BRIEF IS
REPLETE WITH ALL THE SPECIAL THINGS WE OUGHT TO DO WHETHER WE'RE PROSECUTORS, DEFENSE
LAWYERS OR A COURT WHEN WE KNOW A POSSIBLE MALFEASANCE MAY BE THE --
JUSTICE WAINER APTER: UNDERSTOOD BUT THOSE SPECIAL THINGS ARE NOT GROUNDED IN APRIL
PREND DEE, APRIL PREPARED DEE DOESN'T SAY ABOUT WHEN A CONVICTION MAY BE MORE RELIABLE,
LESS RELIABLE, WHAT A COURT WOULD DO TO ENSURE RELIABILITY. JEFFREY EVAN GOLD:
THAT'S CORRECT. IT JUST MAKES NO SENSE TO SAY THERE IS A LOWER BURDEN FOR SOMETHING WE
ALREADY KNOW DURING THAT TIME PERIOD IS SUBJECT TO QUESTION. JUSTICE PATTERSON:
YOU HEARD DAG OEB DISCUSSIONS ABOUT S 152 I THINK I HAVE THE NUMBER RIGHT AND THE CONFIDENT
IALITY ISSUES IT PRESENTS IN ITS CURRENT FORMAT, WHAT IS YOUR RESPONSE AN WHAT SOLUTIONS
TO THAT PROBLEM CAN YOU SUGGEST. JEFFREY EVAN GOLD: EASY AND IT'S IN THE
BRIEF, FIRST OF ALL, WHAT JUDGE FALL DID WITH 152 HE TALKED ABOUT AT THE TRIAL, WHICH
I'M STILL ADOPTING THAT TRIAL RATHER THAN SENTENCING JUDGE BECAUSE IT'S AN ELEMENT,
IT'S AN EXTRA ELEMENT THAT ON THAT DATE, THE STATE HAS AN EXTRA BURDEN BEYOND A REASONABLE
DOUBT, WHICH CAN BE SATISFIED BY REFERENCE TO S-152, WHICH HE THEN SAID THE DEFENSE SHOULD
BE ENTITLED TO VERIFY, GO BACK AN LOOK INDEPENDENTLY. SO THAT'S AN IMPORTANT POINT
BECAUSE THE ATTORNEY GENERAL'S POSITION IS THEY WOULD LIKE THIS TO BE A SECRET.
NOW, MAYBE THAT IS NOT THE RIGHT WORD FOR IT, BUT WE'RE ONLY HERE BECAUSE WE WEREN'T ABLE
TO TEST THE OTHER LISTS AND WHATEVER ELSE -- JUSTICE PATTERSON: LET ME ASK YOU
A PRELIMINARY QUESTION GELD GOLD YES. JUSTICE PATTERSON: I'M NOT ASKING
IF YOU AGREE TO IT, BUT DO YOU DISPUTE THE ASSERTIONS OF THE STATE THAT THERE ARE THIRD
PARTY CONFIDENTIALITY ISSUES RGS PERSONAL IDENTIFYING INFORMATION, INFORMATION THAT
SHOULD NOT BE PUBLICLY AVAILABLE ON THAT DATABASE, WHATEVER THE CORRECT TERM FOR IT IS
AS IT NOW STANDS? JEFFREY EVAN GOLD: OKAY. I DID TASH DASH
WE DID MAKE A SUGGESTION, WHICH IS IN THE BRIEF THAT WE CAN ALLEVIATE THIS LIKE THAT.
YOU SIMPLY DELETE THE PERMANENT IDENTIFIERS IN THE S-152, ALL OF THEM, JUST LIKE THEY ARE
LIST, DELETED IN THE ALCOTEST INQUIRY SYSTEM WHICH HAS BEEN PUBLIC SINCE -- U, AFTER CHUN
SO THAT'S THE WAY IT IS NOW, ALL WE HAVE TO DO IS THE SAME THING WITH THIS SPREADSHEET.
JUSTICE WAINER APTER: BUT THEN HOW DO YOU FINDS -- JEFFREY EVAN
GOLD: UH-HUH. THAT WAS THE PIECE FROM THE DISCUSSION BEFORE, THE A O C MUNICIPAL
WEBSITE PORTAL I THINK IS WHAT WE CALL IT, RUN BY THE A O C, IF I PUT IN ONE OF YOUR NAMES,
I CAN FINDS YOUR TICKETS RIGHT NOW. SO THIS IS THE WAY IT WORKS IN PRACTICE,
YOU GET AN ABSTRACT. AN ABSTRACT DOESN'T TELL ME A SUMMONS NUMBER SO THAT'S NOT GOOD
ENOUGH BUT IF I HAVE THE ABSTRACT I KNOW WHERE IT HAPPENED, I CAN GO TO THE A O C WEBSITE
AN GET THE SUMMONS NUMBER. THE SUMMONS NUMBER IS NOT ONE OF THOSE POERM IDENTIFIERS THAT
GETS DELETED. IT'S IN THE A I S RIGHT NOW FOR EVERY AL AL THERE EVER WAS. L BY USING
THE PORTAL WE LINK THE REDACTED 152 TO THE ACTUAL CONVICTION; THAT'S HOW IT IS DONE.
JUSTICE WAINER APTER: ISN'T THAT THE SAME AS THE OTHER DATABASE THAT YOU
ALREADY CAN SEARCH. JEFFREY EVAN GOLD: NO. JUSTICE WAINER APTER:
THAT WHAT IS THE DIFFERENCE? JEFFREY EVAN GOLD: THE A I S IS SET UP WHERE
YOU HAVE TO GO TO A PARTICULAR MACHINE AND THERE IS 550 PROKS MACHINES SO IT'S NOT LIKE
LEKS SIS, YOU CAN'T JUST TYPE EVERYTHING IN. YOU HAVE TO GO TO EACH MACHINE SO THAT'S
AN IMPOSSIBLE TASK. THE SOLUTION THAT WE'VE PUT FORTH IS MEANT PARTICULARLY TO RESOLVE
THIS IN FIVE MINUTES EVEN IF YOU'VE DONE NOTHING ON THE DAY OF SENTENCING. THEORETICALLY
PEOPLE WILL GET USED TO THIS AND FIND OUT IF IT IS A DENNIS CASE OR NOT AND ASK FOR A
PCR. BUT IF YOU PUT IN AN IN DECK THAT'S WHAT S-152 IS, AS WE MENTIONED BEFORE,
THE REPOSITORY THAT WE CREATED IS NOT BY ITSELF THAT HELPFUL. IT GIVES YOU THE ACTUAL
EVIDENCE OF A SIGNED CERTIFICATE TO PUT INTO EVIDENCE BUT YOU NEED TO HAVE AN INDEX THAT'S
WHAT S-152 IS. JUSTICE PATTERSON: AND THAT'S WHAT THE HAS THE LIST OF THOUSANDS
AN THOUSANDS OF NAMES. JEFFREY EVAN GOLD: IF YOU REDACT IT WITHOUT THE NAMES,
NO DRIVER'S LICENSE, NOTHING. JUSTICE PATTERSON: IN THE UNLIKELY EVENT
YOU HAD TO SEARCH FOR THIS HOW WOULD YOU -- JEFFREY EVAN GOLD: USE THE SUMMONS
NUMBER. JUSTICE PATTERSON: YOUR CLIENTS DON'T WALK IN WITH THEIR SUMMONS
NUMBER FROM PRIOR CONVICTIONS, DO THEY. JEFFREY EVAN GOLD: REMEMBER, THE
WAY A PRACTITIONER GETS IT THE PROSECUTOR SENDS HIM AN ABSTRACT IN DISCOVERY. THIS IS
ALL ABOUT DISCOVERY. IF YOU HAVE TO THINK ABOUT IT AS A NORMAL MUNICIPAL COURT CASE,
IT'S ABOUT DISCOVERY SO YOU'VE GOT THE ABSTRACT. THE DEFENSE ATTORNEY/PROSECUTOR CAN
NOW GO TO THE PORTAL AND LOOK THAT UP, WHAT IS THE SNONS NUMBER BECAUSE YOU HAVE THE NAME,
YOU HAVE THE DRIVER'S LICENSE AN THE OTHER INFORMATION NECESSARY AND WHEN YOU GET THE
SUMMONS NUMBER IT'S GENERALLY YOUR KEY. NOW, WHERE THERE WILL BE A FEW THAT
GET LOST, YES, BUT -- JUSTICE PATTERSON: YOU'RE SAYING THEY SHOULD NOT USE
NAMES. JEFFREY EVAN GOLD: WELL, YOU ASKED THE QUESTION SO I AM TAKING THIS
FURTHER. IT IS MY PLEASURE TO ASK ANSWER YOUR QUESTIONS. I DO THINK, THAT
WHAT JUDGE FALL SAID FOR ELEVATING AN OFFENSE AS AN ELEMENT REQUIRES THE STATE TO PROVIDE
AT SENTENCING WHETHER IT IS OR IS NOT, HE SAID THEY SHOULD VERIFY. I'M TRYING TO FIND
WAYS WHERE YOU DON'T HAVE TO WAIT FOR THE LAST MINUTE, WE DON'T HAVE TO POSTPONE CASES
