STATE OF NEW JERSEY v. JUAN J. FIGUEROA

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN J. FIGUEROA,

Defendant-Appellant.

January 24, 2017

Submitted October 27, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6023.

Juan J. Figueroa, appellant pro se.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Pro se defendant Juan Figueroa appeals from a January 8, 2015 Law Division order dismissing his appeal from a municipal court conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A. 39:4-50(g); possessing an open container of alcohol in a motor vehicle, N.J.S.A. 39:4-51b; careless driving, N.J.S.A. 39:4-97; and refusal to submit to a breath test, N.J.S.A.39:4-50.2 and N.J.S.A.39:4-50.4a. For the reasons that follow, we vacate the dismissal order and remand the matter to the Law Division for further proceedings.

I.

We derive the following facts from the record. At approximately 2:32 a.m. on June 28, 2013, Clifton Police Officer Nigel Van Gough observed a white Dodge car drive past him at an "accelerated rate" above the posted speed limit of twenty-five miles per hour. As a certified radar operator trained in visual estimation of speeds, Officer Van Gough estimated the car was traveling at forty-five miles per hour. Officer Van Gough pulled out behind the vehicle, estimating at this time it was traveling approximately fifty miles per hour. He observed the vehicle make a wide right turn and cross over double yellow lines, at which point he effectuated a motor vehicle stop.

Officer Van Gough proceeded to approach the vehicle and identified defendant as the driver. The officer observed defendant's eyes were bloodshot and watery, and detected a strong odor of alcohol from defendant's breath. Officer Van Gough asked defendant to step out of the vehicle and proceeded to administer several field sobriety tests. After defendant lost his balance during two different physical tests, Officer Van Gough and his backup, Sergeant Darren Brodie, placed defendant under arrest.

The officers placed defendant in the back of the patrol car and defendant requested Officer Van Gough retrieve his keys. Officer Van Gough returned to defendant's vehicle and observed an opened alcohol bottle with some of the liquid missing. The officers then transported defendant to police headquarters, where he refused to submit to breath testing. Based upon their observations of defendant, both Officer Van Gough and Sergeant Brodie concluded defendant was under the influence of alcohol.

In January of 2014, defendant sent a discovery request to the Clifton municipal prosecutor, requesting, in part, "Dispatch discovery as well as any electronic discovery." The prosecutor responded by sending defendant the CAD (computer aided dispatch) report and CAD audios. On March 10, 2014, defendant requested, in part, "Dispatch, booking room videos, as well as any mobile data." Next, in a letter dated March 18, 2014, defendant requested "Electronic Stored Information ([ESI]) [f]rom officer[']s [laptop]."

On April 2, 2014, defendant submitted a letter titled "MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL" to the municipal court. Then, in a letter dated April 15, 2014, defendant requested from the prosecutor "Electronic Stored Information from officer [laptop] ([ESI]) [a]lso known as Meta Data." On May 1, 2014, the prosecutor responded to defendant in writing, stating, "I have reviewed the matter with the Technical Services Division of the Clifton Police Department and they advise that no record exists of any MDT or laptop communications from June 29, 2014[.]"

Defendant submitted two additional motions to the municipal court. First, defendant wrote a letter dated June 13, 2014, titled "Motion to Dismiss for Lost or Destroyed Evidence." Second, in a letter dated June 28, 2014, defendant again wrote to the municipal court, similarly titling the document "Motion to Dismiss for Lost or Destroyed Evidence[;] Police Procedures for Stopping a Car."

On August 29, 2014, defendant appeared pro se for trial in Clifton Municipal Court. At the beginning of trial, the court addressed defendant's "motion regarding the electronically-stored data." In response to the court's question as to what data he was seeking, defendant responded he wanted "times of the events" stored in police computers. The prosecutor responded that the computer record is periodically swept, and said the records in question had been deleted prior to defendant's request to produce.

The court denied defendant's motion, finding because defendant first requested the information almost eight months after the arrest, it was not unreasonable for the State to have deleted it. The court then asked the parties, "Any other pretrial motions?" Hearing no response, the court commenced the trial.

