STATE OF NEW JERSEY v. DENNIS J. LUSTENBERG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2406-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS J. LUSTENBERG,

Defendant-Appellant.

__________________________________

Telephonically Argued January 13, 2011 Decided May 2, 2011

Before Judges Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-10-09.

Lawrence J. Jaskot argued the cause for appellant.

David Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Dyanne Veloz Lluch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his suppression motion in municipal court, defendant Dennis Lustenberg entered a conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. The judge sentenced defendant to a seven-month revocation of his driving privileges, twelve hours at an Intoxicated Driver Resource Center, and imposed appropriate fines and penalties. Upon de novo review, the Law Division judge denied defendant's suppression motion, found defendant guilty, and imposed the identical sentence.

Defendant raises the following arguments in this appeal:

I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE AUTOMOBILE STOP WAS NOT BASED ON REASONABLE SUSPICION.

a. The Stop By Patrolman James Was Unreasonable Because The Anonymous Tip conveyed By The 911 Call Lacked Indicia Of Reliability, And Was Not Corroborated By Independent Police Work.

b. Contrary To The Trial Court And Law Division, The Investigatory Stop Here Did Not Fall Within The Exception Set forth in State V. Golotta, 178 N.J. 205 (2003).

c. The Anonymous Tip Did Not Convey A Sufficient Quantity Of Information About Any Alleged Traffic Offense To Justify The Stop.

II. THE NONPRODUCTION AND DESTRUCTION OF THE 911 TAPE WERE IN DEROGATION OF MR. LUSTENBERG'S DUE PROCESS AND SIXTH AMENDMENT CONFRONTATION CLAUSE RIGHTS AND RENDERED THE PROCEEDINGS FATALLY DEFECTIVE.

We affirm.

On the night of June 19, 2008, in response to a 9-1-1 dispatch, Ridgewood Patrolman Heath James stopped defendant and arrested him for DWI. Thereafter, defendant retained counsel who wrote to the Ridgewood municipal prosecutor on June 27, 2008, and demanded discovery, but did not specifically request a copy of the 9-1-1 dispatch tape. Defendant did not receive the tape from the municipal prosecutor. Dispatch tapes were not maintained by the municipality, but by Northwest Bergen Central Dispatch (NBCD).

Defendant subsequently retained new counsel who attempted to obtain a copy of the dispatch tape. In a letter dated January 30, 2009, the Director of NBCD informed counsel that tapes were only retained for ninety days "[a]nd this incident [of June 19, 2008] falls well outside that timeframe."

No witnesses testified at the municipal court suppression hearing on March 10, 2009. Instead, defendant and the prosecutor moved into evidence James' narrative report, defendant's letter demanding discovery from the municipal prosecutor, and the letter from the Director of NBCD. James' report contained the sole account of his stop of defendant's vehicle:

While I was in the east driveway of 15 Franklin Avenue, Ken Smith Motors, Central Dispatch received a 911 call reporting a black four door car with New Jersey Registration ... was seen being driven north on North Broad Street in a careless manner with the operator possibly under the influence of alcohol. Central Dispatch then reported the vehicle made a right turn onto Franklin Avenue. I identified the vehicle from my location and pulled into traffic. I was about three cars behind the reported vehicle. The vehicle turned right onto Chestnut Street and traveled south. I turned right as well and continued to follow. When the vehicle got about mid-block, I activated my emergency lights and siren and pulled directly behind the vehicle. About 50 feet from E. Ridgewood Avenue, the vehicle pulled to the west curb and continued to the stop sign. I called Central Dispatch to advise them that I had the vehicle stopped [at] my location. The operator of the vehicle waved at me and turned right at the stop sign onto E. Ridgewood Avenue. When I activated my siren a second time, the vehicle pulled over to the north curb in front of Welchert Realty.

Before the judge completed his decision on the suppression motion, the audiotape recording the proceedings malfunctioned and the judge adjourned the hearing. Each party submitted letters to the judge before he completed his decision on July 16, 2009. The municipal prosecutor's letter explained that when the Ridgewood police receive discovery requests for dispatch transcripts, they send a letter to the requesting attorney advising to contact NBCD for the transcripts, and they include in the letter NBCD's telephone number.

Based on the supplemental submissions of counsel, the judge reopened the hearing and permitted the parties to expand their arguments. Following the arguments, he denied the suppression motion, ruling that the 9-1-1 dispatch provided James with an articulable and reasonable suspicion to stop defendant's vehicle, and that the State fulfilled its discovery obligation by providing defendant with a letter explaining how to obtain a transcript of the 9-1-1 dispatch. Defendant entered a conditional guilty plea, "reserving his right to appeal with respect to the suppression motion." Following a trial de novo, the Law Division judge denied defendant's suppression motion, convicted defendant of DWI, imposed an identical sentence, and stayed the sentence pending appeal.

Generally, our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). "However, a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference on appeal." State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009) (internal quotation and citation omitted), certif. denied, 202 N.J. 346 (2010).

Defendant first contends that James unlawfully stopped his vehicle because James did not have an articulable suspicion that defendant had committed a traffic violation. Defendant also argues that the anonymous caller did not provide sufficient detail to relieve James of his obligation to verify the information received before stopping defendant's vehicle. We disagree.

"[A] police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999). "The test is 'highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules.'" State v. Golotta, 178 N.J. 205, 213 (2003) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "An informant's tip is a factor to be considered when evaluating whether an investigatory stop is justified." Ibid. "[T]he degree of corroboration necessary to uphold a stop of a motorist suspected of erratic driving" is reduced when the initial tip is provided by an anonymous 9-1-1 caller who provides an adequate description of the vehicle, the location and the purportedly erratic driving. Id. at 218, 222. The Supreme Court has explained:

The information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large. The caller also must place the call close in time to his first-hand observations. When a caller bears witness to such an offense and quickly reports it by using the 9-1-1 system, those factors contribute to his reliability in a manner that relieves the police of the verification requirements normally associated with an anonymous tip.

[Id. at 221-22.]

The content of the 9-1-1 call demonstrated that the caller based the information on first-hand observations made either close in time to those observations or as they were occurring. The caller not only identified defendant's vehicle as a black four-door car and provided the license plate number, but also reported its location as defendant turned onto Franklin Avenue where James was parked, thus allowing James to identify defendant's vehicle and pull into traffic about three cars behind it. The caller's observation of defendant operating the vehicle in a careless manner and possibly under the influence of alcohol implicated a risk of imminent death or injury to the operator or others.

Defendant next asserts that his Sixth Amendment right to confrontation was violated by the State's failure to produce the transcript of the 9-1-1 call, but does not brief or analyze the issue. He does not explain the manner in which the Confrontation Clause was violated at his suppression hearing where the only evidence submitted by the parties was a police report, or whether a 9-1-1 caller's statements are inadmissible testimonial hearsay under Michigan v. Bryant, __ U.S. __, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). A party is required to make an adequate legal argument. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Defendant has not made an adequate legal argument, so we will not address the issue.

Lastly, defendant contends the DWI charge should be dismissed because the 9-1-1 dispatch tape was destroyed.1 Defendant's entitlement to relief depends upon proof that his right to due process was violated by the State's failure to disclose or preserve exculpatory evidence. State v. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009). The State is required to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see State v. Marshall, 123 N.J. 1, 107-09 (1991). To establish a due process violation, defendant must demonstrate that: "(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." State v. Parsons, 341 N.J. Super. 448, 454 (2001).

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. Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can only show that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith.

[Mustaro, supra, 411 N.J. Super. at 102-03

(internal quotations and citations omitted).]

The evidence defendant presented to the municipal court and Law Division did not establish that the 9-1-1 tape had exculpatory value, and did not show bad faith on the part of the State. Defendant's generic discovery letter and the NBCD letter were the only evidence admitted on the issue at the suppression hearing. The letters themselves do not demonstrate bad faith on the part of the State. Consequently, defendant's due process claim is denied.

A

1 The State argues defendant did not properly preserve this issue and that it is waived. Although defendant did not explicitly preserve the issue when he entered his conditional guilty plea, he did raise the issue during the suppression motion. Accordingly, we choose to address the issue on the merits.