
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FREDERIC JOSEPH KAIN, DEFENDANT-APPELLANT.
    Argued February 1, 1965
    Decided February 26, 1965.
    
      
      Mr. Marvin H. Gladstone argued the cause for defendant (Mr. Walter E. Jones, attorney).
    
      Mr. Morris Yamner, Deputy Attorney General, argued the cause for plaintiff (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Messrs. Morris Yamner and Remo M. Groce, on the brief).
   The opinion of the court was delivered

Per Curiam.

The defendant was convicted in the municipal court and on a trial de novo in the county count of drunken driving. He appealed to the Appellate Division and we certified the appeal before it was heard there.

The case was so certified because it purported to present a substantial constitutional question as to whether the defendant had been denied access to others and thereby deprived of the opportunity of establishing his defense that he was not under the influence of intoxicating liquor while operating a motor vehicle. The record, however, shows the issue is not in the ease. Defendant sought in the county court by a pretrial motion supported by ex parte affidavits to assert that claim. That court very properly refused to decide the matter on naked affidavits without cross-examination and therefore denied the motion with leave to reassert the claim on the basis of live testimony. Defendant did not do so and, in fact, the testimony at the trial dissipated any basis for defendant’s charge.

We see no substance in any of the other issues advanced on this appeal.

The judgment is accordingly affirmed.

For affirmance — Chief Justice Weintraub and Justices Jacobs, Eraistcis, Proctor, Hall and Haneman—6.

For reversal—None.  