Opinion
DOCKET NO. A-2951-13T3
12-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PRABAKARAN KESAVAN, Defendant-Appellant.
Jill R. Cohen argued the cause for appellant. Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Hamett, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-34-13. Jill R. Cohen argued the cause for appellant. Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Hamett, of counsel and on the brief). PER CURIAM
Defendant Prabakaran Kesavan appeals his conviction for driving while intoxicated (DWI) that followed from his de novo appeal to the Law Division. We affirm.
On May 20 2012, defendant was stopped by the Runnemede Police Department based on a tip about erratic driving. After the odor of alcohol was detected, defendant failed the field sobriety test that was administered. Once placed in custody, defendant was taken to the Barrington Police Department for administration of the Draeger Alcotest because Runnemede's machine was not working correctly. The test registered a blood alcohol content reading of .19 percent, well above the State limit of .08. Among other things, defendant was charged with driving while under the influence, N.J.S.A. 39:4-50(a). This was his third DWI offense, but only the second within ten years.
With the assistance of counsel, defendant requested discovery on two occasions in June and July 2012 including information regarding the repair logs for the Barrington Alcotest machine and dispatch records. See State v. Chun, 194 N.J. 54, 145, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) (requiring production of "foundational documents" to show proper operation of the Alcotest machine). When this was not forthcoming, defendant filed a motion to compel the information under State v. Holup, 253 N.J. Super. 320, 325 (App. Div. 1992), which motion was granted by the municipal court judge, who gave the prosecution until October 2012 to provide the requested discovery. He did not specify a remedy in the order for non-compliance.
The case was scheduled for trial, but in December 2012 it was adjourned when additional discovery was provided to defendant. The judge stated he might bar use of the Alcotest readings "soon" if outstanding discovery was not produced. A new prosecutor took over the case and in January 2013 more discovery was requested by defendant and provided by the prosecutor. A second motion was made by defendant to compel discovery or to dismiss the complaint. When the parties appeared in court in late January 2013, defendant and the prosecutor had narrowed the issues. The case was adjourned for an additional thirty days.
On April 15, 2013, defendant entered a guilty plea to driving under the influence conditioned on his right to appeal the discovery issues. He was sentenced to loss of his license for two years and fined. This conviction was treated as a second DWI rather than a third because of application of the ten-year step down provision. N.J.S.A. 39:4-50(a)(3).
When defendant pled guilty to the DWI, there was an acknowledgement discovery had been provided and that the Alcotest results were accurate. With respect to the discovery, his counsel observed:
[Defendant's counsel]: . . . Judge, my client intends to enter a guilty plea to the charge of driving while under the influence of alcohol. This is an older case. The defendant has been here numerous times and we've had an issue getting all of the discovery.Also, the defendant's counsel agreed the Alcotest reading of .19 was accurate.
However, when [the then current prosecutor] became the Prosecutor, we did get the discovery, but it was probably eight months into the case.
So, we wanted to take a plea conditioned on appealing the order and the failure of the [c]ourt or the -- the failure of the [c]ourt to actually dismiss the reading in the case.
[(Emphasis added).]
[Defendant's counsel]: Judge, if -- if I may, Judge, he agrees that the reading is a .19.
. . . .
THE COURT: Well, did you see [the Chun Worksheet A] and the machine was working properly?
[Defendant's counsel]: Yes, it's a true reading, Judge. I saw it.
THE COURT: Okay. I don't have a copy of the Chun Worksheet A, but the defense Attorney said she did see it. The reading -- the machine was working properly and the readings were true.
[(Emphasis added).]
On appeal to the Law Division, Judge Donald Stein heard the matter de novo on the municipal court record. Although there had been an eight-month delay in providing discovery, which he described as "egregious," the judge nevertheless affirmed defendant's DWI conviction, but issued a limited remand to the municipal court to consider the imposition of monetary sanctions for the delay in providing discovery and for defense counsel's multiple appearances. The defendant did not raise any issue about outstanding discovery before Judge Stein.
In this appeal, the defendant raises the following issues:
I. State is in breach of the Holup Order granted by the [Municipal Court Judge] on July 23, 2012 due to their failure to provide necessary discovery pursuant to State v. Carrero, infra
II. The assessment of attorney's fees in this case is an improper remedy because Defense counsel relied upon the [Municipal Court Judge's] intentions stated on the record to their detriment
III. Fees and costs are not sufficiently curative; the proper sanction would be suppression of the Alcotest results
On appeal, 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)(citing State v. Joas, 34 N.J. 179, 184 (1961)). Under Rule 3:23-8(a)(2), the Law Division makes independent findings of fact and conclusions of law de novo, based on the record from the municipal court. See State v. States, 44 N.J. 285, 293 (1965). Where the underlying issue involves a discovery dispute, our review is limited to determining whether the trial court abused its discretion in affirming the conviction and remanding the matter for the assessment of attorney's fees. See State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011) (applying abuse of discretion standard to discovery rulings in DWI case). We agree there was no abuse of discretion by Judge Stein on this record.
The municipal court "has broad discretion in determining what sanctions, if any, to impose when a party fails to comply with discovery obligations." State v. Wolfe, 431 N.J. Super. 356, 363 (App. Div. 2013), certif. denied, 217 N.J. 285 (2014) (quoting State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled on other grounds, State v. Velez, 119 N.J. 185 (1990) (citations omitted)). Rule 7:7-7(j) provides the municipal court may "order that party to provide the discovery materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate."
In Holup, we addressed, in part, the procedures to follow where the municipal prosecutor fails to provide discovery. Holup, supra, 253 N.J. Super. at 324-25. "[D]efense counsel [may] serve a motion . . . upon the municipal prosecutor, filing the original with the municipal court seeking an order limiting time for the production of discovery and upon the municipal prosecutor's failure to do so, dismissal of the action." Id. at 325. However, these procedures did not restrict the sanctions that a municipal court could impose or require dismissal.
There was no abuse of discretion by Judge Stein in affirming defendant's conviction and remanding to the municipal court judge to impose monetary sanctions. He ruled that suppression of the Alcotest results was "too dramatic" and not warranted. The record showed the defendant had failed the field sobriety test and the State indicated it could proceed without the results of the Alcotest. At the final hearing, defendant agreed discovery had been provided and that the results of the Alcotest were "true." The judge noted the delay in providing discovery was not an intentional act, but was due in part to the involvement of two different municipalities. Discovery was provided when a new prosecutor became involved. Further, the municipal court judge had not ruled in prior proceedings that the Alcotest results could not be used; he simply had indicated suppression could be the remedy in the future. We discern no abuse of discretion by the judge on these facts.
When the matter was before the municipal court, defendant agreed the discovery had been provided and that the result of the Alcotest was a true reading. Without objection from defendant, the Law Division judge then recited as uncontested that the requested discovery had been provided. Although defendant's brief on appeal now asserts there was a lack of discovery, the record directly contradicts this new assertion. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also State v. Witt, ___ N.J. ___ (2015). --------
As for the remand to municipal court for monetary sanctions, Judge Stein noted the delay that had occurred to complete discovery, concluding there was "no excuse for this to happen." However, he expressed that monetary sanctions were a greater penalty for the State than suppression of the Alcotest results and would address the monetary prejudice defendant had suffered as a result of his counsel's repeated court appearances. We cannot say that the judge abused his discretion in sustaining the conviction and, at the same time, allowing the defendant an avenue to obtain some monetary relief for his undue expenses.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION