NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0330-19T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIRAJ PATEL,
Defendant-Appellant. _________________________
Submitted November 2, 2020 – Decided November 23, 2020
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 44- 2013.
The Hernandez Law Firm, PC, attorneys for appellant (Thomas Cannavo, of counsel and on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In this appeal, we review for the third time, defendant Miraj Patel's
October 30, 2014 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-
50.1 In response to the first appeal, we remanded to the Law Division for a new
trial de novo on the record of defendant's 2013 municipal court trial at which
defendant chose not to testify. 2 We directed the Law Division to address, among
other issues, whether the State proved defendant's guilt through its
"observational case," State v. Patel, No. A-1683-14 (App. Div. May 2, 2016)
(Patel I) (slip op. at 24–25), to conduct a Rule 104 hearing on the admissibility
of the Alcotest results, id. at 27, and to consider whether to draw an adverse
inference against the State as to the Alcotest due to the State "allow[ing a] video
tape [of defendant at the police station] to be destroyed," id. at 20.
On remand, a different Law Division judge conducted the required Rule
104 hearing on December 7, 2016, at which both the arresting officer and
defendant testified about the administration of the Alcotest. On January 1 2,
2017, the Law Division judge issued a written decision stating his reasons for
1 This was defendant's third conviction for the same offense. 2 The only testimony came from the arresting officer and defendant's expert at the suppression hearing, which the judge relied upon without objection when reaching his verdict. The municipal court judge later found the officer to be credible and ultimately found defendant guilty based on the Alcotest results and the officer's observations, which the judge never specifically identified. A-0330-19T3 2 again convicting defendant based on the Alcotest results, without ever
addressing the observational case. In his decision, among other findings, the
judge found that it was "obvious from [defendant's] testimony [at the Rule 104
hearing] that [defendant was] not credible."
After defendant's new trial in the Law Division, defendant was again
convicted, and he appealed. In our second review, we again remanded the matter
to the Law Division because despite our directions, the Law Division judge "did
not address [the] part of our [earlier] decision" that instructed the judge "to
determine, . . . whether the State's proofs adduced at the municipal court trial
were sufficient to support defendant's DWI conviction based on observational
evidence." State v. Patel, No. A-3189-16 (App. Div. June 21, 2019) (Patel II)
(slip op. at 2).
In remanding the matter again, we stressed the heightened need for a
determination of the State's observational case in light of the Supreme Court's
opinion in State v. Cassidy, 235 N.J. 482 (2018), which invalidated the Alcotest
results "in many cases, including this one." Id. at 2–3. We also concluded that
the issue of whether an adverse inference should be drawn was still viable
despite the invalidity of the Alcotest results because "a security camera video
recording of defendant's physical appearance and behavior in the stationhouse
A-0330-19T3 3 would meet the threshold test of relevance with respect to the observational
method of proving a violation of N.J.S.A. 39:4-50." Id. at 10.
In response to our second remand, the Law Division judge again convicted
defendant and on August 15, 2019, issued a written decision setting forth his
findings and conclusions of law as to the observational case against defendant.
According to the judge, he relied upon not only the municipal court record of
defendant's trial in 2013, but he also considered the testimony of defendant and
the arresting officer at the Rule 104 hearing about the admissibility of the
Alcotest that was conducted on December 7, 2016. This appeal followed,
On appeal, defendant raises the following six contentions:
POINT I
THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF DWI BASED ON OBSERVATIONS. THUS, THIS COURT SHOULD REVERSE AND REMAND FOR JUDG[]MENT OF ACQUITTAL.
POINT II
THE LAW DIVISION ERRED IN REFUSING TO APPLY A NEGATIVE INFERENCE FROM THE DISCOVERY VIOLATION.
A-0330-19T3 4 POINT III
DEFENDANT WAS ENTITLED TO A DE NOVO RULING ON THE OBSERVAT[I]ONAL PRONG BASED ON THE RECORD WHICH EXISTED UPON THE FILING OF THE DE NOVO APPEAL.
POINT IV
THE LAW DIVISION ERRED IN APPLYING AN APPELLATE STANDARD INSTEAD OF THE REQUIRED DE NOVO ANALYSIS. THUS, THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION AND ACQUIT DEFENDANT OF DWI.
POINT V
THE LAW DIVISION ERRED IN MENTION AND PROBABLE CONSIDERATION [SIC] OF THE HGN TEST TO DETERMINE THE OBSERVATIONAL PRONG OF THE DWI OFFENSE.
POINT VI
GIVEN THE CUMULATIVE ERRORS IN POINTS II, III, IV AND V, THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION AND ACQUIT DEFENDANT OF DWI BASED ON OBSERVATIONS.
At the outset, we find no merit to defendant's contention in Point V that
the Law Division judge relied upon the arresting officer's administration of the
HGN test in determining whether the State proved its case based upon the
officer's observations. Defendant's contention is belied by the fact that while
A-0330-19T3 5 the judge's decision states that the test was performed, the judge does not
mention it as the basis for his ultimate findings.
We reach a similar result as to Point II about the judge's decision to not
draw an adverse inference against the State as a sanction for the discovery
violation that arose from the destruction of the station house videotape. As
noted in the judge's decision, he did not draw an adverse inference because
"[n]either party [could] represent whether the video would have shown further
indicators regarding [defendant's] intoxication [for or against]." Defendant
argues to us that the judge's failure to apply the adverse inference was contrary
to the Court's holding in State v. Stein, 225 N.J. 582 (2016), and by not providing
any remedy for the State's discovery violation, it was "nonsensical." We
disagree.
We conclude defendant's contention in this regard is without sufficient
merit to warrant discussion on a written opinion. R. 2:11-3(e)(2). Suffice it to
say that we continue to hew to our view of the Court's opinion in Stein and our
decision in State v. Richardson, 452 N.J. Super. 124 (App. Div. 2017), as
discussed in our earlier opinion, see Patel II, slip op. at 10–12, and we discern
no abuse in the judge's discretion to not apply the adverse inference. State v.
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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-0330-19T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIRAJ PATEL,
Defendant-Appellant. _________________________
Submitted November 2, 2020 – Decided November 23, 2020
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 44- 2013.
The Hernandez Law Firm, PC, attorneys for appellant (Thomas Cannavo, of counsel and on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In this appeal, we review for the third time, defendant Miraj Patel's
October 30, 2014 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-
50.1 In response to the first appeal, we remanded to the Law Division for a new
trial de novo on the record of defendant's 2013 municipal court trial at which
defendant chose not to testify. 2 We directed the Law Division to address, among
other issues, whether the State proved defendant's guilt through its
"observational case," State v. Patel, No. A-1683-14 (App. Div. May 2, 2016)
(Patel I) (slip op. at 24–25), to conduct a Rule 104 hearing on the admissibility
of the Alcotest results, id. at 27, and to consider whether to draw an adverse
inference against the State as to the Alcotest due to the State "allow[ing a] video
tape [of defendant at the police station] to be destroyed," id. at 20.
On remand, a different Law Division judge conducted the required Rule
104 hearing on December 7, 2016, at which both the arresting officer and
defendant testified about the administration of the Alcotest. On January 1 2,
2017, the Law Division judge issued a written decision stating his reasons for
1 This was defendant's third conviction for the same offense. 2 The only testimony came from the arresting officer and defendant's expert at the suppression hearing, which the judge relied upon without objection when reaching his verdict. The municipal court judge later found the officer to be credible and ultimately found defendant guilty based on the Alcotest results and the officer's observations, which the judge never specifically identified. A-0330-19T3 2 again convicting defendant based on the Alcotest results, without ever
addressing the observational case. In his decision, among other findings, the
judge found that it was "obvious from [defendant's] testimony [at the Rule 104
hearing] that [defendant was] not credible."
After defendant's new trial in the Law Division, defendant was again
convicted, and he appealed. In our second review, we again remanded the matter
to the Law Division because despite our directions, the Law Division judge "did
not address [the] part of our [earlier] decision" that instructed the judge "to
determine, . . . whether the State's proofs adduced at the municipal court trial
were sufficient to support defendant's DWI conviction based on observational
evidence." State v. Patel, No. A-3189-16 (App. Div. June 21, 2019) (Patel II)
(slip op. at 2).
In remanding the matter again, we stressed the heightened need for a
determination of the State's observational case in light of the Supreme Court's
opinion in State v. Cassidy, 235 N.J. 482 (2018), which invalidated the Alcotest
results "in many cases, including this one." Id. at 2–3. We also concluded that
the issue of whether an adverse inference should be drawn was still viable
despite the invalidity of the Alcotest results because "a security camera video
recording of defendant's physical appearance and behavior in the stationhouse
A-0330-19T3 3 would meet the threshold test of relevance with respect to the observational
method of proving a violation of N.J.S.A. 39:4-50." Id. at 10.
In response to our second remand, the Law Division judge again convicted
defendant and on August 15, 2019, issued a written decision setting forth his
findings and conclusions of law as to the observational case against defendant.
