STATE OF NEW JERSEY VS. BIJAL AMIN(42-14, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 4, 2017
• Docket: A-2926-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2926-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BIJAL AMIN,

Defendant-Appellant. __________________________

Submitted March 29, 2017 – Decided September 5, 2017

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 42-14.

Levow DWI Law, PC, attorneys for appellant (Evan M. Levow, of counsel and on the brief; Michael V. Troso, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On September 22, 2013, defendant Bijal Amin was arrested in the

Borough of Stratford and charged with driving while intoxicated

(DWI) in a school zone, N.J.S.A. 39:4-50(g)(1), and careless driving, N.J.S.A. 39:4-97. Following the municipal court's denial

of his motion to dismiss the charges or suppress the Alcotest

results, defendant entered a conditional guilty plea to an amended

charge DWI under N.J.S.A. 39:4-50(a). The municipal court

sentenced defendant as a first-time offender to a seven-month

driver's license suspension, ordered him to participate in the

Intoxicated Driver Resource Center program for a period of twelve

hours, and imposed the appropriate fines, costs, and surcharges.

Defendant's appeal to the Law Division was limited to the

motion to suppress the results of the Alcotest based on alleged

missing repair records and as a discovery sanction. The Law

Division judge rejected defendant's arguments, upheld the Alcotest

results, and found defendant guilty of DWI.

In this appeal, defendant raises the following contentions:

POINT I: THE COURT ERRED IN NOT GRANTING [DEFENDANT'S MOTION TO DISMISS] BASED ON THE STATE'S FAILURE TO PROVIDE "EXTREMELY MATERIAL" DISCOVERY.

POINT II: THE COURT ERRED IN FAILING TO GRANT [DEFENDANT'S] MOTION TO DISMISS [FOR] THE COURT'S FAILURE TO ENFORCE THE DISCOVERY ORDER.

We reject these contentions, and affirm.

The following facts are pertinent to our review. Defendant's

Alcotest results revealed he had a blood alcohol concentration of

2 A-2926-15T3 0.12 percent. To verify the Alcotest machine on which he was

tested was in proper working order, defendant requested a document

known as a Breath Testing Instrumentation Service Report (BTISR),

which would show whether the CU34 simulator solution unit used

with the Alcotest machine had been repaired. A BTISR is a document

generated by the Division of State Police that certifies the

results of inspections of specific breath test devices.

On December 12, 2013, Municipal Court Judge John Morelli

entered a Holup1 order that compelled the State to produce "the

[BTISR], detailing any problems for placing the machine out of

service and returning the machine to Draeger; . . . Draeger 'Return

& Repair Form', and the Draeger 'Packing Slip' if in the possession

of the State or [the State is] able to obtain." The order provided

that failure to produce this discovery within thirty days "may

result in dismissal of this matter." (Emphasis added).

Defendant moved to dismiss the charges or suppress the

Alcotest results based on the State's alleged failure to produce

repair records for simulator solution unit DDUK S3-0133, which was

the unit used with the Alcotest machine at the time of defendant's

1 State v. Holup, 253 N.J. Super. 320 (App. Div. 1992). A Holup order provides a more formal mechanism by which to notice the State of defendant's discovery requests, and practically, advises the State of defendant's reservation of the right to seek dismissal or suppression for non-compliance.

3 A-2926-15T3 testing (unit 133). Defendant conceded the State produced a BTISR,

dated April 10, 2013, which showed unit 133 was placed in service

that day (the April 2013 BTISR), but argued he did not receive a

BTISR showing when and why the unit was removed from service (the

alleged missing April 2013 BTISR).

The municipal prosecutor represented to the municipal court

judge that all discovery had been provided and there was no missing

April 2013 BTISR. The prosecutor explained that the Stratford

Police Department (SPD) had two simulator solution units, unit 133

and unit 163. When one unit was in use, the other unit was sent

to Draeger for recertification and then returned to the SPD ready

for use. Unit 163 had malfunctioned on April 10, 2013, five months

before defendant's Alcotest. New Jersey State Trooper Michael P.

Gibson removed unit 163 from service, sent it to Draeger for

repair, placed unit 133, which was recertified and fully

functional, into service, and issued the April 2013 BTISR

certifying that unit 133 was "returned from outside evaluation and

placed back in service" and "found to be in proper working order."

The prosecutor also represented that the Alcotest machine on

which defendant was tested never left the SPD and the machine was

in proper working order at the time of testing. He argued the

alleged missing April 2013 BTISR was irrelevant because the

Alcotest machine on which defendant was tested was recalibrated

4 A-2926-15T3 in June 2013, three months before defendant's testing, and found

to be operating properly, and there was a valid recertification

for unit 133 on the day of defendant's testing. The municipal

court judge denied defendant's motion without prejudice and

ordered the prosecutor to provide further explanation about the

alleged missing April 2013 BTISR.

