STATE OF NEW JERSEY v. DAVID KELLERMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3929-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID KELLERMAN,

Defendant-Appellant.

________________________________________________________________

March 4, 2013

Argued December 19, 2012 - Decided

Before Judges Grall and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 066-11.

Robert J. Pinizzotto argued the cause for appellant (Law Offices of Robert J. Pinizzotto, L.L.C.,attorneys; Mr. Pinizzotto and Nicole E. Wise, on the briefs).

James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief).

PER CURIAM

Defendant David Kellerman appeals from the Law Division judgment of March 9, 2012 finding him guilty de novo of driving while intoxicated (DWI), N.J.S.A. 39:4-50.1 Prior to entering a conditional guilty plea in municipal court, defendant unsuccessfully sought to block admission of his blood alcohol content (BAC) results because the State did not timely provide complete discovery. He appeals the Law Division decision that the laboratory results were admissible. We affirm.

Defendant was involved in a one-vehicle accident on July 26, 2011 in Mullica Township. He was transported to the hospital where a blood sample revealed a BAC of .203 percent, evidence of a per se violation. N.J.S.A. 39:4-50(a).

On November 1, 2011, the municipal court held a N.J.R.E. 104 hearing on the admissibility of the laboratory certificate. The nurse from the AtlantiCare Regional Medical Center who took defendant's blood sample testified. Defendant objected to the admissibility of the laboratory certificate because the State had not provided all discovery2 previously requested by defense counsel. The prosecutor argued that the State was not deficient in its production of discovery as she provided the certified laboratory report and defendant's driving history abstract. The municipal judge noted:

And just so happens at Friday's judge's conference this specific issue was discussed by all the judges along with State Police and lab personnel. And it's more or less decided, directed that once a specific request for all other documents has been provided to the State Police Lab they will be given within 20 days to defense counsel and the prosecutor.

Although the prosecutor indicated that she could provide the missing discovery as the forensic scientist was "on call," the municipal judge adjourned the matter to allow both counsel to review discovery. Defendant then entered a conditional plea of guilty. On de novo review, the Law Division agreed with the decision of the municipal court.

After appeal, defendant raises the following issues:

POINT I: DEFENSE COUNSEL HAS NO OBLIGATION TO INFORM THE STATE OF ANY FOUNDATIONAL DOCUMENTS MISSING FROM DISCOVERY, NOR DOES DEFENSE COUNSEL HAVE ANY OBLIGATION TO AID IN THE PROSECUTION OF HIS OR HER CLIENT.

POINT II: THE ADMISSION INTO EVIDENCE OF THE STATE'S LABORATORY CERTIFICATE WAS IMPROPER.

A. DEFENSE COMPLIED WITH ALL PROCEDURAL REQUIREMENTS FOR OBJECTION TO ADMISSIBILITY.

B. GRANTING AN ADJOURNMENT TO CURE THE DEFECT IS A VIOLATION OF DOUBLE JEOPARDY.

POINT III: IT WAS IMPROPER FOR MUNICIPAL COURT JUDGES TO HAVE EX PARTE COMMUNICATIONS WITH STATE POLICE PERSONNEL.

We review the legal decisions of the Law Division and municipal court anew. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). I

After a fresh review of the legal issues raised by defendant, we affirm the Law Division's rejection of the arguments raised by defendant in his first two points substantially for the reasons expressed by Judge DeLury in his thorough written opinion of February 23, 2012. We add only the following comments.

We have indicated that "the ten-day period in which a defendant must object to the admission into evidence of a lab certificate begins to run only after the State has served upon the defendant all related lab reports." State v. Heisler, 422 N.J. Super 399, 405-06 (App. Div. 2011); N.J.S.A. 2C:35-19(c). Thus, defendant properly waited until the N.J.R.E. 104 hearing to object to the lack of discovery.

Defendant objects to the continuance granted to the State by the municipal court to allow it to cure the discovery violation. In State v. Utsch, 184 N.J. Super. 575, 580 (App. Div. 1982), we applied Rule 3:13-3(f), which, through Rule 7:4-2(g), grants the municipal court wide discretion in granting a continuance to allow the State to provide discovery. We allowed such an adjournment under those circumstances even where the basic discovery had not been provided. Unlike in Utsch, here the laboratory certificate had been supplied and only supporting documents were lacking. Thus, an adjournment was even more reasonable under these circumstances. Ibid. In addition, defendant was not deprived of his double jeopardy rights because the trial had not started when the adjournment was granted, thus jeopardy had not attached.

II

Defendant also argues that the municipal judge should have recused himself from deciding the pre-trial motion because he engaged in ex parte communication with the State by attending a municipal judge training session conducted by the Administrative Office of the Courts at which the State Police was present. Defendant did not seek such relief before the judge. R. 1:12-2. Attending judicial training at which presentations from law enforcement or the defense bar are given does not constitute ex parte communication. Code of Judicial Conduct, Canon 4 (explaining that a judge can engage in activities that seek to improve the law, the legal system and the administration of justice); see also Code of Judicial Conduct, Canon 3A(6) (stating that a judge should not communicate ex parte except as permitted by law). We note also that such reasoning would lead to the exclusion of all municipal court judges who attend such educational training from presiding over DWI cases.

Additionally, the Law Division reviewed the legal basis of the motion de novo, so any information obtained by the municipal judge at the training session did not enter into the thinking of the Law Division. State v. Hulsizer, 42 N.J. Super. 224, 228-29 (App. Div. 1956) (citations omitted).

1 At the State's request, at sentencing the municipal court dismissed the other charges against defendant for reckless driving, N.J.S.A. 39:4-96, failure to maintain a single lane, N.J.S.A. 39:4-88(b), failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f), and having an open alcoholic container in a motor vehicle, N.J.S.A. 39:4-51(A).

2 Defense counsel requested "the gas chromatography" and related documentation. The prosecutor stated, "[t]he State is not bound to automatically produce the, what I indicated or refer to as the Weller documents, [State v. Weller, 225 N.J. Super. 274 (Law Div. 1986), certif. denied, State v. Flynn, 109 N.J. 43 (1987)], the documentation regarding the gas chromatography and the results, the scientist's notes and whatnot."