STATE OF NEW JERSEY VS. MIRAJ A. PATEL (44-2013, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3189-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIRAJ A. PATEL,
Defendant-Appellant.
__________________________
Argued May 28, 2019 – Decided June 21, 2019
Before Judges Mitterhoff and Susswein.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Municipal Appeal No. 44-
2013.
Thomas Michael Cannavo argued the cause for
appellant (The Hernandez Law Firm, PC, attorneys;
Steven W. Hernandez and Thomas Michael Cannavo,
of counsel and on the brief).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).
PER CURIAM
Defendant Miraj Patel appeals from his 2014 driving while intoxicated
(DWI) conviction, which arises from an arrest that occurred in December 2011.
This is the second time we have heard an appeal in this case. In our prior
unpublished opinion, State v. Patel, No. A-1683-14 (App. Div. May 2, 2016),
we remanded the matter to the Law Division with instructions to determine,
among other things, whether the State's proofs adduced at the municipal court
trial were sufficient to support defendant's DWI conviction based on
observational evidence. 1 The Law Division judge on remand did not address
that part of our decision.
It is vitally important to complete the de novo review of defendant's DWI
conviction in light of the New Jersey Supreme Court's decision in State v.
1
Under N.J.S.A. 39:4-50, a defendant can be convicted of DWI in two distinct
ways. The first is characterized as the observational method, and depends on
testimony from the arresting officer concerning the defendant's driving
behavior, physical appearance, demeanor, the odor of alcoholic beverages,
admissions as to recent alcohol consumption, and performance during field
sobriety tests.
The second way to prove a DWI offense is characterized as the "per se"
method, and is based on objective measurement of the suspect's blood alcohol
content (BAC) through chemical blood tests or chemical breath testing using the
Alcotest 7110 MKIII-C machine. In this case, the municipal court judge found
defendant guilty under both methods for proving a violation of N.J.S.A. 39:4-
50.
A-3189-16T1
2
Cassidy, 235 N.J. 482 (2018), where the Court invalidated the Alcotest breath
test results in many cases, including this one. Id. at 498. As a result, defendant's
conviction based on a per se violation of N.J.S.A. 39:4-50 is void. We therefore
remand this case to complete the de novo review of the municipal court judge's
decision to convict defendant based on the observational method for proving a
DWI offense.
I.
Defendant was arrested for DWI on December 2, 2011. The facts
pertaining to the arrest and DWI investigation were recounted in our prior
opinion and need only be summarized in this opinion. In describing the State's
proofs at the municipal court trial, we explained:
Shortly before midnight on December 2, 2011,
Woodbridge Police Officer Joseph A. Angelo stopped
defendant after observing him travel 44 m.p.h. in a 25
m.p.h. zone. Defendant fumbled with his credentials
and smelled of alcoholic beverages. After exiting his
vehicle to perform field sobriety tests, defendant
swayed while standing in place. He raised his arms for
balance during the one-leg-stand test. While he
performed the walk-and-turn test, he failed to place the
heel of one foot closely in front of the toes of the other,
and he twice deviated from a straight line. He admitted
he consumed two beers and a shot. His eye movements
were not smooth while performing the Horizontal Gaze
Nystagmus test.
[Patel, slip op. at 2.]
A-3189-16T1
3
Defendant produced an expert witness at trial who challenged Officer
Angelo's interpretation of defendant's performance during the field sobriety tests
and disagreed with the officer's conclusion that defendant was intoxicated. After
considering the evidence adduced by the State and by defendant at trial, the
municipal court judge found defendant guilty of DWI based on both Alcotest
chemical breath test results (a per se violation of N.J.S.A. 39:4-50) and Officer
Angelo's testimony concerning defendant's appearance and behavior (an
observational violation of N.J.S.A. 39:4-50).
On October 30, 2014, a Superior Court judge conducted a de novo review
of the municipal court trial record and affirmed defendant's DWI conviction.
However, the judge only addressed the per se method of proving the DWI
offense based on the Alcotest results. The judge made no ruling with respect to
the observational method for proving DWI.
Defendant appealed and on May 2, 2016, we issued an opinion affirming
in part and remanding in part to the Law Division. Patel, slip op. at 28. Most
of the issues that were raised in the first appeal related to the admissibility of
the Alcotest evidence. We remanded the case to the Law Division to decide, for
example, whether it should draw an adverse inference against the State based on
A-3189-16T1
4
our conclusion that there had been a discovery violation when police failed to
preserve a stationhouse surveillance video recording of the events that occurred
in the processing room where the Alcotest was administered.2 We also
instructed the Law Division judge on remand to rule on the observational method
of proving a DWI offense.
The Law Division judge conducted the remand hearing on December 7,
2016. The judge did not rule explicitly on whether he was drawing an adverse
inference based on the discovery violation we had found, although we infer from
his brief mention of the issue that he did not draw such an inference.
Furthermore, the remand judge did not address the observational method for
proving a DWI offense.
On March 13, 2017, defendant moved for reconsideration arguing that the
Law Division judge failed to rule on the observational method and failed to
2
We held in our prior opinion that the failure to preserve the surveillance video
recording did not violate due process, but nonetheless was a discovery violation
under Rule 7:7-7. In reaching that conclusion, we found that the surveillance
video was relevant and discoverable material because it might have provided
direct evidence of a fact in issue, that is, whether the officer who administered
the breath test continuously observed defendant for twenty minutes as required
by breath testing protocols. Defendant argued that the officer was distracted
from that task when he received a call on his cell phone – a circumstance that
might have been corroborated by the deleted surveillance video. Defendant also
sought production of the officer's personal cell phone records to establish that
the officer used the phone during the twenty-minute pre-test observation period.
A-3189-16T1
5
consider the negative inference arising from the discovery violation. On March
16, 2017, the Law Division judge denied the motion for reconsideration.
Defendant's present appeal was stayed by a November 2, 2017 order
issued by the Special Master appointed by the Supreme Court in Cassidy. That
case addressed the impact of a State Police coordinator's failure to properly
calibrate the Alcotest machines that were used in five counties. Cassidy, 235
N.J. at 501, 512. On November 8, 2018, the Supreme Court issued its decision
in Cassidy, ruling that the Alcotest results from the machines that had been
calibrated by that coordinator are inadmissible. Id. at 498. The Supreme Court's
ruling affects more than 20,000 cases, including this one. Id. at 496-98.
II.
On this second appeal, defendant presents the following contentions:
POINT I: THE LAW DIVISION FAILED TO
FOLLOW THIS COURT'S REMAND
INSTRUCTIONS IN NOT RULING ON THE DWI
OBSERVATIONAL PRONG. THUS, THIS COURT
SHOULD EXERCISE ORIGINAL JURISDICTION
AND ACQUIT DEFENDANT ON THIS PRONG.
POINT II: THIS COURT SHOULD SUA SPONTE
APPLY A NEGATIVE INFERENCE TO ALL
REMAINING ISSUES FROM THE DISCOVERY
VIOLATION IN LIGHT OF THE RECENTLY
DECIDED STATE SUPREME COURT CASE OF
STATE V. STEIN.
A-3189-16T1
6
POINT III: GIVEN THE NEGATIVE INFERENCE,
THE LAW DIVISION ERRED IN FAILING TO
EXCLUDE THE ALCOTEST RESULTS BECAUSE
THE STATE FAILED TO SATISFY THE TWENTY-
MINUTE OBSERVATION REQUIREMENT.
POINT IV: THE LAW DIVISION ERRED IN
AFFIRMING THE MUNICIPAL QUASHING OF
THE SUBPOENA FOR THE OFFICER'S CELL
PHONE RECORDS. DEFENDANT'S DUE PROCESS
AND CONFRONTATION RIGHTS WERE
VIOLATED.
III.
In view of the Supreme Court's definitive ruling in Cassidy, all of the
issues raised by defendant pertaining to the administration of the Alcotest are
moot. See Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App.
Div. 2006) (an issue is moot when the decision sought in a matter, when
rendered, can have no practical effect on the existing controversy). We therefore
need only address the remaining issues that pertain to the observational method
for proving a violation of N.J.S.A. 39:4-50.
A.
The Court's decision in Cassidy underscores the need in this case to
complete the de novo review of the municipal court judge's decision to convict
defendant based on observational evidence. Defendant now urges us to exercise
original jurisdiction pursuant to Rule 2:10-5 and undertake the de novo review
A-3189-16T1
7
ourselves. We decline to do so. Original jurisdiction by an appellate court is
disfavored where fact-finding is involved. See State v. Santos, 210 N.J. 129,
142 (2012). Relatedly, an appellate court should not invoke original jurisdiction
where evidence needs to be weighed anew. Cannuscio v. Claridge Hotel &
Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). See also State v. Micelli,
215 N.J. 284, 293 (2013) (original jurisdiction by an appellate court is
disfavored if the evidence poses issues of credibility or requires the subjective
and intuitive evaluations of a trial court).
In this instance, were we to exercise original jurisdiction, we would have
to weigh the competing testimony of the arresting officer and the defense expert
who criticized the officer's interpretation of the field sobriety test results. The
Law Division is better suited to perform the de novo review of the municipal
court record, and we are confident that the Law Division on remand will
expeditiously review the municipal court's finding of guilt based on the
observational method of proving a DWI offense.
B.
We next consider whether the discovery violation/adverse inference issue
has become moot in light of Cassidy, and if not, whether the Law Division judge
on remand should draw an adverse inference against the State when considering
A-3189-16T1
8
whether the State has proved beyond a reasonable doubt that defendant is guilty
of DWI based on the observational evidence adduced at the municipal court trial.
