STATE OF NEW JERSEY v. ROSELIO B. UTATE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5827-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROSELIO B. UTATE,

Defendant-Appellant.

_______________________________

November 28, 2012

 

Argued November 7, 2012 - Decided

 

Before Judges Lihotz and Kennedy.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 5-2011.

 

Dominick E. De Filippo argued the cause for appellant.

 

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

 

PER CURIAM

Defendant Roselio B. Utate was tried in the South Brunswick Municipal Court and found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to two days in jail and thirty days of community service, assessed applicable fines, penalties, surcharges, and costs, and his driving privileges were suspended for two years, as this was defendant's second offense. Following a trial de novo, the Law Division likewise found defendant guilty. Defendant appeals from the DWI conviction, arguing:

POINT I

 

THE STATE'S FAILURE TO PROVIDE FULL DISCOVERY WAS PREJUDICIAL TO THE DEFENDANT AND PREVENTED HIM FROM RECEIVING A FAIR TRIAL.

 

POINT II

 

THE TESTIMONY OF THE STATE'S ONLY WITNESS WAS REPLETE WITH INCONSISTENCIES AND SHOULD NOT BE DEEMED CREDIBLE BY THE COURT.

 

POINT III

 

THE STATE'S EVIDENCE WAS PRIMA FACIE INSUFFICIENT TO PROVE A VIOLATION OF N.J.S.A. 39:4-50.

 

We agree the State failed to respond to defendant's discovery requests, which should have been more definitively addressed by the trial court. Nevertheless, any error is harmless and we affirm.

These facts were presented before the municipal court. On May 27, 2010, at approximately 4:30 p.m., State Trooper Adam Kaplan, while on routine patrol on the New Jersey Turnpike, observed a vehicle, with its brake lights lit, stopped on the shoulder of the southbound truck lanes, near milepost 76. Trooper Kaplan stopped to render aid. Exiting his patrol car, he approached the vehicle. The key was in the ignition, the engine was running, and the radio was on. Defendant, the car's lone occupant, did not respond as the officer banged on the passenger window. The officer opened the passenger-side door and called to defendant in an elevated voice, believing he was "[m]ore or less passed out." After approximately ten seconds, defendant awoke.

In asking for defendant's driving credentials, Trooper Kaplan "detected the odor of an alcoholic beverage emanating from the interior of the vehicle." Further, he noticed defendant's eyes were bloodshot and red; his movements were slow as he fumbled through his wallet; his shirt was "mussed and unbuttoned"; he seemed confused; his speech was low and garbled; and his statements were fragmented and incoherent. Defendant told the officer he was coming from Union City and handed him a work identification card rather than his driver's license. When asked where he was headed, defendant stated he was going home to Union City, which was forty miles in the opposite direction. Defendant admitted he drank one beer.

Trooper Kaplan suspected defendant was intoxicated. He asked defendant whether he knew the English alphabet and defendant responded affirmatively. When asked to recite it, defendant said, "I'll follow you." Defendant also was asked if he knew the Spanish alphabet. He responded that he did, but when asked to recite it, he said, "Okay, I'll follow you."

Trooper Kaplan told defendant to "sit tight." As he headed toward his patrol car, he noticed defendant's driver-side door open. Trooper Kaplan "stopped what [he] was doing and approached [defendant] . . . and guided him around to the front of his car so that he wasn't by traffic." Defendant was "slouched over, his shoulders were rolled forward, his upper body tended to sag," and he "staggered" as he walked. Once standing at the front of the car, defendant swayed back and forth, keeping his feet widely spread to achieve balance and maintain an upright position.

The trooper next administered field sobriety tests: the "walk-and-turn" or "heel-toe" test and the "one-legged-stand" test.1 Prior to commencing testing, Trooper Kaplan inspected the ground to be sure it was flat, even, and free of debris. He then instructed defendant on the tests' requirements and demonstrated proper performance. When asked, defendant stated he did not suffer from any injuries impeding his performance. However, during the psycho-motor testing, defendant "couldn't stand straight, . . . wobbl[ed] side to side," and could not perform because he "was too intoxicated to perform and understand . . . the instructions . . . given [to] him." Trooper Kaplan detected a strong odor of alcohol on defendant's person. Based on all of his observations, Trooper Kaplan concluded defendant was "heavily intoxicated" and placed him under arrest.

Defendant was placed in the patrol car and appeared to fall asleep. Upon arrival at the State Police Barracks, defendant could neither exit the vehicle nor walk into the squad room unassisted. Defendant was Mirandized2 and charged with DWI.3

Prior to the municipal court trial, defense counsel sought discovery, including copies of all audio recordings between dispatch and police cars, be on the look out (BOLO) reports, or computer aided dispatch (CAD) reports "that would establish the whereabouts of the arresting trooper and the defendant at all relevant times on the day of the . . . arrest." On several occasions, counsel renewed these requests, emphasizing the need to establish whether there were audio recordings of motorist observations of defendant prior to Trooper Kaplan's stop. Despite several adjournments, the State failed to produce the requested BOLO or CAD reports.

During the municipal court trial, Trooper Kaplan was called as the State's sole witness. On cross-examination, while viewing the video from the trooper's in-dashboard camera, this colloquy occurred:

[DEFENSE COUNSEL] Trooper, there is no way of you knowing . . . how long [defendant]'s vehicle had been parked in that particular position that you're observing him being in [sic], correct?

 

A Relatively, yes, there is.

 

Q Explain please.

 

A The vehicle[,] along with the tag[,] were given out by our com center about 20 to 25 minutes prior to me locating this vehicle as an erratic driver.

 

Q Okay. But that's not indicated anywhere in your report[,] is it?

 

A No, it's not.

 

Q But you received a . . . dispatch call indicating that there had been an erratic driver --

 

A They had put it out --

 

Q -- on the road?

 

A -- they had put that call out, sir, over the radio and I was unaware of that call until I had gotten back.

 

. . . .

 

A So as I was saying[,] I was unaware of the fact that . . . the vehicle that I was parked behind at this point of the video, I was unaware until I had gotten back to the station that [defendant]'s vehicle was given out as a[n] erratic driver complaint prior to me being behind him.

 

After a follow-up question verifying the records in fact existed, defense counsel moved to strike this testimony, specifically citing the State's failure to comply with the discovery requests. The municipal court judge (MCJ) denied the motion, stating: "[The State] didn't put it in. You elicited it. . . . You asked the question, you got what you got." The MCJ then remarked, "all of a sudden it became relevant, which I didn't think was relevant earlier[.]" The MCJ ordered the State to provide the requested reports.

Defendant presented expert testimony from Herbert E. Leckie,4 a retired State Trooper and currently a partner with DWI Consultants, Inc., who qualified as an expert in DWI testing and related matters. After reviewing the records and testimony, Leckie challenged the propriety of the administration of the field sobriety tests and the Alcotest.

Ultimately, additional discovery was provided, which included a two-minute and twelve-second radio transmission and a CAD abstract from the date of defendant's arrest. These materials do not identify defendant or his vehicle.

In his oral opinion, the MCJ credited Trooper Kaplan's observation testimony and found defendant guilty of DWI. A trial de novo was conducted in the Law Division, based on the municipal court record. No additional testimony or evidence was presented. The Law Division found defendant guilty of DWI. This appeal ensued.

In its de novo review of a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law. State v. Johnson, 42 N.J. 146, 157 (1964) (instructing the Law Division to decide the case anew, giving "due regard" to the municipal judge's opportunity to view the witnesses). The Law Division is bound by the evidentiary record of the municipal court, giving due regard to the MCJ's opportunity to assess the credibility of witnesses. See R. 7:13-1; R. 3:28-3; Johnson, supra, 42 N.J. at 157; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). Moreover, the Law Division judge must determine whether the State's evidence proves all elements of an offense beyond a reasonable doubt. State v. Howard, 383 N.J. Super. 538, 544 (App. Div.), certif. denied, 187 N.J. 80 (2006).

In our limited review, we determine whether the record contains sufficient credible evidence to support the findings of the Law Division judge, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing Johnson, supra, 42 N.J. at 162). We do "not weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). See also State v. Locurto, 157 N.J. 463, 470-71 (1999) (explaining appellate courts are not in a position to assess credibility). Unless we determine the Law Division's findings were "clearly . . . mistaken" or "so plainly unwarranted . . . [that] the interests of justice demand intervention and correction[,]" we defer to the court's factual findings. Avena, supra, 281 N.J. Super. at 333 (citations omitted). This includes the need to give due regard to the trial court's credibility determinations. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Moreover, when the municipal court and the Law Division enter concurrent judgments on purely factual issues, we should not disturb those findings "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Locurto, supra, 157 N.J. at 474). 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." State v. Belliard, 415 N.J. Super. 51, 78 (App. Div. 2010) (internal quotation marks and citations omitted), certif. denied, 205 N.J. 81 (2011).

Defendant first maintains he was prejudiced by the State's failure to produce discovery. He argues the State's withholding of the BOLO and CAD reports altered the presentation of his defense and denied him the ability to challenge the trooper's credibility, thus denying him a fair trial. Specifically, defendant suggests that absent Trooper Kaplan's statement the police received a report of an erratic driver twenty minutes before defendant was stopped, the State failed to produce evidence showing when defendant last drove his car, thus obviating the element of operation.

We agree the State's efforts to provide the requested discovery were insufficient and, further, reject as error the Law Division's reliance on Trooper Kaplan's testimony regarding the BOLO report. However, the error was harmless, as the evidence of record amply proved each element of the offense such that defendant was guilty of DWI beyond a reasonable doubt.

Generally, discovery in DWI prosecutions is governed by Rule 7:7-7(b) which provides: "In all cases the defendant . . . shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant: . . . [(6)] tangible objects . . . within the possession, custody or control of the government[.]" "The text of Rule 7:7-7 closely mirrors the text of Rule 3:13-3(a), which pertains to pre-indictment discovery in Law Division matters." State v. Carrero, __ N.J. Super. __, __ (App. Div. 2012) (slip op. at 11). That rule requires "the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c)." R. 3:13-3(a).

"Our courts have applied a narrower concept of 'relevant' discovery in DWI cases, which are quasi-criminal in nature, than in full-fledged criminal cases." State v. Carrero, supra, slip op. at 12. "Therefore, an accused's right to discovery in a DWI prosecution is limited to items as to which 'there is a reasonable basis to believe will assist a defendant's defense.'" Id. at 12-13 (quoting State v. Ford, 240 N.J. Super. 44, 49 (App. Div. 1990). "In essence, the discovery sought in DWI matters must be relevant in and of itself." Id. at 13. This would include any recordings of the encounter with the police. State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009) (citing R. 7:7-7(b)).

In order to obtain relief for the State's discovery lapse "under Brady5 and the Due Process Clause of the Fourteenth Amendment, a defendant must show that evidence withheld is 'material exculpatory evidence.'" Ibid. (quoting State v. Marshall, 123 N.J. 1, 109 (1991) (internal quotation marks and citation omitted)).

Here, defendant adequately satisfied Ford's relevance test. See Ford, supra, 240 N.J. Super. at 48. However, he cannot show the evidence was "material exculpatory evidence." First, defendant's arrest by Trooper Kaplan was made without knowledge of any recorded citizen report of an erratic driver. The trooper's testimony clearly states he was on patrol and encountered defendant's vehicle, which he assumed was in distress. Further, as discussed below when addressing defendant's challenge to the sufficiency of the State's evidence, Trooper Kaplan's observational evidence is sufficient to sustain defendant's DWI conviction. If the recording was produced and identified defendant's vehicle as the one observed driving erratically on the turnpike, it would not have been exculpatory. On the other hand, if the information in the recording did not match defendant's vehicle, the remaining evidence nevertheless would be sufficient to support defendant's conviction beyond a reasonable doubt.

We also are not persuaded defendant's ability to present a defense was compromised by the failure to provide the recording evidence. Defendant maintains he could have produced witnesses to establish a timeline for when he arrived at milepost 76 of the turnpike, compromising the State's proof regarding operation. We do not agree the presentation of this defense was influenced by the withholding of CAD or BOLO recordings. The State's proof established defendant was on the turnpike, impermissibly stopped on the shoulder as neither he nor his vehicle was in distress, the engine was running, he was sitting in the driver's seat, his foot was on the brake, and he was intoxicated. There was no evidence of consumption of liquor while in the vehicle. Consequently, accepting defendant's statement he had come from Union City, he had driven forty miles prior to pulling over. Based on our review of the totality of the State's direct and circumstantial evidence, we easily conclude defendant drove while intoxicated. See State v. Sweeney, 40 N.J.359, 360-61 (1963) (discussing direct and circumstantial evidence can support DWI conviction);State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (upholding the defendant's DWI conviction where he admitted to drinking alcohol before being found alone and deeply asleep, in his automobile, on the shoulder of an interstate highway, with the headlights on and the engine running).

That said, we also note the trial court improperly denied defendant's motion to strike Trooper Kaplan's testimony volunteering his understanding of the existence of a CAD report. It is undisputed that defendant made a specific discovery request for the BOLO and CAD transmissions. Undeniably, the State alone held possession and control of these records, but never produced them prior to the municipal court trial. Finally, the information sought by defendant was relevant, as it concerned proof of the time of operation, which was clearly related to the prosecution of the charge against him and could reasonably tend to prove a material fact related to that issue. Ford, supra, 240 N.J. Super. at 49 (citing State v. Tull, 234 N.J. Super. 486, 499 (Law Div. 1989)).

Although he sought the recordings, which were not produced after multiple requests, defense counsel's question, challenging the foundation for Trooper Kaplan's conclusion that defendant had driven while intoxicated, did not anticipate a response based on the very discovery he was denied. We will not speculate on how the discovery would have altered the defense if timely produced, except to be certain this specific inquiry would not have been pursued. Because Trooper Kaplan attempted to introduce the BOLO evidence, which had been sought by but not provided to the defense, his testimony should have been stricken because defendant was denied the opportunity to challenge the claimed existence of the BOLO.

In light of the overwhelming evidence presented by the State, however, we conclude the error is harmless. See R. 2:10-2 (providing "[a]ny error or omission shall be dis re garded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result").

The test of whether an error is harm less depends upon some degree of possibility that it led to an unjust verdict. The pos sibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 335-336 (1971). Or, as stated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171, 173 (1963), "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."

 

[State v. Bankston, 63 N.J. 263, 273 (1973).]

 

As discussed below, the observational evidence presented by Trooper Kaplan, coupled with the State's other direct evidence and the reasonable inferences drawn from circumstantial evidence, amply proved defendant drove his vehicle while intoxicated in violation of N.J.S.A. 39:4-50.

In challenging the sufficiency of the State's evidence, defendant first attacks the Law Division's acceptance of the MCJ's finding that Trooper Kaplan was credible. Defendant supports his assertion with what he believes are deviations between the trooper's police report and his municipal court testimony and the on-board video and sound recording of the encounter. We are not persuaded.

The identified discrepancies include: failing to mention he approached defendant before he activated the on-board recorder; testifying defendant turned off his car radio when the video shows Trooper Kaplan doing so; telling a back-up officer defendant stated Newark was a few minutes away when he was recorded as stating it was a several miles away; accusing defendant of calling the trooper a name using course language when no such statement can be heard on the video; characterizing defendant's gait as "staggering" when the MCJ stated it was "unsteady"; and failing to record in his report the fact that defendant's vehicle was running.6

Regarding this list of claimed discrepancies between Trooper Kaplan's testimony and the video, we find none address the sufficiency or adequacy of the material facts supporting DWI. We find defendant's assertions fail to show the Law Division's credibility determination was fundamentally flawed.

Focusing on the element of operation, defendant also asserts the Law Division erred in concluding the evidence proved defendant was guilty of DWI beyond a reasonable doubt. He argues the State's case was composed of conjecture on the element of the intent to drive. We disagree.

To sustain the conviction, the State must prove beyond a reasonable doubt that defendant operated his automobile while under the influence of intoxicating liquor. Ebert, supra, 377 N.J. Super. at 10; State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). The term "operates" as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J.467, 478 (1987). "Operation may be proved by any direct or circumstantial evidence--as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992) (citations omitted). Courts have consistently adopted a practical and broad interpretation of the term "operation" in order to express fully the meaning of the statute. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).

In Sweeney, supra, 40 N.J.at 360-61, the Supreme Court stated:

[A] person "operates"--or for that matter, "drives"--a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 . . . when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle[.]

 

Since that time, opinions have made clear that the totality of the facts and circumstances must be considered, taking into account all direct and circumstantial evidence.

Defendant relies on the Supreme Court's holding in State v. Daly, 64 N.J.122 (1973), to suggest the State's evidence could not support defendant's intention to operate the vehicle. In Daly, the defendant, who had been drinking at a tavern, was found reclining in the driver's seat of his car, parked in the tavern lot with the engine running to power the heater. Id. at 124. He testified he went to the tavern after work, realized he had too much to drink, and decided to "sleep it off." Ibid. The evidence established the tavern closed at 2:00 a.m. and the defendant had been in his vehicle for at least one hour and twenty minutes without driving at the time he was arrested. Id. at 124-25. Based upon these facts, the Court concluded operation was not established because the State had not presented "evidence from which any . . . intent could be inferred beyond a reasonable doubt." Id. at 125. The Court concluded:

[T]he statutory sanction is against "operating" a motor vehicle while intoxicated. We conclude, as we did in Sweeney, that in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.

 

[Ibid. (emphasis added).]

Unlike the defendant in Daly, whose proofs showed he arrived at the tavern sober, drank too much, and slept in his car, leaving the heater on for warmth, here defendant had been drinking in Newark, began driving, and pulled onto the shoulder at milepost 76. Defendant's physical condition suggested he was highly intoxicated, passed out with his foot still on the brake, as he was incoherent, disoriented, smelled of alcohol, and had been traveling in the opposite direction of his intended destination. Further, defendant displayed symptoms of intoxication, including: blood-shot eyes; slow, fumbling movements; an inability to stand without swaying; being physically unsteady while walking; and an inability to follow basic instructions like reciting the alphabet or performing simple physical function tests.

Defendant, in an acknowledgement of this impaired physical state, argues "[i]t defies reason and common sense to draw an inference that [he] was physically capable of operating a motor vehicle, let alone forming the intent to do so," when found by Trooper Kaplan. We find this contention unfounded. In our view, the inescapable inference drawn from the totality of the State's evidence shows defendant, who was alone in the vehicle and severely impaired by alcohol when Trooper Kaplan approached to offer aid, drove to milepost 76 while intoxicated. The Law Division judge's conclusions are fully and adequately supported by the substantial credible evidence in the record, sustaining the guilty verdict beyond a reasonable doubt.

Affirmed.

1 Trooper Kaplan admitted he additionally performed the Horizontal Gaze Nystagmus (HGN) test, but did not note this in his report because he was not certified to administer the HGN test. We also note the reliability of the HGN test is in doubt. See State v. Doriguzzi, 334 N.J. Super. 530, 536-38 (App. Div. 2000) (explaining the HGN test is not generally accepted by the scientific community).

2 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (setting forth a defendant's constitutional rights upon arrest).

3 We omit discussion of the events surrounding the administration of the Alcotest because the defendant failed to properly perform the test. Based on the trooper's failure to fully read the entirety of the standard Alcotest statement, however, the refusal charge was dismissed.

4 The municipal court transcript records the witness's name as "Howard H. Leckie"; however, his expert report clearly reflects this is an error.

5 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

6 Among his attacks on Trooper Kaplan's credibility, defendant discusses what became the subject of a motion to dismiss a second charge for refusal, N.J.S.A. 39:4-50.4a. Defendant's motion was granted by the MCJ. Initially, the prosecutor represented the trooper had read the entirety of the required standardized statement for operators charged with DWI, despite that no answers to the second half of the questions were noted on the form. When the prosecutor checked with Trooper Kaplan regarding this issue, he explained his prior representation was incorrect and Trooper Kaplan had not read defendant the second portion of the statement. We do not ascribe the error to Trooper Kaplan, but rather to the prosecutor.