STATE OF NEW JERSEY v. MARC LIEBESKIND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0644-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC LIEBESKIND,

Defendant-Appellant.

__________________________________

December 29, 2011

 

Submitted December 1, 2010 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 9-2009.

 

Marc Liebeskind, appellant pro se.

 

BruceJ. Kaplan,Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a trial de novo in the Law Division, the court convicted defendant Marc Liebeskind of careless driving, N.J.S.A. 39:4-97; improper passing, N.J.S.A. 39:4-86; failure to have headlights on, N.J.S.A. 39:3-47(a); and excessive use of horn, N.J.S.A. 39:3-69. The court imposed fines of $206 for careless driving, $156 for improper passing, $56 for failure to use headlights, and $31 for excessive use of horn. The court also imposed appropriate court costs on each offense. Defendant appeals from the Law Division judgment of conviction and presents the following arguments:

POINT I

 

THE STATE DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS AND FAILED TO MEET ITS BURDEN OF PROOF ON ALL CLAIMS. ACCORDINGLY ALL CONVICTIONS AGAINST THE DEFENDANT SHOULD BE REVERSED, AND ALL COMPLAINTS SHOULD BE DISMISSED WITH PREJUDICE.

 

A. The State Never Established Jurisdiction.

 

1. A Trial Notice Listing Additional Violations And Summonses That Were Not Properly Served On The Defendant Does Not Constitute "Process" That Could Subject The Defendant To Prosecution. Accordingly, The State Did Not Have Jurisdiction To Prosecute The Defendant, And Those Convictions Should Be Reversed, And The Complaints Dismissed With Prejudice.

 

2. Municipalities Are Not Authorized To Mail Summonses To Suspects Of Motor Vehicle Offenses.

 

3. The Summonses Are Too Vague To Be Enforceable And The State Never Attempted To Correct The Deficiencies.

 

4. There Is No Proof That The Alleged Offenses Occurred In Piscataway Township, And The Officer Was Outside His Jurisdiction.

 

B. The State Failed to Affirmatively Prove The Facts Necessary To Sustain A Careless Driving Conviction, Or Failure To Use Headlights Conviction, Or Improper Use Of Horn Conviction Against The Defendant, And Defendant Was Deprived Of The Constitutional Protection Against Double Jeopardy.

 

POINT II

 

THE STATE DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT OF HAVING ACCESS TO EXCULPATORY EVIDENCE AND ACCORDINGLY, ALL THE CONVICTIONS AGAINST THE DEFENDANT SHOULD BE REVERSED, AND THE COMPLAINTS DISMISSED.

 

A. The State Failed To Preserve And Illegally Destroyed Exculpatory Evidence.

 

B. A Defendant Is Not Required To Make A Holup Motion Arising From The State's Failure To Produce Evidence and Witnesses.

 

C. A Notice In Lieu Of Subpoena Is An Approved Method For Summoning Witnesses And Documents To Trial.

 

D. The Lower Courts Erred By Denying Defendant The Right To Admit Relevant Evidence And Adjourn The Matter To Allow An Unavailable Witness To Testify.

 

POINT III

 

THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO GIVE DEFERENCE TO THE MUNICIPAL COURT'S FACTUAL FINDINGS INCLUDING FINDING THE POLICE OFFICER CREDIBLE OR MORE CREDIBLE THAN THE DEFENDANT. NOT ONLY WAS THERE NO EVIDENCE WHATSOEVER TO SUPPORT THE OFFICER'S TESTIMONY, THE RECORDS CONTRADICT THE OFFICER'S TESTIMONY, INCLUDING THE RECORDS HE MADE.

 

POINT IV

 

SUPPLEMENTATION OF THE RECORD IS PERMISSIBLE AND COURTS CAN TAKE JUDICIAL NOTICE OF FACTS AND LAW. NOTWITHSTANDING DENIAL OF DEFENDANT'S MOTION TO SUPPLEMENT THE RECORD OR REQUEST TO TAKE JUDICIAL NOTICE, THE DOCUMENTS DEFENDANT RELIED UPON WERE ADMISSIBLE EVEN IF FOR THE FIRST TIME BEFORE THE DE NOVO COURT BECAUSE THEY WENT TO JURISDICTION AND THE CONSTITUTIONAL RIGHT TO PRODUCE EXCULPATORY EVIDENCE

 

We affirm in part and reverse in part.

 

I.

A.

We begin by summarizing the testimony presented during the municipal court trial. According to Piscataway Police Officer David Piro, on the overcast, rainy morning of September 26, 2008, at approximately 7:00 a.m., he was dispatched to assist a disabled vehicle on the shoulder of River Road just past Ross Hall Boulevard. River Road has two lanes, one northbound and one southbound. The disabled vehicle was on the shoulder adjacent to the northbound lane of traffic and partially protruded into the traffic lane. Piro parked behind the disabled vehicle, activated the overhead lights on his patrol car, and called for a tow truck. After the tow truck arrived and its operator secured the disabled vehicle onto the truck's flatbed, Piro positioned his patrol car to block northbound traffic to enable the tow truck to pull safely into the northbound traffic lane.

As the tow truck was pulling into traffic, Piro heard a horn blowing continuously and then observed defendant's silver Ford approaching in the northbound lane. Piro watched defendant's vehicle cross the double yellow lines into the southbound lane, pass Piro's patrol car and the tow truck, and re-enter the northbound lane. Piro pursued defendant's vehicle, activated the lights and siren on his police car, and stopped defendant on River Road near the Route 18 bridge. According to Piro, the area where he stopped defendant was a "hazardous location."

Piro testified that defendant was disgruntled and started to argue. Piro issued defendant a complaint-summons (summons or ticket), P-167771, for careless driving. After explaining to defendant the procedure for responding to the ticket, Piro returned to police headquarters and issued to defendant three additional tickets for improper passing, P-167772, failure to have headlights on, P-167773, and excessive use of horn, P-167774. Piro testified that because of the hazardous conditions that existed when he first stopped and ticketed defendant, he prepared the other tickets later and mailed them to defendant from his headquarters, according to protocol, by putting them in the U.S. mail slot.

Defendant testified that the events transpired early on a misty, raining morning. His lights were on because he knew he was required to use headlights when the wipers were on, and in any event, it was still dark. He saw flashing lights not on River Road near Ross Hall Boulevard as testified to by Piro, but at the intersection of River Road and Cedar Lane. Defendant stopped on River Road behind other traffic at the intersection's red light. When the light turned green, traffic started moving, so he proceeded with the flow of traffic. Defendant saw the police car on his right, and a pick-up truck in front of the police car. There was no tow truck. As defendant started to pass by the police car, the police car made a sharp turn and started to move into traffic. Defendant did not see anyone at the wheel, it was "rolling by itself." To avoid the car, defendant swerved around it and banged the horn with the side of his fist.

Defendant sounded his horn because the situation was dangerous and he wanted to wake up the officer. Defendant thought that if he stopped there would have been an accident because traffic was accelerating and there was a car behind him. He did not recall whether he crossed over the double yellow line, but the police vehicle was not blocking the road. A police officer subsequently stopped him and gave him a ticket. Defendant assumed that the police officer was from Highland Park.

Defendant adduced the testimony of James Lassandro, the owner of D&J Auto Body, an entity that provided towing services to Piscataway Township and other municipalities. According to Lassandro's log book, his driver, Steve, was dispatched at 6:47 a.m. to tow a disabled car on River Road. The log book indicated the car had been disabled as a result of an accident. Lassandro's driver picked up the vehicle, brought it to the shop, and changed the tire for the woman. She had no money, so he did not charge her, and consequently had no other record of the incident.

During the trial defendant attempted to impeach Piro with three "CAD"1 reports. The first report involved an incident that occurred on October 6, 2008. The defendant proffered that the report contained comments "by the officer describing the demeanor of the person that was involved in that matter." Defendant argued that the third CAD concerning his tickets likely would have included similar comments if, as Piro testified, defendant was disgruntled and argumentative. The judge sustained the State's objection on the bases that defendant's proffer was speculative, that Piro had no obligation to make a report in every single motor vehicle stop that he made, and because the document had no relevance.

Defendant next began to cross-examine Piro on the second CAD report concerning the incident of September 26, 2008, regarding the disabled vehicle. Piro explained that because the report was generated by a dispatcher and was not a police report, none of the information contained in the report came from him. Piro also responded that the entry on the report indicating that the "disposition" was "[h]andled by officer," meant that he, Piro, did not generate the report, but that the incident involved a disabled vehicle towed by a company he assumed to be D&J Auto Body "who responded to the scene." After defendant had Piro confirm that he usually ran a plate check and that the CAD report did not list the owner or driver of the disabled vehicle, the court terminated defendant's questioning, ruling that the report was irrelevant.

