Opinion
DOCKET NO. A-1683-14T3
05-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIRAJ PATEL, Defendant-Appellant.
The Hernandez Law Firm, P.C., attorneys for appellant (Thomas Cannavo, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 44-2013. The Hernandez Law Firm, P.C., attorneys for appellant (Thomas Cannavo, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Miraj Patel appeals from his October 30, 2014 conviction, after a trial de novo, of driving while under the influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50. Having considered defendant's arguments in light of the facts and applicable law, we affirm in part, reverse in part, and remand for further proceedings.
I.
Shortly before midnight on December 2, 2011, Woodbridge Police Officer Joseph A. Angelo stopped defendant after observing him travel 44 m.p.h. in a 25 m.p.h. zone. Defendant fumbled with his credentials and smelled of alcoholic beverages. After exiting his vehicle to perform field sobriety tests, defendant swayed while standing in place. He raised his arms for balance during the one-leg-stand test. While he performed the walk-and-turn test, he failed to place the heel of one foot closely in front of the toes of the other, and he twice deviated from a straight line. He admitted he consumed two beers and a shot. His eye movements were not smooth while performing the Horizontal Gaze Nystagmus test.
Angelo arrested defendant on suspicion of DUI and transported him to the station to administer the Alcotest chemical breath test. Angelo testified that he observed defendant for twenty minutes, according to his wristwatch, before beginning the Alcotest. The machine measured a .15 blood alcohol content (BAC).
Defendant was also charged with speeding, N.J.S.A. 39:4-98; driving without a license, N.J.S.A. 39:3-10; and reckless driving, N.J.S.A. 39:4-96. Defendant was convicted of the first two; the State dismissed the third at the end of the trial. These charges are not an issue on appeal.
The municipal court denied multiple defense pre-trial motions. Defendant sought to suppress the fruits of the arrest on the grounds it lacked probable cause. He moved to exclude the Alcotest results because, allegedly, the police deliberately destroyed a station video, and Angelo did not observe defendant for twenty minutes. See State v. Chun, 194 N.J. 54, 79 cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Defendant also unsuccessfully sought a jury trial. The court granted the State's pre-trial motion to quash a subpoena of Angelo's cellphone records during the time he observed defendant and administered the Alcotest. The court also denied defendant's mid-trial requests for an N.J.R.E. 104 hearing regarding admissibility of the Alcotest results, and a Miranda hearing after Angelo testified that, on the way to the station, defendant predicted he would not do well on the chemical breath test.
The municipal court found defendant guilty of DUI based on both the Alcotest results and Angelo's observations. As it was defendant's third DUI conviction, the court imposed a 180-day jail term, of which ninety days could be served at an inpatient rehabilitation facility; a ten-year loss of driving privileges; and an ignition interlock requirement. The court also imposed the mandatory minimum monetary sanctions, totaling $1158.
Without setting forth reasons, the municipal court stayed the sentence in its entirety pending appeal. Cf. State v. Robertson, 438 N.J. Super. 47, 74-76 (App. Div. 2014), certif. granted, 221 N.J. 287 (2015).
On de novo review, the Law Division found defendant guilty solely on the basis of the Alcotest results. The court rejected defendant's claim that the municipality's failure to preserve and produce the stationhouse video deprived him of his right to due process. The court held there was probable cause to arrest; found the officer observed defendant for the requisite twenty minutes, and did not address defendant's appeal from the order quashing his subpoena of the officer's cell phone records. The court imposed the same penalties as the municipal court and stayed the sentence subject to several conditions.
On appeal, defendant presents the following points for our review:
I. THE LAW DIVISION ERRED IN HOLDING THAT THE OBSERVATIONS OF THE OFFIC[E]R WERE SUFFICIENT TO ESTABLISH PROBABLE CA[U]SE TO ARREST FOR DWI. THUS, THIS COURT SHOULD REVERSE THE RULING AND ENTER A JUDGMENT OF ACQUITTAL ON THE DWI.
II. THIS COURT SHOULD REVERSE THE LAW DIVISION AND EXCLUDE THE ALCOTEST READING DUE TO THE DELIBERATE DESTRUCTION OF THE POLICE STATION SURVEILLANCE VIDEO IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS AND ART. 1, PAR 1 OF THE NEW JERSEY CONSTITUTION.
A. The police conduct of not preserving the in-station video after it was requested without justification constitutes prima facie or sufficient evidence of "bad faith" requiring exclusion of the breath test results.
B. If "bad faith" is not found, this court should nevertheless find a due process spoliation of evidence violation based on the State Constitution and fundamental fairness to defendant as expressed in the Arizona v. Youngblood concurring opinion of Justice Stevens and other jurisdictions.
III. EVEN ON THE EXISTING RECORD, THE LAW DIVISION ERRED IN FAILING TO EXC[L]UDE THE ALCOTEST RESULTS BECAUSE THE STATE FAILED TO SATISFY THE TWENTY-MINUTE OBSERVATION REQUIREMENT.
IV. DEFENDANT SHOULD BE ACQUITTED DE NOVO OF THE OBSERVATIONAL PRONG OF THE D.W.I. STATUTE.
V. IF THE MOTION TO SUPPRESS IS NOT GRANTED AND DEFENDANT IS NOT ACQUITTED OF BOTH PRONGS AS A RESULT OF THIS COURT'S DECI[S]ION, THEN THIS COURT SHOULD REMAND THIS CASE FOR A PROPER N.J.R.E. 104 HEARING AS TO MIRANDA AND ADMINISTRATION OF THE ALCOTEST. DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE COURTS BELOW.
VI. IF DEFENDANT IS NOT ACQUITTED OF BOTH PRONGS OF THE DWI STATUTE, THE DWI CONVICTION SHOULD BE VACATED AND THE MATTER REMANDED AFFORDING DEFENDANT A JURY TRIAL GIVEN THE SEVERITY OF THIRD DWI PENALTIES PURSUANT TO THE SIXTH AMENDMENT AND ARTICLE 1, PAR. 9 OF THE NEW JERSEY CONSTITUTION.
II.
In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, R. 3:23-8(a)(2), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside the Law Division and municipal court's "concurrent findings of facts . . . ." Id. at 474. However, where issues on appeal turn on purely legal determinations, our review is plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 209 N.J. 430 (2012). In particular, an appellate court is not required to defer to a trial court's finding of probable cause "when the facts and inferences do not support that conclusion." State v. Gibson, 219 N.J. 277, 294 (2014).
A.
We consider first defendant's contention that Angelo lacked probable cause to arrest defendant for DUI. Citing Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1311, 93 L. Ed. 2d 1879, 1890 (1949), the court noted that probable cause exists where the facts and circumstances known by the officer are "sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." After reviewing the facts in detail, the court concluded:
Officer Angelo had probable cause to arrest the defendant for driving while intoxicated based on the speeding, coupled with the physical characteristics of the defendant, including his fumbling to retrieve his credentials, the odor of alcohol emitting from his breath, his inability to stay in the start position prior to the field sobriety tests being administered, and his admission to Officer Angelo that he was in fact drinking prior to the stop.We discern no error in the court's determination.
Based on the aforementioned observations, Officer Angelo had reasonably trustworthy information sufficient to warrant the belief that the defendant was driving his vehicle while under the influence, which warranted the defendant's arrest. Officer Angelo's belief is not required to satisfy the beyond a reasonable doubt standard, merely the aforementioned probable cause standard.
Defendant contends the court erred in considering defendant's speeding as a factor. Defendant relies on the statement of his expert, Kevin A. Flanagan, that "speeding is not one of the clues or indicators of an intoxicated driver." Defendant also relies on Angelo's concurrence with the proposition that "[s]peeding is not one of the clues of impaired driving . . . . ."
The court is not bound by an expert's opinion, Cty. of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 173-74 (App. Div. 1978), certif. denied, 79 N.J. 483 (1979), nor an officer's subjective view of what constitutes probable cause. See State v. O'Neal, 190 N.J. 601, 613-14 (2007). The trial court properly assessed the "totality of the circumstances," State v. Basil, 202 N.J. 570, 589 (2010), and concluded that speeding was a relevant factor in forming "a well-grounded suspicion" of DUI. Ibid.
Alcohol reduces inhibitions and affects judgment and self-control. See "Effects of Blood Alcohol Concentration," Centers for Disease Control and Prevention, http://www.cdc.gov/motorvehiclesafety/impaired_driving/bac.html. Especially given the presence of other factors indicative of being under the influence, such as defendant's difficulty balancing, the odor of his breath, and his admission of having three drinks, a reasonably objective officer could consider speeding — particularly at almost twice the posted limit — evidence of alcohol consumption.