OF THE WE CAN ALL KNOW THIS. AS A DEFENSE ATTORNEY WE WANT TO KNOW THAT AS SOON AS THE
CLEENT WALKS IN. JUSTICE MICHAEL NORIEGA: THIS WAS USUALLY SOMETHING THAT
WOULD HAPPEN IF YOUR CLIENT NEVER MENTIONED A PRIOR OFFENSE AN YOU'RE GOING IN THERE
ASSUMING YOU'RE GOING TO PLEAD OUT AS A FIRST TIME OFFENSE, THE PROSECUTOR SAYS, ITS YOUR
CLEEP HAS A FIRST OFFENSE SO IF YOU PLEAD IT IT HAS TO BE A SECOND, BUT IF YOU COULD DO
IT JUST BASED ON THE SUMMONS NUMBER AND FIND IT'S WITHIN THE DENNIS CATEGORY AND THE CASE
GETS ADJOURNED FOR DECIDING WHETHER OR NOT PCR IS VIABLE WOULD THAT BE SUFFICIENT TO SATISFY
THIS ISSUE. JEFFREY EVAN GOLD: THE WAY WE DO IT WITH THE REDACTED ONE, WHICH
HAS ABSOLUTELY ZERO PERMANENT IDENTIFIER ISSUES BECAUSE THAT'S EXACTLY THE WAY A I S
IS, THE DEFENSE ATTORNEY CAN KNOW IN THE BEGINNING OF THE CASE. THE PROSECUTOR CAN ROUTINE
LY PUT IT TO HIS SECRETARY, SEND IT OUT IN DISCOVERY, IT IS OR IT ISN'T A DENNIS CASE,
NOT WAIT FOR THE END. JUSTICE SOLOMON: DOES THE ABSTRACT PROVIDE THE
INFORMATION TO GET THE SUMMONS NUMBER FROM THE A O C AND A SUMMONS NUMBER IS COMPARED TO
S 152 AND THEN YOU KNOW GELD GOLD YES. JUSTICE SOLOMON: OKAY. GOEL GOLD
WE STILL THINK -- THAT SOLVES CASSIDY. IT WAS PT JUST FALL'S BUSINESS BUT PART OF IT
WAS TO EXAMINE WHAT HAPPENED IN CASSIDY. IT DIDN'T REALLY WORK. BUT IF WE HAVE THE
UNREDACTED LIST UP THAT'S AS GOOD NOTICE FOR ANYBODY WHO EVER HAD CASSIDY OVER FOREVER,
IT CAN BE ON LINE. JUSTICE PATTERSON: LET ME ASK A VERY SIMPLE
QUESTION. IF YOU WERE A SELF OR A SELF REPRESENTED PERSON WERE TO ACCESS THAT
DATABASE WITH THE PERMANENT IDENTIFIERS DELETED OR NOT PART OF THE DATABASE, YOU WOULD
NEED A SUMMONS NUMBER OR YOU WOULD GET NOTHING OUT OF THE DATABASE? JEFFREY
EVAN GOLD: YEAH, THAT'S GOING TO BE THE KEY. JUSTICE PATTERSON: SO A PERSON
WHO IS NOT REPRESENTED BY YOU, IN OTHER WORDS, A LESS LUCKY PERSON, WHO IS SEEKING TO
DO THIS ON THEIR OWN IS COMBOEG TO HAVE TO FIND THEIR SUMMONS NUMBER IN THE DRIVER'S
ABSTRACT? JEFFREY EVAN GOLD: THE ABSTRACT TELLS YOU THE WHEN AS WAS CORRECT
LY POINTED OUT, THEY WERE DRUNK AND IT WAS TEN YEARS AGO, THEY DON'T EXACTLY KNOW. YOU
GET THE ABSTRACT FROM THE PROSECUTOR, NOW YOU GO TO THE PUBLIC A O C WEBSITE, NOTHING
SPECIAL. JUSTICE PATTERSON: IS THIS SOMETHING THAT A PRO SE LITIGANT.
JEFFREY EVAN GOLD: SURE. JUSTICE PATTERSON: LET ME FINISH THE QUESTION.
IS THIS SOMETHING THAT A PRO SE LITIGANT COULD DO. JEFFREY EVAN
GOLD: I HAVE DEFENDANTS CALL ME HAVING LOOKED UP THEIR STUFF ALREADY, HAVING LOOKED IT'S
A PUBLIC WEBSITE. JUSTICE MICHAEL NORIEGA: THEY CAN ALSO WALK INTO A MUNICIPAL
COURT IF THEY REMEMBER WHERE IT HAPPENED AND SAY CAN YOU PLEASE PROVIDE ME WITH A SUMMONS
FOR MY ARRESTED. JEFFREY EVAN GOLD: THAT'S RIGHT. IT'S PART OF THE ISSUE
THAT JUDGE FALL FOUND ABOUT NOT RESTRICTING IT TOO MUCH, YOU MENTIONED ABOUT RESTRICTING
IT TO THE 27,000 THAT DONE HUE FIRST CREATED OR ALLEGEDLY CREATED WE DON'T REALLY KNOW
BUT JUDGE FALL WAS RIGHT YOU WANT TO KNOW YES OR NO. NOT JUST I DIDN'T FIND HIM ON THE
LIST, WHO DID DO IT. IT WILL TELL YOU DEFINITIVELY AND AGAIN, THE BEAUTY OF IT IS
FIVE MEANT ONLINE FROM THE HALLWAY ON YOUR PHONE. JUSTICE PATTERSON: HOW
DOES THE SELF REPRESENTED LITIGANT KNOW ABOUT THE DENNIS ISSUE TO BEGIN WITH? GEL GOLD
WELL, I MEAN, THERE AREN'T MANY, YOU KNOW, BUT. JUSTICE PATTERSON: THERE
AREN'T MANY WHAT. JEFFREY EVAN GOLD: THAT WAS THE POINT IN SENDING LETTERS.
THERE ARE TWO ISSUES WHAT IS GOING ON IN SYNCH ON THE DAY OF SENTENCING AN THEN HOW DO
WE FIX UP CASSIDY. THOSE ARE TWO SEPARATE THINGS. I GET THIS LIST FWETS YOU AS FAR AS
WE COULD EVER GO BECAUSE THERE IS NO WAY WE COULD DO MAILINGS TO THE OTHER 20 PERCENT
WHO PROBABLY DIDN'T GET ANYTHING. IT'S AS GOOD AS WE'RE GOING TO GET. MOST PEOPLE WHO ARE
THINKING ABOUT PCRS ALREADY HAVE A CASE AN A LAWYER AND THEY'RE GOING TO COURT, EVERYBODY
IN MUNICIPAL COURT FOR A DWI IS REPRESENTED. I CAN'T EVEN TELL YOU THE LAST TIME IT HAD
TO BE 40 YEARS AGO I SAW SOMEBODY UNREPRESENTED FOR A DWI BECAUSE THAT'S OUR MANTRA THE
JUDGES PUSH IT THEY WANT THEM TO GET LAWYERS AND THEY DO AND THEY'RE ENTITLED TO PUBLIC
DEFENDER ERS. THAT'S WHY I SAY THIS SOLUTION IS OBVIOUS. JUSTICE
PATTERSON: ARE THEY REPRESENTED ON A FIRST OFFENSE BY A PUBLIC DEFENDER.
JEFFREY EVAN GOLD: SURE. YES. THE COURT: HOW ABOUT ON A PCR.
JEFFREY EVAN GOLD: ON THE PCR, THOSE ARE -- MAY I DIGRESS TO NOT EXACTLY ANSWER THAT BUT
TO SAY TO YOU THAT YOUR IDEA ABOUT HAVING THE SENTENCING AND THE PCR ON THE DAY WAS
RECOMMENDED BY THE SUPREME COURT COURT MUNICIPAL COURT COMMITTEE AND I KNOW BECAUSE I
AUTHORED IT IT WASN'T APPROVED. THE COURT: WHAT IS YOUR VIEW ON IT.
JEFFREY EVAN GOLD: IT'S FINE. PROSECUTORS LIKE THESE THINGS TO GO QUICKLY JUDGES LIKE
THEM TO GO QUICKLY AND DEFENSE ATTORNEYS WAPT THEM TO GO QUICKLY. THE COURT:
ARE THERE ANY IMPEDIMENTS THAT YOU SEE BASED ON YOUR PRACTICE IN THIS AREA.
JEFFREY EVAN GOLD: I AUTHORED THE RULE AND IT CAME UP AND FOR WHATEVER REASON WASN'T
APPROVED HERE BUT THE COMMITTEE AS A WHOLE RECOMMENDED THAT RULE. IT'S UP TO THE COURT
TO DECIDE. I DON'T SEE A DOWNSIDE. I THINK IT MAKES PERFECT SENSE ACTUALLY.
THE COURT: CAN I ASK YOU AN ANOTHER QUESTION, MOST OF THESE CASES ARE RESOLVED BY GUILTY
PLEAS OF COURSE AND IF THE GUILTY PLEA IS OVERTURNED YOU GO BACK AND YOU START ANEW.
