STATE OF NEW JERSEY v. DAVID J. HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2182-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID J. HERNANDEZ,

Defendant-Appellant.

__________________________________

March 8, 2011

 

Submitted January 3, 2011 - Decided

 

Before Judges Sabatino and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 8-07-CT-22.

 

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Michael B. Mankowski, on the brief).

 

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (Daryl A.Williams, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David J. Hernandez appeals a judgment of conviction dated January 21, 2009, finding him guilty of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, based upon an excessive blood-alcohol level shown by the Alcotest. The judgment was entered following an evidentiary hearing conducted by the Law Division on remand, pursuant to our October 2008 unpublished opinion addressing defendant's original appeal to this court. State v. Hernandez, No. A-0756-07 (App. Div. Oct. 28, 2008). The purpose of the remand was to develop more facts and background relevant to defendant's claim that a letter from the State Police, which confirmed the active status of the Alcotest operator's credentials at the time the breath sample was tested, had been improperly admitted into evidence at defendant's trial. For the reasons that follow, we concur with the Law Division's determination that the letter was properly admitted, and consequently affirm the judgment.

We incorporate by reference the facts and procedural history set forth in our prior opinion. By way of brief summary, on October 20, 2006, defendant's motor vehicle was stopped by a South Bound Brook police officer, upon suspicion that defendant was driving under the influence. He was taken to the police station for testing on the Alcotest MK III-C device. After administering warnings1 to defendant, the Alcotest operator, Lieutenant John Prudente, administered the breath test. Defendant's breath produced a reading of .17 blood alcohol concentration ("BAC"), well above the legal limits. See N.J.S.A. 39:4-50(a).

Prior to trial in the municipal court, defendant moved to suppress the BAC results. One of his requested grounds for suppression was that the discovery supplied by the prosecutor did not confirm that Prudente had proper credentials to administer the Alcotest. See N.J.A.C. 13:51-1.6(c) and N.J.A.C. 13:51-1.8. In particular, defendant alleged that Prudente lacked the requisite recertification on the Breathalyzer device when he became certified as an Alcotest operator on November 14, 2005.

In response, the prosecutor tendered to the municipal judge a one-page letter from the State Police dated January 24, 2007, with respect to Prudente's credentials. The letter, a copy of which was not provided on the first appeal but which has now been supplied to us, appears on official State Police letterhead. It contains the seal of the State of New Jersey and the respective emblems of the State Police and the New Jersey Department of Law and Public Safety. It bears the heading "MASTER BREATH TEST CERTIFICATION RECORD." Below that heading is Prudente's name and the date of the letter. The letter then reads:

STATE POLICE RECORDS SHOW THAT THE ABOVE NAMED MEMBER OF THE SOUTH BOUND BROOK BORO POLICE, WAS CERTIFIED AS A BREATHALYZER OPERATOR ON 01/29/1993, AND WAS RECERTIFIED ON THE FOLLOWING DATE(S):

 

05/02/2003

01/17/2001

09/07/1999

05/27/1997

02/23/1995

 

The letter concludes with a notation that Prudente's certification on the Breathalyzer device expired on January 1, 2006. This signified that Prudente was certified as a Breathalyzer operator when he took the Alcotest training and received his Alcotest certification in November 2005. At the bottom of the letter is the signature (either an actual signature or a computer-generated one) of Lieutenant Dean A. Rinaldi of the State Police's Alcohol/Drug Testing Unit.

Defendant objected to the consideration of the State Police letter, on grounds of hearsay and lack of confrontation. After the municipal judge overruled those objections and denied defendant's motion to suppress the Alcotest results, defendant entered into a conditional plea of guilty to a violation of N.J.S.A. 39:4-50, subject to his right to appeal the denial of his suppression motion. The municipal judge suspended defendant's driving privileges for two years, and imposed other appropriate conditions and penalties. The penalties were stayed, pending the Supreme Court's then-anticipated opinion as to the scientific validity of the Alcotest in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). The Law Division upheld the conviction and the sanctions, de novo, in its initial decision in September 2007. On appeal, we rejected defendant's arguments concerning the pre-test warning, but remanded for further proceedings concerning the genesis and admissibility of the letter.