Defendant later conceded he had received the twelve

foundational documents required by Chun.2 However, he argued he

still had not received the alleged missing April 2013 BTISR, and

also had not received April 11, 2005 BTISRs removing unit 133 from

and returning it to service or a Draeger packing slip. Defendant

acknowledged he had received a May 16, 2013 Draeger return packing

slip, but argued he had not received BTISRs removing the unit from

and returning it to service (the alleged missing May 2013 BTISRs).

The prosecutor represented that the SPD Chief of Police had

searched for the above documents and found they did not exist, and

the State produced all documents to which it had access. The

prosecutor subsequently contacted Trooper Gibson, who advised he

searched but found no documents showing that unit 133 was removed

from service and repaired on May 16, 2013. The prosecutor argued

that the May 16, 2013 Draeger return packing slip did not indicate

2 State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

5 A-2926-15T3 unit 133 was repaired; rather, it showed that Draeger recalibrated

and recertified the unit on May 16, 2013 and returned it to the

SPD along with the packing slip. The prosecutor also argued that

Trooper Gibson's inability to find any repair records for May 16,

2013 proved that unit 133 was not removed from service and repaired

on that date.

In a July 17, 2014 oral opinion, the municipal court judge

denied defendant's motion. Citing State v. Ford, 240 N.J. Super.

44 (App. Div. 1990), the judge found that the April 11, 2005

documents defendant sought were too remote in time to be relevant.

The judge also found there was nothing supporting defendant's

continued argument about the missing April 2013 BITSR, and the

April 2013 BTISR showed that unit 133 was in proper working order.

The judge determined the May 16, 2013 Draeger packing slip did not

make clear that unit 133 was removed from service and repaired,

and the State sufficiently explained that the alleged missing May

2013 BTISRs did not exist. The judge concluded that the State's

alleged failure to produce repair records did not mean the Alcotest

machine was not in proper working order at the time of defendant's

testing, and the documents the State produced were sufficient to

meet its discovery obligation.

Defendant appealed to the Law Division, arguing that the

State's failure to produce the April 11, 2005 documents and the

6 A-2926-15T3 alleged missing April 2013 and May 2103 BTISRs constituted a

discovery violation under Rule 7:7-7 and a violation of the Holup

order.3

Following a trial de novo, in a February 2, 2016 written

opinion, Judge Daniel A. Bernardin denied defendant's appeal. The

judge acknowledged the State's discovery obligation under Rule

7:7-7, but, quoting State v. Robertson, 438 N.J. Super. 47, 66

(App. Div. 2014), found that defendant's right to discovery within

the context of a DWI proceeding was "limited to items as to which

there is a reasonable basis to believe they will assist the

defense." Quoting State v. Maricic, 417 N.J. Super. 280, 284

(App. Div. 2010), the judge found that "allowing a defendant to

forage for evidence without a reasonable basis is not an ingredient

of either due process or fundamental fairness[.]"

Judge Bernardin then found that under Chun, the State was

required to admit three core documents to lay foundational proofs:

(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials

3 Defendant also argued the State failed to meet its discovery obligation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Because he did not address this issue in his merits brief, it is deemed waived. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2017).

7 A-2926-15T3 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.

[Chun, supra, 194 N.J. at 154.]

The judge also found that while not required to be admitted at

trial, Chun required the State to produce twelve foundational

documents:

(1) New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change;

(2) Certificate of Analysis for the 0.10 percent solution used in that New Solution Report;

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

(4) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;

(6) Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

(7) Certificate of Analysis for the 0.10 percent solution used in the calibration control test;

8 A-2926-15T3 (8) Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test;

(9) New Standard Solution Report, following the most recent calibration;

(10) Draeger Safety Certificates of Accuracy for the Simulators used in calibration;

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

(12) Draeger Safety Ertco-Hart Calibration Report.

[Id. at 153.]

Judge Bernardin noted that under State v. Holland, 422 N.J.

Super. 185, 198-99 (App. Div. 2011), once the State produced the

foundational documents, the burden shifted to defendant to show

why the Alcotest machine was not in proper working order; however,

the State must explain any facial irregularity in the foundational

documents with which the defendant may make such a showing. The

judge found defendant received the twelve foundational documents,

and determined there was no evidence suggesting there was any

irregularity in those documents that would merit further

explanation beyond what the State had provided. Regarding the

alleged missing April 2013 and May 2013 BTISRs, the judge found

the State sufficiently demonstrated that unit 133 had not undergone

any repairs for which a BTISR would have been produced. The judge

9 A-2926-15T3 accepted the State's explanation that unit 133 was placed into

service on April 10, 2013, after unit 163 malfunctioned, and that

on May 16, 2013, the unit had undergone recertification for which

no BTISR would be generated.

Judge Bernardin found it doubtful that defendant was entitled

to repair records for the CU34 simulator unit beyond what the

State provided. The judge noted that while Chun specifically

required the State to produce repair records for the Alcotest

machine, there was no similar requirement for the CU34 simulator

unit. To support this finding, the judge quoted the following

passage from Chun:

many of the documents on the Special Master's list of foundational proofs are tests of tests and, therefore, are too attenuated to require that they be admitted as part of the evidence. We include in that category all of the documents relating to the working order of the simulator, the reports of the solutions used during simulation and calibration, the certificate of accuracy of the simulator used to calibrate the device, and the temperature probe documents. Although, as all parties agree, these documents should continue to be produced in discovery, they are not fundamentally a part of demonstrating that the particular device was in good working order.

[Chun, supra, 194 N.J. at 144-45.]

The judge concluded as follows:

The Court's mention of documents relating to the working order of the simulator, and its inclusion of certain documents pertaining to

10 A-2926-15T3 the functionality of the CU34 Simulator [Unit] in the enumerated list of "foundational documents" appears to limit the State's obligations during discovery to the Certificates of Accuracy for the simulator; not, as the defendant contends, the repair records for the simulater. See Id. at 153. As such, the documents that the defendant seeks in this case appear to be documents regarding "tests of tests" that the Court in Chun declined to require the State to provide when crafting the discovery obligations mandated in cases involving the Alcotest machine.

Addressing the State's alleged violation of the Holup order,

Judge Bernardin found the order did not require dismissal, but

rather, dismissal was discretionary and the order did not provide

for dismissal if the State was unable to comply. The judge also

found there was no indication the repair records defendant sought

ever existed, and he was not persuaded by defendant's speculative

claim there was a reasonable probability that the State's

disclosure of the alleged missing BTISRs would result in a

different outcome.

Lastly, Judge Bernardin found no evidence that unit 133 was

repaired on April 11, 2005. The judge agreed with the municipal

court judge that defendant's request for April 11, 2005 documents

was contrary to the holding in Ford. The judge noted that in

Ford, we specifically stated with regard to repair histories that

"[r]equiring routine production of the entire repair record . . .

11 A-2926-15T3 or similar documents without appropriate time limitations would

be unreasonable." Ford, supra, 240 N.J. Super. at 51. The judge

concluded as follows:

In the instant case, the defendant has failed to make any showing that repair records for the CU 34 simulator unit, alleged to have been created nearly ten (10) years before defendant was tested on the breath-testing machine, had any relevance in demonstrating that the breath-testing machine was not in proper working order on the date of the defendant's breath test. Accordingly, the municipal court's determination that the defendant was not entitled to this information was correct.

In this appeal, defendant reiterates the arguments made to Judge

Bernardin.

On appeal from a municipal court to the Law Division, the

review is de novo on the record. R. 3:23-8(a). The Law Division

judge must make independent findings of fact and conclusions of

law based upon the evidentiary record of the municipal court and

must give due regard to the opportunity of the municipal court

judge to assess the witnesses' credibility. State v. Johnson, 42

N.J. 146, 157 (1964). On appeal from a Law Division decision, the

issue is whether there is sufficient credible evidence present in

the record to uphold the findings of the Law Division. State v.

Segars, 172 N.J. 481, 488 (2002). "We do not weigh the evidence,

assess the credibility of witnesses, or make conclusions about the

evidence." State v. Barone, 147 N.J. 599, 615 (1997). However,

12 A-2926-15T3 we exercise plenary review of legal conclusions that flow from

established facts. Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

In addition, we will not disturb a trial court's ruling on

discovery matters absent an abuse of discretion. See State v.

Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied,

205 N.J. 183 (2011). "[A]n abuse of discretion only arises on

demonstration of 'manifest error or injustice[,]'" Hisenaj v.

Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.

554, 572 (2005)), and occurs when the trial judge's "decision is

made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Milne

v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

We have considered defendant's arguments in light of the

record and applicable legal principles and conclude they are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

expressed by Judge Bernardin in his comprehensive and well-written

opinion. However, we add the following brief comment.

Defendant admits receipt of the twelve foundational Chun

documents, but seeks additional material that, as Judge Bernardin

properly found, did not exist. Defendant has not provided any

13 A-2926-15T3 persuasive evidence to the contrary. There is nothing in the

record that requires reversal. State v. Locurto, 157 N.J. 463,

471 (1999).

Affirmed.

14 A-2926-15T3