State v. Cohen ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 30,158 10 Y’HOSHUA COHEN, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 13 Karen L. Parsons, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Rabbi Y’hoshua Cohen 18 Alto, NM 19 Pro Se Appellant 20 MEMORANDUM OPINION 21 FRY, Chief Judge. 22 Rabbi Y’hoshua Cohen, pro se (Defendant) appeals from the district court’s 23 judgment and sentence and remand to magistrate court for enforcement of sentence. 24 [RP 13] Defendant raises three issues on appeal, contending that (1) the arresting 1 police officer could not prosecute Defendant’s de novo appeal to district court; (2) the 2 evidence was insufficient to convict Defendant of speeding, failure to carry insurance 3 or registration for his vehicle because the officer did not produce his vehicle tape and 4 lied about the events that occurred; and (3) the magistrate court failed to allow 5 adequate discovery and failed otherwise to give Defendant a fair trial. [See, e.g., DS 6 numbered as page 13, ¶ 15] 7 This Court’s calendar notice proposed summary reversal on Issue 1. The State 8 has filed a response in which it agrees that reversal is appropriate. We further note 9 that Defendant has filed a motion for extension of time to file the memorandum and 10 a transcript, and a motion for appointment of appellate defense counsel. Since this 11 memorandum opinion disposes of Defendant’s appeal in favor of Defendant, we 12 hereby deny Defendant’s motions as moot. 13 DISCUSSION 14 The record proper indicates that Defendant filed a written motion to dismiss the 15 district court de novo appeal on the issue of whether the arresting police officer could 16 not prosecute Defendant’s de novo appeal to district court. [RP 10-11] The State did 17 not file a written response to the motion. The district court’s order affirming 18 Defendant’s convictions in magistrate court states: “the officer is permitted to 19 prosecute traffic citations under statutes in [m]agistrate [c]ourts in the State of New 2 1 Mexico and there is no reason to restrict the officer from doing so in [d]istrict [c]ourt 2 on appeal from [m]agistrate [c]ourt.” We disagree. 3 Attorney General Opinion No. 89-27 construes all of the relevant statutes and 4 rules relating to this issue. See 89-27 Op. Att’y Gen. 1-3 (1989) (advising that police 5 officers may not continue to prosecute criminal cases in district court after an appeal 6 of the magistrate court judgment has been filed in district court without violating 7 NMSA 1978, Section 36-1-19 (1985). The opinion concludes that, while Rule 6- 8 108(B) NMRA of the Rules of Criminal Procedure for the Magistrate Courts allows 9 a police officer to prosecute a criminal case in magistrate court, there is no authority 10 under any statute or Supreme Court rule for the police officer to do so on behalf of the 11 State in district court on a de novo appeal from magistrate court. In fact, there is 12 express statutory authority to the contrary. Section 36-1-19(A) sets out the general 13 rule regarding legal representation of governmental entities in criminal prosecutions: 14 no one shall represent the state or any county thereof in any matter in 15 which the state or county is interested except the attorney general, his 16 legally appointed and qualified assistants or the district attorney or his 17 legally appointed and qualified assistants and such associate counsel as 18 may appear on order of the court, with the consent of the attorney 19 general or district attorney. 20 In this case, Defendant was prosecuted and convicted in magistrate court for 21 violating state statutes that prohibit speeding, and require a vehicle owner to carry 22 proof of insurance and registration. [RP 2] Rule 6-108(B) allows the investigating 3 1 police officer, Officer Hazen, to prosecute these violations in magistrate court. As 2 quoted above, Section 36-1-19, however, requires “the attorney general, his legally 3 appointed and qualified assistants or the district attorney or his legally appointed and 4 qualified assistants and such associate counsel as may appear on order of the court, 5 with the consent of the attorney general or district attorney.” NMSA 1978, Section 6 36-1-2 (1984) provides that “[e]ach district attorney in this state may appoint one or 7 more suitable persons who shall be attorneys-at-law practicing their profession in this 8 state and members of the bar of this state to be his assistants.” The exception provided 9 by Rule 6-108(B) that allows Officer Hazen to prosecute the case against Defendant 10 in magistrate court does not apply to the district courts. Rule 6-703(J) NMRA 11 provides that “appeals from the magistrate court to the district court shall be de 12 novo[,]” and Rule 6-703(N) NMRA provides that such appeals “shall be governed by 13 the rules of Criminal Procedure for the District Courts.” We know of no provision in 14 the Rules of Criminal Procedure for the District Courts that modifies the general rule 15 of Section 36-1-19, which does not permit Officer Hazen to appear before the district 16 court to prosecute Defendant’s de novo appeal from the magistrate court in this case. 17 The State’s response to this Court’s calendar notice agrees with the calendar 18 notice analysis. [State’s response] The State requests that this Court reverse and 19 remand to the district court for Defendant to be retried in district court on Defendant’s 4 1 de novo appeal on the basis that such retrial will not violate Defendant’s double 2 jeopardy rights. [State’s Response, 4-5] We decline the State’s request and take no 3 position on whether retrial in district court of Defendant’s de novo appeal from his 4 metropolitan conviction would violate Defendant’s double jeopardy rights. 5 CONCLUSION 6 Accordingly, with regard to Issue 1, we reverse and remand to the district court 7 for further proceedings consistent with this opinion. 8 IT IS SO ORDERED. 9 10 CYNTHIA A. FRY, Chief Judge 11 WE CONCUR: 12 13 RODERICK T. KENNEDY, Judge 14 15 LINDA M. VANZI, Judge 5