Officers Van Gough and Brodie testified for the State. On cross-examination, defendant highlighted that Officer Van Gough's ticket stated the time of the DWI stop was 2:32 a.m., but the CAD report stated the stop occurred at 2:38 a.m. Officer Van Gough could not explain the time discrepancy. After hearing the testimony, the court stated it found officer Van Gough credible, and noted the time discrepancy was possibly due to the officer first making his observations at 2:32 a.m. and then making the stop at 2:38 a.m. The court then found defendant guilty of all charges.

Defendant filed a de novo appeal to the Law Division. The Law Division judge scheduled a hearing for January 8, 2015, and notified defendant. However, defendant was not in the courtroom when the judge called the case. The judge then stated,

Mr. Figueroa was notified on October 30th that the hearing would take place today, Thursday, January 8th at 10:00 a.m. I know he called my chambers a couple of days making inquiry about the Prosecutor's brief. He is aware of the case. He's not here.

I reviewed the transcript, the briefs. I'm satisfied there's no merit whatsoever to his appeal and the appeal is dismissed for his nonappearance.

In the appendix to his brief, defendant included a letter addressed to the Law Division judge, dated January 9, 2015, requesting reconsideration of his appeal because he was actually present for his hearing on January 8, 2015. Defendant explained he arrived early when the courtroom was still closed, and waited outside the courtroom for his name to be called. The record contains no indication of anyone checking the hallway outside the courtroom to see if defendant was present before the court dismissed defendant's appeal.

While it appears defendant sent the January 9, 2015 letter requesting reconsideration by certified mail, the record contains no return receipt nor any indication the court ever considered the letter.

This appeal followed. In his brief, defendant argues

I BELIEVE THAT MY RIGHTS TO A SPEEDY TRIAL WERE VIOLATED BECAUSE I ASSERTED MY RIGHTS WITHIN A MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL WHICH VIOLATES MY SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. I ALSO BELIEVE THAT MY FOURTH AMENDMENT WAS VIOLATED WHEN THE OFFICER STOP[PED] AND SEARCH[ED] MY CAR WITH NO WARRANT OR CONSENT. I ALSO BELIEVE MY FOURTEENTH AMENDMENT WAS VIOLATED WHEN THE PROSECUTOR FAILED TO PRESERVE EVIDENCE WHEN I REQUESTED IT.

II.

Although not raised by defendant, under the circumstances presented in this case, we find the sanction of dismissal of defendant's appeal was too severe and unjust. See State v. Audette, 201 N.J. Super. 410, 414-15 (App. Div. 1985). As we have previously noted, "There is an overriding policy which is firmly imbedded in our law which disfavors the procedural dismissal of cases . . . ." State in the Interest of D.J.C., 257 N.J. Super. 118, 121 (App. Div. 1992). "Procedural dismissal is a choice of last resort not one of first instance." Ibid. (emphasis in original).

While it does not say so, we find the order under review was entered pursuant to Rule 1:2-4, which provides, in relevant part

(a) Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar . . . or on the day of trial . . . the court may order any one or more of the following: . . . (c) the dismissal of the complaint, cross-claim, counterclaim or motion . . . or (d) such other action as it deems appropriate.

Comments to the Rule state the sanction of dismissal for nonappearance "must be a recourse of last resort not to be invoked unless no lesser penalty is adequate." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:2-4 (2017) (citing Johnson v. Mountainside Hosp., Respiratory Disease Assocs., P.A., 199 N.J. Super. 114 (App. Div. 1985)). "At least the same degree of indulgence applies to the non-appearance of a pro se party." Ibid. (citing Connors v. Sexton Studios, Inc., 270 N.J. Super. 390 (App. Div. 1994)).

We discern no basis in the record for the imposition of the drastic sanction of dismissal of defendant's appeal. Because we conclude the dismissal represented a mistaken exercise of discretion, we are constrained to vacate the Law Division's January 8, 2015 dismissal order and reinstate defendant's de novo appeal from the municipal court conviction. We remand the matter for a trial de novo on the record before the Law Division, which shall be completed within forty-five days of our decision. The Law Division shall make independent findings of fact supporting its decisions on defendant's motions to dismiss and then, if necessary, make independent factual findings supporting its decision of the Title 39 charges that are the subject of defendant's de novo appeal.

Vacated and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.