Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
THE KEY TO THIS ARGUMENT: THE DEFENDANT FAILED TO RAISE THIS ISSUE AT THE TRIAL LEVEL VIA A MOTION TO SUPPRESS THEREFORE THE APPELLATE COURT SHOULD NOT HAVE REVIEWED THE ISSUE:NEVERTHELESS, IMPLICIT IN THE ARGUMENT IS A HUGE INEFFECTIVE ASSISTANCE ARGUMENT! THE COURT OUTLINED THE FACTS PERTAINING TO THIS ISSUE:
N.J.S.A. 39:3-60, in pertinent part, prohibits a driver from using his high beams when he “approaches an oncoming vehicle within five hundred feet.” Based on a violation of that statute, Officer Racite stopped defendant’s car. Because the defense did not question the validity of the stop at the suppression hearing, the record is barren of facts that would shed light on this issue. For example, the record only discloses that Officer Racite was on the side of the road assisting as backup on a motor-vehicle stop when defendant approached using his high beams. We do not know on which side of the road Officer Racite’s patrol car was positioned, whether Racite was in his car facing defendant’s vehicle, and whether Racite’s car was operational. Importantly, no testimony was elicited whether any other cars were traveling in the opposite lane from defendant at the time because the issue was of no moment. Generally, “the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review.” State v. Robinson, 200 N.J. 1, 19 (2009). Parties must make known their positions at the suppression hearing so that the trial court can rule on the issues before it. See ibid. For sound jurisprudential reasons, with few exceptions, “‘our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available.’” Id. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234(1973)). We conclude that it would be unfair, and contrary to our established rules, to decide the lawfulness of the stop when the State was deprived of the opportunity to establish a record that might have resolved the issue through a few questions to Officer Racite. The trial court, moreover, was never called on to rule on the lawfulness of the stop. Under the circumstances, the Appellate Division should have declined to entertain the belatedly raised issue. We therefore reverse the Appellate Division and hold that the lawfulness of the stop was not preserved for appellate review.