STATE OF NEW JERSEY v. THOMAS B. SCHNEIDER

NOT FOR PUBLICATION WITHOUT THE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.

THOMAS B. SCHNEIDER,

Defendant-Appellant.

__________________________

April 25, 2017

Submitted March 21, 2017 - Decided

Before Judges Gilson and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 18-14.

Levow DWI Law, P.C., attorneys for appellant (Evan M. Levow, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Kim L. Barfield, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Schneider entered a conditional plea to driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50, after the municipal court denied his motion to dismiss the DWI charge for failure to produce discovery. Following a de novo review, the Law Division also denied defendant's motion to dismiss the DWI charge. Defendant appeals from the order entered by the Law Division. We affirm.

I.

On March 16, 2014, defendant was arrested on suspicion of DWI and he was administered a breathalyzer test of his blood alcohol content (BAC). The device used to test defendant's breath was an Alcotest 7110 MKIII-C (the Alcotest). The test revealed that defendant's BAC was 0.12%. That result created a rebuttable presumption that defendant was under the influence of alcohol. N.J.S.A. 39:4-50(a); State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986).

Defendant served discovery requests and the municipal court ordered the State to produce, among other documents, the maintenance and repair records for the Alcotest used to test defendant's BAC. Specifically, the municipal court ordered the production of

any and all maintenance and/or repair records regarding the machine and/or calibration unit(s) used to test [defendant] since it has been placed into service through and including [defendant's] testing since each has been placed into service, including the "State of NJ Breath Testing Instrumentation Service Report[,"] detailing any problems for placing the machine out of service and returning the machine to [Dr ger]; [Dr ger] "Return & Repair form[,"] and the [Dr ger] "Packaging Slip[.]"

In response, the State produced records reflecting that the Alcotest had been sent to Dr ger, the manufacturer, for service in 2009 and 2011. The State produced all documents concerning the 2011 service and repair. The State, however, did not produce all the records concerning the 2009 service and repair. Specifically, the State did not produce the Dr ger Safety Service Department forms documenting the Alcotest's removal from service and its subsequent return to service. The State was able to supply a packing slip reflecting that in 2009, the device was sent to Dr ger so that fuel cells could be repaired. The State also produced the 2009 certificate of accuracy for the Alcotest. The State represented that it had searched for the missing 2009 forms, but it did not possess those documents.

Defendant moved to dismiss the DWI charge, but following a hearing, the municipal court denied the motion. Defendant then entered a conditional guilty plea to DWI. It was defendant's second DWI and, therefore, the municipal court imposed fines, assessments, surcharges, costs, and suspended defendant's driving privileges for two years. The court also directed that an ignition interlock device be installed in defendant's car for six months after reinstatement of his driving privileges, he spend twenty-four hours in the Intoxicated Driver's Resource Center, and he perform thirty days of community service. That sentence was stayed pending the appeal to the Law Division.

Defendant filed a timely notice of appeal to the Law Division. The Law Division conducted a de novo review, including hearing oral arguments of counsel on May 15, 2015. On May 20, 2015, the Law Division issued an order and written opinion denying defendant's motion to dismiss the DWI charge. Consequently, defendant's conditional plea in the municipal court was left in place. It appears that the May 20, 2015 order was not initially entered or sent to counsel. Accordingly, the Law Division reissued the order and amended it to reflect June 16, 2015, as the date of the order's entry. Defendant now appeals from the order entered by the Law Division.

II.

On this appeal, defendant makes two arguments, which he articulates as follows

POINT I: THE COURT ERRED IN GIVING NO SANCTIONS FOR A VIOLATION OF [ITS] OWN ORDER

POINT II: BY DENYING A TESTIMONIAL HEARING ON THE MISSING DISCOVERY, THE MUNICIPAL COURT DENIED APPELLANT'S SIXTH AMENDMENT RIGHTS

A. Issues on Appeal

Initially, we clarify the issues on this appeal. We review the order, and related action, of the Law Division, not the municipal court. State v. Oliveri, 226 N.J. Super. 244, 251 (App. Div. 2001). Here, the order entered by the Law Division denied defendant's "[m]otion to [d]ismiss the [DWI] summons for failure to provide discovery[.]" In his municipal appeal to the Law Division, defendant did not formally raise or present the issue of other sanctions, nor did he request a testimonial hearing on the missing discovery.

