STATE OF NEW JERSEY v. MATTHEW P. CONROY

NOT FOR PUBLICATION WITHOUT THE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.

MATTHEW P. CONROY,

Defendant-Appellant.

_______________________________

February 19, 2016

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 14-14.

John Menzel argued the cause for appellant.

John C. Tassini, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Tassini, on the brief).

PER CURIAM

Defendant Matthew P. Conroy appeals from a September 16, 2014 Law Division order, following de novo review of his municipal court conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, based upon Alcotest results obtained when arrested. During the trial before the Law Division, defendant argued the municipal court judge erred when reconsidering an order mandating the State produce certain documents related to the credentials of the Alcotest operators. He argued the validity of the test results was in doubt because the operators failed to produce the original correspondence requesting replacement certificates establishing their training credentials. Defendant also challenged whether the State proved its operators completed the required training, certifying them to prepare and analyze the Alcotest. Finally, he asserted the judge erroneously denied his request for a jury trial.

The Law Division judge considered and rejected these arguments in an oral opinion. She convicted defendant and imposed the same penalties and assessments as the municipal court. On appeal, defendant renews these arguments. We affirm.

The facts underlying defendant's arrest and DWI charge were stipulated in the municipal court trial and are not disputed. Succinctly, police received a report of a possible intoxicated driver operating a silver pickup truck from a citizen who was following the vehicle. Officer Nicholas S. McGavin responded, located the vehicle, observed the operator "cross the double yellow line," and initiated a motor vehicle stop.

When speaking with defendant, "[t]he officer made certain observations concerning [defendant's] movements and speech, as well as an odor on [his] breath." He requested defendant perform field sobriety tests, after which he arrested defendant for driving while intoxicated. At the Ocean Township Police barracks, defendant gave two breath samples using the Alcotest Model 7110. The two readings recorded defendant's blood alcohol concentration in excess of the legal limit.

No testimony was presented during the April 29, 2014 trial. The parties stipulated to the underlying facts leading to defendant's stop, arrest, and testing. Defendant also stipulated to the actual Alcotest readings and the State agreed without the Alcotest results, its case could not be supported. In addition, defendant and the State agreed to admit numerous documents. The municipal court judge reviewed the stipulated facts and documentary evidence and found defendant guilty of DWI, and dismissed other related charges. The judge imposed various fines and fees, totaling approximately $650, suspended defendant's license for seven months, and required him to attend an Intoxicated Driver Resource Center for twelve hours. The judge stayed execution of sentence pending appeal.

During the trial de novo, defendant sought reversal of his conviction, presenting three arguments: the municipal court judge abused his discretion by granting reconsideration of a previously issued discovery order; the Alcotest results should be excluded because the officers' replacement replica certification cards (replica certifications) demonstrated they lacked the required training; and defendant was wrongly denied a jury trial. The Law Division judge rejected each argument, convicted defendant and imposed the same sentence as the municipal court. Sentencing was stayed pending this court's review. This appeal ensued. On appeal before us, defendant makes the following arguments

POINT I.

THE LAW DIVISION ABUSED ITS DISCRETION BY FAILING TO ABIDE BY THE MUNICIPAL COURT'S LAWFUL DISCOVERY ORDER.

POINT II.

THIS COURT SHOULD EXCLUDE THE ALCOTEST RESULT HERE BECAUSE CREDENTIALS WERE INVALID FOR THE BREATH TEST OPERATOR WHO CHANGED THE SIMULATOR SOLUTION FOR DEFENDANT'S BREATH TEST AS WELL AS FOR THE BREATH TEST COORDINATOR INSTRUCTOR WHO CHECKED THE ALCOTEST INSTRUMENT'S CALIBRATION.

A. The Legislative Scheme for Breath Testing.

B. The Regulatory Scheme for Operator Certification.

C. Defects Afflicting the Solution Change Operator's Alcotest Certification.

D. Defects Afflicting the Certification of the Breath Test Coordinator Instructor who did Calibration, Control, and Linearity Functions on the Alcotest Instrument Used to Test Defendant's Breath.

POINT III.

DEFENDANT ASKS FOR A JURY TRIAL.