A motorist may not take to the roads after consuming alcohol if he was "so affected in judgment or control as to make it improper for him to drive on the highways." Johnson, supra, 42 N.J. at 165. Put another way, "under the influence" means "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person . . . ." State v. Tamburro, 68 N.J. 414, 421 (1975). "Competency to operate a motor vehicle safely is the critical question." Id. at 422. Therefore, like erratic driving, speeding "is admissible as evidence of the existence of the statutory condition." Johnson, supra, 42 N.J. at 165.
Flanagan's and Angelo's testimony was apparently based on the omission of speeding from a list of twenty-four visual cues of DWI, such as weaving, straddling lanes, and slow response to traffic signals, which are each associated with DWI at least thirty-five percent of the time. See "Visual Detection of DWI Motorists," Nat'l Highway Traffic Safety Adm. (NHTSA) (DOT HS 808 677) (March 2010), http://nhtsa.gov/staticfiles/nti/pdf/808677.pdf (Visual Detection). When combined, they are even stronger predictors. Ibid. NHTSA apparently excluded speeding as a "cue" because NHTSA researchers concluded it was not strongly associated with driver intoxication. See Douglas H. Harris, et al., "The Visual Detection of Driving While Intoxicated, Field Test of Visual Cues and Detection Methods" (April 1980), http://www.drugdetection.net/NHTSA%20docs/Harris%20Visual%20Detection%20of%20DWI.pdf ("Field Test") at 39; see also Visual Detection at 4 (noting that "a list of more than 100 driving cues that have been found to predict blood alcohol concentrations (BAC) of 0.08 percent or greater . . . was reduced to 24 cues"). Nonetheless, NHTSA researchers found that while six percent of all nighttime drivers have a BAC equal to, or greater than .10, fourteen percent of drivers stopped for exceeding the speed limit by more than 10 m.p.h. had that BAC level and twenty-three percent of speeders had a BAC over .05. See "Field Test" at 34, 35.
The twenty-four pre-stop cues are divided into four categories: "Problems maintaining proper lane position," "Speed and braking problems," "Vigilance problems," and "Judgment problems." Id. at 4. "Speed and braking problems" include "Stopping problems (too far, too short, or too jerky)," "Accelerating or decelerating for no apparent reason," "Varying speed," and "Slow speed (10+ mph under limit)." Id. at 5, 9. See Navarette v. California, ___ U.S. ___, ___, 134 S. Ct. 1683, 1690-91, 188 L. Ed. 2d 680, 689-90 (2014) (relying on data in "Visual Detection" in analyzing whether there was reasonable and articulable suspicion to warrant traffic stop for DWI).
"The probability of detecting DWI by random traffic enforcement stops at night has been found to be about 3 percent (.03)." Visual Detection at 5. --------
Defendant contends "probable cause" requires a determination that "it is more probable than not" that a defendant committed DUI. He is mistaken. "Probable cause . . . does not demand any showing that such belief be correct or more likely true than false." State v. Johnson, 171 N.J. 192, 215 (2002) (internal quotation marks and citations omitted). Consequently, speeding need not be more likely than not associated with DUI. Whether the correlation between speeding and DUI is robust enough to warrant inclusion on a list of visual cues is distinct from the legal question of whether speeding may be considered, along with other factors under the totality of circumstances, in finding probable cause to arrest for DUI. We conclude speeding may be considered. Therefore, the trial court did not err.
Defendant's remaining challenges to the arrest lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(3).
B.
Defendant contends the Alcotest results should have been excluded because the Woodbridge Police Department failed to preserve security video footage of the Alcotest administration. On December 12, 2011, ten days after defendant's arrest, the first of defendant's three attorneys requested "a copy of the videotape at headquarters pursuant to Defendant's arrest." On December 29, 2011, the municipal prosecutor responded that the videos were prepared "for security purposes only," were motion sensitive, were not designed to memorialize events such as the twenty minute observation period or administration of breath tests, and were kept "only as long as the memory of each camera allows, depending on how frequently the camera is activated." Consequently, the prosecutor stated the station video would not be provided without a court order.