THE QUESTION ABOUT WHETHER THERE WAS ANY JEOPARDY ISSUE RELATED TO A TRIAL, ARE THERE TRIALS
IN YOUR EXPERIENCE WHERE THE STATE ONLY PUTS IN THE BAC AS OPPOSED TO OBSERVATIONAL EVIDENCE,
AS WELL? JEFFREY EVAN GOLD: I HAVE TO SAY THEY COULD USE NEW EVIDENCE.
I AGREE WITH THE STATE ON THAT. L. I ALSO FWRAE WITH MR. COOKE WHERE IN
A CASE WHERE THEY DON'T HAVE THEIR CASE TOGETHER ON THE SENTENCING AND TRIAL DATE THAT
YOU CAN'T SEND IT BACK AND GET -- OH, THEY DIDN'T PUT IN THE MURDER WEAPON, OKAY, WE SEND
THEM AN OPINION YOU NOW WHAT THE MURD WEAPON IS, OKAY, YOU CAN HAVE A SEPARATE TRIAL,
BUT ON YOUR QUESTION, THEY CAN... THE COURT: IN YOUR EXPERIENCE WHEN THESE
CASES GO TO TRIAL DOES THE PROSECUTION INTRODUCE EVIDENCE OF BOTH OBSERVATIONAL EVIDENCE
IF IT EXISTS AN BAC OR SIMPLY THE BAC. JEFFREY EVAN GOLD: THEY DO EVERYTHING.
THEY PUT EVERYTHING THEY HAVE. THE REASON I SAY IT. CHIEF JUSTICE RABNER:
SO IT IS OFF THE TABLE AS A GENERAL PROPOSITION. JEFFREY EVAN GOLD: I COULD
IMAGINE THE SCENARIO YOU HAVE A KEY WITNESS WHO ISN'T AVAILABLE IN THE FIST TRIAL AND
WAS IN AFGHANISTAN TEN YEARS AGO, NOW HE IS AVAILABLE, I DON'T KNOW. I DON'T THINK
THAT'S A DOUBLE JEOPARDY ISSUE. IF YOU HAVE A SUCCESSFUL PCR AN THE RESULT OF THE PCR
IS TO REOPEN THE CASE, WHAT I DO IS I TRY THE CASE NOW; THAT'S WHAT WE'RE DOING AND THAT'S
BASICALLY WHAT HAPPENED AT THE PCR COURT WITH JUDGE FALL. HE DIDN'T TRY THE CASES PER
SE BUT THEY WERE VAEFLD ONE BY ONE EVALUATED ONE BY ONE AS TO WHETHER IT COULD LIVE ON
ITS OWN WITHOUT A READING OR IT DIDN'T AFFECT IT. JUSTICE WAINER APTER:
YOU MEAN IN THOSE 1200 CASES RGS RIGHT? JEFFREY EVAN GOLD: YES, IN THE
1200 OF 27,000 CASES, WHY ARE THERE ONLY SO FEW BECAUSE MOST OF THEM DO THEM WHEN THEY
COME TO SENTENCING THAT'S WHEN THIS HAPPENS, WHEN THE DEFENDANT SOMETIMES BUT RARELY
COMES TO THE DEFENSE ATTORNEY OUT OF THE BLUE AND SAYS I NEED TO GET THAT OFF MY RECORD.
IT HAPPENS, BUT THEY SPENT THE $5,000 IN FEES, THEY LOST, CAN NEVER GET THAT SIX MONTHS
OR SEVEN MONTHS BACK, THEY COME WHEN IT MATTERS. OCCASIONALLY YOU HAVE SOMEONE THAT IT
MATTERS TO AND WE DO ASK THEM TO OPEN IT. THE COURT: MR. GOLD WE'RE AT THE
RISK OF HAVING A MUNICIPAL COURT PROCEEDING HERE TODAY, SO IF YOU COULD MOVE ON. TAKE
FIVE MORE MINUTES MAX AND LET'S CLOSE IT OUT. FWOELD GOLD SO IF YOU LOOK AT IT.
JEFFREY EVAN GOLD: WHO IS MARC DENNIS IN HIS, HE IS SOMEBODY WHO THE STATE HAS PARTICULAR
KNOWLEDGE ABOUT. T HE MAY BE INVOLVED IN THE EVIDENCE THAT THEY ARE PROFFERING TO RAISE
THE OFFENSE AND THERE IS A DISCOVERY RULE. THIS ISN'T LIKE WE'RE REINVENTING YOU KNOW,
IN MUNICIPAL COURT IT'S SEVEN SEVEN SEVEN, IN CRIMINAL CASES 3, 13, THREE, THE STATE HAS
TO TURN OVER EVIDENCE AT THAT TIME IF THEY WANT TO GET IT IN OF YOU KNOW, SCIENTIFIC RECORDS,
WHO WAS INVOLVED IN THE CASE, STATEMENTS, WE ALREADY KNOW IN ANY CASE HE WAS IN, HE SIGNED
A CERTIFICATION THAT IS PRESUMPTIVELY FALSE. THAT'S WHAT CASSIDY IS. HE SAID HE DID
SOMETHING THAT PRESUMPTIVELY HE DIDN'T THAT'S WHY THOSE READINGS CAN'T COME IN SO THEY
MUST TURN THAT EVIDENCE OVER AT SENTENCING. IT'S AT ISSUE THEN. THAT'S THE IMPORTANT
PART OF ZINGIS, ZINGIS IS ABOUT WHAT HAPPENED AT SENTENCE, WHAT IS THE STATE'S BURDEN
AND THEN IT IS JUST DISCOVERY. BUT THE KEY IS THE ORDER OF THE DISCOVERY. WHEN MR.
ZINGIS WENT TO COURT HE HAD NO WAY TO KNOW. THOSE WERE SECRET LISTS. L HE DIDN'T HAVE
A LIST TO LOOK AT AND EVEN THEN THEY WOULDN'T SHOW HIM THE LIST; THAT'S WHAT THE STATE
IS NOW SAYING TOO. JUDGE FALL SAID AT THE SENTENCING TELL HIM IF IT IS OR
IF IT ISN'T DENNIS IF IT FALSE IN THE TIME PERIOD AND THEN THE DEFENDANT SHOULD BE ABLE
TO VERIFY IT. SO, I THINK FRANKLY YOU COULD PUT THAT UP ON LINE WITH A PROTECTIVE ORDER
JUST LIKE THE A O C DOES, THE COURT DOES, ALL THE THINGS THAT I WRITE TO AND I CERTIFY.
I'M A LAWYER. SO I DON'T AGREE WITH THAT. I AGREE WITH JUDGE FALL, LAWYERS, WHEN YOU'RE
GOING TO GIVE THEM A PROTECTIVE ORDER WILL TAKE IT SERIOUSLY. JUSTICE WAINER
APTER: YOU ARE ARGUING THAT ALL THE PERSONAL IDENTIFYING INFORMATION SHOULD BE REDABTD
ANYWAY? HAD. JEFFREY EVAN GOLD: WELL, LAST PART FIRST; THAT SATISFIES NOTICE.
THAT RECOLLECT TIF FIES CASSIDY, WHAT DO WE DO ABOUT THAT MESS, THE UNREDACTED GOOD ENOUGH
FOR THE PURPOSE OF NOTICING ONCE AN FOR ALL THE ENDS OF THAT STORY. IT'S A LITTLE DIFFERENT
WHEN YOU HAVE A PENDING CASE. JUSTICE WAINER APTER: YOU'RE SAYING THAT
THERE HAS TO BE SOMETHING UP ON LINE FOR EVERYONE THAT IS NOT REDACTED SO EVERYONE'S PERSONAL
IDENTIFYING INFORMATION IS JUST ONLINE FWOELD GOLD I WOULDN'T OBJECT TO IT IF IT HAD
CERTIFICATION BY AN ATTORNEY AND IT WAS ONLY ALLOWED BY ATTORNEYS, MUNICIPAL PROSECUTORS,
JUDGES TO GO ON, YEAH, OKAY. JUSTICE WAINER APTER: WHY WOULD THEY NEED
THE UNREDABTD IF YOU WERE SUGGESTING THE REDACTED VERSION WORKS. JEFFREY EVAN
GOLD: I PREFER ALL THE INFORMATION. IT'S A LITTLE BETTER, BUT THE BAR IS SUGGESTING A
WORK AROUND TO ADDRESS THE STATE'S COMPLAINT. YEAH, I THINK JUDGE FALL IS EXACTLY RIGHT
AND I ALSO THINK THAT WHAT JUDGE FALL MEANS IS THAT THE DEFENDANT CAN NOW VERIFY AND THAT IS
OAE REALLY IMPORTANT AND IF YOU JUST TAKE A LOOK AT THE HISTORY OF THIS, WE'RE IN THE
MESS BECAUSE OF SECRECY. THAT WAS THE WHOLE POINT. IF WE HAD THIS DONE IN THE
ADVERSARIAL SYSTEM 8 YEARS AGO WE WO SORTED IT OUT NOW WE'RE STUCK. JUSTICE
PATTERSON: IN FAIRNESS IT'S A UNIQUE PROBLEM AN A VERY COMPLICATED PROBLEM.
JEFFREY EVAN GOLD: YES, BUT THESE THINGS HAPPEN AS YOU KNOW. JUSTICE PATTERSON:
MAYBE NOT DAILY ON AN EIGHT-YEAR BASIS. JEFFREY EVAN GOLD: SO THOSE ARE
THE TWO REMEDIES AND I ALSO WANTED TO SAY JUST A LITTLE BIT ABOUT BAC. CASSIDY WAS ONE
CASE ABOUT ONE THING. THE DEFENDANTS HAVE A MYRIAD OF FACT CIRCUMSTANCES AN THEY SHOULD
BE ABLE TO BRING THOSE AN LITIGATE THOSE WHATEVER THEY ARE BUT THE STATE STILL HAS TO TELL
THEM IF DENNIS WAS INVOLVED IN THEIR CASE. IT'S NOT ABOUT THE BAC. L SOMETIMES AN THIS IS
WHAT THE EVIDENCE BEFORE JUDGE FALL WAS, THEY WENT TO FOUR OR FIVE DIFFERENT JURISDICTIONS
AND THEY TOOK FOUR OR FIVE DIFFERENT TESTS. NOW WE DON'T KNOW IF THAT'S BECAUSE THEY WERE
MOSTLY DENNIS AN THEY ENDED UP WITH ONE THAT WASN'T DENNIS BUT THINK ABOUT IT IN THE
CONTEXT, LET'S USE AN EXAMPLE IN MIRANDA AND TODAY, THE DEFENDANT DOESN'T GET TO KNOW IF
HE WAS BEATEN UP IN THIS STATION BEATEN UP IN THIS STATEMENT BUT HE GAVE A GOOD STATEMENT
AT THE LAST STATION, THEY JUST NEED TO KNOW WHAT HAPPENED IN THE CASE, COURTS WILL DO
WHAT THEY WANT, THE STATE MENTIONED SOMETHING ABOUT ADMISSIBILITY. WE DIDN'T ASK YOU
TO MAKE ANY ADMISSIBILITY FINDINGS HERE BUT WE DO POINT OUT IN OUR BRIEF ANY TIME DENNIS
WAS INVOLVED THAT A IR GOES INTO EVIDENCE JUST LIKE ONE WITH A BAC, EVEN WITHOUT A BAC,
IT GOES IN HAD. THE STATE POLICE PROCEDURE IS IF YOU ENTER FIVE JURISDICTIONS, YOU'RE
SUPPOSED TO PUT ALL FIVE IN AND THE COURT HAS TO LOOK AT ALL THOSE. THAT'S SOLVED THOUGH
THAT ISSUE IS SOLVED BY PUTTING UP THE UNREDACTED AS THE INDEX. LET ME JUST
SEE IF THERE IS ANYTHING ELSE YOU GUYS SAID THAT I WANTED TO ADDRESS. I THINK
YOU'VE ASKED THEM AGAIN, WHICH IS GOOD. SO THAT'S BASICALLY IT, IF YOU PUT THE
UNREDACTED -- THE REDACTED UP ALONG NEXT TO THE REPOSITORY, CASE SOLVED. THE
COURT: THANK YOU MR. GOLD. THE COURT: MR. NOVECK. (TIME
NOTED: 2:30 p.m.)IT PLEASE THE COURT, VERTEBRA BS AVEN AFRPTS EE NEVER LITIGATE THE A DMAS
MUNICIPAL COURT, A TRY A VUT THE TRY HELP THE COURT WORK THROUGH SOME OF THE ISSUES WITH
THE FRAMEWORK THAT WE AND THE STATE HAVE PROPOSED AND SOME OF THE ISSUES THAT WE'VE HADN'T
I DO WANT TO FOCUS ON THE INDICT ABLG KAZ WHICH IS WHY OUR AGENCY IN THIS CASE. (THIS
IS MICHAEL R. NOVECK: ON A FEW OF THE DISAGREEMENTS THAT WE HAVE ABOUT THE
FRAMEWORK THAT APPLIES, THE STATE TAKES SFRMENT 152 IN A CASE WHERE THE SECOND IS A SECOND
DWI, YOUR 1ST DWI WAS DURING THE DENNIS TIME PERIOD AND THEY LOOK AT S 152 AND SEE IF
YOUR CASE WAS A DENNIS CASE. ONE OF THE ISSUES THAT CAME UP AND JUSTICE WAINER APTER
YOU ASKED THE ABOUT THIS, IF THEY HAVE TO PROVIDE THE ACTUAL DATA FROM THE SPREAD STHEET
DEFENSE COUNSEL AND HE THEY WANT A PROVIDE A PROR'S CERTIFICATION, ACTUAL UNDERLYING DATA,
PART OF THE REASON WE'RE HERE IN THE FIRST PLACE IS THE STATE HAD THIS LIST THAT NO ONE
HAD ARC SAYS TO OTHER THAN THE STATE AND WHEN THE LIST CAME TO THE LIGHT OF DAY IN FRONT OF
JUDGE FALL AND VERY MUCH CREDIT TO JUDGE FALL FOR ALLOWING DISCOVERY ABOUT HOW THE LIST
WAS CREATOR AND SO AND AND OH FORTH IT TURNS OUT WILL THE WASN'T ACCURATE MUCH THE ACTUAL
DATA IS WHAT IS IMPORTANT RGS THI THE WAY COURT SHOULD WORK THAT YOU RELY ON THE ACTUAL
EVIDENCE AND ACTUAL DATE AT ANY TIME SHOULD GO IN FRONT OF THE COURT, CLOSE TO COULDN'T
SELL BE LITIGATED THAT WAY. JUSTICE PATTERSON: WHAT DOES THAT MEAN FOR
S 152? MOTIVE. MICHAEL R. NOVECK: IS 15 #245IRS A LOT OF CONFIDENTIAL
INFORMATION IN S 152 FOR THIRD PARTIES. JUSTICE PATTERSON: A LOT OF CONFIDENTIAL.
MICHAEL R. NOVECK: IF THE STATE HAS, I DOUGH IN FOR MY SECOND DWI WHICH
IS A HYPOTHETICAL SCENARIO I PROCHL MISS YOU AND THEY FIND MY NAME IN S 152 FOR MY FIRST
DWI I WANT THEM TO SEND ME THE T LOW OF THE EXCEL SPREADSHEET WITH THE ACTUAL DATA. I DON'T
WANT TO R. JUSTICE WAINER APTER: YOU'RE TALKING ABOUT ALL THE DIFFERENT
COLUMNS THAT YOUR ADVERSARY, BUT STILL OWN THE ONE ROW. MICHAEL R. NOVECK:
ONLY FOR ME, NOW YOU'RE NOT DISCLOSING A CONFIDENTIAL INFORMATION FROM A THIRD PARTY T
ME, THERE'S FEW REASONS FOR THAT. NUMBER 1 IS I CAN DOUBLE-CHECK THAT INFORMATION WITH
EITHER THE UNRYE DAKTED VERSION OF THE SPREADSHEET THAT GUESS ON LINE WHICH I'M
SUPPORTIVE OF T THE COURT GOES THAT ROUTE, OR IF NOT, THE I CAN CHECK THE PUCK BLIK AIS
P MACK SURE THE DATA MATCHES UP WITH THE STATE GAVE MEESH IT'S A VERIFICATION TOOL.
JUSTICE PATTERSON: IS THAT SOMETHING THAT CAN BE DONE WITH CURRENT TECHNOLOGY OR A
CHANGE TO WHAT THE STATUS OF THE DATABASE, HOW IT'S ORGANIZED AND SO FORTH.
MICHAEL R. NOVECK: I'VE NEVER 1 A PUBLIC SEARCH ON THE AIS SO I MAY BE THE WRONG PERSON.
JUSTICE PATTERSON: NO ABOUT THE SPREADSHEET. JUSTICE WAINER
APTER: YOUR OKAY WITH THE STATE HIGHLIGHTING THE ONE ROW, SENDING IT OVER.
MICHAEL R. NOVECK: THAT'S IT. JUSTICE WAINER APTER: THAT SHOULD BE TECH
NOLLY POSSIBLE NOW, HIGHLIGHT THE ROW. MICHAEL R. NOVECK: NARS LOT OF COLUMNS
OF MY INFORMATION, ROSE OF OTHER PEOPLE BUT COLUMNS OF MY INFORMATION. CHIEF
JUSTICE RABNER: DO YOU KNOW THE ANSWER TO JUSTICE PATERSON, YOU HAVE 2 HUNDRED 37 THOUSAND
ENTRIES, 30 COLUMNS FOR EACH, IS THERE ANY WAY TO EXTRACT THAT ONE RT 30 COLUMN ENTRY?