Finally, defendant attempted to question Piro on the third CAD report concerning the tickets issued to defendant. The court again terminated the cross-examination as irrelevant. Defendant proffered that the CAD reports concerning the disabled vehicle and his tickets listed a specific address range on River Road different from that testified to by Piro. According to defendant's proffer, Piro testified that he stopped defendant at Ross Hall Boulevard. If the addresses on the second CAD disabled vehicle report were accurate, then, according to defendant, Piro could not have stopped him on River Road near Ross Hall Boulevard. Defendant also proffered that Piro testified the stop was on River Road near Route 18, a statement that "is different than his communication with the dispatcher." Defendant argued that the address range on the CAD disabled vehicle report indicated that he was going south, not north. The judge rejected defendant's proffer.

The judge also sustained an objection to defendant admitting a motor vehicle record that indicated the license plate of the disabled vehicle had expired. Defendant argued that Piro's failure to issue a ticket regarding the expired plate affected Piro's credibility.

After defendant presented his case, the State recalled Piro to rebut defendant's testimony that defendant crossed into the oncoming traffic lane to avoid colliding with Piro's police vehicle.

B.

The tickets Piro issued to defendant on September 26, 2008, listed the "court date" as October 28, 2008. On September 30, 2008, the court sent to defendant a "trial rescheduling notification" stating that trial for all four charges, P-167771 through P-167774, was rescheduled for November 12, 2008. The trial notice referred to all of the summonses, and provided in pertinent part:

DATE OF NOTICE 09/30/2008 YOU ARE HEREBY NOTIFIED THAT THE COURT MATTER(S) LISTED BELOW HAS BEEN RESCHEDULED FOR 11/12/2008 (TIME/PLACE/ROOM) ABOVE

 

SUMMONS # VIOLATION DATE VIOLATION STATE VS

P 167771 09/26/2008 39:4-97 MARC P. LIEBESKIND

P 167772 09/26/2008 39:4-86 MARC P. LIEBESKIND

P 167773 09/26/2008 39:3-47 MARC P. LIEBESKIND

P 167774 09/26/2008 39:3-69 MARC P. LIEBESKIND

 

On October 28, 2008, defendant wrote to the court, requesting a trial adjournment and informing the court he believed there was an error because three additional charges were listed on the trial notice and he never received tickets for them. The trial was rescheduled for December 4, 2008. Defendant asserts he did not receive the tickets for the additional three charges until December 3, 2008, after he requested the tickets in a demand for discovery dated November 11, 2008. Defendant appeared for trial on December 4, 2008, and the prosecutor gave him copies of the front and back of the tickets. The trial was again rescheduled.

After additional postponements, the municipal court trial was conducted on January 29, 2009. During pre-trial proceedings, defendant requested a trial adjournment because a witness was not available to testify, defendant having subpoenaed the witness only the previous day. Defendant also made motions (1) to dismiss the three mailed tickets on the ground that process was defective, (2) to dismiss all tickets based on alleged discovery violations, and (3) to dismiss all tickets because the audio and video recordings of his traffic stop had been destroyed, violating his right to due process.

The judge denied defendant's adjournment request, explaining that the case had been listed for trial numerous times and the trial notice generated on January 6, 2009, provided defendant with adequate time to notify his witnesses. The court also denied defendant's motion to dismiss based on discovery violations because defendant did not make a Holup2 motion prior to trial. Finally, the judge denied defendant's application concerning the videotape because defendant had not requested it until after the police department's thirty-day retention period had expired. After the court and defendant examined Piro about the process of mailing the three tickets, the court denied defendant's motion to dismiss for improper process, finding the officer followed proper protocol in issuing the tickets.

Following the presentation of evidence and closing arguments, the judge placed his findings on the record and entered an order convicting defendant of all four motor vehicle violations. The judge found that Piro's testimony was more credible than defendant's testimony, and imposed fines and costs totaling $578.

On February 9, 2009, defendant appealed to the Law Division. Imposition of defendant's fines were stayed pending appeal. On July 10, 2009, the court decided defendant's motions to supplement the record, to have the court judicially notice certain facts, and to dismiss the tickets. Defendant specifically requested that the CAD reports, the policy for retention and destruction of documents, the affidavit of the witness who was not able to testify at the municipal trial, and the exhibits marked but not admitted at the municipal trial be admitted into evidence. The court acknowledged its authority under Rule 3:23-8 to supplement the record and admit additional testimony, but denied defendant's motions.