In our limited review, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). See also R. 3:23-8(a)(2) (noting the Law Division's review is de novo on the record). We uphold the Law Division judge's orders when supported by "sufficient credible evidence" in the record. State v. Stas, 212 N.J. 37, 48-49 (2012) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). However, if the Law Division's findings are so clearly mistaken or unwarranted and "the interests of justice demand intervention and correction," we may review the record "as if . . . deciding the matter at inception and make [our] own findings and conclusions." State v. Johnson, 42 N.J. 146, 162 (1964). Our review of a trial judge's interpretation of the law is de novo. State v. Pomianek, 221 N.J. 66, 80 (2015). See also State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).

The crux of defendant's challenge focuses on the State's evidence related to the credentials of the officers preparing and operating the Alcotest unit used to test defendant. The State provided the certificate of analysis for Alcotest Model 7110, which was completed on July 5, 2013, by New Jersey State Trooper Michael P. Gibson and Officer Gibson's Alcotest Operator's card and training certifications, in the form of replica certification. The face of Officer Gibson's replica certification showed he was a Breath Test Coordinator Instructor, and included the date issued. The back of the replica certification listed dates when refresher training courses were completed.

The State also produced credentials for a second officer, William T. Sneddon, who installed the simulator solution of the Alcotest unit on October 7, 2013, as verified by the Calibrating Unit New Standard Solution Report. Officer Sneddon's replica certification was also provided to prove he was certified to prepare and operate the Alcotest device. The face of his replica certification displayed the date of issuance and the back noted his course completion date along with the date he completed refresher training courses.

Initially, defendant argues the Law Division judge abused her discretion by failing to uphold a discovery order requiring the State to produce the underlying request to the Attorney General to issue the officers' replica certifications; the cards submitted were not the originals. These facts add context to understand this issue.

The municipal court judge issued a discovery order requiring the State to produce documents that included: (1) "Alcotest operator certification replica cards, including the written notice from either [Officer] Sneddon or the police chief or executive head of the law enforcement agency requesting replacement replica cards and credentials, if any"; and (2) "[w]ritten notice from either [Officer] Gibson or the police chief or executive head of the law enforcement agency requesting his Breathalyzer operator certification replacement replica card and credentials, if any." The discovery order stated: "If the State . . . either fails to produce these items . . . this [c]ourt may impose sanctions, including exclusion of breath test results and dismissal."

Prior to trial, the State moved to reconsider these discovery provisions. Briefs were submitted and oral argument held. The municipal court judge examined the officers' replica certifications and granted the State's motion, finding the underlying requests to issue replica certifications was not a predicate to the authenticity of the officers' credentials and the State's failure to provide these documents would not preclude admission of the Alcotest results.

This order was challenged before the Law Division as representing an abuse of discretion. Now, on appeal, defendant argues the Law Division judge abused her discretion in denying the request to vacate the order nullifying the original discovery decision. Defendant maintains the discovery request was valid, relevant and necessary to challenge the State's proofs showing testing officers were certified to operate the Alcotest unit.

We defer to a trial judge's reasoned exercise of discretion when determining whether to admit or exclude evidence. State v. Morton, 155 N.J. 383, 453 (1998). See also State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010) ("We review the trial court's denial of a defendant's discovery requests under an abuse of discretion standard."), certif. denied, 205 N.J. 183 (2011). "The task of determining whether a discovery request is relevant or whether it should be limited, or has been properly responded to, may be largely factual and well-suited to the discretion of a trial court." State v. Ford, 240 N.J. Super. 44, 50 (App. Div. 1990).

In DWI matters, our courts have "applied a narrower concept of 'relevant' discovery . . . than in full-fledged criminal cases." State v. Carrero, 428 N.J. Super. 495, 507 (App. Div. 2012). In defense of a DWI charge, a defendant's "right to discovery . . . is limited to items as to which 'there is a reasonable basis to believe will assist a defendant's defense.'" Ibid. (quoting Ford, supra, 240 N.J. Super. at 49). Thus, the requested discovery "must be relevant in and of itself." Id. at 508.