Defendant's first counsel did not seek such an order before he was disbarred. Defendant's second counsel, by letter to the municipal prosecutor dated July 19, 2012, renewed the request for the video. That attorney obtained a court order on August 7, 2012, compelling production of the surveillance video of the processing and Alcotest rooms. However, on August 27, 2012, the municipal prosecutor responded that the video had been automatically deleted and overwritten by new footage.
Defendant contends that the municipality's failure to preserve and produce the video violated his right to due process, citing, among other authorities, Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988); and California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 420 (1984). He also contends that Rule 7:7-7 required the State to preserve the video. We discuss the two points in turn.
1.
The State is obliged by due process to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963); see also State v. Carrero, 428 N.J. Super. 495, 516-18 (App. Div. 2012) (applying Brady to quasi-criminal motor vehicle violations). A Brady violation occurs when the prosecution suppresses evidence that is both material and favorable to the defense. State v. Martini, 160 N.J. 248, 268 (1999). "Evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Robertson, supra, 438 N.J. Super. at 67 (quoting State v. Knight, 145 N.J. 233, 246 (1996)). "When the evidence withheld is no longer available, to establish a due process violation a defendant may show that the evidence had 'an exculpatory value that was apparent before [it] was destroyed' and that 'the defendant would be unable to obtain comparable evidence by other reasonably available means.'" State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009) (quoting Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422). Suppression of exculpatory evidence violates due process regardless of whether the prosecutor acted in bad faith. Knight, supra, 145 N.J. at 245.
However, a different standard applies to evidence that is only potentially useful. "Without bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting Youngblood, supra, 488 U.S. at 57, 109 S. Ct. at 337, 102 L. Ed. 2d at 289); see also State v. Marshall, 123 N.J. 1, 109 (1991) (applying Youngblood bad faith standard); Mustaro, supra, 411 N.J. Super. at 103). Where evidence has been destroyed, the court must focus on "(1) whether there was bad faith or connivance on the part of the government, (2) whether the evidence . . . was sufficiently material to the defense, [and] (3) whether [the] defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 579 (App. Div.) (internal citations omitted), certif. denied, 101 N.J. 335 (1985).
Defendant urges us to dispense with the bad faith requirement, citing the view of some other states and a minority on the United States Supreme Court. However, our Supreme Court follows the bad faith requirement set forth in Youngblood. See Marshall, supra, 123 N.J. at 109; Mustaro, supra, 411 N.J. Super. at 103 n.4 (declining to follow, based on New Jersey Supreme Court precedent, other jurisdictions that have determined that proof of bad faith is not required by the State constitutions). We are bound by the decision of our Supreme Court.
Applying these principles, we discern no due process violation. First, defendant has not demonstrated that the erased video had exculpatory value that was apparent before it was destroyed. The State was obliged to prove, by clear and convincing evidence, State v. Ugrovics, 410 N.J. Super. 482, 489 (App. Div. 2009), cert. denied, 202 N.J. 346 (2010), that Angelo observed defendant for the required twenty minutes before administering the Alcotest. See Chun, 194 N.J. at 79; State v. Filson, 409 N.J. Super. 246, 258-61 (Law Div. 2009) (stating observation may be performed by visual and non-visual means). The motion sensitive video presumably would have indicated any occasion that Angelo entered or exited the Alcotest room where the test was performed, or the processing room where the twenty-minute observation occurred. However, we have no basis to believe that the video undermined, as opposed to supported, Angelo's testimony that he observed defendant for the requisite twenty minute period.
Nor has defendant met his burden to establish bad faith. Youngblood, supra, 488 U.S. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289. Our courts have held that the routine destruction of video or other data does not establish bad faith. See State v. Reynolds, 124 N.J. 559, 569 (1991) (no bad faith where police destroyed tapes of police radio broadcast to arresting officer); Robertson, supra, 438 N.J. Super. at 72 (no bad faith where data routinely erased due to "firmware bug"); Mustaro, supra, 411 N.J. Super. at 104 (reuse of video in accord with departmental procedures ninety days after arrest did not indicate bad faith); see also Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2533, 81 L. Ed. 2d at 421-22 (finding no due process violation where California authorities routinely failed to preserve breath samples but did so in "good faith and in accord with their normal practice").
