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State v. Donfield

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

 DOCKET NO.  A-3792-10T3

  STATE OF NEWJERSEY Plaintiff-Appellant,   v.   ROBERT DONFIELD,   Defendant-Respondent.   ________________________________________________________________   Submitted October 5, 2011 – Decided   Before Judges Fuentes and Koblitz.   On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-25-10.   John L. Molinelli, Bergen County Prosecutor, attorney for appellant (David A. Malfitano, Assistant Prosecutor, of counsel and on the briefs).   Rem Zeller Law Group, attorneys for respondent (Joseph P. Rem, Jr., of counsel; Joshua Lax, on the brief).   PER CURIAM   Defendant Robert Donfield (Donfield) was charged in Franklin Lakes on December 28, 2009, with driving while intoxicated,  N.J.S.A. 39:4-50, as well as  various other motor vehicle offenses.  The municipal court judge granted defendant's motion to dismiss the Alcotest results because the State used a thermometer manufactured by Control Company rather than the Ertco-Hart thermometer approved in State v. Chun, 194 N.J. 54 (2008).  After the State's appeal, on February 15, 2011, the Law Division also suppressed the Alcotest results on the same basis and stayed the proceedings.  We granted the State's motion for leave to appeal on April 12, 2011. The State raises only the following issue: [1] POINT I   THE STATE HAS SATISFIED ITS BURDEN PURSUANT TO STATE V. CHUN BY PROVIDING DEFENDANT WITH THE APPLICABLE CONTROL COMPANY TEMPERATURE PROBE DOCUMENTATION.   Based on our recent decision in the consolidated cases of State v. Holland and State v. Pizzo,  ____ N.J. Super. ____, ____ (App. Div. 2011) (slip op. at 10-15), which resolved the precise issue raised on appeal, we reverse.   Reversed and remanded for further proceedings.  We do not retain jurisdiction.  

[1] In response to the State's appeal, defendant argues that the resultant delay violated his right to a speedy trial.  However, defendant did not make a motion to dismiss at the trial level based on this right, so there is no decision for us to review.  Moreover, our grant of leave to appeal did not encompass his speedy trial argument.  We therefore do not consider it.  See Triffin v. Am. Intern. Group, Inc., 372 N.J. Super. 517, 520 (App. Div. 2004).

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