According to the judge, he relied upon not only the municipal court record of
defendant's trial in 2013, but he also considered the testimony of defendant and
the arresting officer at the Rule 104 hearing about the admissibility of the
Alcotest that was conducted on December 7, 2016. This appeal followed,
On appeal, defendant raises the following six contentions:
POINT I
THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF DWI BASED ON OBSERVATIONS. THUS, THIS COURT SHOULD REVERSE AND REMAND FOR JUDG[]MENT OF ACQUITTAL.
POINT II
THE LAW DIVISION ERRED IN REFUSING TO APPLY A NEGATIVE INFERENCE FROM THE DISCOVERY VIOLATION.
A-0330-19T3 4 POINT III
DEFENDANT WAS ENTITLED TO A DE NOVO RULING ON THE OBSERVAT[I]ONAL PRONG BASED ON THE RECORD WHICH EXISTED UPON THE FILING OF THE DE NOVO APPEAL.
POINT IV
THE LAW DIVISION ERRED IN APPLYING AN APPELLATE STANDARD INSTEAD OF THE REQUIRED DE NOVO ANALYSIS. THUS, THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION AND ACQUIT DEFENDANT OF DWI.
POINT V
THE LAW DIVISION ERRED IN MENTION AND PROBABLE CONSIDERATION [SIC] OF THE HGN TEST TO DETERMINE THE OBSERVATIONAL PRONG OF THE DWI OFFENSE.
POINT VI
GIVEN THE CUMULATIVE ERRORS IN POINTS II, III, IV AND V, THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION AND ACQUIT DEFENDANT OF DWI BASED ON OBSERVATIONS.
At the outset, we find no merit to defendant's contention in Point V that
the Law Division judge relied upon the arresting officer's administration of the
HGN test in determining whether the State proved its case based upon the
officer's observations. Defendant's contention is belied by the fact that while
A-0330-19T3 5 the judge's decision states that the test was performed, the judge does not
mention it as the basis for his ultimate findings.
We reach a similar result as to Point II about the judge's decision to not
draw an adverse inference against the State as a sanction for the discovery
violation that arose from the destruction of the station house videotape. As
noted in the judge's decision, he did not draw an adverse inference because
"[n]either party [could] represent whether the video would have shown further
indicators regarding [defendant's] intoxication [for or against]." Defendant
argues to us that the judge's failure to apply the adverse inference was contrary
to the Court's holding in State v. Stein, 225 N.J. 582 (2016), and by not providing
any remedy for the State's discovery violation, it was "nonsensical." We
disagree.
We conclude defendant's contention in this regard is without sufficient
merit to warrant discussion on a written opinion. R. 2:11-3(e)(2). Suffice it to
say that we continue to hew to our view of the Court's opinion in Stein and our
decision in State v. Richardson, 452 N.J. Super. 124 (App. Div. 2017), as
discussed in our earlier opinion, see Patel II, slip op. at 10–12, and we discern
no abuse in the judge's discretion to not apply the adverse inference. State v.
Marshall, 123 N.J. 1, 134 (1991) ("The choice of sanctions appropriate for
A-0330-19T3 6 discovery-rule violations is left to the broad discretion of the trial court .").
Moreover, even if an adverse inference had been drawn from destruction of the
video, it would only have related to defendant's conduct at the police station and
not at the scene when the officer initially observed defendant and administered
the field sobriety tests.
However, we find merit to defendant's assertions in Point III and IV, that
the Law Division judge did not limit his consideration of the evidence to that
adduced at the municipal court trial and failed to apply the correct standard of
review. For those reasons, we are constrained to remand again for the judge to
reconsider his decision under the proper standard based only upon the evidence
adduced at the municipal court trial.
The conclusion that we reluctantly reach here is based upon clear
principles guiding review of municipal court convictions. When a defendant
appeals from a conviction entered in municipal court to the Law Division, that
"court makes its own findings of fact and conclusions of law but defers to the
municipal court's credibility findings." State v. Robertson, 228 N.J. 138, 147
(2017). The Law Division judge is required to conduct a de novo review of the
record, giving "due regard to the municipal judge's opportunity to view the
witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App.
A-0330-19T3 7 Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). A Law Division
judge must "determine the case completely anew on the record made in the
[m]unicipal [c]ourt, giving due, although not necessarily controlling, regard to
the opportunity of the magistrate to judge the credibility of the witnesses."
Johnson, 42 N.J. at 157 (emphasis added).
