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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
AMY JONES,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Jacqueline Flores, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Vicki W. Zelle, Assistant Appellate Public Defender, Albuquerque, NM, for
Appellant
JAMES J. WECHSLER, Judge. WE CONCUR:
MICHAEL E. VIGIL, Chief Judge, JONATHAN B. SUTIN, Judge
AUTHOR: JAMES J. WECHSLER
{1} Defendant Amy Jones
filed a docketing statement, appealing from the district court’s affirmance of
her convictions by bench trial for driving while under the influence of
intoxicating liquor (first offense), contrary to NMSA 1978, § 66-8-102
(2010), and stop sign violation, contrary to NMSA 1978, § 66-7-330 (1978).
[DS 1; RP 3, 12, 14] In this Court’s notice of proposed disposition, we
proposed to adopt the memorandum opinion of the district court and affirm. [CN
2–3] After extension granted, Defendant timely filed a memorandum in opposition
(MIO). We have given due consideration to the memorandum in opposition, and,
remaining unpersuaded, we affirm Defendant’s convictions.
{2} As a prefatory
matter, we note that a party responding to a proposed disposition of this Court
must point out specific errors in fact or law.
See Hennessy v. Duryea,
1998-NMCA-036, ¶ 24,
124 N.M. 754,
955 P.2d 683 (“Our courts have
repeatedly held that, in summary calendar cases, the burden is on the party
opposing the proposed disposition to clearly point out errors in fact or
law.”). In response to this Court’s calendar notice, counsel has provided nine
pages describing the facts and proceedings. [MIO 3-11] The fact section in the
memorandum in opposition is essentially a verbatim reiteration of the fact
section from Defendant’s docketing statement. [
See DS 3-12] Counsel has
not pointed out whether any of the facts asserted are contrary to those relied
on by this Court in our notice of proposed disposition and, in fact, noted in a
footnote that the facts were obtained from the docketing statement except where
specifically noted, with no specific notation indicating that any of the facts
were indeed taken from elsewhere. [
See MIO 3 n.3] Although we appreciate
the footnote, this repetition of material that has already been presented to
the Court, with no indication as to which parts, if any, contradict the facts
relied upon by the district court or this Court or which parts, if any, are
responsive to the notice of proposed disposition, is not useful and creates
unnecessary work for both this Court and the parties. We request that counsel
refrain from this practice in any future pleadings she may file with this
Court.
{3} In her memorandum
in opposition, Defendant continues to assert the same arguments that she raised
in her docketing statement: (A) that Defendant was entitled to a jury trial
because a DWI offense is a serious offense, and (B) that there was insufficient
evidence to convict Defendant in light of the complications presented by
Defendant’s hypoglycemia, her recent use of her inhaler, and the tenderness of
her ankle. [MIO 12-14] Defendant has not raised any issues or arguments that
were not addressed in our notice of proposed disposition and the district
court’s memorandum opinion that we proposed to adopt; we therefore refer
Defendant to our notice of proposed disposition and to the district court’s
memorandum opinion, which we now adopt. [
See CN 2-4; RP 195]
See
Hennessy,
1998-NMCA-036, ¶ 24 (“Our courts have repeatedly held that,
in summary calendar cases, the burden is on the party opposing the proposed
disposition to clearly point out errors in fact or law.”);
State v.
Mondragon,
1988-NMCA-027, ¶ 10,
107 N.M. 421,
759 P.2d 1003 (stating that a
party responding to a summary calendar notice must come forward and
specifically point out errors of law and fact, and the repetition of earlier
arguments does not fulfill this requirement),
superseded by statute on other
grounds as stated in State v. Harris,
2013-NMCA-031, ¶ 3,
297 P.3d 374.
{4} Accordingly, for
the reasons set forth in our notice of proposed disposition and herein, and for
the reasons articulated in the memorandum opinion of the district court, we
affirm Defendant’s convictions.
MICHAEL E. VIGIL, Chief Judge