MICHAEL R. NOVECK: SHUFRMENT I MEAN COULD YOU DO IT IN TECHNOLOGICAL WAYS
AND NONTECHNOLOGICAL, ANY EXCEL SPREADSHEET. COPE THE ROW AND SPREAD IT INTO OTHER
SPREADSHEET AND SEND IT TO MEECHT YOU COULD PRESENT IT OUT, HARD TO PRINT OUT PUT BUT
PRINT OUT THE PAGE THAT IS ON AND REDACT ALL OF THE OTHER ROWS ON THE SPREADSHEET THAT
ARE NOT MY INFORMATION AND SEND TOTE MEECHLT EENL EITHER OF THOSE IS ACCEPTABLE. I DON'T
BELIEVE THIS REQUIRING ANY SORT OF ADVANCE THE TECHNOLOGICAL ISSUE BECAUSE WE'RE NOT PITTING
IT ON LINE FOR THE PUBLIC TO SEFRP, FO AR INDIVIDUAL TO SEARCH THAT SPREADSHEET IS
REALLY EASY. EXCEL HAS ALL SORTS OF SEARCHING TOOLS AND SO ONTH SO FORTH. SL
A COMPLICATION THAT HASN'T COME UP TODAY WHICH IS IMPORTANT WHICH IS THE AIS IS FALLIBLE
IN MANY WAYS AND THAT IS MAINLY BECAUSE THE PERSON WHO TAKES THE BREATH TEST IS THE
PERSON WHO ENTERS THE INFORMATION INTO THE MACHINE FOR MANY OF THE COLUMNS. SOME OF THE
COLUMNS ARE POPULATED BY THE MR. LEAK THE SEERM NUMBER AND CALM BRAG DATE THAT YOU READ
OVER THAT JUDGE FALL PULLED FOR MR. ZINGIS' CASE AND PEOPLE PUT THEM IN MANUALLY, PEOPLE
MAKE MISTAKES, IF YOU LOOK AT THE AIS SPREADSHEETS VEN YOU SEARCH FOR THE NUMBER 4,
JUST AN ENTRY WITH NUMBER 4, YOU FIND A LOT OF THEM. THERE'S SOME ERROR IN THE SYSTEM
THAT IF YOU HIT THE WRONG BUTTON IT POP LATES YOUR NEEDLE WITH THE NUMBER 4 PT SO THE
STATE COULD BE LOOKING FOR MY CASE VEN THEY COULD LOOK FOR MY LAST NAME NOVECK AND NOT
BE ABLE TO FINE ET BECAUSE THAT P IT BECOME AS 4 AND I DON'T KNOW THAT. AND A LOT OF PEOPLE
ARE 4S. THIS HAPPENS ALSO I'M A LITTLE CONCERNED. JUSTICE PATTERSON:
DOESN'T SOUND AULD THAT #134507B8G. MICHAEL R. NOVECK: IT IS AND IT ISN'T,
THERE'S WAYS AR ROUP THAT I'M TRYING TO DPET TO, I WANT THE COURT TO UNDER VK SPEPTD A
LOT OF TO MY IN THE SPREADSHEETS WHAT YOU'RE GETTING YOURSELF INTO BLAU I HATE TO
CONTRADICT MR. GOLD MOO I DPROE WITH ABOUT 99 PERCENT OF WHAT HE SAID.
JUSTICE PATTERSON: HE'S ALSO NUMBER 4. MICHAEL R. NOVECK: MIGHT BE A NUMBER
4, SO IF YOU, THE OPERATOR ENTER THE COMPLAEPT NUMBER, IF YOU MAKE MISTAKE AND NOT ALWAYS
THE NUMBER 4, THEY COULD TRANSPOST DIGIT, MAKE A TYPO, SOMETHING ELSE COULD HAPPEN. AND
JUSTICE NORIEGA YOU ASKED WHETHER WE DO MAKE THE DATABASE SEARCHABLE JUST PRINT OUT THE
ARREST DATE, LIKE A RAFRMG OF ARREST DATES FOR USHS THE AR RESTS DATES AREN'T ALWAYS CHICK,
IT CAME NUMB A SPECIFIC, PAGE 9 T PAGE 77 TO 79 WHERE THE ARREST DATE FOR THE PERSON WAS
BEFORE THE CALIBRATION BAIT OF THE ALCOTEST MACHINE WHICH OF COURSE MAKES NO SENSE, YOU
GOT TEST ON THE ALCOTEST AFTER THE IT WAS KAL BRATD. THEY HAD THE AREA RFT DATE OFF BHI
1, THE AL COMPANY SHAET AR MAY 10 BUT THE ARREST DATE WAS SUPPOSED TO BE MAY 10 RGS NOT
APRIL 15TH. THEY SAY TYPE OF MISTAKES HAPPEN. THIS LEADS TO THE ONE OF THE BIG ISSUES
IN THE CASE IS WHAT HAPPENS IF THE STATE LOOKS IN THE SPREADSHEET AND SAYS WE CAN'T FIND
YOU. WE HAVE THIS COME UP IN THE HAEFRG, I DON'T WANT TO SAY THE PERP'S NAME I DON'T THINK
AETS FAIR TO DO IN A PUBLIC HEAR, IT WAS IN THE BRIEFS, THERE WAS SOMEONE WHO NIELD A
PCR IN FRONT OF JUDGE FALL, FILTERED NO OUR HEARING AND WE LOCKED FOR THE PERP'S NAME
IN THE BIG SPREADSHEET THAT'S SFOEFD HAVE ALL THE AL TOE KEFTS BREATH TEST RESULTS WE
COULDN'T FIEP THE NAPE, THE COMPLAINT NUMBER, WE LOOKED AROUND THE DAVE ARREST, COULDN'T
FIND ICHT. SO THERE ARE GOING TO BE PEOPLE WHOSE INFORMATION ARE MISSING. IEN
I HEARD CONCESSION FROM THE STATE EARLIER THAT THEY'RE GOING SEND A FORM LETTER TO EVERYBODY
WHEN THIS COMES UP, EITHER YOU ARE DEBTS NIS CASE OR YOU'RE NOT A DPEN NIS CASE, THAT WAS
SOMETHING THAT WAS NOT CLEAR IN THE BRIEFS, I'M THEY ASSERT THE THE RIGHT TO SAY NOTHING
IF IT'S NOT A DEN THIS KWAS, BUT ONE OF OR POSITIONS I SHOULD TELL YOU WHETHER OR NOT
YOU ARE A DENNIS CASE WHEN THEY'RE SEFRPING S 152 BECAUSE THAT'S THE 3RD CATEGORY OF WE
LOOKED AND WE COULDN'T FIND YOU. AND JUSTICE WAINER APTER DOES A PERSON HAVE TO FILE
A PCR TO FIND OUT WHETHER THERE'S A DEVEN NIS CASE OR NOT, I'M THIS THE CATEGORY AND I'LL
ADMIT I HAVE NO I DOER HOW LARGE THE CATEGORY IS WE DENT FIGHTER 1 PERSON DURING THE HEAR
ING THIS PROCESS HASN'T GONE FORWARD YET SO IT MAY BE A LITTLE BIT AVENUE UNION CORN BUT
I THINK THERE MIGHT BE SOME CASE WHEN THE STATE LOOKS IN 152 IT FIND NO INFORMATION THAT
MATCHES VEN THEN DO YOU HAVE TO FILE A PCR TO SO IF THE DISCOVERY IS STILL AVAILABLE ISN'T THE
MUNICIPAL COURT WHICH OFTEN IT'S NOSHTS LIE SAY, IT GETS DESTROYED. ROP AP THE OR IN OTHER
WORDS COURTS YOU SHOULDN'T HAVE TO FILE A PCR TO FIND OUT IN YOU'RE A AGAIN TIS DENNIS
CASE ARE THE STATE COULDN'T VOEDED THAT SOMEONE DOESN'T HAVE TO FILE 0 PCR TO FOIND OUT
IF THERE'S A DENNIS CASE. MICHAEL R. NOVECK: SOME CASE YOU WE DON'T KNOW
AND DO HAVE A FILE THE M C R. OUR POSITION IS CLEAR IN THE 3RD CATEGORY WHERE WE CAN'T
FIEND YOU IN THE SPREADSHEET YOU FOLLOW A PCR IF THE DISCOVERY HAS BEEN DESTROYED, WENL
YOU GET THE BENEFIT OF GETTING YOUR COULDN'T VIC VI KATED WHICH DOES NOT NEEVEN THE CASE
GETS DISMISSED, THEY CAN RETRITE, WHATEVER, IF YOU CAN'T FIEP HOUT WHAT HAPPENED IN THE
MUNICIPAL COURT CANES IT'S NOT ON THE AIS THAT YOU WEREN'T A DENNIS CASE, THIS WAS THE
STATE'S DATABASE, THIS WAS THE STATE'S EMPLOYEE, THE BENNETT SHOULD NOT AND NEWER TO THE
STATE THAT YOU CANNOT FIND YOUR INFORMATION AT THE END OF DAY. CHIEF JUSTICE
RABNER: YOU HEAR THE BACK FRN FORM AS TO WHETHER PCR SHOULD GO NOT ORIGINAL COURT OR
IF THE SENTENCING COURT CAN HANDLE BOTH MATTERS. WHAT'S YOUR VIEW AND WHY?