Moreover, the fact that a discovery request was made prior to the routine destruction of evidence does not compel a finding of bad faith. See Illinois v. Fisher, 540 U.S. 544, 548, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004) ("We have never held or suggested that the existence of a pending discovery request eliminates the necessity of showing bad faith on the part of the police."). There is no evidence of "official animus towards [defendant] or . . . a conscious effort to suppress exculpatory evidence." Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422.
We therefore conclude that defendant has failed to demonstrate a violation of due process.
2.
In addition to the dictates of due process, our discovery rules impose obligations upon the State to preserve and produce evidence to a defendant. See R. 3:13-3 (governing criminal proceedings in Superior Court); R. 7:7-7 (governing municipal court proceedings). Although both Rule 3:13-3(b)(1) and Rule 7:7-7(b) address a defendant's right to discover "relevant material," "[o]ur courts have applied a narrower concept of 'relevant' discovery in DWI cases, which are quasi-criminal in nature, than in full-fledged criminal cases." Carrero, supra, 428 N.J. Super. at 507. We reviewed the scope of allowable discovery in Robertson:
A DWI defendant's "right to discovery . . . is limited to items as to which 'there is a reasonable basis to believe will assist a defendant's defense.'" Ibid. (quoting State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990)).
A defendant is not entitled to information that "merely could lead to other information that is relevant." Ibid. (citing [State v.] Maricic, [] 417 N.J. Super. [280,] 284 [(App. Div. 2010)], and Ford, supra, 240 N.J. Super. at 48). Discovery "must be relevant in and of itself." Carrero, supra, 428 N.J. Super. at 508. "However, at least with respect to certain classes of information," including repair records, "a DWI defendant need not have actual knowledge
of the facts supporting the contentions that underlie his discovery requests." Ibid.
[Robertson, supra, 438 N.J. Super. at 66-67.]
We first consider whether the station house security video was relevant. Second, we consider whether the State was entitled to refuse to produce it, and allow it to be overwritten, absent a court order compelling its production.
The task of determining whether evidence is relevant is well-suited to the trial court's discretion, if grounded in the trial court's evaluation of the facts. Ford, supra, 240 N.J. Super. at 50. However, the Law Division did not address the issue of relevance under Rule 7:7-7. Rather, it confined its analysis to rejecting defendant's due process claim. Thus, as there is no exercise of discretion to which to defer, we shall address the question of relevance directly, as we did in Robertson, Carrero, Maricic, and Ford.
We conclude that the video footage constituted relevant and therefore discoverable evidence. It was not sought for its value in leading to the discovery of other evidence. Rather, it was relevant in and of itself, and constituted direct proof of a material issue in the case — whether the officer observed defendant continuously for twenty minutes. "Information relating to the prerequisite conditions for establishing the reliability of testing and test results is highly relevant." Ford, supra, 240 N.J. Super. at 50 (deeming recent repair records with reasonable time limitations to be relevant). It is of no moment that the contents of the video were unknown, and are now unknowable. We have rejected the argument that defendants must establish that information is favorable before obtaining discovery. Id. at 49; Maricic, supra, 417 N.J. Super. at 285.
The State was obligated to respond timely to the request for the video, or object if it believed the evidence to be irrelevant. Ford, supra, 240 N.J. Super. at 51. Alternatively, the State could have sought a protective order. R. 7:7-7(f). The State did neither of these things. Rather, it contended the video was designed for security purposes, and only retained until the camera's memory was exhausted. But the reason the evidence was created has no bearing on its relevance. The prosecutor provided no basis for demanding that defendant obtain a court order to compel the release of material the State was otherwise obliged to disclose.
Particularly in view of the State's awareness of the request and the relevance of the footage, the State was required to preserve the evidence at least until its refusal to disclose was adjudicated. "[T]he State is generally not free to destroy discoverable evidence post-complaint under Rule 7:7-7." Id. at 70. See also State v. Dabas, 215 N.J. 114, 138 (2013) (holding that post-indictment destruction of an officer's interview notes violated Rule 3:13-3); State v. Hunt, 184 N.J. Super. 304, 306 (Law Div. 1981). Notwithstanding that the security video system automatically erases recordings, we hold that when the State has received a timely, explicit discovery demand for relevant evidence, the State is obliged to prevent the automatic erasure of that evidence. We do not address the State's obligation to preserve such evidence in advance of such request, as the issue is not presented.