Defendant requested that the court take judicial notice of the fact that Rose Drive, Cedar Lane, and River Road are in Highland Park, not Piscataway; and of a map and other records. The State did not object to these requests. Defendant also requested the court take judicial notice of the State's record retention schedule and documents defendant received in response to his OPRA3 request. The State objected. The court denied defendant's requests.

Finally, defendant moved to dismiss the tickets. The court ruled that defendant's motion to dismiss could be handled at the end of the trial since that was the "heart" of defendant's appeal.

Following a trial de novo on the record, on August 24, 2009, the court found defendant guilty of all four motor vehicle charges and imposed the same fines imposed by the municipal court. On August 28, 2009, the court entered a conforming order that also stayed the imposition of the fines pending appeal. On October 2, 2009, defendant filed a notice of appeal from the August 28, 2009 Law Division order.

II

Our scope of review is limited. Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J.146, 162 (1964). If we determine the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid. We "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J.463, 474 (1999). "Under the two-court rule, appellate courts ordinarily 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." Ibid.

In Point I, defendant contends that the State never established jurisdiction. In support of that contention, defendant makes four arguments: (1) municipalities are not authorized to mail summonses for motor vehicle violations; (2) the three summonses that were not served upon him at the scene were untimely mailed; (3) the summonses are too vague to be enforceable; and (4) there is no proof that the traffic offenses occurred in Piscataway Township.

We will first address defendant's arguments that municipalities are not authorized to mail summonses for traffic offenses, and that three of the summonses issued to him were not mailed within thirty days as required by law. The procedure for issuing process for traffic summonses is contained in N.J.S.A. 39:5-3(a) and Rule 7:2-4. N.J.S.A. 39:5-3(a) provides in pertinent part:

When a person has violated a provision of this subtitle, the judge may, within 30 days after the commission of the offense, issue process directed to a constable, police officer or the director for the appearance or arrest of the person so charged . . . . In the case of a violation enumerated in subsection b. of this section, this period shall commence upon the filing of a complaint.

 

Rule 7:2-4 provides in pertinent part:

(a) Summons; Personal Service Under R. 4:4-4 or By Ordinary Mail.

(1) The Complaint-Summons shall be served personally in accordance with R. 4:4-4(a), by ordinary mail or by simultaneous mailing in accordance with paragraph (b) of this rule. Service of the Complaint-Summons by ordinary mail may be attempted by the court, by the law enforcement agency that prepared the complaint or by an agency or individual authorized by law to serve process.

(2) Service by ordinary mail shall have the same effect as personal service if the defendant contacts the court orally or in writing in response to or in acknowledgement of the service of the Complaint-Summons. Service by ordinary mail shall not be attempted until a court date for the first appearance has been set by the municipal court administrator, deputy court administrator, or other authorized court employee.

 

* * * *

 

(b) Simultaneous Service by Mail.

(1) If service is attempted by ordinary mail and the defendant does not appear in court on the first appearance date or does not contact the court orally or in writing by that date, the court subsequently shall send the Complaint-Summons simultaneously by ordinary mail and certified mail with return receipt requested to the defendant's last known mailing address. Service by simultaneous mailing shall not be attempted until a new court date for the first appearance has been set by the municipal court administrator, deputy court administrator, or other authorized court employee.

 

Defendant's argument that municipalities are not authorized to serve summonses by ordinary mail is wrong; Rule 7:2-4(a)(1) specifically authorizes service of a summons by ordinary mail, providing that "[s]ervice of the Complaint-Summons by ordinary mail may be attempted . . . by the law enforcement agency that prepared the complaint . . . ." Here, Piro prepared the three summonses and attempted service by ordinary mail when he placed them in the U.S. mail slot.

Defendant also argues that the charges contained in the mailed summonses should be dismissed because they were untimely served. The State counters that the September 30, 2008 trial notice, which defendant received within thirty days of the commission of the offenses, included notice of the ticket numbers and the statutory offenses. Additionally, defendant acknowledges that copies of the tickets were included in discovery he received on December 3, 2008, sixty-eight days after the offenses occurred. Based on those facts, the State contends that defendant had ample notice to prepare his case before the January 29, 2009 trial date.

