State v. Robert J. Stein(074466)

139 A.3d 1174, 225 N.J. 582, 2016 N.J. LEXIS 697
CourtSupreme Court of New Jersey
DecidedJuly 19, 2016
DocketA-26-14
StatusPublished
Cited by63 cases

This text of 139 A.3d 1174 (State v. Robert J. Stein(074466)) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Robert J. Stein(074466), 139 A.3d 1174, 225 N.J. 582, 2016 N.J. LEXIS 697 (N.J. 2016).

Opinion

Justice ALBIN

delivered the opinion of the Court.

This appeal involves the application of Rule 7:7-7, the discovery rule in municipal court cases.

Defendant Robert Stein was involved in a motor vehicle accident in Wayne Township and charged with driving while intoxicated (DWI) and careless driving. In pretrial discovery, defendant requested the names of the police officers who responded to the *586 accident scene, including those from a neighboring township. The municipal prosecutor did not provide the names of the neighboring township’s officers, and defendant did not raise the issue with the municipal court. Defendant also requested videotapes, which may-have recorded his appearance, behavior, and motor skills at the accident scene and police headquarters. The municipal prosecutor repeatedly stated at a pretrial hearing and trial that such videotapes did not exist, but defendant apparently did not accept those representations. The record is not clear on whether such videotapes existed at the time of the discovery request because that issue was never clearly presented to the municipal court. Therefore, no definitive ruling was made on that issue.

The municipal court found defendant guilty of DWI and careless driving. In a de novo trial on the record, the Law Division also convicted defendant of DWI and careless driving. Additionally, the Law Division ruled that the municipal prosecutor was not required to provide in discovery the names of the neighboring police officers or the videotapes requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery rulings.

We affirm in part and reverse in part. First, in accordance with Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the police officers from the adjacent jurisdiction who were present at the DWI accident scene. Defendant, however, did not seek relief from the court pursuant to Rule 7:7 — 7(j). Here, the discovery issue was never truly placed before the municipal court. The court could not grant relief on an issue of which it was unaware. Defendant cannot raise the purported discovery violation for the first time on appeal and therefore the issue is waived.

Second, pursuant to Rule 7:7 — 7(b), the municipal prosecutor was required to provide the requested videotapes that may have recorded defendant’s appearance, behavior, and motor skills. Such information, if available, was clearly relevant to a DWI defense. We cannot determine from the record whether any such *587 videotape ever existed or existed at the time of defendant’s discovery request. Therefore, we remand to the Law Division to conduct a hearing to address that issue. If any relevant video recordings were withheld — and we do not suggest any were — the Law Division has wide latitude to fashion an appropriate remedy pursuant to Rule 7:7-7(j).

I.

At the conclusion of a trial in the Wayne Township Municipal Court, defendant was found guilty of DWI, N.J.S.A. 39:4-50, and careless driving, N.J.S.A 39:4-97. The court sentenced defendant as a third-time DWI offender to 180 days in the county jail. It also imposed a ten-year license suspension and applicable fines and fees and mandated that defendant install an ignition-interlock device for one year after completing his license suspension. The court merged the careless driving conviction into the DWI conviction.

The relevant facts come from the testimony adduced at the municipal court proceedings, which were held on December 2, 2009, May 12, 2010, and August 13, 2010. 1

A.

On the evening of November 15, 2008, while dining at a restaurant with his girlfriend, defendant consumed a number of beers. After dinner, defendant drove a 2008 Nissan Attima in which his girlfriend was a passenger. While traveling on Route 23 in Wayne Township in the rain, the Nissan slid from the middle lane into the far left lane, crashing into the rear of a 2006 Audi A4 stopped at a light. The air bags in the Nissan deployed. Defendant testified that the air bag hit him square in the face, stunning him and causing particles released from the air bag to get in his *588 eyes. Although his face was scratched, defendant did not suffer any major injuries.

A police officer from the neighboring township of Pequannock arrived on the scene immediately following the accident, and other Pequannock police officers arrived afterwards. The testimony of the driver and passenger of the Audi differed on when the Wayne Township officers arrived at the crash site, one saying they appeared twenty minutes following the accident and the other saying they appeared in just seconds. Defendant believed that Wayne Township officers arrived two to three minutes after the accident. No one disputes that Wayne Township officers relieved the Pequannock Township officers.

Two Wayne Township police officers who responded to the accident, Sergeant (then-Officer) Andrew Verdón and Officer Alexander DeLuccia, gave substantially similar accounts at trial. The officers, collectively, observed that defendant’s eyes were bloodshot and watery, his speech was slurred, his breath smelled of alcohol, and he was swaying and grasping for support. One of the officers drove defendant to a nearby empty parking lot, where defendant was asked to perform several field sobriety tests — the walk and turn, the one-leg stand, and the horizontal gaze nystag-mus. 2 According to the officers, the parking lot was well lit and evenly paved, and rain was not falling. Both officers stated that defendant failed the three tests and was then arrested for DWI. In contrast, defendant testified that the parking lot was not well lit and that the pavement was wet from rain, which was still falling. Defendant claimed that he was suffering the effects of the automobile crash and the deployment of the air bags while performing the sobriety tests.

*589 Defendant was transported to Wayne police headquarters, where the officers attempted to test his blood alcohol content with an Alcotest. Because the machine malfunctioned, defendant was then taken to a nearby State Police barracks. There, Officer DeLuccia administered a Breathalyzer test to defendant, who gave two breath samples. The.two test results indicated that defendant had a blood alcohol concentration of 0.17 and 0.18 percent. See N.J.S.A. 39:4-50(a) (stating that “a person who ... operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood” is guilty of DWI). Officer DeLuccia testified that no radios or cell phones were in the room while the Breathalyzer was in use. 3

In his testimony, defendant claimed that Sergeant Verdón told him to advise his lawyer “to pull the videotape because we were wearing the radios the whole time and we never took your cell phone away.” Defendant called to the stand Dr.

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Bluebook (online)
139 A.3d 1174, 225 N.J. 582, 2016 N.J. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robert-j-stein074466-nj-2016.