STATE OF NEW JERSEY v. ARREND SANTIAGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01520-15T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ARREND SANTIAGO,

Defendant-Respondent.

_________________________________________

October 18, 2016

Argued September 14, 2016 Decided

Before Judges Messano, Guadagno and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 14-07-0617.

Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief).

Joshua F. McMahon argued the cause for respondent (Schiller McMahon, L.L.C., attorneys; Mr. McMahon, of counsel and on the brief).

Sarah Lichter, Deputy Attorney General, argued the cause for amicus curiae the Attorney General of New Jersey (Christopher S. Porrino, Attorney General, attorney; Ms. Lichter, of counsel and on the brief).

PER CURIAM

By our leave, the State of New Jersey appeals from the Law Division's October 30, 2015 order that dismissed Union County Indictment No. 14-07-00617 against defendant Arrend Santiago following an evidentiary hearing. After granting the State's motion for leave to appeal, we subsequently granted the Attorney General's motion to appear as amicus curiae.

Defendant moved for a remand to the trial court and a stay of all appellate proceedings pending "completion of an internal affairs/criminal investigation into the officers involved," and consideration by the Law Division of "additional testimony as to policy makers" and "information generated in the course of the investigation." We denied the motion.

Before us, the State argues that the judge erred by dismissing the indictment and "not imposing a more proportionate and appropriate remedy," because the Linden Police Department did not act in "bad faith" by failing to preserve a motor vehicle recording (MVR) that possessed "no exculpatory value." Amicus similarly contends that the judge failed to perform the proper legal analysis in considering defendant's motion to dismiss.

Defendant argues dismissal of the indictment was appropriate because the State violated: the holdings in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); its discovery obligations under Rule 3:13; the Court's holding in State v. W.B., 205 N.J. 588 (2011); Rule of Professional Conduct (RPC) 3.8; record and evidence retention policies formulated by the Division of Archives and Records Management (DARM) and the Attorney General; and defendant's due process rights. Defendant further contends that we should affirm through the exercise of our "inherent supervisory authority." Having considered these arguments in light of the record and applicable legal standards, we reverse.

I.

On March 19, 2014, members of the Linden Police Department effectuated a motor vehicle stop of a car driven by defendant. A ten-page police incident report contained portions authored by both Police Officer Michael F. Olbrys and Police Officer Javier Perez. In the initial portion of the report, Olbrys stated that while he was providing backup to Perez at another scene, he observed a car make a turn at a high rate of speed without using a signal. Olbrys activated his overhead lights and attempted to stop the car, which gained speed above the posted limit before finally stopping. With Perez backing him up now in another vehicle, Olbrys approached the car and asked the driver, defendant, for credentials, which he produced. Meanwhile, Perez approached the car on the passenger side. Olbrys asked defendant to exit the vehicle, which he did, and Perez observed "suspected CDS" and money on the passenger side floor. Defendant was placed under arrest.

Perez's portion of the report confirmed defendant's "careless high speed turn" but indicated that he, not Olbrys, spoke to the driver. Perez stated that, from outside the passenger side of the vehicle, he observed a large bag in the passenger foot well with "bundles of cash . . . spilling out of the top" and also a bag of suspected marijuana. Perez claimed that Olbrys then asked defendant to exit the car, at which point Perez seized the items.

In a final portion of the report denoted as "auto-generated," Olbrys claimed that upon approaching defendant's car, he "could smell the odor of raw marijuana emanating from" it. This portion also failed to state that defendant's car was exceeding the speed limit when first observed. Both police vehicles were equipped with dashboard recording devices.

Shortly after defendant's arrest, on March 25, 2014, defense counsel (first defense counsel) requested that the Criminal Division furnish "all complaints and information regarding bail set on the[] charges." The letter also indicated that counsel would "forward another letter to the Prosecutor's Office requesting complete discovery." On the same day, the municipal prosecutor acknowledged receipt of the request. His letter advised defense counsel of the costs associated with discovery and how to obtain it, including "all video and audiocassette tapes."

In July 2014, the Union County grand jury returned a ten-count indictment charging defendant with multiple controlled dangerous substance (CDS) offenses, as well as money laundering, N.J.S.A. 2C:21-25(a). In September, first defense counsel, who had received some police reports prior to indictment, wrote to the assistant prosecutor, noting "inconsistent versions" of events regarding the stop contained in those reports and requesting that a certain pre-indictment plea offer remain open pending a further conference.