At oral argument before the Law Division, defendant's counsel did reference that an alternative to dismissing the DWI charge would be the suppression of the Alcotest and its results. Such a passing reference, however, does not constitute a formal presentation of an issue for the Law Division to consider. See R. 3:10-2 ("Absent good cause, all motions shall be filed with the court and be accompanied by a brief . . . ."); State v. Elkwisni, 384 N.J. Super. 351, 360 n.3 (App. Div. 2006), aff'd, 180 N.J. 169 (2007).

Moreover, before the Law Division, defendant did not request a testimonial hearing concerning the missing discovery. Instead, defense counsel made a vague reference to a prior case that he had had with the municipal court judge and informed the Law Division that he had elected not to pursue a further hearing in the municipal court. Indeed, the municipal court record confirms that when the municipal judge denied the motion to dismiss the DWI charge, defense counsel stated that he might subpoena a state trooper to explore the reasons why certain documents from 2009 were missing and that defendant might ask for other sanctions. The municipal judge informed defense counsel that he had the right to file such a motion. Defendant, however, did not file another motion or seek a further hearing. Instead, when defendant next appeared in municipal court, he entered a conditional guilty plea.

Accordingly, the only issue preserved for this appeal is the denial of defendant's motion to dismiss the DWI charge for failure to produce discovery.

B. Motion to Dismiss

Generally, we review a motion to dismiss a charge under an abuse of discretion standard. State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010). We also use an abuse of discretion standard when reviewing rulings on discovery issues. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011). We do not independently assess the evidence or discovery. State v. Locurto, 157 N.J. 463, 471 (1999). Instead, we assess whether there was sufficient credible evidence in the record to support the Law Division's findings. State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, we exercise plenary review of the legal conclusions that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Whether evidence or discovery is material and subject to disclosure by the State is a "mixed question of law and fact." State v. Robertson, 438 N.J. Super. 47, 64 (App. Div. 2014), aff'd on other grounds, __ N.J. __ (2017) (quoting State v. Marshall, 148 N.J. 89, 185, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)). "Consequently, we review de novo whether the Law Division applied the correct standard, but defer to the court's fact finding unless clearly erroneous." Ibid.

The results from Alcotests have been deemed scientifically reliable. State v. Chun, 194 N.J. 54, 66, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Furthermore, results from Alcotests are admissible to prove a per se violation of DWI. Ibid. In Chun, the Court held that a condition precedent to the admissibility of Alcotest results is proof that (1) the Alcotest was in working order and inspected prior to the procedure in question; (2) the operator was certified; and (3) the operator administered the test according to official procedure. Id. at 134. The first Chun factor requires the State to produce and admit three foundational documents

(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

(2) the most recent New Standard Solution Report prior to a defendant's test; and

(3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control test.

[Id. at 154.]

The Court has also directed the State to disclose in discovery twelve other foundational documents. Id. at 153. Moreover, the Court has also held that a defendant may conduct further discovery when warranted. Ibid.

Accordingly, we have held that the list of twelve documents that the State must routinely disclose under Chun should not be viewed as a limit on or precluding other discovery. State v. Maricic, 417 N.J. Super. 280, 288 (App. Div. 2010). When a defendant makes a request for additional discovery, that request must be viewed in the light of general principles governing discovery in municipal court and the Chun court's observations regarding the relevancy of certain documents. Consistent with these principles, we have held that repair records of an Alcotest device are discoverable. Maricic, supra, 417 N.J. Super. at 287; State v. Ford, 240 N.J. Super. 44, 51 (App. Div. 1990).

Here, defendant contends that the State's failure to produce the 2009 Dr ger forms documenting the removal and return to service of the Alcotest warranted the dismissal of the DWI charge or, alternatively, the suppression of the Alcotest and its results. We disagree.

There is no dispute that the State produced the core foundational documents required under Chun, supra, 194 N.J. at 153-54, to show that the Alcotest was in working order and inspected prior to defendant's test. The missing documents related to a repair performed in 2009. The Law Division found that the State did not possess that record and there was no accusation or evidence indicating that the State acted in bad faith in not producing the records. The Law Division then found that the missing repair report from 2009 did not prejudice defendant in any way. In that regard, the court found that the machine had been serviced and repaired in 2011 and all the documents related to the 2011 repair were produced to defendant.

Accordingly, the Law Division found that the 2011 documents showed that the machine was in working order when it was returned to service in 2011. The Law Division then found that there was no Brady1 violation because there was no evidence that (1) the prosecutor suppressed evidence; (2) the missing evidence was favorable to defendant; and (3) the evidence was material.

Having reviewed the record, we agree that the Law Division applied the correct legal standard. Furthermore, we defer to the Law Division's factual findings because those findings are supported by substantial, credible evidence in the record and are not clearly erroneous.

Affirmed.

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).