Opinion
DOCKET NO. A-3444-12T4
07-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL J. ASHBROOK, Defendant-Appellant.
Brenden T. Shur argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Shur, on the brief). James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 39-12.
Brenden T. Shur argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Shur, on the brief).
James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief). PER CURIAM
Defendant Michael J. Ashbrook appeals his conviction, following a guilty plea, for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. Ashbrook argues that the Law Division erred in denying his motion to dismiss on speedy trial grounds and in precluding his expert witness from testifying as to certain issues. We affirm.
I.
On July 9, 2011, Ashbrook was arrested after he drove his automobile into a parked car in the City of Northfield. He was taken to police headquarters in Egg Harbor Township, because Northfield's Alcotest machine was not functional. The test results indicated a blood alcohol level of 0.08 percent. Ashbrook was charged with DWI and other offenses not relevant to this appeal.
Defense counsel entered his appearance on July 11, at which time he made a demand for discovery, including Alcotest logs and downloads. Defense counsel also asserted Ashbrook's right to a speedy trial. Ashbrook appeared in the Northfield municipal court on August 8. The municipal judge entered an order requiring production of the applicable "digital download data and repair records" from the Alcotest machine by October 1.
According to Ashbrook, on October 20, after defense counsel had sent several letters to the municipal prosecutor seeking the required discovery, he received a computer disk containing downloads. However, in late November, the defense expert reported that the downloads were from the wrong Alcotest machine.
It appears from the record that there were two attorneys acting as municipal prosecutor during the relevant time period.
Defense counsel again requested the required information from the municipal prosecutor. At a hearing on November 30, defense counsel raised the issue with the municipal judge, who reminded the municipal prosecutor that there was an urgency with respect to the production of discovery.
At a hearing on December 21, defense counsel notified the municipal judge that he had been informed by the Egg Harbor Township Police Department that the required data would not be available until January, when the data was downloaded. The municipal prosecutor represented that downloading was done only every five to six months. On January 11, 2012, however, the defense expert reported that the required data would have been available as of September 30, 2011. The discovery was finally received by defense counsel on January 25, 2012.
The State subsequently conceded that the data was, in fact, available at that time.
Ashbrook then moved to suppress the evidence and dismiss the DWI charge, arguing in part that Ashbrook was subject to stress because of a medical condition diagnosed in 1995. Although the State filed no opposing papers, the motion was opposed at oral argument on March 14. The judge denied the motion to dismiss. The Law Division denied Ashbrook's motion for leave to appeal.
The municipal judge held a Rule 104 hearing on the admissibility of the Alcotest results on July 13 and August 13. Ashbrook offered Samuel Sachs as an expert witness. Sachs is a practicing attorney, who participated in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), as a defense attorney. He testified that he founded Alcocoden Associates to assist attorneys in analyzing Alcotest data and also that he had established his own database of Alcotest machines. He further testified that he had been qualified as an expert in over thirty-four municipal courts, by stipulation or following voir dire. There was extensive voir dire concerning the extent and nature of Sachs expertise and the general nature of his proposed testimony.
After acknowledging that he had taken an Alcotest related course from Sachs, the judge limited his testimony to the procedures used for the test administered to Ashbrook, the coordinator's role in running the machine, and the adequacy of the documents provided during discovery. He precluded testimony concerning Sachs's opinion that "the coordinator's operating within a system that is false or based on false premises."
The "coordinator" is the person administering the Alcotest.
Following the judge's limitation on the scope of Sachs's testimony, Ashbrook entered a conditional plea of guilty. He was sentenced to 180 days in the county jail, as well as the required fines and penalties. The custodial sentence was stayed pending appeal to the Law Division.
The trial de novo in the Law Division was held on February 14, 2013. After hearing argument, the judge denied the motion to dismiss and limited the scope of Sachs's testimony, holding that he could not testify outside the parameters of the foundational documents and the administration of the Alcotest. See Chun, supra, 194 N.J. at 153-54. This appeal followed.
II.
Ashbrook raises the following issues on appeal:
I. THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.
II. THE LOWER COURT ERRED IN [SEVERELY] LIMITING THE SCOPE OF MR. SACHS' EXPERT TESTIMONY.
Our role in an appeal such as this is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). The Law Division determination is de novo on the record from the municipal court. R. 3:23-8(a). Our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
A.
"[T]he right to a speedy trial, guaranteed by the United States Constitution, U.S. Const. amend. VI, [is] a fundamental right applied to the states by the Due Process Clause of the Fourteenth Amendment." State v. Cahill, 213 N.J. 253, 264 (2013) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967)); see also N.J. Const., art. I, ¶ 10; Cahill, supra, 213 N.J. at 263-64 (recognizing an equivalent right under New Jersey law); State v. Smith, 10 N.J. 84, 89-90 (1952).
In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), "[t]he Court identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial." Cahill, supra, 213 N.J. at 264. The four factors are: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant has asserted the right, and (4) prejudice to the defendant. Ibid. As our Supreme Court made clear in Cahill, those four factors are still applicable in assessing a claim that a defendant has been denied a speedy trial. Id. at 271. "None of the Barker factors is determinative, and the absence of one or some of the factors is not conclusive of the ultimate determination of whether the right has been violated." Id. at 267 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "All factors are related, thereby requiring a balancing of all applicable factors while recognizing the fundamental right bestowed on a defendant to a speedy trial." Ibid.