In December, present defense counsel substituted as counsel of record, and, in January 2015, he requested additional discovery, including "all electronic discovery," any "imagery from . . . police vehicles" and "any fixed or stationary video[.]" Noting "multiple versions of reports that were produced thus far in discovery," defense counsel inquired if the State was prepared to dismiss the indictment, in which case the request for further discovery was withdrawn. On February 17, 2015, the prosecutor advised that "the dashboard camera video, radio transmissions, and telephone calls" "relating to the incident" "were not preserved." On March 3, the prosecutor forwarded metadata "the electronic 'footprint'" regarding the "creation and modification of police reports" in the case. On May 26, 2015, defendant filed a motion to compel discovery or, in the alternative, to dismiss the indictment, and requested a "[t]estimonial hearing."

That hearing took place on July 21 and 22, 2015. At the outset, the judge characterized the proceedings as a "discovery motion," and defense counsel agreed. Defendant's first witness was Linden Police Chief James Schulhafer, who testified that the department's policy required all routine MVRs to be preserved for thirty-one days in accordance with DARM policy. To preserve an MVR beyond that time, an officer must submit a form, known as a "burn request"; however, since no request was submitted in this case, the system automatically recorded over any recording of the incident.

Departmental policy required that a burn request be submitted in only two circumstances: in DWI or pursuit cases; and in non-homicide cases where the MVR possessed "evidentiary value." Schulhafer admitted the policy "le[ft] [it] up to the officer's discretion, whether or not . . . there is evidentiary value in that record[ing], and if so, then it . . . should be preserved." Schulhafer acknowledged that the policy could, in some situations, "place the fox in charge of the hen house," as the judge suggested. Furthermore, Schulhafer stated that departmental policy required officers to note in their reports when video/audio recordings were made, and there was no mention of the MVR in the officers' reports in this case.

Defense counsel called Olbrys, who testified that he did not submit a burn request because "[i]t wasn't substantial" and did not "show anything on the stop" because of the direction his police vehicle was facing when defendant drove by in his car. Olbrys did admit, however, that he never reviewed the MVR, and the MVR would have recorded the acceleration of defendant's car once Olbrys' vehicle was behind it, as well as any verbal interaction between the officers and defendant after the stop. Defense counsel elicited the inconsistencies between Olbrys' first portion of the incident report, characterized as "Olbrys I," and the "auto-generated" second portion, characterized as "Olbrys II."

Defendant also called Perez as a witness. He testified that he never submitted a burn request in this case because he "didn't feel there was anything of evidentiary value on the video"; "the probable cause for th[e] stop was not on the video"; and, the patrol cars were not facing the direction of defendant's vehicle when it made its turn. Perez acknowledged inconsistencies in the report, for example, that he did not notice the smell of raw marijuana emanating from defendant's car.

At the beginning of the hearing's second day and during Perez's testimony, defense counsel moved to dismiss the indictment, claiming a Brady violation, specifically, "there were inconsistencies between Officer Olbrys and Officer Perez." He accused Olbrys of having committed perjury regarding his "other report." Counsel further argued that the "destruction of the audio and video" violated defendant's Fifth and Sixth Amendment rights, and further pointed to alleged "policy problems" regarding retention of the MVR. The judge reserved any decision, and the hearing continued.

After Perez completed his testimony, defendant called Lieutenant Andrew J. Bara, who testified about the police department's computer software, "CODY," used to write police reports. Bara said the system created auto-generated reports whenever an officer stopped working and then tried to resume. Later, when the officer submitted the report for supervisor approval, an auto-generated report would also appear, "mirroring the original one." Bara was not qualified to explain why this occurred, but noted the department "had issues" with CODY.

The last witness to testify at the hearing was Sergeant Christopher Guenther, who was responsible for the department's property and evidence, information technology and records retention procedures. He acknowledged that, pursuant to guidelines issued by the Attorney General, the police department was required to get authorization from the prosecutor's office prior to destroying evidence. Guenther also confirmed that if he received "a discovery request" within the thirty-one-day time frame when MVRs were retained, the recording would be preserved "even if the officer had not requested it."

Following Guenther's testimony, defendant indicated he wished to call two assistant prosecutors as witnesses because, despite several requests, the county prosecutor's office had failed to furnish any policies it had promulgated regarding the retention of evidence by local police departments. The judge reserved on the application, stating, "I think that th[e] case can be resolved without reaching that testimony." He issued a briefing schedule.

The parties appeared for oral argument on October 30, 2015. Defendant contended the indictment should be dismissed for a variety of reasons, all of which he now reiterates in his appellate brief. The State argued, among other things, that there was no discovery or due process violation.