The sole witness at the remand hearing, Sergeant Kevin Flanagan of the State Police Alcohol and Drug Test Unit, explained the genesis and significance of the letter. Flanagan noted that in 2004 the State Police began a statewide process of training and converting Breathalyzer operators to Alcotest operators. The conversion involved an abbreviated one-day Alcotest certification course for operators that were currently certified on the Breathalyzer.

Flanagan explained that an officer's Master Breath Test Certification Record, such as the January 24, 2007 letter at issue, is routinely generated by the State Police from a centralized computer database. The letter is created by entering the police officer's operator number, and then requesting a corresponding printout of the operator's master certification. Flanagan testified that the information concerning each operator's certifications is kept in the database in the ordinary course of business. The letters are typically generated as part of an administrative procedure when the operator's own copy of his credentials has been lost, damaged or destroyed. Flanagan noted that he had personally printed out approximately fifty to a hundred of such master certification letters in the course of his duties in the Alcohol/Drug Testing Unit.

In the present case, Prudente had no longer retained his Breathalyzer certificate at the time of defendant's trial, as by that point South Bound Brook had converted to the Alcotest device. Consequently, the January 24, 2007 letter provided confirmation from the State Police database that Prudente's Breathalyzer certification was valid when he received his Alcotest certificate in November 2005.

In his oral opinion at the conclusion of the remand hearing, the Law Division judge credited Flanagan's testimony, adopting, in essence, Flanagan's explanations about his unit's routine procedures in generating letters such as the one at issue here. We owe deference to that implicit credibility finding. State v. Locurto, 157 N.J. 463, 471-72 (1999). Based on Flanagan's testimony, the judge was satisfied that the letter qualified as a business record under the hearsay exception, and that the letter thereby was properly given substantive consideration in the municipal proceedings. The judge reaffirmed his conclusion that the motion to suppress the Alcotest results had been properly denied, and, once again, sustained defendant's conviction.

On his present appeal, defendant reiterates his claim that the letter was inadmissible. He complains that the letter was tendered after the pretrial discovery period. He further contends that the letter does not qualify as a business record, noting that transcript did not identify the persons within the State Police who inputted the data concerning Prudente's certifications, nor did it identify who had specifically requested that the letter be generated. Defendant also contends that the letter is a "testimonial" document under the Confrontation Clause as interpreted in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194 (2004), and that he was unconstitutionally deprived of a right to cross-examine the author of the letter.

Having fully considered the arguments now being raised on appeal, we affirm the remand decision on admissibility and the Law Division's corresponding re-issuance of the judgment of conviction, substantially for the reasons set forth in the oral opinion of the Law Division judge dated November 17, 2008. The testimony of Sergeant Flanagan at the remand hearing dispelled any legitimate concerns that could be raised about the admissibility of the letter and its status as a qualified business record under N.J.R.E. 803(c)(6), or, for that matter, as a qualified public record under N.J.R.E. 803(c)(8).

We also detect no violation of defendant's right of confrontation, as the letter is in the nature of a routine document relating to the maintenance of Prudente's credentials and is not testimonial in nature. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. ___, ___ n.1, 129 S. Ct. 2527, 2532 n.1, 174 L. Ed. 2d 314, 322 n.l (2009) (noting, by analogy, that records of equipment maintenance "may well qualify as nontestimonial records"); see also Chun, supra, 194 N.J. at 142-45; State v. Sweet, 195 N.J. 357, 373 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009). Moreover, defendant's opportunity to cross-examine Flanagan at the remand hearing of which he took full advantage through his counsel eliminates any issue of prejudice from the State's belated turnover of the letter in discovery. It also cures any alleged deprivation of defendant's right of confrontation, as defendant had more than a fair chance at the remand hearing to explore and contest the bona fides of the letter.

Affirmed. The previously-imposed stay of defendant's conviction is vacated.

1 In our unpublished opinion we upheld the adequacy of the pre-test warnings given to defendant, even though the warnings were mistakenly read from the standard form for commercial drivers, rather than from the version of the form for non-commercial drivers.