NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3516-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMMANUEL RUIZ PAGAN,
Defendant-Appellant. ___________________________
Submitted July 5, 2017 – Decided September 15, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-05-1143.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Emmanuel Ruiz Pagan pled guilty to first-degree
robbery, N.J.S.A. 2C:15-1 and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Pursuant to a negotiated plea
agreement, he reserved his right to challenge the denial of his
motion to dismiss the indictment based on the State's failure to
preserve the hard drive of the surveillance system that
supposedly captured the crime. The judge sentenced defendant in
accordance with the plea agreement to an aggregate prison term
of fifteen years subject to the periods of parole ineligibility
and supervision required by the No Early Release Act, N.J.S.A.
2C:43-7.2. Defendant now appeals, raising the following issues:
POINT I
DUE TO THE STATE'S LOSS OF THE SURVEILLANCE VIDEO HARD DRIVE, THE INDICTMENT MUST BE DISMISSED.
POINT II
THE FIFTEEN-YEAR SENTENCE, WITH 85% TO BE SERVED WITHOUT PAROLE, IS MANIFESTLY EXCESSIVE.
Finding no error in defendant's conviction or sentence, we
affirm.
Defendant and a confederate, both armed with handguns,
entered the El Bachatipico restaurant in Newark at about one
o'clock in the morning on September 11, 2012. Defendant drew
his gun and announced to the several people present, "This is a
stick up." One of the patrons identified himself as a police
officer and drew his service weapon. Defendant and his partner
2 A-3516-15T1 shot at the officer, and he returned fire. The robbers fled
outside, where more shots were exchanged. Although the officer
shot defendant in his shoulder, leg, low back and left hand, he
managed to escape. He was later apprehended at a local
hospital. No one else was injured. The police took statements
from several witnesses relating those events and the off-duty
officer identified defendant as the robber he shot.
The court conducted an evidentiary hearing on defendant's
motion to dismiss the indictment three years after the robbery.
The owner of the restaurant testified it had a surveillance
system. When he went to retrieve the video of the incident
shortly after the robbery, however, he found nothing had been
recorded. A detective with the crime scene/technical services
unit of the Essex County Prosecutor's Office testified he
likewise tried to retrieve video from the system later that same
night without success.
The following day, the owner called the man who installed
the system to inspect it. The owner testified the technician
advised the hard drive had malfunctioned and swapped it out for
a new unit. The owner took the old hard drive to the
prosecutor's office that afternoon. The technical services unit
detective again tried to retrieve video from the unit but could
not even get it to fully power up. Determining the unit was
3 A-3516-15T1 damaged and of no evidential value, the supervising detectives
claim they immediately returned it to the restaurant owner. The
owner claimed he left it with the prosecutor's office and never
got it back.
After hearing the testimony, the judge found "no concrete
evidence . . . that the hard drive was returned to [the
restaurant owner]." The judge found the State had an obligation
to preserve the hard drive for inspection by defendant and
negligently failed to do so. She found defendant had produced
no evidence of bad faith. Although finding no question but that
defendant was deprived of the opportunity to inspect the unit
and determine for himself that no images were captured, the
court found the absence of the unit made it impossible to
determine "whether any images that may have been captured on
that hard drive would have been a value to the defense."
Rejecting defendant's claim that the evidence supported
dismissing the indictment, the judge determined the appropriate
sanction was an adverse inference charge against the State at
trial.
"[D]ismissal of an indictment due to loss of discoverable
evidence is a drastic remedy that should be sparingly employed."
State v. Montijo, 320 N.J. Super. 483, 490 (Law Div. 1998). The
decision is addressed to the discretion of the trial court,
4 A-3516-15T1 State v. Feliciano, 224 N.J. 351, 380 (2016), and the exercise
of its authority will not be disturbed in the absence of clear
abuse, State v. Hogan, 144 N.J. 216, 229 (1996).
A court considering whether a defendant's due process
rights have been violated by the State's failure to preserve
physical evidence must focus on "(1) whether there was bad faith
or connivance on the part of the government, (2) whether the
evidence . . . was sufficiently material to the defense, [and]
(3) whether [the] defendant was prejudiced by the loss or
destruction of the evidence." State v. Hollander, 201 N.J.
Super. 453, 479 (App. Div.) (internal citations omitted),
certif. denied, 101 N.J. 335 (1985). "Without bad faith on the
part of the State, 'failure to preserve potentially useful
evidence does not constitute a denial of due process of law.'"
George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div.
2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.
Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)); see also State v.
Marshall, 123 N.J. 1, 109 (1991) (applying Youngblood bad faith
standard); State v. Mustaro, 411 N.J. Super. 91, 103-05 (App.
Div. 2009) (same).1
1 We reject defendant's argument that we can dispense with the bad faith requirement of Youngblood by resort to our own State Constitution. Our Supreme Court follows Youngblood, and we are (continued)
5 A-3516-15T1 Our review of the record satisfies us the trial judge was
correct in finding defendant failed to adduce any evidence of
bad faith. The detective from the technical services unit was
not the only witness to testify the restaurant's surveillance
system had not recorded the incident. The restaurant owner also
testified there was nothing recorded and further claimed the
technician who installed the system made the same finding.
Defendant offered no reason why police would deliberately
suppress or destroy a hard drive an independent witness
testified had not recorded anything.
Although defendant was deprived of the opportunity to
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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-3516-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMMANUEL RUIZ PAGAN,
Defendant-Appellant. ___________________________
Submitted July 5, 2017 – Decided September 15, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-05-1143.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Emmanuel Ruiz Pagan pled guilty to first-degree
robbery, N.J.S.A. 2C:15-1 and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Pursuant to a negotiated plea
agreement, he reserved his right to challenge the denial of his
motion to dismiss the indictment based on the State's failure to
preserve the hard drive of the surveillance system that
supposedly captured the crime. The judge sentenced defendant in
accordance with the plea agreement to an aggregate prison term
of fifteen years subject to the periods of parole ineligibility
and supervision required by the No Early Release Act, N.J.S.A.
2C:43-7.2. Defendant now appeals, raising the following issues:
POINT I
DUE TO THE STATE'S LOSS OF THE SURVEILLANCE VIDEO HARD DRIVE, THE INDICTMENT MUST BE DISMISSED.
POINT II
THE FIFTEEN-YEAR SENTENCE, WITH 85% TO BE SERVED WITHOUT PAROLE, IS MANIFESTLY EXCESSIVE.
Finding no error in defendant's conviction or sentence, we
affirm.
Defendant and a confederate, both armed with handguns,
entered the El Bachatipico restaurant in Newark at about one
o'clock in the morning on September 11, 2012. Defendant drew
his gun and announced to the several people present, "This is a
stick up." One of the patrons identified himself as a police
officer and drew his service weapon. Defendant and his partner
2 A-3516-15T1 shot at the officer, and he returned fire. The robbers fled
outside, where more shots were exchanged. Although the officer
shot defendant in his shoulder, leg, low back and left hand, he
managed to escape. He was later apprehended at a local
hospital. No one else was injured. The police took statements
from several witnesses relating those events and the off-duty
officer identified defendant as the robber he shot.
The court conducted an evidentiary hearing on defendant's
motion to dismiss the indictment three years after the robbery.
The owner of the restaurant testified it had a surveillance
system. When he went to retrieve the video of the incident
shortly after the robbery, however, he found nothing had been
recorded. A detective with the crime scene/technical services
unit of the Essex County Prosecutor's Office testified he
likewise tried to retrieve video from the system later that same
night without success.
The following day, the owner called the man who installed
the system to inspect it. The owner testified the technician
advised the hard drive had malfunctioned and swapped it out for
a new unit. The owner took the old hard drive to the
prosecutor's office that afternoon. The technical services unit
detective again tried to retrieve video from the unit but could
not even get it to fully power up. Determining the unit was
3 A-3516-15T1 damaged and of no evidential value, the supervising detectives
claim they immediately returned it to the restaurant owner. The
owner claimed he left it with the prosecutor's office and never
got it back.
After hearing the testimony, the judge found "no concrete
evidence . . . that the hard drive was returned to [the
restaurant owner]." The judge found the State had an obligation
to preserve the hard drive for inspection by defendant and
negligently failed to do so. She found defendant had produced
no evidence of bad faith. Although finding no question but that
defendant was deprived of the opportunity to inspect the unit
and determine for himself that no images were captured, the
court found the absence of the unit made it impossible to
determine "whether any images that may have been captured on
that hard drive would have been a value to the defense."