MICHAEL R. NOVECK: YEAH SO I WAS GET TO THN I DON'T REALLY HAVE A STROVENG VIEW, KWUT
NOT BEING IN MUNICIPAL COURTS AND NOT KNOWING WHAT THE LOW LIFK CAN YOU TELL BURR DEVEN
ARE IN THE TROIFING TO LICH GAIT A PCR FROM MUNICIPAL PUM COURT 1, I'D DO HAVE A SCENARIO
CAN IT CAN BE HANDLED IN 1 COURT. I SHOULD TRY TO SPEAK MORE SLOWLY AND CLEARLY 1 SITUATION
WHICH IT CAN BE HAPPENED IN AT SECOND COURT AND THIS IS WHERE THE STATE SAYS EITHER WE
LOOKED AT YOUR SFT 152 INFORMATION AND WE FOUPTD THAT YOU ARE A DPEVEN NIS CASE, OR WE
COULD NOT FIND YOU, THAT THE STATE IN THE SECOND CASE COULD SAY WE WANT TO MOVE FORWARD
TODAY AND WE'LL CONCEDE THAT YOU CAN GET STENSD AS A FIRST TIME OH FELONY DESHS WE WON'T
SEEK IT EN HASN'T THE. CHIEF JUSTICE RABNER: THE IN CASES WHERE THE
ENHANCE THE IS BEE SOUGHT CAN YOU IDENTIFY A HARM TO THE DEFENDANT BY HAVING A CONSOLIDATED
HEARING? MICHAEL R. NOVECK: I THINK THE HARL IS TO THE STATE AND THE
PROSECUTE ENTITY IN CASE 1 THAT MIGHT WANT TO HAVE HIS INTEREST HEARD SINCE IT IS A DIFFERENT
MUNICIPAL PAMENT A DIFFERENT COURT SHTHS DIFFERENT EVIDENCE, DIFFERENT POLICE
DEPARTMENT, ALL OF THAT STUFF SO I DON'T THINK THARTS HAD A HARM TO THE DEFENDANT. I
THINK THE ISSUE IS WHETHER THE, GIVEN THE KIND OF FRACTURED NATURE OF THE MUNICIPAL COURT
SYSTEM, WHETHER THAT WOULD WORK IN PRACTICE, AND I DON'T HAVE AVEN OPINION ON IT NOT BEING IN
MUNICIPAL COURT. CHIEF JUSTICE RABNER: PLEASE GTD. IF I COULD ASK YOU
TO TRY TO. MICHAEL R. NOVECK: I'M TRYING. THE. MICHAEL R. NOVECK:
GIVEN THE FACT YOU'RE IN SUPERIOR COURT, DO YOU HAVE A POSITION ON WHETHER OR NOT THE
STATE ATTEMPT LONG TO INTRODUCE THE FIRST OH FEVENGS, WHETHER THAT, WHETHER THERE'S A
BURDEN INVOLVED ON THE STATE WARS THAT BURDEN IS AND WHETHER OR NOT IT'S AN ELEMENT OR
WHETHER THE SIMPLY AN ENHANCEMENT. MICHAEL R. NOVECK: ABOUT APPRENDI, TOO.
I DON'T THINK THIS IS REALLY AN APPRENDI ISSUE, BUT I THINK THE THESIS HIEPD APPRENDI'S
EXCEPTION FOR CRIMINAL COULDN'T VIC WHICH IS HAS BEEN WIDELY CRITICIZED, IS THAT TSDZ'
OBVIOUS WHETHER YOU WERE CONVICTED NORT. AND IN THESE CASE IT IS OVRS WHETHER YOU WERE
CONVICTED OR NOT, BUT THERE'S SMK ELSE GOING ON HERE THAT I DON'T THINK WE CAN JUST TUFRN
A BLIEPD EYE TO IS THE STATE INTROER DUFD IN MANY CASE THIS COURT LATER FOUPTD TO BE
INADMISSIBLE. SO I DON'T THINK YOU NEED TO USE THE APPRENDI FRAME TO RESOLVE THE ISSUE.
BUT I THINK THE WOULD BE AN ERROR TO SAY APPRENDI DOES RESOLVE THE ISSUE, THAT THAT MASHGS
SOME A OF SENSE. YOU HAVE TO LOOK AT THE REASON BEHIND THE RULE AND I DON'T THINK THE
REASON BEHIND THE NORMAL APPRENDI, WE JUST INTRODUCED THE COULDN'T VIC AND THAT'S THE
END OF THE DAY, RULE APPLIES HERE. SO I'M NOT ADVOCATING FOR A HIGHER STANDARD THAN
PREPONDERANCE. I THINK NO ONE HAS ARGUED THAT IN THAT CASE TO OVERRULE AT THE APPRENDI
LINE OF CASES, BUT I DO THING AND THE COURT SHOULD BE CAREFUL ABOUT JUST SAYING SLTS THE
STATE HAS INTROEFR DO YOU FIND THE SIFD MUCH COULDN'T VIKDZ ABOUT MORE DWI CASE IN FALLS
NIP THE TIME FRAME THAT IT IS IN THE CLIER. SO WITH THE TIME IN MIND DIE
WANT TO TURN TO THE REASON WE'RE HERE WHICH WE WERE INVITED BIT COURT TO PARTICIPATE IN THE
CASE P WE DECIDED TO DO SO AND INVEST THE TIME AND RESOURCES IN THE CASE BECAUSE THERE ARE
SOME INDICTABLE ISSUES THAT GET AFSHGED BY THEEGS CASES. VEN MOST OF THESE ARE ACTUALLY,
WHAT WE'VE BEEN TALKING ABOUT TODAY A LOT IS SMUP WHO KOCHLGS NO COURT THOECHL OR THE
DAY AFTER THIS COURT'S OPINION IS ISSUED NN CASE WITH AN ISSUE THAT NODES TO GET RESOLVED
UNDER SOME FRAMEWORK, BUT A LOT OF SENGD DWIS OR MORE TO OUR POINT INDICTABLE COULDN'T
COMBENSS OF A PRIOR DWI ARE DAYS THAT HAVE HARD BEEN REVOLVED, RIGHT? YOU COULD HAVE
THAT A R DWI THAT 2010 AT WHAT WAS A DEVENNESS CASE BEFORE WE KNEW ABOUT DEN NINS THE
BIG SUBSEQUENT CONSEQUENCE WERE YOU TAUKTD ABOUT 40:26 ABOUT DRIVING IN A SUS SPEVENED
LVENTS IN TWLOOI IN 2013 AGAIN BEFORE WE KNEW ABOUT DEN NINS BEING CONVICTED OF THAT AND
HAVE KIND OF RESOLVED ALL OF THAT BEFORE KAGS SIDDY ISHTS EVER COMES UP.
CHIEF JUSTICE RABNER: THIS WILL STREAMLINE IT A LITTLE BIT AND TELL US WHAT YOU NEED AND
WHAT YOU BE NOT BE GETTING UPD THE FRAMEWORK JUDGE FALL LAID OUT. NEVADA ASK THE LACHLT
0 C TO VERGE COULDN'T VIC. A. I DIDN'T WANTS TO ETD READ IT SHTHS PAGES 33 TO 34 OF
OUR BRIEF. MICHAEL R. NOVECK: CASES WHERE THERE WAS A 40:26 PROSECUTION
WITHIN A CERTAIN TIME FRAME, AFTER ACTUALLY TO THE PRESENT REALLY BECAUSE THAT WAY WE CAN
CHECK IN IF ANY OF THOSE CASES MIGHT HAVE BEEN A DENNIS, THE PREDICATE DWI FOR PROSECUTOR
40:26 MIGHT HAVE BEEN A DENNIS CASE AND THEN SOME I GUESS IET WOULD CALL THEM PRIMARY
CASE, CASE THAT ARE INDICTABLES ASSAULT BY AUTO THAT YOU COULD HAVE MAYBE HAD YOUR ASSAULT
BY AUTO CASE PROSECUTES IN THERE PART BRACED ON A DENNIS TAINTED BREATHALYZER.
CHIEF JUSTICE RABNER: DO YOU UNDERSTAND THE CATEGORY OF CASE YOU'RE CONCERNED ABOUT
WASHES IS IT THAT YOU NEED THAT JUDGE FALL DID NOT PRO SPRIED FOR? MICHAEL R.
NOVECK: JUDGE NAUL DIDN'T ORDER THE AOC TO PROVIDE US WITH ANYTHING, WE MADE THE REQUEST
OF JUDGE FALL AND HE NOTED IT IN THE REPORT BUT HE DIDN'T RA RAB TICK OFF FOR US WHAT YOU
NIED. MICHAEL R. NOVECK: AETS IN OUR BRIEF. APTS APTS ASSAULT BY AT TOE
OR FOURTH DEGREE DRIVING WHILE LICENSE IS SUS SPENTSZED BETWEEN 2008 AND 2017?