In this case, Ashbrook was charged with DWI on July 9, 2011. He promptly requested discovery and invoked his right to a speedy trial, which he continued to do on a regular basis thereafter. He also obtained an order in August 2011 requiring production of the discovery by October 1. See State v. Holup, 253 N.J. Super. 320, 325 (App. Div. 1992). Despite regular requests for the discovery, defense counsel did not receive the correct Alcotest download data until January 25, 2012. Prior to that date, defense counsel had been sent discovery related to the wrong machine and had then been informed by the State in late December, as had the municipal judge, that the correct data was not yet available, when in fact it had been available since September 30, 2011. Ashbrook's defense attorney informed the judge and prosecutor on February 8, 2012, that he intended to file a motion to dismiss for lack of a speedy trial. The motion itself was denied on March 14.
We are unimpressed by the State's argument that Ashbrook should have moved for a "move it or lose it" trial date, R. 3:25-2, at a time he had not received the discovery to which he was entitled and had not had an opportunity to have the data reviewed by an expert.
As a result of the State's missteps, there was a seven month delay between the date of the summons and the receipt of the correct data downloads. Nevertheless, the Supreme Court has recognized that the discovery requirements of Chun have rendered the goal of disposing of DWI cases within sixty days as "unrealistic," and declined to create a bright-line test for unacceptable delay. Cahill, supra, 213 N.J. at 269-70. Although we view the delay as too long because it was largely the result of mistakes by the State, we do not view it as determinative in this case.
The State suggests, as did the municipal judge, that the delay resulted from the confusion due to the fact that the Alcotest was not administered in the venue in which the charges were pending and the involvement of different municipal prosecutors at several court proceedings concerning the discovery. That may well have been the case, but we nevertheless note that the State has not supported its explanation in the record, inasmuch as it failed to file papers in opposition to the motion to dismiss.
Ashbrook contends that he was particularly prejudiced by the delay because of his medical condition. That assertion, however, is not supported by a certification from Ashbrook stating that the delay has in any way exacerbated his condition. The record contains only a letter from his treating physician, asserting his "concern . . . that the level of stress that he is undergoing will detrimentally affect [Ashbrook's] health." (Emphasis added). In addition to being unsworn, the doctor's letter is quite brief and includes no detail in terms of the extent to which, if at all, Ashbrook's condition makes him more vulnerable to stress or how stress would worsen his condition.
Balancing all of the Barker factors, as we are required to do, we conclude that the delay in the municipal court was not so long or so prejudicial that it violated Ashbrook's right to a speedy trial. Consequently, we see no error in the Law Division judge's denial of the motion to dismiss.
B.
We now turn to Ashbrook's assertion that the Law Division judge improperly limited the scope of Sach's testimony.
"Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citation and internal quotation marks omitted).
"The determination of an expert's competency to testify and of the sufficiency, as distinguished from the weight of the testimony, is primarily for the discretion of the trial judge." Fantini v. Alexander, 172 N.J. Super. 105, 109 (App. Div. 1980). "A court's witness-qualification decision is subject to essentially an abuse-of-discretion standard of review and will only be reversed for 'manifest error and injustice.'" State v. Jenewicz, 193 N.J. 440, 455 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)).
Sachs is an attorney who was one of the defense counsels in Chun. He undoubtedly has an expertise in some aspects of Chun and litigation involving Alcotest machines, a subject on which he has been admitted by New Jersey courts to testify as an expert and on which he lectures to the bench and bar. That does not, however, mean that he has sufficient expertise in all matters related to the Alcotest machine, and that is the basis on which the scope of his testimony was limited.
Sachs's report and curriculum vitae are not contained in the record. In addition, there is no information with respect to the areas of expertise as to which he has been admitted as an expert in other New Jersey courts.
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In Chun, supra, 194 N.J. at 92, 134 (citation and internal quotation marks omitted), the Supreme Court held that the State must "clearly establish" that "(1) the [Alcotest] device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." If the instrument is deemed reliable in general, the State must then offer the following "foundational documents" into evidence:
(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;See also State v. Holland, 422 N.J. Super. 185, 190 (App. Div. 2011).
(2) the most recent New Standard Solution Report prior to a defendant's test; and
(3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control tests.
[Id. at 154.]
In addition to these three "core" foundational documents, the State must also provide twelve additional foundational documents in discovery, so that a defendant may challenge the Alcotest's functionality for flaws in its operation:
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change;The Alcotest also produces electronic records containing data downloads, id. at 90, which DWI defendants are also entitled to receive, State v. Maricic, 417 N.J. Super. 280, 286-87 (App. Div. 2010).
(2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;
(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered));
(6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);
(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);
(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration;
(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests;
(11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and
(12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.
[Chun, supra, 194 N.J. at 135.]
The data download was part of the discovery sought by Ashbrook, which the State did not produce within the time ordered by the municipal court. Sachs proposed to testify that, based on his review of that data, it is not possible to determine the operability of the Alcotest machine on which Ashbrook was tested. Put another way, Sachs proposed to go beyond the framework established by Chun and to question the operability of the machine used to test Ashbrook based on data not considered essential by the Chun Court. We note that Ashbrook chose not to have Sachs testify within the area permitted by the judge.
In his appellate brief, Ashbrook asserts that the Alcotest machine is "very complex indeed" and that, during the Chun hearing process, there were many expert witnesses, many of whom were computer experts because there is a computer embedded in the Aloctest machine. Of particular note, he asserts that "computer experts would lead the way" for that reason. Nevertheless, there is nothing in the record to suggest that Sachs has the sort of computer expertise to support the opinions he proposed to give. That Sachs was the lead defense attorney for software issues during Chun does not make him a computer or software expert.
Having reviewed the record in light of the applicable law, we find no abuse of the Law Division judge's discretion in limiting the scope of Sachs's testimony based on the nature of his expertise in some Alcotest areas and lack of expertise in others. Consequently, we affirm the order on appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION