STATE OF NEW JERSEY v. KOLE AKINOLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KOLE AKINOLA,

Defendant-Appellant.

_______________________________

January 2, 2015

Submitted September 29, 2014 - Decided

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-078.

John Lubenesky, attorney for appellant.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kole Akinola appeals from two Law Division orders: a June 8, 2012 order denying, after trial de novo, his request to vacate a guilty plea entered in municipal court for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and the refusal to submit to a breathalyzer test, N.J.S.A. 39:3-50.2, and a July 17, 2012 order denying his motion for reconsideration. Defendant maintains the State deprived him of due process because it failed to inquire into and subsequently preserve exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Following our review of the issues raised on appeal, in light of the record and applicable law, we reject defendant's contentions and affirm.

The following facts are taken from the record. During the early morning of April 22, 2011, Bloomfield Township Police (BTP) Officers Corio and Moskal responded to a radio call reporting a silver Audi crashed into the first floor of a residence and subsequently fled. Officer Moskal arrived at the scene and found a "noticeable trail of fresh fluid on the roadway." The trail led police to defendant's vehicle, a silver Audi A8L, parked on a nearby street in Glen Ridge with "visible smoke coming from the [e]ngine [c]ompartment area."

Officer Moskal observed defendant, who appeared disoriented, in the driver's seat. He ordered defendant to shut off his engine and requested his credentials. Defendant responded with slurred speech. Officer Moskal noted defendant's eyes were bloodshot and he smelled strongly of alcohol.

Officer Moskal requested defendant to exit his vehicle. Defendant initially refused, shouting profanities at the officers and stating they "had no right to ask him to step out of the [v]ehicle." Once he exited his car, defendant "had trouble standing unassisted," and "us[ed] the vehicle to support himself." Police attempts to conduct field sobriety tests were frustrated because he remained uncooperative. Defendant was arrested for driving while under the influence (DUI). Malfunctions with BPD's testing equipment required the officers to transport defendant to the Glen Ridge Police Department (GRPD) for an Alcotest chemical breath test to ascertain his blood alcohol content.1

At the GRPD, Officer Moskal read defendant the New Jersey Motor Vehicle Standard Statement for Operators of a Motor Vehicle (standard statement), N.J.S.A. 39:4-50.2(e). Defendant did not respond to the officer's questions or provide breaths for an Alcotest. The officers transported defendant to BPD headquarters, where he was processed and charged with the following motor vehicle offenses: DWI, N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; leaving the scene of an accident, N.J.S.A. 39:4-129; reckless driving, N.J.S.A. 39:4-96; and driving without a license, N.J.S.A. 39:3-10.

On October 18, 2011, defendant moved to dismiss all charges in Bloomfield Municipal Court. Defendant asserted the State failed to turn over certain video evidence violating his constitutional right to a fair trial. Specifically, defendant argued the State, under its general duty to provide him with all relevant evidence, failed to investigate the existence and to preserve the contents of a video from the GRPD holding cell area, which he alleged could contain exculpatory evidence. Defendant asserted the video "would have shown unequivocally that he was not requested . . . to take the [b]reathalyzer, that he was not read . . . the [standard] statement, and at no time did he refuse to take the [b]reathalyzer." He also maintained the video would negate intoxication because it would display his "physical condition" and "how responsive he was" while at the GRPD. Defendant argued all charges must be dismissed because the video had likely been destroyed in accordance with GRPD protocol to preserve the recordings for only thirty days.

The State opposed defendant's motion, arguing it complied with all discovery requests and denied knowledge a video existed. The State noted incident reports filed by BPD never identified defendant was recorded while at the GRPD.

In addition to his dispositive motion, defendant also requested an adjournment of the trial, alleging for the first time, he was presented with new discovery, that is, a second video obtained from the dashboard camera of Officer Moskal's police cruiser. Although the video had been timely supplied to defense counsel, defendant explained he had not viewed its contents, obviating him from adequately assisting in his defense. Defense counsel informed the court he apprised defendant of the dashboard video's contents in an earlier phone conference and advised him the video contained no exculpatory value because it "[did] not begin until after [defendant] was out of [his] car and was being arrested."