MICHAEL R. NOVECK: YES, EBBS SEPTS FOR THE THIRD CATEGORY, THE INDICTABLE 40 COULD 26,
WE ASK FOR THAT THROUGH THE PRESENT BECAUSE YOU COULD HAVE HAD ONE, THE TWOJ SFEEVEN DUT
WAUF I WAS THE CASE YOUR CASE WOULD HAVE BEEN ROW SOLVED BY THEN IF IT WAS A DEVEN NIS
ALCOTEST THAT WAS USED TO ACTUALLY PROSECUTE YOU IN THE PRIMARY CASE BUST THE SUBSEQUENT
CONSEQUENCE IN THE 40:26 WAS BASED ON A PRIOR DIDN'T NIS DWI WAS SOMETHING THAT COULD HAVE
HAPPENED YOU KNOW, IT COULD BE A CONTINUING CONSEQUENCE. SO THAT'S WHAT
WE ASK FOR, THE IDEA IS THAT WE WOULD BE ABLE TO USE THAT LIST TO GECHT IF I CLIEFRNTS
OUR WHO MIGHT HAVE BEEN AVENTHD BY DENNIS AND REEFRP OUT AND HELP THEM WITH THEIR VARIOUS
PCR, 1 MORE ASK OUR CONVICTION INTEGRITY YUPTS WAS A LITTLE BIT CONCERNED WHEN YOU FOIL
A PCR IN THE SUPERIOR COURT, A 40 COULD 26 PROS SKOUGS YOU WENT TO THE MUNICIPAL COURT
ARE YOU GOT THE PREDICATE DWI VACATE, YOU COME BACK TO SUPERIOR COURT, YOU FILE A PCR
ON YOUR 40:26 SAYING I SHOULD GET THIS VA 8ED ITTED NOW TOO BECAUSE MY DWIE THIS WAS BASED
ON WAS VACATE, THEY'RE A LITTLE CONCERNED THAT COURTS MIGHT BOUNCE THOEGS BASED ON THE
TIME BAR BEFORE COUNSEL GETS ASSIGNED FRPT SO CASSIDY EXPLICITLY LIST THE THE TIME BAR
ON DWIS, WE WOULD JUST ASK FOR SOMETHING SIMILAR FOR THE 40:26'S WHEN THEY COME IN THEY
SHOULDN'T GET BANS BOUNCED FOR THE TIME BAR AND COUNSEL SHOULD BE A SIGNED. RAB RACK
KOUN THANK YOU SOIN. MS. OBERHOLZER BRIEF REULT. REGINA M. OBERHOLZER:
THE ROACH OUT TO THE AOC AND THEY DO IN THE THAK A POSITION ON THE PD'S REQUEST AND ASKED
US NOT TO BUT AS FAR AS THE TIME BAR ON THE SUBSEQUENT CONVICTIONS, I WOULD ING THAT K
THAT THE CLOCK WOULD START TO RUN ON THEM WHEN THE DENNIS COULDN'T 56 WAS VACATED. I
CERTAINLY THINK THE COURT CAN MAKE THAT CLOER BUT I THINK THAT WOULD BE THE TRIG ERR GOODING
EVENT SO THEY WOULD HAVE 5 YEARS FROM THAT DATE TO FILE A PCR. I DID REACH
OUT TO OUR MUNICIPAL DULL PROSECUTOR SUPERVISING UNIT DURING LUNCH AND TALKED TO THEM
ABOUT THE Z ISSUE CONSOLIDATING THE ISSUE IN THE SECOND JURISDICTION AND THEY DID EXPLAIN
WHAT SOME OF THE LOGISTICAL PROBLEMS WITH THAT MIGHT BE. MOST MUNICIPAL PROSECUTORS,
NOT ALL OF THEM, BUT MOST OF THEM ARE PART TIME, THEY HAVE THEIR OEVEN PRACTICES, STIEMGS
THEY COVER MORE THAN 1 MUNICIPALITY AND THE LOGISTICS OF THEM PROSECUTING CASES IN YET
AN ADDITIONAL MUNICIPALITY IN POSSIBLY ANOTHER COUNTY ARE NOT NECESSARILY MINOR.
THEY ALSO DON'T USUALLY HAVE OFFICES WHERE THEY COULD KEEP A LIST THAT SOMEBODY COULD
COME LOOK AT, YOU KNOW, THEY WORK OUT OF THEIR LAW FIRM OR YR PRIOR PRACTICE OFFICE SO
THERE'S NO MUNICIPAL PROSECUTOR'S OFFICE IN MOST COUNTIES WHERE THE PUBLIC CAN COME SEE
A LIST. JUSTICE PATTERSON: THERE WOULD BE NO PLACE TO PUT SOME SORT OF
COMPUTER TERMINAL WHERE SOMEBODY COULD SEARCH. REGINA M. OBERHOLZER: NO
PLACE FOR. CHIEF JUSTICE RABNER: THE PERSON GIVING YOU THAT THE PROSECUTOR,
TOO, WOULD NOT BE ABLE TO FULFILL THE ROLE OF PROSECUTOR ONE? REGINA M.
OBERHOLZER: PROSECUTOR TWO, SO AS FAR AS, YOU KNOW, WELL THERE'S A INJURES DIKS NULL ISSUES
WITH THAT, MUNICIPAL PROSECUTORS ARE ONLY AUTHORIZED TO PROS SCOUT CASES ARISING IN
THEIR MUNICIPALITY. SO I MEAN THIS COURT WOULD HAVE TO TAKE THAT INTO CONSIDERATION AND
EITHER SPECIALLY AUTHORIZE IT OR THEY WOULD HAVE TO BE SWORN IN TO HANDLE THE CASES.
AND THEN THERE'S THE VERY REEL POSSIBILITY WORRY RELYING ONLY ON OFSHTHS
NULL EVIDENCE, ETS' NOT THE EVIDENCE RECORDS THAT NED TO BE MOVED, TIMES AFTER THAT NEED
TO CROSS OVER COUNTY LINES OVER SOME NOT SO INSIGNIFICANT DISTANCES. AND
AS FAR AS THE SOMEHOW MAKING S 152 A DIFFERENT KIND OF SEARCH AL DATABASE THAT WOULD NOT
REVEAL MORE INFORMATION THAN THE STATE IS COMFORTABLE WITH, EACH IF THAT'S FEES ANL
EVEN IF IT'S FINANCIALLY FEASIBLE AND I SEARCHLY DON'T NIT, THAT'S NOT SOMETHING THAT ANYBODY
HAS CONSULTED IEPD T ABOUT. JUSTICE WAINER APTER: I THOUGHT A SUGGESTION
WASN'T TURNING IT INTO A DATABASE, A ANY THE AMICI SUGGESTION YOU DELETE ALL THE
IDENTIFYING INFORMATION AND POEFRT IT ON THE WEB, YOU DON'T NEED ANYTHING SPECIAL. SMOV
DPEB DEB THIS IN RESPONSE AP ACH I GOT IT. JUSTICE PATTERSON: I CAUSED
THE TROUBLE R. REGINA M. OBERHOLZER: EVEN IF IT'S DOABLE, S 152 IS READY
TO GO NOW, IF THIS COURT ORDERED US TO DISTRIBUTE THAT AND HAVE THAT BE USED BY THE COUNTIES
AND THE AOC NOW. JUSTICE PATTERSON: PUBLIC. REGINA M. OBERHOLZER:
IF THAT'S WHAT THIS COURT ORDER THE THAT COULD HAPPEN TOMORROW. AP AUTOPSY YOU TAKE 152,
YOU TAKE DLEELT AUM THE PERP NULLY IDENTIFYING FFRGS AND PUT IT ON THE WEB.
REGINA M. OBERHOLZER: I DON'T KNOW WOI THEY'RE NOT USING JUST THE AIS THAT'S ALREADY ON
THE WEB. JUSTICE PATTERSON: WOULD IT HAVE NAMES IN IT. JUSTICE
WAINER APTER: THEY WOULD DELETE ALL THE NAME. HE EXPLAINED WOI IT WAS BETTER. DEB DB
I'M NOT QUITE SHOWER. JUSTICE PIERRE-LOUIS: IF YOU HAVE THE ABSTRACT, UFR
THE SUMMONS NUMBER YOU CAN PUT YOUR SUMMONS NUMBER AND IN THAT'S HOW YOU FINE IT AND
NEVERTHELESS THE POINT AT WHICH SOMEONE WOULD BE LOOKING FOR THAT INFORMATION, THEY WOULD
HAVE THEIR SUMMONS NUMBER. BUT, I'M SORRY CAN WE GO BACK TO THE RESPONSE WITH REGARD
TO S 152, THAT IT'S READY TO GO BUT READY T GO IN A FORM THAT THE STATE DOESN'T WANT IT
TO GO. REGINA M. OBERHOLZER: IF THE COURT ACCEPTED OUR SUGGESTION THAT S
WRUN 52 BE USED BY THE COURTS AND THE MUNICIPAL PROSECUTOR VOE LAY YOVEN PROSECUTOR IN THE
COUNTY THAT EXISTS AND READY TO GO, IF WE WERE TO TRY AT THIS POINT TO CONVERT IT INTO
SOME SORT OF A DATABASE THAT COULD BE SEFRNTD AND ONLY BRING UP ONE RESULT, ASSUMING THAT WAS
EVEN FEASIBLE, I DON'T KNOW HOW LONG THAT WOULD TAKE. NOW, I AM NOT AN EXCEL EXPERT,
WRONG IF IT'S POSSIBLE TO TURN A SINGLE LINE OF 30 COLUMNS INTO A PRINT COPY AND PASTE
JUST THAT INFORMATION. EVERY TO MY I SEFRP SOMETHING IN EXCEL. JUSTICE
WAINER APTER: YOU CAN COPE AND COPY AND PASTE IT. REGINA M. OBERHOLZER:
IF THAT'S DOABLE DOEP VEN PASTE IN INTO A SEPARATE DOULT AND PROVIDE THAT INFORMATION.
