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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
2

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
3

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
4

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
5

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