The State contended in municipal court that preserving the video in all DUI cases would cause it to incur "incalculable" costs and manpower. But there is no competent evidence in the record to support that claim, let alone to establish that preserving the evidence at issue here, after receipt of a discovery request, would have been unduly burdensome. Furthermore, if costs were an issue, the State could have sought a special service charge for producing electronic records. R. 7:7-7(i)(3).
Having concluded that the State was not at liberty to allow the video to be destroyed, we turn to the question of remedy. The court may order a party that has failed to comply with R. 7:7-7 "to provide the discovery of material 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." R. 7:7-7(i). The court has broad discretion to determine the appropriate sanction. Marshall, supra, 123 N.J. at 134.
Exclusion of the Alcotest results would be tantamount to dismissal of the per se case. Such a harsh remedy should be sparingly employed. Ibid. (holding that granting mistrial to remedy discovery violation that caused no apparent prejudice would have been "manifestly inappropriate"); State v. Montijo, 320 N.J. Super. 483, 490 (Law Div. 1998). In lieu of dismissal, a court sitting as fact-finder may draw an adverse inference from the destruction of evidence, or, if the case is tried to a jury, deliver an adverse-inference charge. See Dabas, supra, 215 N.J. at 140-41.
We are persuaded that exclusion of the Alcotest results would be an excessive remedy for the discovery violation in this case. Instead, the Law Division may, if it deems it warranted under the facts, draw an inference that the contents of the video were unfavorable to the State. We remand to the trial court for a new trial de novo to allow it to make that determination. In so doing, the parties may supplement the record with evidence pertaining to the creation and destruction of the video. See R. 3:23-8(2) (allowing the Law Division, in a trial de novo, "to permit the record to be supplemented for the limited purpose of correcting a legal error in the proceedings below"). For the reasons stated below, in Section E, the court shall do so at a preliminary hearing on the admissibility of the Alcotest results pursuant to N.J.R.E. 104.
C.
Defendant argues that even on the existing record, absent any remedy for the exclusion of the video, the trial court erred in failing to exclude the Alcotest results. Defendant argues that the court's finding that Angelo continuously observed him for twenty minutes is not supported by clear and convincing evidence. He argues that the testimony of his expert, Kevin A. Flanagan, rebutted Angelo's claim that he observed defendant as required. We are unconvinced.
Angelo testified that while defendant was handcuffed to a bench in the processing room, he walked to the adjacent Alcotest room, pressed a button to warm up the Alcotest machine, and returned to begin the twenty-minute observation period. It was 12:27 a.m. according to Angelo's watch. After twenty minutes of observation, Angelo ushered defendant into the Alcotest room, keeping defendant within sight. According to the Alcotest device's clock, an "ambient air check" was performed at 12:47. An ambient air check precedes the taking of a suspect's breath sample. See Chun, supra, 194 N.J. at 80-81. However, Angelo indicated that the two timepieces were not necessarily synchronized.
Flanagan reviewed a digital download of the device. He asserted that an "orange button" is pushed to warm up the machine, which takes about twelve minutes. The same button must be pushed a second time to prepare for testing. That occurred at 12:45 a.m. He described this as when the "start function" was triggered. He contended that the processing room observation period lasted no more than eighteen minutes, because (1) Angelo's observation was conducted entirely in the processing room, (2) the observation began at 12:27 a.m. (according to Angelo's watch), and (3) Angelo pushed the orange button to prepare for testing at 12:45 a.m. (according to the Alcotest device). Thus, Flanagan asserted "the breath test procedure was started during the twenty minute observation period."
Even if Angelo's wristwatch had been synchronized with the Alcotest's clock, and he observed defendant for less than twenty minutes in the processing room, he nonetheless observed defendant for at least twenty minutes before defendant gave his breath sample, which occurred after the ambient air test. The twenty minutes of observation must precede the taking of a defendant's actual sample, not the initiation of the sequence of mechanical steps that precede it. See Findings and Conclusions of Remand Court, Special Master Report, 42-43 ("With regard to mouth alcohol, operators in New Jersey must continuously observe a subject for a full twenty minutes, without interruption, before they can begin the breath test."); Id. at 132-33 ("An operator may not begin the test on a subject prior to a twenty-minute observation period to ensure that there is no alcohol in the mouth cavity."). Flanagan conceded that his digital download information disclosed neither the time at which Angelo pressed the button to warm up the machine, nor when the first breath sample from defendant was obtained.