AS OPPOSED TO THE CERTIFICATION. JUSTICE WAINER APTER: S 152 WITH ALL PEFRP
NULL IDENTIFYING INFORMATION DELETED DOUGH HAVE AN ISSUE WITH POSTING THAT ON LINE YOU
THINGING IT WOULD NOT BE THAT HELPFUL? REGINA M. OBERHOLZER: ALL THE PERSON
PUTTING INFORMATION IN. IT BY PASSES THE PAY RECALL LORE THE ACHLT OOCHLT S WHICH THIS
COURT HAS ALREADY FOUND IS REASONABLE AND IN CHUN. 2, WHEN IT WAS THE FEE WAS CHALLENGED,
AND. JUSTICE WAINER APTER: ' NOT BY PASSING THE RAY POLL IN GENERAL, KW.
REGINA M. OBERHOLZER: 8 AND A HALF YEAR PERIOD WHICH IS A FAIR LONG SIGNAL
CAN PORTION OF IT THAT AND THAT FEE PACE FOR THE MAINTENANCE OF THE AIS, BYPASSING IT
FOR A HUGE PORTION OF THE AIS, IEMG NOT SURE WHERE THE FUNDING IS GOING TO COME FROM FOR
MAINTAINING THAT DATABASE THAT THIS COURT HAS ORDERED FUNDING AND THERE MAY BE A CONTRACT
HE SHALL. BUT THAT'S, I DON'T HAVE RAN ANSWER TO THAT, WHETHER THAT'S A BRAEP MUCH OUR
CONTRACT WITH, WE'RE BASICALLY RECREATING A LAMP PORTION. AIS AND MAKING IT FREE AND
BY PASSING THE CONTRACTUAL FEE WITH OUR OUTSITE VENDOR THSHS BHN DIDN'T SDOE NOT STATE
IT GOES TO THE OUTSITE VENDOR TO MAINTAIN THE AIS. THE, GO BACK TO MR.
COOK'S POINT ABOUT THE BURDEN OF PROOF AND HIS ARGUMENT THAT THE ABSTRACTS ARE NOT RELIABLE
AND UPT 802 C THE ABSTRACT ITSELF IS A RELIABLE BUSINESS RECORD BECAUSE THE CONVICTION,
THE RECORD OF THE COULDN'T VIKDZ IS STILL A RELIABLE BUSINESS RECORD. AN ABSTRACT
DOESN'T BECOME UNRELIABLE BECAUSE THERE'S SOME REASON THAT THE CONVICTION MAY BE VULNERABLE
TO BEING OVERTURNED ON APPEAL OR PCR OR FEDERAL A BS OR WHATEVER THE CIRCUMSTANCES MIGHT BE.
THE ABSTRACT ITSELF IS STL RELIABLE BUSINESS RECORD AND TO ANSWER THE COURT'S QUESTIONS
ABOUT WHAT HAPPENED HERE, IT'S ON PAGE 3 OF THE MUNICIPAL COURT PROCEEDINGS IN THIS CASE,
THE STATE DID HAVE THE ABSTRACT AT TRIAL, IT DOES NOT LOOK LIKE IT WAS EVER ACTUALLY MOVED
INTO EVIDENCE, BUT THERE WAS NO OBJECTION TO THAT AND DEFENDANT DIDN'T ARGUE BELOW THAT
WE DIDN'T PROVE THE OUT OF COURT PRIOR CONVICTION. ' THAT WE DID PROVE IT WAS A
DIDN'T NIS AFSHGED CONVICTION. BUT WE DSH THE SCREEN CAPTURE WAS OF THE, IEVENL THE SEARCH
THAT RETURNED NO RESULTS OF S 90 WHICH WAS THE LIST, THE ORIGINAL LIST. AND
THEN WE ALSO, THE MUNICIPAL PROSECUTOR ALSO REPRESENTED TO THE COURT IT WAS A CALM DEP
COUNTY PROSECUTION WHICH IS AN THE ABSTRACT DENNIS NEVER CALIBRATED ANY MACHINES IN
CAMDEN WHICH THE MUNICIPAL COURT NOTICE TOOK NOTICE OF. SO THAT WAS THE EFTD BEFORE THE
MUNICIPAL CAN YOU TELL COURT RULES. BRAIDDY AND RULES OF DISCOVERY ASK NOT
PROVIDE THE STATE STO BRO VIED INCULPATORY EVIDENCE THAT AN EXISTING COULDN'T VIC IS
STILL VALID (BRADY) WE ARE TRIERD PROVIDE EXCULPATORY THEFD WOULD UNDERMINE THE VALID
DID THERE OF AN EXISTING COULDN'T VIC AT STENTSING WHICH IS THE, PROVIDING NOTES THAT IT'S
A DENNIS CONVICTION. WE, OF COURSE, FEEL WE HAVE AN OBLG GATHS TO LET THEM KNOW (OBLIGATION
) LET THE DEFENDANT'S KNOW UNDER THE CIRCUMSTANCES WHETHER THEY ARE OR B NOT. BUT WET
THAT'S INFORMALLY OR IN A FORMAL DOCUMENT, WE DON'T HAVE A, AN OBLIGATION UNDER THE
CURRENTLY EXISTING RULES TO ESTABLISH BY ANY SET STANDARD THAT YOUR NOT A DENNIS DEFENDANT.
AND WE CERTAINLY ESTABLISHED HERE WE INFORMED THE DEFENDANT ON THE RECORD HE WAS NOT A
DEP NIS DEFENDANT, NOFT OEMENT BECAUSE HE WASN'T ON THE LIST BUT BECAUSE HE WASN'T IN
AN AFFECTED COULDN'T TEE. AND THAT MET OUR BURDEN REALLY REALLY UPT THE PREPONDERANCE
STANDARD AND BEYOND A REASONABLE DOUBT STANDARD ISN'T IN ANY OF THE, THE DOCUMENTS THAT
THE COURT ROW LIED ON, THE ORDER FROM JUDGE LISA DID NOT REQUIRE OF BEYOND A REASONABLE DOUBT
STANDARD, JURT THAT WE SEARCHED THE RECORDS AND LET THEM KNOW, PROVIDE THEM DOCUMENTATION
DH WE DID. THERE WASN'T ANY DOCUMENTS TO HOE BECAUSE THERE WAS NO RECORD AND TLFRP NO
CALIBRATION RECORDS SHOWING DENNIS CALIBRATED. PARAGRAPH SO. CHIEF JUSTICE
RABNER: EVERYTHING BLUT NOT QUITE EFG. GO AHEAD. DEB I WOULD LIKE TO BRING THE, THE
ARGUMENT. REGINA M. OBERHOLZER: ARGUE. S ABOUT RYE FUFL AND ANY TEST RESULTS
PRIOR TO THE 1 FIEM 1 BECAUSE DENNIS MIGHT HAVE CALIBRATED THOSE, HIENL THE ARGUMENTS
IF THEY GO THROUGH A LOT OF TESTS THAT FAIL AND ULTIMATELY REFUSE ON SAY THE THIRD MACHINE
THAT'S SOMEHOW RELEVANT. JUDGE FALL FOUND THAT NOTHING DONE IN THE CALM BRAGS PROCESS
WOULD CAUSE A MACHINE TO FAIL AND NOTHING IN THE APPLIED CONSENT STATUTE GIVES YOU A RIGHT
TO COULDN'T SEVENT YOU GET FRUSTRATED BECAUSE YOU'VE BEEN TESTED TOO MANY TIMES. MY NEXT
POINT IS THE ARGUMENT THAT NOTHING THAT SOMEHOW DIDN'T NIS' CONVICTION CHAFRMS THE PLAGUE
FIELD FROM CASSIDY IS A RED HERG, DEN THIS WAS ACTUALLY NOT CONVICTED OF ANYTHING INVOLVING
THE CALIBRATION OF THE MACHINES. HE WAS CONVICTED FOR STEALING HIS POLICE ID AND
USING IT TO GET OUT OF TRAFFIC TICKETS. JUSTICE WAINER APTER: WHICH HAD
NOTHING TO DO WITH THE CALIBRATION. REGINA M. OBERHOLZER: HE IS SERVING
TIME FOR THAT AND I DO FEEL LIKE I NEED TO ADDRESS THE ISSUE OF THE ONE PERSON WHO IS
NOT IN S 152. WE DON'T KNOW WHAT THE SITUATION IS, HE MAY NOT HAVE GIVEN AN ALCOTEST
BUT I THINK THAT'S NEEDS TO WORK ITS WAY OUT IN THAT CASE AND WHAT THE SEARCH COMES DOWN.
CHIEF JUSTICE RABNER: I THINK WE'RE GO AHEAD. REGINA M. OBERHOLZER:
THANK YOU.