The municipal court denied defendant's motions. The municipal court judge concluded defendant presented no evidence to support his claim a video from the GRPD existed or that the State acted in bad faith when gathering and preserving all relevant evidence prior to trial. Further, the municipal court judge rejected defendant's request for an adjournment under principles of judicial economy, noting the case was 176 days old and "the Supreme Court has made it absolutely clear . . . that [DWI] cases are to be moved in [sixty] days."2

In light of the municipal court's disposition, defendant entered a conditional guilty plea to DWI and the refusal to take a breath test, while reserving his right to appeal. The State dismissed the remaining charges and defendant was sentenced to an aggregated seven month suspension of his driving privileges, the use of an ignition interlock device for a subsequent six months and fines totaling approximately $800. The municipal court stayed execution of the imposed sentence for twenty days pending an appeal to the Law Division. Defendant also moved to vacate his guilty pleas, which was denied by the municipal court judge on November 9, 2011. He appealed his conviction to the Law Division.

After trial de novo, Judge Ramona A. Santiago denied defendant's motion to vacate his guilty plea and dismiss the charges. In a written opinion, the judge rejected defendant's challenges to the municipal court's procedural ruling. She stated, even assuming the GRPD video actually existed, defendant failed to establish a Brady violation because he did not demonstrate the video contained material exculpatory evidence, did not identify its exculpatory nature and did not demonstrate the State acted in bad faith when the video was destroyed. An order was filed on June 8, 2012. Defendant's motion for reconsideration was denied on July 17, 2012. This appeal ensued.

Defendant raises these arguments on appeal

POINT I

FAILURE OF THE STATE TO TURN OVER THE GLEN RIDGE POLICE VIDEO IS A VIOLATION OF DUE PROCESS.

POINT II

THE EVIDENCE WAS INSUFFICIENT TO PROVE A DUI VIOLATION.

POINT III

FAILURE OF THE MUNICIPAL COURT TO ALLOW [DEFENDANT] TO VIEW THE SECOND VIDEO TAPE PRIOR TO TRIAL IS A VIOLATION OF [DEFENDANT]'S DUE PROCESS RIGHTS.

In his pro se supplemental brief, defendant states

POINT [IV]

ASIDE FROM HAVING EXCULPATORY VALUE, BECAUSE THE GLEN RIDGE VIDEO HAD IMPEACHMENT VALUE IN ITS NON-DISCLOSURE BY THE STATE WAS A VIOLATION OF [DEFENDANT]'S DUE PROCESS RIGHTS, WHICH WAS COMPOUNDED BY THE MUNICIPAL COURT'S DENIAL OF AN ADJOURNMENT.

POINT [V]

THE MUNICIPAL COURT ERRED IN DENYING [DEFENDANT]'S MOTION TO VACATE HIS GUILTY PLEAS.

A. [Defendant] is entitled to relief under State v. Parsons.

B. [Defendant] is entitled to relief under State v. Slater.

Review of a municipal court conviction is first addressed by the Superior Court de novo. R. 3:23-8(a). The Law Division independently issues findings of facts and conclusions of law based on the record, as developed by the municipal court below. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). See also State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983) (stating the Law Division performs "an independent fact-finding function in respect of defendant's guilt or innocence"). Our review of that de novo decision is limited to "whether there was sufficient credible evidence in the record to have led to the judge's findings." Avena, supra, 281 N.J. Super. at 333. See State v. Locurto, 157 N.J. 463, 474 (1999) (stating the Appellate Division "should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error").

Upon review of this record, despite the State's failure to raise this issue, we cannot overlook the untimeliness of defendant's appeal. Rule 2:4-1(a) requires "[a]ppeals from final judgment of courts" to be filed "within 45 days of their entry." The Law Division entered its final order denying defendant's municipal appeal on June 8, 2012. Defendant filed his application for reconsideration and to re-open the de novo appeal proceedings on June 14, 2012, which tolled the time for filing an appeal to this court. See R. 2:4-3(c). On July 17, 2012 that motion was denied. Fifty-one days later, on September 6, 2012, defendant filed a pro se Notice of Appeal, which was amended on October 5, 2012.

Defendant's appeal was filed sixty days (three of which were tolled) following entry of the final order, rendering it time-barred. Nevertheless, for completeness, we consider the merits of the issue raised on appeal.

Defendant argues the State's failure to investigate and disclose the GRPD video violated his due process rights, citing Brady. Specifically, defendant contends "[t]he arresting officers knew there either was or potentially was a recorded video of [defendant] during the time [he] was in the [GRPD]." He asserts the failure of the prosecutor to "solicit this information from the arresting officers . . . does not excuse the [State] from [its] duty to find and disclose all exculpatory evidence." We reject this argument as specious.

Defendant failed to substantiate his theory of a video containing possible exculpatory evidence with any support. Adamant about his knowledge of its existence, defendant never sought discovery of the alleged video from the GRPD. None of the reports filed by the BPD identified that a video was made. Nor was confirmation obtained from the GRPD that a video was in fact recorded, albeit subsequently erased. Essentially, nothing in the record placed the State on notice that a tape was created, triggering its duty to preserve the evidence. See State v. Nelson, 155 N.J. 487, 498 (1998) ("The Brady disclosure rule applies only to information of which the prosecution is actually or constructively aware."), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).

Assuming arguendo, a tape was made and then destroyed, defendant also fails to establish a Brady violation by demonstrating the evidence was exculpatory. Rather, the record contradicts defendant's claims the missing video would show he was not asked to take a breathalyzer test.

A defendant is entitled to relief for the State's failure to disclose or preserve exculpatory evidence if he or she can demonstrate: "'(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. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009) (citations omitted) (quoting State v. Parsons, 341 N.J. Super. 448, 454-55 (App. Div. 2001)). "The measure of materiality is the likely impact of the evidence withheld," that is, "whether there is 'a reasonable probability' that if the evidence had been disclosed 'the result of the proceeding would have been different.'" Ibid. (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)). In the context of a motion seeking to vacate a guilty plea, "materiality . . . requires the defendant to show a reasonable probability that he or she would not have plead guilty if the State had provided the evidence." Ibid.

When evidence is no longer available, a defendant may nonetheless succeed under Brady by showing the missing 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.'" Id. at 102-03 (brackets omitted) (quoting Cal. v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984)). "Alternatively, if the defendant cannot establish that the now lost evidence had 'apparent' exculpatory value and can show only 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." Id. at 103 (citing Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)).

Defendant maintains the video had apparent or, at minimum, potential exculpatory value as it "would . . . demonstrate whether [he] was ever asked to take the [b]reathalyzer test." Defendant also challenges the facts reported by Officer Moskal versus Officer Corio's testimony. Both arguments are belied by the facts of record.

Officer Corio testified defendant was taken into custody and read the standard statement, including the notice paragraph regarding refusal, to which defendant gave no response. Officer Moskal's report records the incident stating defendant "refuse[d] to give any breaths for a proper [Alcotest]."

We reject that these uncontroverted facts are inconsistent. The BPD incident report and Officer Corio's testimony both support a conclusion defendant did not affirmatively respond "yes" when asked to provide breaths. Defendant acknowledged as much during his plea hearing when he stated he was read the standard statement setting forth his obligations to provide breathes and, explained he did not "say th[e] words" to affirmatively agree to take the test.

The nature of a defendant's response whether he said nothing or said no is irrelevant for purposes of finding guilt. "[A]nything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so." State v. Widmaier, 157 N.J. 475, 488 (1999) (citation and internal quotation marks omitted). Thus, defendant's argument is not only factually unfounded, but also legally untenable. He has failed to prove the video had exculpatory value sufficient to support a Brady violation or to show the State acted in bad faith during discovery. The State simply cannot be required to investigate and/or preserve evidence it does not know exists. On the record before us, the Law Division properly concluded as much and denied defendant's motion. Accordingly, we affirm substantially for the reasons set forth in Judge Santiago's opinion.

The arguments set forth in Points II, III, IV and V introduce issues for the first time. "Issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (citing State v. Robinson, 200 N.J. 1, 20-22 (2009)). Here, neither concern is implicated, limiting our review only to error "of such nature as to have been clearly capable of producing an unjust result." R. 2:10-2. We conclude these challenges do not meet that standard, lacking sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 Widely used in New Jersey, "[an] Alcotest measures the amount of alcohol present in a person's breath as an indirect measure of the amount of alcohol present in the person's blood." State v. Carrero, 428 N.J. Super. 495, 505 (App. Div. 2012) (citing State v. Chun, 194 N.J. 54, 78, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)).

2 See Memorandum from Chief Justice Robert N. Wilentz, Directive #1-84 (July 26, 1984). See also State v. Farrell, 320 N.J. Super. 425, 446-47 (App. Div. 1999) ("The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later endorsed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days.").