When we addressed the adverse inference issue in our prior decision, we
analyzed the alleged discovery violation in the context of whether the officer
who administered the Alcotest deviated from standards that require that a DWI
suspect be observed continuously for twenty minutes before he or she submits a
breath sample for chemical testing. We held that the surveillance video was
relevant because it might have shown whether the officer complied with Alcotest
breath testing procedures. See footnote 2. Defendant now frames the relevance
issue in a different fact-sensitive context, arguing that the improperly deleted
surveillance video remains relevant after Cassidy because it also would have
shown defendant's appearance and demeanor (e.g., swaying, falling asleep, etc.),
and not just whether the officer complied with breath-testing procedures.
We agree that the video recording might have shown whether defendant
was visibly intoxicated. We therefore conclude that the adverse inference issue
is not moot after Cassidy because the surveillance video would have been
relevant evidence pertaining to the observational method of proving DWI and
not just the per se method. We recognize that the evidential value of
stationhouse surveillance video may be considerably less substantial than, for
A-3189-16T1
9
example, a mobile audio-video recording or body worn camera audio-video
recording of field sobriety tests and a suspect's interactions with the arresting
officer at roadside. Even so, we are satisfied that a security camera video
recording of defendant's physical appearance and behavior in the stationhouse
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. See N.J.R.E. 401 ("'Relevant
evidence' means evidence having a tendency in reason to prove or disprove any
fact of consequence to the determination of the action."). See also State v.
Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005).
We turn next to the appropriate remedy for the discovery violation in the
specific context of the observational method for proving a violation of N.J.S.A.
39:4-50. In our prior opinion, we concluded that exclusion of the Alcotest
results would be excessive. Patel, slip op. at 21. We held, "[i]nstead, the Law
Division may, if it deems it warranted under the facts, draw an inference that the
contents of the video were unfavorable to the State." Ibid. We believe that
affording discretion to draw an adverse inference is an appropriate remedy with
respect to the observational method of proving a DWI offense and therefore
should apply as well on the second remand.
A-3189-16T1
10
Defendant urges us to go one step further and order that a negative
inference be drawn against the State. In support of that contention, defendant
relies on State v. Stein, 225 N.J. 582 (2016), for the proposition that when the
State commits this type of discovery violation, a remedy is required and is not
optional. We do not read Stein as requiring that an adverse inference be drawn.
For one thing, the Court did not find that there had been a discovery violation in
that case and never specifically mentioned the option of using an adverse
inference. Rather, the Court explained, "[w]e do not suggest that any discovery
violation occurred. If any relevant video recordings were withheld, the Law
Division has wide latitude to fashion an appropriate remedy pursuant to Rule
7:7-7(j)." Id. at 601.
Nor does our decision in State v. Richardson, 452 N.J. Super. 124 (App.
Div. 2017), require that we order that an adverse inference be drawn against the
State because of the discovery violation. That case involved the failure to
preserve surveillance video recordings from the police booking room that likely
would have documented the search of the defendant's sock that revealed multiple
packets of heroin. Id. at 128. We concluded that a discovery violation had
occurred and that the trial court abused its discretion when it refused defendant's
request for an adverse inference jury instruction. Id. at 137-42. We interpret
A-3189-16T1
11
Richardson to require that the trier of fact be instructed that it may3 draw an
adverse inference against the State; we do not read Richardson to direct the trier
of fact to draw a negative inference.
In the present case, of course, there is no jury to charge. Accordingly, we
instead instruct that as part of the de novo review of the municipal court's
decision to convict defendant of DWI based on the observational evidence
adduced at trial, a determination shall be made on the record whether to draw an
adverse inference against the State in view of the discovery violation we have
3
In Richardson, we set forth in a footnote the complete text of the analogous
Model Jury Charge to be read to the jury when police fail to preserve their
interview notes. 452 N.J. Super. at 136 n.5. That instruction reads in pertinent
part:
It is for you the jury to decide the credibility of the
evidence presented. In evaluating the officer's
credibility, you may infer that notes lost or destroyed
by an officer before trial contained information
unfavorable or inconsistent with that officer's trial
testimony or final report. In deciding whether to draw
this inference, you may consider all the evidence in the
case, including any explanation given as to the
circumstances under which the contemporaneous notes
were lost or destroyed. In the end, however, the weight
to be given to the testimony, and to the loss or
destruction of the notes, is for you, and you alone, to
decide.
[Model Jury Charge (Criminal), "Failure of Police to
Preserve Notes" (2011) (emphasis added).]
A-3189-16T1
12
already found. The reasons for drawing or refraining from drawing a negative
inference against the State, and the impact of any such adverse inference, if
drawn, shall be placed on the record to allow for appropriate review of the
exercise of judicial discretion. We believe this approach is consonant with the
principles established in Stein and Richardson, ensuring that the discovery
violation is addressed while affording latitude to tailor the remedy to the
particular facts and circumstances of this case.
Any arguments posed by defendant that we have not addressed lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
For the foregoing reasons, we remand this case to the Law Division to
complete the de novo review of defendant's municipal court DWI conviction
based on the observational method for proving a violation of N.J.S.A. 39:4 -50.
The Law Division judge shall issue its decision by August 15, 2019. We do not
retain jurisdiction.
A-3189-16T1
13