STATE OF NEW JERSEY v. DAVID Z. MASSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0930-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID Z. MASSA,

Defendant-Appellant.

___________________________________________

July 24, 2013

Argued March 5, 2013 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 108-2009.

John Menzel argued the cause for appellant.

Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief; Matthew P. Talia, on the brief).

PER CURIAM

Defendant David Z. Massa appeals his conviction following a conditional guilty plea for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division. We affirm.

This appeal arises from the following undisputed facts. On the night of July 27, 2008, the Rutgers University Police pulled over defendant's vehicle and conducted a series of field sobriety tests. Defendant submitted to an Alcotest breath examination, which recorded defendant's blood alcohol content at 0.17 percent. The police arrested defendant and issued a complaint-summons for driving while intoxicated, N.J.S.A. 39:4-50, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.

Subsequently, defendant filed a motion in the municipal court for a jury trial and for additional discovery. On November 30, 2009, the municipal court judge heard defendant's motion. Defendant maintained that he was entitled to specific additional discovery:

A minimum of six files, a file that corresponds to the calibration report, part 1 control tests, part 2 linearity tests, simulator solutions and alcohol influence reports, and a sixth file is . . . a virtual file which we call header information which does not have a corresponding document.

Defendant asserted that the results of the Alcotest should be suppressed because the State failed to fully cooperate with this request. Specifically, defendant maintained that the "internal diagnostic files" on the linearity, control and calibration of the device were missing from the digital information provided for defendant's testing cycle. Instead, the State provided paper copies, which he contended were insufficient to determine whether the Alcotest device was functioning properly. Defendant also sought all the downloaded data from the device since it was first used in 2004.

Defendant submitted into evidence, with the consent of the State, an expert report by Samuel L. Sachs describing the significance of the missing digital data. The expert explained, "[a]lthough the Alcotest has been ruled reliable by the Court, it is clear that anomalies exist as a result of software errors and the existence of such anomalies would be apparent in a data download but would not necessarily be apparent on a [printout]." He stated that a review of all the data downloads of the particular machine used to test defendant since 2004 would allow him to have a "complete picture" and search for "potentially exculpatory" evidence.

The prosecutor maintained that the digital data defendant sought no longer existed. He represented that the Alcotest, as approved by the Court in State v. Chun, 194 N.J. 54 (2008), was designed so that when the machine was recalibrated, the existing internal data was deleted. He argued that the State had provided all the legally mandated discovery and a hard copy of the data download relevant to defendant's test.

The municipal judge denied defendant's motions for a jury trial and suppression of the test results. Defendant entered a conditional guilty plea to DWI, reserving the right to appeal the denial of both motions. The municipal judge sentenced defendant to a loss of driving privileges for seven months, twelve hours at the intoxicated driver resource program, and the requisite fines and costs.

Defendant filed an appeal to the Law Division, reiterating his contention that paper copies of the Alcotest downloads were insufficient because they were missing significant information. He argued that the State's destruction or loss of the data was a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), which required the suppression of the Alcotest results.

The State replied that data was "missing" from the electronic download only "because when the Alcotest is calibrated, there's data that flushes itself out." Since due to the device's design that data was not preserved in electronic form, the State could only provide the hard copy printed at the time of the test. The State denied that it had acted in bad faith by intentionally destroying the data.

On August 24, 2011, the trial judge denied defendant's motions and affirmed the municipal court decision. He imposed the same sentence as the municipal court. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

I. BY FAILING TO PROVIDE DOWNLOADABLE DATA FOR ALL FUNCTIONS RUN ON THE ALCOTEST INSTRUMENT USED TO TEST DEFENDANT'S BREATH, THE STATE BREACHED ITS DUTY TO PROTECT DEFENDANT'S RIGHT TO ASSURE THE RELIABILITY OF HIS BREATH TEST RESULT AND VIOLATED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

A. Suppression by the Prosecution of Evidence Favorable to an Accused Upon Request Violates Due Process in That the Evidence Is Material Either to Guilt or to Punishment, Irrespective of the Good Faith or Bad Faith of the Prosecution.

B. The Failure of the Process in This Matter Was So Blatant, the Denial of Fundamental Fairness So Great, and the Integrity of the Judicial Process so Crippled, as to Warrant Dismissal.

II. DEFENDANT WAS ENTITLED TO A JURY TRIAL GIVEN THE SERIOUS QUASI-CRIMINAL AND CIVIL CONSEQUENCES HE FACES AS A DIRECT RESULT OF THE MUNICIPAL COURT PROCEEDINGS.

Our review of the Law Division's decision is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). The "standard of review of a de novo verdict after a municipal court trial is to 'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Unless there is an obvious and exceptional showing of error, we will not disturb the Law Division's findings when the municipal court and Law Division have entered concurrent judgments on purely factual issues. Ibid. (citing Locurto, supra, 157 N.J. at 474). However, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We first address defendant's argument concerning the missing electronic data records. Defendant asserts that his DWI charge should have been dismissed because the State did not provide him with the calibration, control, and linearity test files in downloadable, digital form and all downloads since 2004. This, he avers, constituted an abrogation of the State's duty to provide exculpatory evidence under Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218.

The State has a "constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession." State v. Marshall, 148 N.J. 89, 154 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." State v. Knight, 145 N.J. 233, 245 (1996) (quoting Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218). In order to make a Brady claim, a defendant must show three criteria: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999).

Material evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 480, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984). "When the lost evidence is merely potentially exculpatory, the court's finding of bad faith is crucial. In the absence of bad faith, relief should only be granted where there is a showing of manifest prejudice or harm arising from the failure to provide evidence." George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (internal citations and quotation marks omitted).

The State's obligation to disclose Alcotest data in a DWI case is well settled. Pursuant to Chun, supra, 194 N.J. at 134, the State must "clearly establish" that "(1) the [Alcotest] device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." If the instrument is deemed reliable in general, the State must then offer the following "foundational documents" into evidence:

(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 tests.

[Id. at 154; State v. Holland, 422 N.J. Super. 185, 190 (App. Div. 2011).]

In addition to these three "core" foundational documents, the State must also disclose twelve additional foundational documents in discovery, so that a defendant may challenge the Alcotest's functionality for flaws in its operation:

1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change;

(2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;

(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;

(4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;

(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered));

(6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);

(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);

(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity);

(9) Calibrating Unit, New Standard Solution Report, following Calibration;

(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests;

(11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and

(12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

[Chun, supra, 194 N.J. at 134.]

The State produced all the core and foundational documents required by Chun. The Alcotest routinely produces electronic records of data downloads, id. at 90, and DWI defendants are entitled to these downloaded results from the date of the device's last calibration. State v. Maricic, 417 N.J. Super. 280, 286-87 (App. Div. 2010). It is undisputed that the State failed to supply digital, downloaded copies of certain diagnostic Alcotest data. According to the State, this data was unavailable in digital form because the routine calibration of the Alcotest requires the elimination of existing data. Nothing in the record supports a finding that the State destroyed or concealed this evidence in bad faith.

Despite the sizable amount of hard copy data provided during discovery, defendant asserts that the hard copies do not completely reflect all of the information stored in a digital copy, and has provided an expert certification to support his claim. The trial judge did not make a specific factual finding on the sufficiency and content of the evidence tendered to defendant. For the purposes of this decision, therefore, we will assume that defendant received all available documentation in written form and that some information from the digital data was missing from the hard copies and the digital download.

We must now consider whether this missing data was material for the purposes of defendant's Brady claim and whether the State's failure to provide it necessitates a dismissal of defendant's DWI charge. After careful consideration of the record and the applicable law, we conclude that this data was not material and, as such, that the trial judge was correct in denying defendant's motion to exclude the Alcotest report.

Defendant has not identified, based upon the considerable discovery provided through the core and other foundational documents, any information indicating that the Alcotest device used in this case was not working effectively. His expert merely stated that he could not "verify" that it was working properly without seeing all of the digital data since the device had been first utilized in 2004. However, the expert never submitted that there was a "reasonable probability" that the missing downloadable data would have uncovered exculpatory evidence. Martini, supra, 160 N.J. at 269.

We are satisfied that the State furnished all the necessary documentation, as required by our case law. Moreover, there is nothing in the record to support a finding that digital copies of the Alcotest data containing the missing diagnostic tests, if disclosed, had a "reasonable probability" of changing the outcome of defendant's case. Ibid.

Finally, we find defendant's argument regarding his entitlement to a jury trial to be without sufficient merit to require an extended discussion in this opinion. R. 2:11-3(e)(2). We add only the following brief comments.

In Blanton v. North Las Vegas, 489 U.S. 538, 543, 109 S. Ct. 1289, 1291, 103 L. Ed. 2d 550, 554 (1989), the United States Supreme Court held that there is no bright-line rule for when punishment for DWI warrants a jury trial, and that one may be required where a defendant faces "onerous penalties". However, in State v. Hamm, 121 N.J. 109, 130-31 (1990), our Supreme Court held that DWI in New Jersey was not considered a "serious" offense under the Sixth Amendment. The Hamm Court distinguished New Jersey's DWI penalties from those considered by the U.S. Supreme Court, and determined its holding did not contravene Blanton or other related cases. Ibid. Defendant has failed to offer us any compelling reason why Hamm is not dispositive of his claim. Indeed, "New Jersey has never recognized a right to trial by jury for the motor vehicle offense of DWI," and "it is simply not a crime under New Jersey law." Id. at 112.

Affirmed.