We recognize the entitlement to discovery concerning procedures utilized in administering breathalyzer tests is not dependent on a defendant's personal understanding of whether the procedures used were flawed. Ibid.; Ford, supra, 240 N.J. Super. at 49, 51. However, that does not license a defendant to request any documentation or information, which might lead to other relevant material. State v. Maricic, 417 N.J. Super. 280, 284 (App. Div. 2010). See also Ford, supra, 240 N.J. Super. at 48.

To determine whether the judge abused her discretion by eliminating the State's obligation to produce letters requesting replica certifications for Officers Gibson and Sneddon, we consider the substance and necessity of the request as it relates to defendant's defense of the DWI charge.

In State v. Chun, 194 N.J. 54 (2008), the Supreme Court identified documents subject to discovery regarding the Alcotest unit's preparation and operation, specifically requiring the State to demonstrate the unit's "good working order" by supplying proof of calibration and standard solution preparation. Id. at 145.

Importantly, Alcotest operators are certified by the Attorney General. N.J.S.A. 39:4-50.3 ("Chemical analyses of the arrested person s breath, to be considered valid . . . , shall have been performed according to methods approved by the Attorney General . . . ."). Further, regulations identifying "the requirements for certification of a person to conduct chemical analysis of the breath of a person arrested [for DWI]," N.J.A.C. 13:51-1.1, mandate Alcotest operators must have "been issued a valid operator's certificate which is valid at the time of the analysis of an arrested person's breath and which attests that such operator is then qualified and competent to conduct such analysis . . . ." N.J.A.C. 13:51-1.3(a). "Any test conducted . . . by an operator whose certification is suspended, revoked, or invalid at the time such test is conducted, shall be considered invalid for presentation in evidence or testimony in a court of law . . . ." N.J.A.C. 13:51-1.8(d). Accordingly, operator credentials for officers who performed the most recent solution report and calibration checks must be provided as a condition precedent to admission of the Alcotest unit's results.

The regulations also explain an operator's testing certificate or a "replica," exhibits the completion of "the required course of training, including the date of the initial course completion and type of approved instrument, or instruments, upon which the operator has been certified." N.J.A.C. 13:51-1.7(a). "Replica" is a defined term, meaning "an operator's certificate . . . which shall bear the signatures or facsimile signatures of the Attorney General and the Superintendent of State Police, and where authorized . . . the signature or initials of a Breath Test Coordinator/Instructor, and which is of a size that permits it to be carried in the pocket, purse, wallet, etc., and includes replacements . . . ." N.J.A.C. 13:51-1.2. A replica certification bears: (1) the signature of the Attorney General and the Superintendent of the State Police; (2) the completion date of the original certification; and (3) the most recent completion date of recertification, if needed. See N.J.A.C. 13:51-1.2, -1.7, -1.12(c). "[T]he replica which is maintained by the operator is evidence of the operator's qualification to operate the breathalyzer." State v. Sohl, 363 N.J. Super. 573, 580 (App. Div. 2003). "In any judicial proceeding . . . where the certification status of an Operator or a Breath Test Coordinator/Instructor is called into question, the records of the Attorney General . . . shall be prima facie evidence of the status of a Breath Test Operator or Breath Test Coordinator/Instructor." N.J.A.C. 13:51-1.14. If a certification card is lost, or needs to be replaced, "the Chief of Police or other executive head of the organized police department of which the operator is a member shall notify the Superintendent, in writing, . . . of such loss or need for a replacement." N.J.A.C. 13:51-1.12(b).

Defendant's discovery requests sought letters sent to the Attorney General requesting the replica certifications for officers Gibson and Sneddon. Following our review of the arguments presented and in light of the record and applicable law, we reject defendant's suggestion the denial of these letters was prejudicial. We conclude the documents were not necessary to verify the Alcotest operators' credentials and did not affect the admissibility of the Alcotest results.

As the Law Division judge noted, the produced replica certifications were issued by the Attorney General and signed by the appropriate individuals in accordance with N.J.A.C. 13:51-1.12(c). Defendant does not argue the replica certifications were fraudulent or defective. This makes the letter seeking replica certifications superfluous. Further, once the replicas are in fact issued, we fail to understand the significance of the letter verifying the ministerial act of requesting the Attorney General to issue replica certificates. Accordingly, we concur with the determination that the replica certification cards provided at trial were, in and of themselves, sufficient to establish the officers' qualifications. The judge properly revised the initial discovery order and did not dismiss the charge merely because the State failed to produce the correspondence requesting the replica certifications. Such an omission does not defeat the valid issuance of the replica certifications or call into question the training undertaken by the officers. Moreover, whether the formal procedure for requesting replica certificates was followed is immaterial to the admissibility of Alcotest results. Having determined no reasonable basis demonstrating how these documents could assist defendant's defense, Carrero, supra, 428 N.J. Super. at 507, we find no abuse of discretion in relieving the State of the obligation to produce them.

Defendant alternatively argues the replica certifications do not state these officers were properly trained to maintain their certifications to calibrate and analyze the Alcotest unit. He reasons if the officers were not properly certified, then the Alcotest results are inadmissible. Specifically, defendant contends because the officers' replica certifications list one date, they only attended a one-day recertification course, when a three-day course was required. We disagree.

Recertification to operate the Alcotest is granted following completion of a three-day training course. N.J.A.C. 13:51-1.6(a). The recertification is valid for the remainder of the year when the course was completed and the next two calendar years. N.J.A.C. 13:51-1.7(a) ("[Certification] shall remain valid throughout the remainder of the calendar year corresponding to the date of initial course completion and shall remain valid throughout the next two calendar years."). The operator's replica certificate documents attendance at trainings exhibiting, among other things, "the date of the initial course completion . . . ." N.J.A.C. 13:51-1.7(a) (emphasis added). The same applies to recertification. N.J.A.C. 13:51-1.7(b).

Operators must be recertified upon expiration of this period, N.J.A.C. 13:51-1.8(a), or the operator's certification will automatically be suspended "if said operator has not satisfied the requirement for recertification . . . before the expiration of said valid certification." N.J.A.C. 13:51-1.8(a). An operator who seeks recertification before the current certification expires or whose certification lapses and was invalid for less than one year may be recertified by attending a one-day course. See N.J.A.C. 13:51-1.6(c), (d). Operators whose certification has lapsed for one year or more must attend a three-day retraining. N.J.A.C. 13:51-1.8(c).

Defendant's challenge to Officer Sneddon's credentials argues the notation for his Alcotest 7110 training reflects only the single date November 29, 2005, when he was required to attend a three-day training course, pursuant to N.J.A.C. 13:51-1.6(a)(2). Similarly, when he was recertified, he was to attend a three-day course because his credentials were suspended for more than one year, yet the replica certificate lists only one date, August 24, 2009. These contentions lack merit. R. 2:11-3(e)(1)(E).

Quite simply, N.J.A.C. 13:51-1.7(a) states "the date of the initial course completion," will be set forth. (Emphasis added). Also, N.J.A.C. 13:51-1.12(c) provides "[t]he reverse side of the replacement replica will show the date of the operator's . . . most recent recertification . . . ." Certification is awarded upon completion of the required training course. Officer Sneddon's certification remained valid until December 31, 2014, and was valid when he installed the simulator solution on October 7, 2013, on the unit used to test defendant.

The same standard applied to Officer Gibson's credentials, which we find were valid when he calibrated and performed linearity checks of the testing unit on July 5, 2013. His replica certificate records a single date of completion for his most recent refresher training on February 3, 2011, which was valid until December 31, 2013.

Defendant presents no reason to question the Attorney General's verification of the requisite testing when the replica certifications were issued. The Law Division properly determined both officers presented valid certifications for performing the described functions for accurate operation of the Alcotest unit used when defendant was arrested. Finding no flaw with the testing or the testers, the Alcotest results were properly admitted and relied upon to support defendant's conviction.

Defendant's final suggestion states the Law Division erroneously denied him his right to a jury trial. The argument is erroneous as "New Jersey has never recognized a right to trial by jury for the motor-vehicle offense of DWI." State v. Hamm, 121 N.J. 109, 112 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991). See also State v. Stanton, 176 N.J. 75, 101, cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003); State v. Federico, 414 N.J. Super. 321, 330 (App. Div. 2010).

Affirmed.