In an oral decision that immediately followed argument, noting his extensive experience as a criminal judge in Union County, the judge mused there was "a certain allure, attraction to deciding this issue on a global basis." He referred to the "multiple occasions" where police departments did not preserve MVRs, and, specifically with respect to Linden's policy, stated "it's inconceivable that we leave the officer in charge of" copying the video. Nevertheless, the judge determined he would "decid[e] th[e] case on the specifics of the case."

He found that the initial request made by first defense counsel placed the police department on notice "to make a burn of any MVR available." The judge found the department "did nothing to determine whether there was an MVR[,]" and could not have done so because "the police officer did not file and follow his own . . . departmental procedures[,]" although the judge never stated what specific procedures had been violated. He found failing to copy the MVR was "grossly negligent."

The judge noted "ample grist for the mill of . . . cross-examination," based on the "two different versions" of events described in the police reports. He further stated that this was not a case "where . . . defendant says, the police officers planted . . . that on me and the video would show whether or not there was a plant or whether [the drugs and money] were there . . . ." Nevertheless, the video would have supported "one version or the other of . . . Olbrys['] report." The judge found "some prejudice" to defendant, granted the motion and dismissed the indictment.

II.

We "defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015). However, we review the judge's legal conclusions de novo. Id. at 263. "And for mixed questions of law and fact, we give deference . . . to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings." State v. Harris, 181 N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185 (1997)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)).

"[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996)(citations omitted). Nevertheless, as we recently observed

[O]ur courts have long held that a dismissal of an indictment is a draconian remedy and should not be exercised except on the clearest and plainest ground. Dismissal is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake. Even in a case in which we found an investigating officer's brazen misconduct to be wholly reprehensible, we reversed the dismissal of seventeen indictments, stating, "we question whether the public must pay the price by forfeiting its day in court on otherwise properly found indictments." Therefore, although a motion to dismiss an indictment is directed to the sound discretion of the court, an indictment should stand unless it is palpably defective.

[State v. Williams, 441 N.J. Super. 266, 271-72 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004) (other citations and internal quotation marks omitted)).]

With these general principles in mind, we consider the specific arguments raised by the parties.

A.

Brady requires the State to disclose all known evidence that would "tend to exculpate [defendant] or reduce [his] penalty." Brady, supra, 373 U.S. at 87-88, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218-19. "Brady encompasses evidence that the defendant might have used to impeach government witnesses." State v. Knight, 145 N.J. 233, 245-46 (1996) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985); Giglio, supra, 405 U.S. at 154, 92 S. Ct. at 766, 31 L. Ed. 2d at 108).

"There are three elements of a Brady violation. The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)). Evidence is material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 535. "Whether evidence is material and thus subject to disclosure under the Brady rule is a mixed question of law and fact." Marshall, supra, 148 N.J. at 185 (citations omitted).

"Exculpatory evidence is treated differently from merely potentially useful evidence. Suppression of requested exculpatory evidence violates due process, regardless of the prosecution's good faith." State v. Robertson, 438 N.J. Super. 47, 67 (App. Div. 2014) (citations omitted). In a case in which the defendant alleged that the failure to preserve an MVR was a due process violation under Brady, we stated

[w]hen 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 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.

[State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (citations and internal quotation marks omitted).]

In this case, the MVR was useful to the defense in that it may have definitively confirmed one version of the differing aspects of events as described in the report. For example, the MVR might have revealed that Perez, rather than Olbrys, spoke to defendant at the scene, or that defendant was ordered out of the vehicle by Olbrys before the money and drugs were seen or only after Perez saw them on the floor of the car. As urged by defendant, the judge clearly focused his attention on these inconsistencies. However, as the judge also noted, there was no claim that police planted the drugs and money in defendant's car.

Moreover, the failure to preserve the MVR only added proverbial "grist to the mill" for impeachment purposes. Under the circumstances, the MVR was potentially useful information, but it did not have "apparent exculpatory value." Id. at 103. Additionally, the judge specifically found that police acted in a grossly negligent fashion by not preserving the MVR, but he did not find that they acted in bad faith. Under the standards

described above, defendant failed to establish a Brady violation.1

B.

Although he did not specifically articulate Rule 3:13 as a basis for dismissal of the indictment, the judge did find that defense counsel's initial discovery request required preservation of the MVR for eventual production. The State argues that the first defense counsel's request was inadequate and, assuming arguendo that the first request placed its agents on notice to preserve the MVR, dismissal of the indictment was an inappropriate remedy. Defendant contends that the judge exercised appropriate discretion under the Rule and under the Court's holding in W.B. by dismissing the indictment.