As our Supreme Court has noted, "[o]ur court rules are designed to ensure that traffic offenses are decided on the merits rather than dismissed on technicalities." State v. Fisher, 180 N.J. 462, 469 (2004). Nevertheless, with certain enumerated exceptions, a summons for a motor vehicle offense must be issued within thirty days after the commission of the offense. See N.J.S.A. 39:5-3(a) and (b). Those provisions operate as a statute of limitations in that they bar prosecution unless the complaint is made within the time limit. See State v. Nunnally, 420 N.J. Super. 58, 64 (App. Div. 2011).

Additionally, N.J.S.A. 39:5-3(a)

ensures that a defendant receives timely notice of the allegations charged in the traffic ticket or citizen complaint. 24 New Jersey Practice, Motor Vehicle Law and Practice 7.3, at 624 (3d ed. 2001) (explaining that N.J.S.A. 39:5-3 "encourages police and other municipal officials to issue process on motor vehicle offenses within a reasonable period of time"). When process is timely, as in this case, N.J.S.A. 39:5-3(a) is satisfied.

 

[Fisher, supra, 180 N.J. at 474.]

 

As previously indicated, Piro attempted to mail the tickets to defendant when Piro placed them in the U.S. mail slot on the day the offenses were allegedly committed. Under Rule 7:2-4(b)(1), the municipal court was required to send the tickets to defendant by ordinary and certified mail if he did "not appear in the court on the first appearance date or [did] not contact the court orally or in writing by that date[.]"

Defendant appeared in court on the first appearance date, which was December 4, 2008. He had received copies of the summonses on the day before the appearance date, and it is undisputed that the prosecutor handed him additional copies of the summonses when defendant appeared on December 4, 2008.

There is no evidence to suggest that the delay between defendant's receipt of the three additional tickets and the trial date in any way impaired defendant's ability to prepare a defense. Moreover, Piro complied with the rules concerning attempted service by mail, and defendant had ample advance notice of the charges to properly prepare for trial.

In summary, Piro timely attempted to serve the additional summonses, defendant was served with a court notice dated four days after the incident listing by statutory reference the additional three charges, and defendant received copies of the summonses both before and at the first appearance date.

Defendant relies upon State v. Buczkowski, 395 N.J. Super. 40 (App. Div. 2007), to support his argument that the three mailed tickets should have been dismissed because they were untimely served. Buczkowski is distinguishable from this case.

In Buczkowski, thirty days following a fatal automobile accident, a law enforcement officer signed a sworn complaint against the defendant, charging her with reckless driving. Id. at 42. However, the evidence, including a postmarked envelope, established that 142 days elapsed from the date of the alleged offense to the date the summons was served by mail upon defendant. Ibid. Unlike the facts in this case, there was no evidence in Buczkowski that a law enforcement officer or agency attempted to serve the defendant by mail within thirty days of the alleged offense.

Further, in Buczkowski, the first court notice referring to the charges was not mailed to the defendant until at least thirty-two days after the incident. Id. at 43. As we noted, "[m]anifestly, this mailed service of a document . . . containing notice only that a charge had been filed, even if mailed the same day, was not within the thirty-day period required by N.J.S.A. 39:5-3a." Id. at 44. Buczkowski did not involve Rule 7:2-4, and the trial court determined that the municipal court "did not mail or otherwise effect service of the complaint-summons until . . . some 2 1/2 months after the original court appearance date." Id. at 45. Here, Piro attempted to mail the summonses on the same day as the incident.

We next turn to defendant's arguments that the summonses were unduly vague, and that the offenses did not occur in Piscataway, but instead occurred in Highland Park. We reject defendant's contention that the summonses were unduly vague. The summonses notified defendant of the date, time, and location of the offenses. They notified him of the charges and identified the statutes under which he was being charged. See State. v. Morgan, 393 N.J. Super. 411, 416 n.2 (App. Div. 2007) (circling one of the enumerated charges on a complaint-summons for a traffic offense is sufficient to notify defendant of the charges); State v. Henry, 56 N.J. Super. 1, 9 (App. Div. 1959) (providing information required by form summonses adequately notifies a defendant of the charges).

We also reject defendant's argument that the State did not prove jurisdiction. Although the Law Division determined that River Road was a boundary road and therefore the Piscataway Township Municipal Court had jurisdiction, see N.J.S.A. 39:5-3(c), resolution of the issue concerning the location of the offenses turned on a credibility determination. Piro testified that he had been employed by the Piscataway Township Police Department for sixteen years, that on the morning of September 26, 2008, he was dispatched to attend to a disabled vehicle on River Road, just past Ross Hall Boulevard, and that he proceeded to that location. After arriving, he called a towing company. Additionally, Lassandro, the owner of D&J Auto Body, testified that he performed towing services for Piscataway and other municipalities, and that he maintained a log book as required by Piscataway Township. He referred to entries in the book to correlate the tow record and the Piscataway Township incident report referring to the vehicle that Piro was dispatched to aid.

Although the testimony of those witnesses did not include an explicit reference to the incident occurring in Piscataway Township, their testimony circumstantially established that fact. It is unlikely that a Piscataway Township police officer would have been dispatched to assist a disabled vehicle in another municipality. Moreover, Lassandro's testimony established that his driver was called to tow a vehicle in Piscataway Township. The municipal court judge and the Law Division believed Piro's testimony and rejected that of defendant. Those credibility determinations were supported by substantial evidence. See Locurto, supra, 157 N.J. at 470-72.

Defendant next argues that the proofs were insufficient to convict him of the offenses. The careless driving statute, N.J.S.A. 39:4-97, provides:

A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.

 

Piro's observations of defendant driving in the rain at a high rate of speed, and driving into the oncoming lane, were acts sufficient for the Law Division to conclude beyond a reasonable doubt that defendant operated his car carelessly; without due caution and circumspection; and in a manner likely to endanger Piro, the tow truck operator, and other motorists.

Defendant's argument is based on his version of events. However, as we previously indicated, the Law Division and the municipal court judge rejected defendant's testimony. There was sufficient credible evidence in the record to support Piro's testimony about the circumstances resulting in his issuing defendant the careless driving ticket. We will not disturb the credibility findings.

Defendant's arguments that the evidence was insufficient to convict him of improper passing, failure to have headlights on, and excessive use of horn, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that those convictions depended upon issues of credibility that the trial court resolved against defendant.

Defendant argues that his convictions on summonses P-167771, careless driving, and P-167772, improper passing, were based on the same underlying facts and therefore violate the constitutional protection against double jeopardy. We agree. "[W]hen proof of one offense necessarily establishes guilt on the other, the two offenses merge, and imposition of multiple punishments offends the constitutional protection against double jeopardy." State v. Eckert, 410 N.J. Super. 389, 401 (App. Div. 2009). Piro testified that he issued the careless driving summons based on, among other things, his observation that defendant "passed me over the double yellow lines into oncoming traffic." Thus, proof of defendant's careless driving necessarily established guilt on the improper passing offense. The conviction on the improper passing offense should have been merged into the conviction on the careless driving offense. Accordingly, we reverse and vacate the imposition of the fine and court costs for the improper passing offense.

We turn next to defendant's contention in Point II that the State denied defendant access to exculpatory evidence. Defendant contends the Piscataway Police Department destroyed the audio and video recordings that would have supported his version of the events resulting in Piro's stopping him. Defendant did not request the recordings within thirty days of the date he was charged with committing the offense. The Law Division determined that the Piscataway Police Department had a thirty-day retention policy.

Defendant contends the Law Division's finding was not supported by competent evidence, that destruction of the recordings violated state laws concerning retention of records and destruction of documents, and that the records should have been preserved because the Piscataway authorities were aware that they were relevant to pending litigation.

We begin by noting that defendant's contention that the audio and video recordings were exculpatory is speculative. Defendant surmises that the recordings would have supported his version of the events. However, they may have supported Piro's version of the events. Because the audio and video recordings no longer exist, no one can say whether they would have been exculpatory, inculpatory, or neutral.

The State is required to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963); see State v. Marshall, 123 N.J. 1, 107-09 (1991). To establish a due process violation, defendant must demonstrate that: "(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. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001).

When 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 only show 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) (internal quotations and citations omitted).]

 

The evidence defendant presented to the municipal court and Law Division did not establish that the video and audio tapes had exculpatory value, and did not show bad faith on the part of the State. Defendant's speculative assertions about what the evidence might have established do not demonstrate that the evidence was exculpatory, and his arguments about retention requirements4 do not demonstrate bad faith on the part of the State. Consequently, we reject his argument that the careless driving ticket should have been dismissed because the State destroyed exculpatory evidence.

Defendant also argues in Point II that he was not required to make a motion to compel the State to comply with its discovery obligations, that serving a notice in lieu of subpoena was an approved method for compelling the State to produce witnesses, and that the "lower court" erred by excluding relevant evidence and by refusing to grant an adjournment so that defendant could subpoena a witness. We disagree.

Trial judges have plenary authority to schedule court proceedings and as part of that duty, a court "has the power to tightly control its calendar to assure the efficient administration of the criminal justice system." State v. Ruffin, 371 N.J. Super.371, 388 (App. Div. 2004). Rulings on requests to adjourn a trial are discretionary and do not amount to reversible error unless the reviewing court finds that the trial court abused its discretion. State v. Garcia, 195 N.J.192, 196 (2008); seealsoState v. D'Orsi, 113 N.J. Super.527, 532 (App. Div.), certif. denied, 58 N.J.335 (1971). The municipal court denied defendant's adjournment request because he had mailed a subpoena to the witness only one week before trial was scheduled. Under those circumstances, we find no abuse of discretion on the part of either the municipal court judge or the Law Division when it denied defendant's motion to supplement the record with the witness' affidavit.

Defendant next argues that he was not required to make a written motion to enforce discovery demands he made of the State. We glean from the municipal court record and defendant's appellate brief that he is referring to the audio and video recordings. Because we have concluded that defendant did not demonstrate that the recordings were destroyed in bad faith, we need not further discuss this issue.

Defendant also argues that the municipal court judge erred by not enforcing two notices in lieu of subpoena for police dispatchers, and the Law Division erred by not permitting defendant to supplement the record with the CAD reports that defendant intended to produce through those dispatchers.

Our standard of reviewrequires that we grant substantial deference to the trialcourt's evidentiary rulings. State v. Morton, 155 N.J.383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. McDougald, 120 N.J.523, 577-78 (1990). Generally, we reverse a trialcourt's evidentiary rulings only where there is an abuse of discretion. State v. Nelson, 173 N.J.417, 470 (2002); State v. Feaster, 156 N.J.1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

In light of these standards, defendant's arguments must be denied. The court found the evidence was irrelevant. To be relevant, evidence must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E.401. The municipal court judge and Law Division determined that the CAD reports and defendant's argument about the license plates on the disabled vehicle were not relevant because they involved inferences that reasonably could not be made. Under our standard of review, we find no abuse of discretion.

Defendant argues in Point III that there was insufficient credible evidence in the record to find Piro credible, or more credible than defendant. Defendant also argues that the documentary evidence contradicted Piro's testimony. Absent a very obvious and exceptional showing of error, appellate courts ordinarily should not undertake to alter credibility determinations made by two lower courts. Locurto, supra, 157 N.J. at 474. We find no such obvious and exceptional showing of error.

Lastly, in Point IV, defendant argues that the Law Division erred in denying his request to supplement the record. "Although [Rule 3:23-8] permit[s] supplementation of the municipal court record, the circumstances in which the supplementation is permitted are narrowly prescribed." State v. Hardy, 211 N.J. Super. 630, 633 (App. Div. 1986). Rule 3:23-8 states in part, "[t]he court may . . . supplement the record and admit additional testimony whenever (1) the municipal court erred in excluding evidence offered by the defendant, (2) the state offers rebuttal evidence to discredit supplementary evidence admitted hereunder, or (3) the record being reviewed is partially unintelligible or defective." The Law Division found that defendant's request to supplement the record did not meet the requirements of Rule 3:23-8. That finding was not an abuse of discretion.

For the foregoing reasons, the fine and costs imposed on defendant's conviction for improper passing are reversed and vacated. Defendant's convictions for careless driving, failure to have headlights on, and excessive use of horn, and the fines and costs imposed on those convictions, are affirmed.

A

ffirmed in part, reversed in part.

1 According to the record, a CAD is an unofficial report generated by the dispatcher that gives the responding officer information about the activity to be investigated.

2 State v. Holup, 253 N.J. Super. 320 (App. Div. 1992).

3 The Open Public Records Act, N.J.S.A. 47:1A-1 to -13.

4 We note that in the New Jersey Division of Archives and Records Management retention policy pertaining to municipal police department records, which was included in defendant's Appendix, the retention period for "MVR Equipment Tapes-Routine," including records of "information related to motorist contacts and other patrol related activities," is thirty-one days.