Rejecting defendant's claim that the evidence supported
dismissing the indictment, the judge determined the appropriate
sanction was an adverse inference charge against the State at
trial.
"[D]ismissal of an indictment due to loss of discoverable
evidence is a drastic remedy that should be sparingly employed."
State v. Montijo, 320 N.J. Super. 483, 490 (Law Div. 1998). The
decision is addressed to the discretion of the trial court,
4 A-3516-15T1 State v. Feliciano, 224 N.J. 351, 380 (2016), and the exercise
of its authority will not be disturbed in the absence of clear
abuse, State v. Hogan, 144 N.J. 216, 229 (1996).
A court considering whether a defendant's due process
rights have been violated by the State's failure to preserve
physical evidence must focus on "(1) whether there was bad faith
or connivance on the part of the government, (2) whether the
evidence . . . was sufficiently material to the defense, [and]
(3) whether [the] defendant was prejudiced by the loss or
destruction of the evidence." State v. Hollander, 201 N.J.
Super. 453, 479 (App. Div.) (internal citations omitted),
certif. denied, 101 N.J. 335 (1985). "Without bad faith on the
part of the State, 'failure to preserve potentially useful
evidence does not constitute a denial of due process of law.'"
George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div.
2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.
Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)); see also State v.
Marshall, 123 N.J. 1, 109 (1991) (applying Youngblood bad faith
standard); State v. Mustaro, 411 N.J. Super. 91, 103-05 (App.
Div. 2009) (same).1
1 We reject defendant's argument that we can dispense with the bad faith requirement of Youngblood by resort to our own State Constitution. Our Supreme Court follows Youngblood, and we are (continued)
5 A-3516-15T1 Our review of the record satisfies us the trial judge was
correct in finding defendant failed to adduce any evidence of
bad faith. The detective from the technical services unit was
not the only witness to testify the restaurant's surveillance
system had not recorded the incident. The restaurant owner also
testified there was nothing recorded and further claimed the
technician who installed the system made the same finding.
Defendant offered no reason why police would deliberately
suppress or destroy a hard drive an independent witness
testified had not recorded anything.
Although defendant was deprived of the opportunity to
confirm the absence of a video recording of the events in the
restaurant, we have no basis to believe the video would have
undermined, as opposed to supported, the witnesses' statements
identifying defendant as the robber. Indeed, defense counsel
never proffered how the video might exculpate his client.
Because defendant did not establish the videotape had
exculpatory value apparent to the State when it was lost or
destroyed or that the State failed to preserve its potentially
(continued) not free to deviate from its direction. See Marshall, supra, 123 N.J. at 109; Mustaro, supra, 411 N.J. Super. at 103 n.4 (declining to follow other states eschewing bad faith as a matter of state constitutional law in light of Marshall and State v. Reynolds, 124 N.J. 559, 569 (1991)).
6 A-3516-15T1 exculpatory value in bad faith, defendant could not establish a
due process violation or any entitlement to relief.2
We have considered the arguments defendant has offered to
establish his aggregate fifteen-year sentence is excessive and
determined they present no basis for reversal. Defendant was
sentenced in accordance with his negotiated plea agreement. The
judge characterized his violent stick up of the restaurant, "a
brazen crime, more in the fashion of a high noon at the O.K.
Corral. Committed in a manner showing utter disregard for the
safety or sensibilities of the public."
The judge found aggravating factors three, the risk that the
defendant will commit another offense, N.J.S.A. 2C:44-1a(3); and
nine, the need for deterring the defendant and others from
violating the law, N.J.S.A. 2C:44-1a(9), and no mitigating factors.
She further noted defendant had completed an eight-year prison term
in Puerto Rico for robbery and weapons offenses within a year of
committing this offense.
Having reviewed the record, we conclude defendant's fifteen-
year sentence is neither inconsistent with sentencing provisions of
the Code of Criminal Justice nor shocking to the judicial
2 As defendant failed to establish a due process violation, we surmise the adverse inference against the State was a sanction for a discovery violation under Rule 3:13-3, although that is not clear from the record.
7 A-3516-15T1 conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014); State
v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J.
165, 180-81 (2009).
Affirmed.
8 A-3516-15T1