As the Court recently said, "an accused has a right to broad discovery after the return of an indictment in a criminal case." State v. Hernandez, 225 N.J. 451, 461 (2016) (emphasis added) (citing State v. Scoles, 214 N.J. 236, 252 (2013)). Undoubtedly, the MVR was subject to discovery. R. 3:13-3(b)(1)(A); State v. Stein, 225 N.J. 582, 596-97 (2016). A judge is provided with various options for relief, when the State violates its discovery obligations, including the grant of a continuance or delay, exclusion of the evidence or any other relief the judge "deems appropriate." R. 3:13-3(f). In W.B., supra, 205 N.J. at 608-09, the Court specifically approved of the use of an adverse inference charge if evidence is lost or destroyed before trial.

However, as Rule 3:13-3 itself recognizes, the full panoply of the State's discovery obligations does not arise prior to indictment. Under Rule 3:13-3(a), the State must supply full discovery prior to indictment only "where the prosecutor has made a pre-indictment plea offer," "[u]nless the defendant agrees to more limited discovery." Therefore, under Rule 3:13, first defense counsel's request, made approximately one week after defendant's arrest, did not trigger the State's obligation to provide all discovery, including the MVR, and it only sought "all complaints and information regarding bail set on the[] charges." Nothing in the record indicates that first defense counsel ever followed through with his request for "complete discovery" from the prosecutor's office. It is clear from his later letter in September 2014 that the State had in fact furnished discovery as part of its obligation to do so after conveying a pre-indictment plea offer.

It is unclear from the record why the municipal prosecutor actually responded to the first request for discovery, even though it was addressed to the Criminal Division.2 Rule 7:7-7(b) requires the municipal prosecutor to provide copies of "all relevant material," including "video and sound recordings," "[u]nless the defendant agrees to more limited discovery." See Stein, supra, 225 N.J. at 596.

In this case, the municipal prosecutor promptly responded to the request and advised defense counsel how to obtain discovery, including "all video and audiocassette tapes." There is absolutely nothing in the record to indicate first defense counsel actually attempted to obtain discovery from the police department, which ostensibly, one week after defendant's arrest and for three weeks that followed, would have included a copy of the MVR. As a result,

we conclude there was no discovery violation by the State.3

C.

It is true that DARM regulations require the retention of MVRs in non-homicide criminal incidents for five years after the case is closed. However, "routine" MVR recordings need only be retained for thirty-one days, consistent with the Linden Police Department's policy at the time. The judge properly noted that allowing the individual officer to decide whether the MVR should be retained because of its evidential value in non-homicide, non-DWI and non-pursuit cases was inappropriate, and we agree. However, even if the Linden policy violated DARM, that provides no basis to dismiss the indictment. Defendant's claim that the Attorney General's guidelines on the destruction of evidence are relevant to this appeal similarly lacks any merit.

We find the balance of defendant's arguments in support of the order dismissing the indictment to lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).

Reversed.

1 Although noting that defendant suffered prejudice, the judge did not find that the MVR was "material" for Brady purposes, i.e., "a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Nelson, supra, 155 N.J. at 535. We accept defendant's argument that "the proceeding" in this instance would be any motion to suppress the seized evidence and not the trial itself. In other words, materiality did not depend upon a reasonable probability of defendant's ultimate acquittal. However, the judge never implied that the MVR would make it reasonably probable that such a motion would be successful. We note, for example, that Perez testified that his seizure of the drugs and money was the result of plain view observations made from outside the car. Nothing in the record, or for that matter, anything likely to have been captured by the MVR, is "potentially exculpatory" on that critical point, to which both officers testified consistently.

2 Exhibits to the State's trial brief, and now the appellate record, include various reports and certifications from Linden police personnel and an assistant prosecutor regarding the processes within the department, but there was no definitive explanation as to why the municipal police department received a discovery request addressed to the Criminal Division.

3 Even if the first letter imposed a duty upon the State to preserve the MVR for more than thirty-one days, dismissal of the indictment was unwarranted. Under Rule 3:13-3(f), that was a "drastic remedy [that was] inappropriate where other judicial action will protect a defendant's fair trial rights." State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002). In State v. Laganella, 144 N.J. Super. 268, 282 (App. Div.), appeal dismissed, 74 N.J. 256 (1976), we stated that "[b]efore a dismissal of an indictment is warranted . . . there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression." Under the circumstances of this case, the judge's finding of "gross negligence," even if accepted, was not tantamount to suppression of evidence by the State.