This procedure is rooted in the municipal court's role as the forum for the
presentation of evidence. It is in that court where the State must prove its case
beyond a reasonable doubt and, if appealed, it is the record of those proceedings
that are reviewed de novo. See Robertson, 228 N.J. at 147. In a trial de novo
the Law Division judge must make findings of fact based upon the record made
in the municipal court where the case was tried. State v. Ross, 189 N.J. Super.
67, 75 (App. Div. 1983); see also State v. Loce, 267 N.J. Super. 102, 104 (Law.
Div. 1991) (stating the Law Division "must make original findings and rulings
on the evidence, but [is] limited to the evidentiary record created in the
Municipal Court"), aff'd o.b., 267 N.J. Super. 10 (App. Div. 1993). The Law
Division "judge does not affirm or reverse what occurred in the municipal court.
Rather, the . . . judge reviews the transcript and makes an independent
determination of the sufficiency of the evidence presented, giving appropriate
deference to any credibility assessments that the municipal court judge may have
A-0330-19T3 8 made." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180
N.J. 45 (2004). An exception to that process exists where the record requires
that it be supplemented "for the limited purpose of correcting a legal error in the
proceedings below." R. 3:23-8(a)(2).
If the conviction is appealed to us, our scope of review is limited, and we
are bound to uphold the Law Division's findings if supported by sufficient
credible evidence in the record. See Robertson, 228 N.J. at 148; State v. Reece,
222 N.J. 154, 166 (2015). Only if the Law Division's decision was so clearly
mistaken or unwarranted "that the interests of justice demand intervention and
correction," can we review the record "as if [we] were deciding the matter at
inception and make [our] own findings and conclusions." Johnson, 42 N.J. at
162; see also State v. Kuropchak, 221 N.J. 368, 383 (2015). But, like the Law
Division, we are in no position to "weigh the evidence, assess the credibility of
witnesses, or make conclusions about the evidence," and should therefore defer
to the municipal court's credibility findings. State v. Barone, 147 N.J. 599, 615
(1997); State v. Locurto, 157 N.J. 463, 472 (1999); State v. Cerefice, 335 N.J.
Super. 374, 383 (App. Div. 2000).
However, "a reviewing court owes no deference to the trial court in
deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010). A trial
A-0330-19T3 9 court's legal conclusions and the legal consequences that flow from established
facts are not entitled to special deference; they are reviewed de novo. State v.
Goodwin, 224 N.J. 102, 110 (2016).
Here, it is clear from the Law Division's judge's written decision that he
did not follow the required procedure. At the outset, the judge stated that his
role in conducting a de novo review was to "to determine whether the findings
made [in the municipal court] could reasonably have been reached on sufficient
credible evidence in the record," quoting Johnson, 42 N.J. at 162 (addressing an
appellate court's standard of review), albeit he followed that observation by
citing to Ross, 189 N.J. Super. at 75 (stating that a trial judge in a de novo review
is not performing "appellate function governed by the substantial evidence rule
but rather an independent fact-finding function in respect of defendant's guilt or
innocence"), and acknowledged that he was "require[d as] the trier of facts to
make his own findings of fact." The judge's reference to the "substantial
evidence rule," State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012),
conflated his role with ours.
Moreover, as already noted, the judge stated in the opening paragraph of
his decision that he considered more than the evidence adduced in the municipal
court. As the judge stated, his decision was "based upon [his review] of the
A-0330-19T3 10 municipal court record, submissions by both parties, arguments by counsel, and
the testimony provided by [defendant] and [the police officer] on December 7,
2016." The judge discussed in his decision his own finding about defendant not
being credible at the 2016 Rule 104 hearing and described the portions of
defendant's testimony that supported his finding that defendant was not credible.
The judge also mentioned that the officer previously testified credibly before
the municipal court and before the Law Division at the Rule 104 hearing in 2016.
In order to determine whether the State proved defendant's guilt beyond a
reasonable doubt, he should not have considered defendant's testimony or made
credibility determinations about defendant from the Rule 104 hearing when
deciding whether the State proved defendant guilty based on the 2013 trial.
Under these circumstances, we must remand to the Law Division for
reconsideration, which should be completed within thirty days. By remanding
the matter, we do not mean to suggest an outcome.
Unfortunately, we must direct another judge perform the remand
proceedings. That is so because the judge who last decided the matter based his
decision in part on his own improper credibility assessment from the N.J.R.E.
104 hearing. But for that assessment, we would not be directing another judge
to handle the remand.
A-0330-19T3 11 Affirmed in part; remanded in part for further proceedings consistent with
our opinion. We do not retain jurisdiction.
A-0330-19T3 12