In sum, we reject defendant's argument that the existing record compelled a finding that Angelo failed to observe defendant as required.
D.
Although the municipal court found defendant guilty on both per se and observational grounds, the Law Division neglected to reach the observational case. Defendant argues we should exercise original jurisdiction and adjudge defendant not guilty of the observational case against him. We decline to do so. Cf. R. 2:10-5. The appropriate step is to remand for the trial court to address the undecided question. See R. 1:7-4(a). We perceive no double jeopardy issue, as the trial court neglected to reach the issue, and we are remanding for a new trial de novo. Cf. State v. Handy, 215 N.J. 334, 365 (2013) (remanding for consideration of defendant's self-defense theory did not trigger double jeopardy, despite prior verdict, at bifurcated trial, finding defendant not guilty by reason of insanity).
E.
Defendant argues that the court deprived him of a full N.J.R.E. 104 hearing on the admissibility of the Alcotest results. After the court conducted a probable cause hearing and denied the suppression motion, the parties stipulated that Angelo's testimony would be admissible in the trial in chief. See Gibson, supra, 219 N.J. at 245 (stating both counsel must consent on the record, after advance notice and opportunity to conduct broad-ranging cross-examination, before incorporating record of suppression motion into trial record). Counsel then agreed that before trial commenced, the court would need to conduct a second N.J.R.E. 104 hearing on the proper administration of the Alcotest.
However, when the court reconvened over two months later, the prosecutor announced at the outset of the proceedings that he understood that the court would proceed directly to trial. He stated: "Judge, my understanding is we finished the motion to suppress. Your Honor[] held in favor of the State. We're continuing with the trial and counsel consented that the State could use the officer's testimony on the motion to suppress in its case in chief . . . ." (Emphasis added). Defense counsel responded: "That is correct, Your Honor."
After addressing additional non-testimonial motions, the State re-called Angelo, who recounted his observation of defendant and administration of the Alcotest. At some point, far into Angelo's testimony, it became evident that defense counsel was under the misimpression that the court was conducting a N.J.R.E. 104 hearing as contemplated two months earlier. The judge, however, advised defense counsel that the trial had already begun. With the prosecutor's concurrence, he overruled defense counsel's objection to continuing. The judge stated that if the State failed to establish the necessary foundation for admission of the Alcotest results, they would be excluded.
Defense counsel argued that proceeding in a trial setting deprived defendant of the opportunity to testify solely about the admissibility of the Alcotest as a preliminary issue. See N.J.R.E. 104(d) ("By testifying upon a preliminary matter, the accused does not become subject to cross-examination as to other issues in the case."). He renewed that argument to the Law Division, and on this appeal.
We conclude that, in the interests of justice, the municipal court judge should have exercised his discretion to hold a N.J.R.E. 104 hearing at which defendant could testify. The Law Division erred in not correcting that failure to exercise discretion. We recognize that, based on counsels' preliminary remarks, the municipal court was initially justified in proceeding with the trial. We discern no ambiguity in the prosecutor's statement or defense counsel's response. Nonetheless, an interruption in the trial would have avoided prejudice to defendant, permitted him to testify to matters relevant to the admissibility of the Alcotest results, and would not have disadvantaged the State.
We therefore remand for a N.J.R.E. 104 hearing on the admissibility of the Alcotest results. Defendant may testify pursuant to N.J.R.E. 104(d). The State's proofs, presented in the context of trial, shall be admissible for this purpose. However, the State may supplement its proofs as necessary in response to defendant's testimony. As set forth in Section B, the court may, but is not required to, draw a negative inference from the State's destruction of the security video.
F.
Defendant also challenges the court's order quashing the subpoena of Angelo's cellphone records. As noted above, although it was presented, the Law Division did not expressly address the issue. On remand, the Law Division shall consider the issue in light of the principles of relevance set forth in part II(B)(2) of this opinion.
G.
Finally, we reject defendant's claim that he is entitled to a jury trial. See State v. Hamm, 121 N.J. 109, 129-30 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991); Robertson, supra, 438 N.J. Super. at 73. We recognize that the Supreme Court has granted certification in a case presenting the issue whether, in light of the potential aggregate penalties, a repeat offender should be entitled to a jury trial. State v. Denelsbeck, 220 N.J. 575 (2015). Nevertheless, we remain bound by existing precedent.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(3).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION