STATE OF NEW JERSEY v. AYMAN MAMKEJ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4576-04T54576-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AYMAN MAMKEJ,

Defendant-Appellant.

 

Argued January 24, 2006 - Decided March 7, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4473.

Robert A. Vort, attorney for appellant.

Terry Bogorad, Senior Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Ms. Bogorad, of counsel and on the brief).

PER CURIAM

Defendant Ayman Mamkej entered a conditional plea of guilty in Bloomingdale Municipal Court to the charge of driving while intoxicated, N.J.S.A. 39:4-50, after his motion to suppress evidence was denied. He was sentenced as a first offender and his sentence was stayed pending appeal. Following his trial de novo in the Law Division, he was again found guilty and the same sentence was imposed on March 23, 2005. Defendant's sentence was again stayed pending appeal. We affirm.

On appeal, defendant raises the following arguments for our consideration:

POINT I

THIS COURT SHOULD REVERSE AND ORDER THE DISMISSAL OF THIS ACTION BECAUSE LEN HAD NO PROBABLE CAUSE TO MAKE THE INITIAL STOP OF MAMKEJ'S CAR.

POINT II

THIS COURT SHOULD REVERSE AND ORDER THE DISMISSAL OF THIS ACTION BECAUSE LEN HAD NO PROBABLE CAUSE TO ARREST MAMKEJ.

POINT III

THIS COURT SHOULD REVERSE AND ORDER THE DISMISSAL OF THIS ACTION BECAUSE THE STATE DESTROYED MATERIAL RECORDS IT HAD BEEN ORDERED TO PRODUCE.

POINT IV

THIS COURT SHOULD REVERSE AND ORDER THE DISMISSAL OF THIS ACTION BECAUSE THE EX PARTE CONVERSATION BETWEEN JUDGE CLUFF AND CHIEF ENGOLD CREATED AN INCURABLE TAINT.

We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are without merit. We therefore affirm.

We have derived the facts that are germane to the issues advanced on appeal from our review of the record. At the time of the events that gave rise to the charges, defendant was a municipal official in Haledon. Sergeant Jim Len, a Haledon police officer who admittedly had a prior disagreement with defendant, testified that he was parked in his patrol car on Haledon Avenue in the early morning hours of November 6, 2003. As he looked in his rear view mirror, he saw a car approaching at a high rate of speed. The car was a black Mercedes, with dealer's license plates, and with tinted windows. Len waited for it to pass him, activated his lights and the dashboard videotape recorder and pursued the car. It did not stop in response to the lights but proceeded for six blocks after which it turned onto a side street, swinging wide enough, according to Len, to pull into the wrong lane.

When the vehicle pulled over, Len approached. Len testified that he was surprised when defendant opened the door of the car and that he had not realized who was driving before that time. According to Len, he then asked defendant how he was doing, to which defendant responded that he was "going a little fast." Len described defendant's speech as "slurred." He asked defendant for his driving credentials and he noted that defendant had difficulty balancing himself as he stood and was "fumbling" as he searched for his wallet. In addition, Len noticed a strong odor of alcohol on defendant's breath and person. Len then requested backup assistance, largely because he wanted to avoid any suggestion that he treated defendant unfairly because of their prior disagreement.

Two other officers arrived and participated in the events that led to defendant's arrest. Officer Daniels assisted by administering the field sobriety tests, which were also captured on the videotape. In relevant part, he noted that defendant raised his arms for balance during all of the tests, that he swayed and staggered during the heel-to-toe test, and that he stood on the wrong foot and hesitated while counting during the one-foot-elevated-while-counting test. Detective LeMay arrived after the tests had been completed, but he also detected the smell of alcohol on defendant.

The Municipal Court judge denied defendant's motion to suppress, finding that Len had a reasonable articulable suspicion that supported the initial stop of defendant's vehicle and that he had probable cause to arrest defendant. In addition, the Municipal Court judge denied defendant's motion to dismiss the charges based on an allegation that the recording of any radio transmissions from Len's patrol car around the time of the events that led to the stop and the arrest had been lost. Because of those two adverse decisions, defendant entered his conditional guilty plea.

Following his conviction in Municipal Court, defendant pursued a trial de novo in the Law Division, where he raised most of the arguments now before us on appeal. In an oral opinion on March 4, 2005, the Law Division judge explained his reasons for rejecting each of the arguments advanced.

Defendant's first and second arguments on appeal challenge the sufficiency of the evidence to support Len's initial stop of his vehicle and his decision to arrest defendant. We reject those arguments as meritless. The Law Division judge gave due, although not controlling, deference to the Municipal Court judge's finding that the officer was credible with respect to the observations he made on the night when he stopped and ultimately arrested defendant. See State v. Johnson, 42 N.J. 146, 161 (1964). We, likewise, defer to that determination because it is adequately supported by the record. See State v. Locurto, 157 N.J. 463, 472 (1999).

The testimony from Officer Len concerning the vehicle's rate of speed and manner of operation, which both the Municipal Court judge and the Law Division judge found to be credible, was sufficient to constitute "reasonable or articulable suspicion that a motor vehicle violation had occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990); see also State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997)(community caretaking rationale supported vehicle stop). In light of the fact that defendant was not driving his usual vehicle, and drove past Len in a car with tinted windows, there is no ground on which to conclude that Len was aware of who the driver was prior to the stop. We therefore reject defendant's assertions that Len was motivated by their past disagreement and stopped him without reason because of that dispute.

Similarly, the testimony of the three officers, together with the evidence that the Municipal Court judge and the Law Division judge observed on the videotape, demonstrated that Len had probable cause to arrest defendant for the offenses with which he was charged. See State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). Defendant's argument on appeal that two of the officers were "equivocal" in their opinions about his intoxication is insufficient to undercut the conclusion that Len had probable cause to believe that defendant had committed the offense and to arrest him.

Nor do we find any merit in defendant's spoliation argument. The Municipal Court proceedings continued over the course of several months as defendant pursued discovery applications and filed a variety of motions. Among defendant's applications was his request for the tape recording of radio transmissions from Len's patrol car as he pursued and stopped defendant's vehicle. That request was designed to discover whether Len had sought identifying information about the vehicle prior to stopping it. Defendant believed that this evidence would enable him to demonstrate that Len knew that he was the driver and stopped him because of their prior dispute. During the proceedings, however, it was discovered that the recordings from the relevant time frame had not been preserved by the police. On appeal, defendant asserts that these facts demonstrate that the evidence was spoliated and that he is therefore entitled to a reversal of his conviction.

In criminal proceedings, the court must determine whether the loss of the evidence in question amounts to a deprivation of due process by considering whether the State acted in bad faith, whether the evidence is material to the defense and whether defendant has been prejudiced by the loss. See State v. Greeley, 354 N.J. Super. 432, 437 (App. Div. 2002), rev'd on other grounds, 178 N.J. 38 (2003); State v. Serret, 198 N.J. Super. 21, 26 (App. Div. 1984), certif. denied, 101 N.J. 217 (1985). Applying this test, we find no merit in defendant's assertions that he is entitled to relief.

There is no evidence in this record that the Police Department acted in bad faith respecting the recording. There is no reason to conclude that the recording of radio transmissions was material to the defense or that defendant was prejudiced by its loss. Defendant argues that the recording would have demonstrated that Len was not credible when he denied that he had sought information about the vehicle before he stopped it and when he denied that he knew who was driving the vehicle before the stop. We disagree with this argument. If Len had asked for information based on the vehicle's license plate, he would not have learned that defendant was the driver because the vehicle was not registered to defendant. Rather, the vehicle bore a car dealer's license plate. In addition, transmission logs that were provided to defendant in discovery did not include any record of a call from Len prior to the call for backup after he learned that defendant was the driver. Based on this record, we find no ground on which to conclude that evidence was spoliated or that defendant was deprived of his due process protections.

Defendant's final argument on appeal, which he did not raise during his trial de novo, is that the Municipal Court judge engaged in ex parte communications with the police chief that infected the police chief's testimony about the lost recording of the transmissions from Len's patrol car and that should have led to the judge's recusal. We note that defendant's failure to raise this issue either in Municipal Court or during his trial de novo would permit us to reject it without discussion. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973). Notwithstanding the failure to raise it as he should have, we elect to address it briefly.

The record reflects that after the Municipal Court judge had ruled on certain of defendant's pretrial motions, it became apparent that the recording of any radio transmissions had been lost or that other transmissions had been recorded over it. The Municipal Court judge telephoned the police chief to request that he investigate the loss and determine whether there was another source of information from which the contents of the recording could be secured. The judge then told counsel for defendant and the prosecutor that he had made this request and he described that conversation on the record as well. Subsequently, after the police chief reported that the recording could not be resurrected, counsel was given the opportunity to cross-examine him about the circumstances of the loss and did so. At the time, defendant made no objection to the fact that the judge had made the inquiry and did not suggest that the judge might have learned information that would support his recusal. We reject defendant's argument on appeal that anything in this sequence of events entitles him to relief.

Affirmed.

 

The matter was heard in Bloomingdale Municipal Court in order to avoid any conflict of interest as a result of defendant's position.

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A-4576-04T5

March 7, 2006