State v. Robert J. Stein(074466) ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Robert J. Stein (074466) (A-26-14)
Argued February 1, 2016 – Decided July 19, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal from defendant’s conviction for driving while intoxicated (DWI) and careless driving, the
Court considers the obligations of a municipal prosecutor under Rule 7:7-7(b), which governs discovery in
municipal court proceedings.
Defendant Robert Stein was charged with DWI and careless driving after a motor vehicle accident in
Wayne Township. The responding officers observed that defendant’s eyes were bloodshot and watery, his speech
was slurred, his breath smelled of alcohol, and, as he walked, he swayed and grasped for support. Defendant also
failed the field sobriety tests. Defendant claimed that, while performing the sobriety tests, he was suffering the
effects of the crash of his vehicle and deployment of the air bags, which hit him squarely in the face. The two breath
samples that defendant gave during a breathalyzer test revealed blood alcohol concentrations of 0.17 and 0.18
percent.
In pretrial discovery, defendant requested the names of the police officers who responded to the 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 videotapes did
not exist. Defendant disputed that contention, and continued to request the tapes. The record is unclear on whether
videotapes existed when defendant requested them because that issue was neither presented to, nor determined by,
the municipal court.
The municipal court found defendant guilty of DWI and careless driving. The court based its DWI finding
on the breathalyzer readings and the officers’ observations of defendant. The court sentenced defendant, as a third-
time DWI offender, to incarceration for a term of 180 days in the county jail and loss of his license for a period of
ten years. After a trial de novo on the record, the Law Division also convicted defendant of DWI and careless
driving, based on the breathalyzer readings and, separately, on observational evidence. The court imposed the same
sentence as did the municipal court. Additionally, the Law Division ruled that the municipal prosecutor was not
required to provide discovery of the names of the neighboring police officers or the videotapes that defendant
requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery
rulings. This Court granted limited certification. 220 N.J. 97 (2014).
HELD: Under 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 responded to the accident scene. Because, when the prosecutor
failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under
the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant
requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot
determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further
proceedings on this issue.
1. The resolution by the trial court of a discovery issue is entitled to substantial deference and will not be overturned
absent an abuse of discretion. On appeal, a court need not defer to a discovery order that is based on a mistaken
understanding of the applicable law. In reviewing the meaning of a court rule, this Court owes no deference to the
interpretations of the trial court and the Appellate Division, unless they are persuasive in their reasoning. (pp. 12-
13)
2. The discovery rules governing the municipal court and the Criminal Part of the Law Division are nearly identical,
and both mandate the disclosure of the same categories of information. Broad discovery and the open-file approach
apply in criminal cases to ensure fair and just trials. In light of the similarity between criminal and municipal court
cases, the procedural protections afforded, and their discovery rules, the liberal approach to discovery in criminal
cases is applicable in municipal court cases. Rule 7:7-7(b) provides that a defendant has a right to discovery of all
relevant material in a municipal court case. The Rule sets forth eleven specific categories of information that a
defendant is entitled to receive, on written request to the municipal prosecutor. (pp. 13-14)
3. Under Rule 7:7-7(b)(7), if the municipal prosecutor knows that police officers from an adjoining jurisdiction
have relevant information pertaining to a DWI case, their names and addresses must be disclosed to the defendant.
The Rule does not distinguish between individuals with relevant information who are located within the
municipality having jurisdiction over the charges against a defendant, and those located outside the jurisdiction. (pp.
14-15)
4. Under Rule 7:7-7(b)(6), a municipal prosecutor is required to provide a defendant, upon his request, with relevant
documentary evidence, including video and sound recordings and images if it is within the State’s custody or
control. A video or sound recording, such as a recording from a patrol car’s dashboard camera, or a video recording
of a breathalyzer test, or defendant’s appearance, behavior and motor skills, including his performance of
psychomotor physical or sobriety tests, is relevant to prove or disprove a DWI defendant’s intoxication. The State
may seek the redaction of a video recording, or an in camera review, if necessary, under appropriate circumstances
and consistent with a defendant’s fair-trial rights. To ensure the availability of such evidence, a defendant should
give written notice to the municipal prosecutor to preserve pertinent videotapes. (pp. 15-18)
5. In this case, the municipal prosecutor had an obligation under Rule 7:7-7(b)(7) to provide defendant with the
names of the police officers from the adjoining town of Pequannock who had responded to the accident scene, based
on the two discovery letters that defense counsel sent to the municipal prosecutor. However, defendant did not seek
to compel the prosecutor to comply with the State’s disclosure obligations, as authorized by Rule 7:7-7(j). Because
defendant did not raise or preserve the issue in municipal court, the Court declines to consider it on appeal. (pp. 18-
21)
6. The two discovery letters that defendant’s counsel sent to the municipal prosecutor requesting videotapes, or
recordings made by a video-equipped police vehicle, of the accident scene and of defendant’s appearance and
performance of the sobriety tests, unquestionably sought relevant evidence. This Court disagrees with the
determination of the courts below, and holds that the videotapes must be disclosed under Rule 7:7-7(b)(6), provided
that such recordings existed at the time defendant sought the information. Such tapes would provide evidence
relevant to defendant’s sobriety and the officers’ conclusion that defendant was under the influence. (pp. 21-22)
7. The Court remands this matter to the Law Division for further proceedings to determine whether any relevant
video recordings ever existed, or were available when defendant made the discovery requests. Depending on the
court’s conclusions on remand regarding whether the tapes existed, the Law Division has wide latitude to fashion an
appropriate remedy pursuant to Rule 7:7-7(j). (pp. 22-24)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the Law Division for further proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON and JUDGE CUFF (temporarily assigned), join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-26 September Term 2014
074466
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT J. STEIN,
Defendant-Appellant.
Argued February 1, 2016 – Decided July 19, 2016
On certification to the Superior Court,
Appellate Division.
Kam S. Minhas argued the cause for appellant
(Mr. Minhas, attorney; Mr. Minhas and
William E. Reutelhuber, on the briefs).
Marc A. Festa, Senior Assistant Prosecutor,
argued the cause for respondent (Camelia M.
Valdes, Passaic County Prosecutor,
attorney).
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 accident scene, including those from a
1
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
2
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
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
3
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 Altima 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 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
1 For the most part, the operation of the breathalyzer is not an
issue in this appeal.
4
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 Verdon 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 nystagmus.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
2 According to the Sergeant Verdon, the horizontal gaze nystagmus
requires a suspected DWI driver to follow the tip of a pen with
each eye. If the suspect is unable to smoothly do so, that is
one indicator that the suspect may be intoxicated. See State v.
Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000).
5
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.
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 Verdon
told him to advise his lawyer “to pull the videotape because we
were wearing the radios the whole time and we never took your
3 Under certain conditions, radio frequency interference may
cause an erroneous Breathalyzer reading. Romano v. Kimmelman,
96 N.J. 66, 82-84 (1984).
6
cell phone away.” Defendant called to the stand Dr. Richard
Saferstein, who was qualified as an expert witness. Dr.
Saferstein offered his opinion that a driver who suffers trauma
in an automobile crash in which air bags deploy may have
difficulty performing psychomotor physical tests. He also
testified that defendant should have been asked to perform the
psychomotor physical tests indoors if the parking lot surface
was slippery due to the rain.
On December 9, 2010, the municipal court found defendant
guilty of DWI and careless driving, crediting the State’s
witnesses, particularly the testimony of Sergeant Verdon and
Officer DeLuccia. The court based its DWI finding on both the
Breathalyzer readings and the officers’ observations of
defendant.
B.
A month after defendant’s arrest, defense counsel submitted
to the municipal prosecutor the first of two letters requesting
discovery. A December 16, 2008 discovery letter requested,
pursuant to Rule 7:7-7(b), the “[n]ames and addresses of any
persons whom the prosecuting attorney or any
representative/agent of the State knows to have relevant
evidence or information” and “video tapes, tape recordings or
any other means of electronic or mechanical means of preserving
evidence, which are within the possession, custody, or control
7
of the State.” The letter also sought the production of any
relevant video or audio recording made by a camera-equipped
vehicle and any relevant 9-1-1 and dispatch recordings.
In a follow-up to a conversation with the municipal
prosecutor, defense counsel requested in a January 26, 2009
letter various categories of documents that remained
outstanding, including (1) the “[n]ame, badge number and rank of
each police officer, as well as the unit number for each police
vehicle, that responded . . . to the alleged accident”; (2) any
video recordings of defendant at the scene, the Wayne Township
police station, or State Police barracks, including any
recordings of his performance of any psychomotor physical tests;
and (3) “any video recordings of defendant while he was in the
custody of or being questioned by members of the Wayne Township
or Pequannock Police Department.”
At a pretrial conference on January 16, 2009, defense
counsel stated that, according to his client, the officers told
defendant that he was being videotaped during his transport to
State Police headquarters and during the Breathalyzer test. The
municipal prosecutor responded that the Wayne Township patrol
cars did not have videotaping capability and that the State
Police reported that there was no video recording of the
Breathalyzer examination. In a letter dated March 3, 2009, the
8
prosecutor further explained that the Wayne Township police and
State Police did not have videotapes of defendant.
At trial, Sergeant Verdon testified that the Wayne Township
Police Department had security cameras in the parking lot and
hallways on the date of defendant’s arrest. In response to
defense counsel’s cross-examination, Officer DeLuccia indicated
his belief that the State Police barracks had video cameras for
security purposes, but he did not know whether they were
operational. The prosecutor cut off any further questioning on
this topic, stating that “[t]here [were] no videotapes
available.” Defense counsel did not press during trial for the
names of the Pequannock police officers, who were present at the
accident scene.
The record does not make clear whether any videotapes
existed at the time defendant made his first discovery request,
one month after his arrest.
C.
In a trial de novo on the record, the Superior Court, Law
Division found defendant guilty of DWI based on the Breathalyzer
readings and, separately, “on observational evidence alone.”4
Defendant was also found guilty of careless driving and given
4 The arguments before the Law Division concerning the
admissibility of the Breathalyzer results are not germane to
this appeal.
9
the same sentence that was imposed in municipal court. At the
conclusion of the trial de novo, the court also addressed the
discovery issues raised by the defense. The court held that
“the State [was] under no obligation to produce the tape of a
suspected drunk driver performing field sobriety tests” or “a
tape from the surveillance camera [at] Wayne Township Police
headquarters” during the discovery process. The court,
moreover, determined that the State was not required to produce
phone logs of the Wayne Township Police Department that would
have assisted defendant in identifying the Pequannock police
officer who first arrived on the scene.
Defendant appealed.
D.
In an unpublished decision, the Appellate Division affirmed
defendant’s DWI conviction based solely on the observations of
the officers and therefore found it did not have to reach issues
raised by defendant related to the admissibility of the
Breathalyzer results. The appellate panel also affirmed the Law
Division’s discovery rulings, for the most part quoting the
reasoning of the Law Division.5
5 We will not discuss issues raised before the Appellate Division
that are not pertinent to this appeal.
10
We granted defendant’s petition for certification “limited
to the issue of whether defendant was improperly denied
discoverable information.” State v. Stein, 220 N.J. 97 (2014).
II.
A.
Defendant argues that the State was required to provide, as
part of discovery, any videotapes that recorded his appearance
and other indicia of his sobriety. In short, defendant contends
that any videotape that existed at the time of his discovery
request had relevance to the issue of whether he was under the
influence and would have had utility in testing the credibility
of the police officers who testified. He also asserts that
because the State uses such tapes for inculpatory purposes in
DWI cases, the defense should have a right to introduce the same
tapes for exculpatory purposes.
Furthermore, defendant claims that the State should have
provided the names of the Pequannock Township officers who first
arrived on the scene because they “could well have supported
[his] case.” Last, he indicates that the municipal prosecutor
cannot “hide behind the fact that these officers were from a
different town” because the charges were brought in the name of
the State.
B.
The State counters that this Court should not consider the
11
discovery issues because defendant did not raise or litigate the
matter before the municipal court.6 The State maintains that
“no specific discovery violation was presented to the judge,”
and “[a]s a result there was no decision made regarding
discovery.” The State posits that defendant cannot be granted a
new trial based on unsubstantiated claims of discovery
violations that he did not press in the municipal court.
The State also argues that it had no duty to provide the
names of the Pequannock Township police officers and any
videotapes, if they did exist. The State, moreover, contends
that, even if videotapes did exist, “[g]iven the testimony and
evidence there is no reasonable probability that video of
defendant at the Wayne Police Department or the New Jersey State
Police Barracks would have altered the judge’s perspective.”
III.
A.
A trial court’s resolution of a discovery issue is entitled
to substantial deference and will not be overturned absent an
abuse of discretion. State v. Hernandez, ___ N.J. ___ (2016)
(slip op. at 14). “We need not defer, however, to a discovery
order that is . . . ‘based on a mistaken understanding of the
6 The State did not present this argument in its Appellate
Division brief on which it relied in opposing defendant’s
petition for certification.
12
applicable law.’” Ibid. (quoting Pomerantz Paper Corp. v. New
Cmty. Corp., 207 N.J. 344, 371 (2011)). In reviewing the
meaning of a court rule, “we owe no deference to the
interpretative statements of the trial court and Appellate
Division, unless they are persuasive in their reasoning.” Ibid.(citing State ex rel. A.B., 219 N.J. 542, 554-55 (2014)).
B.
The discovery rules governing the municipal court and
Criminal Part of the Law Division are almost identical; both
mandate the disclosure of the same categories of information.
Compare R. 7:7-7, with R. 3:13-3(b). Indeed, the municipal
court discovery rules are patterned from the criminal discovery
rules. See Verniero & Pressler, Current N.J. Court Rules,
comment 7 on R. 7:7-7 (2016) (“This rule restates the discovery
provision of [Rule] 3:13-3.”).
Broad discovery and the open-file approach apply in
criminal cases “to ensure fair and just trials.” Hernandez,
supra, __ N.J. at __ (slip op. at 1); State v. Scoles, 214 N.J.
236, 252 (2013) (“[A] defendant has a right to automatic and
broad discovery of the evidence the State has gathered in
support of its charges.”). Criminal cases and quasi-criminal
cases, such as DWI, which are tried in municipal court, share
many of the same procedural protections -- the State bears the
burden of proving guilt beyond a reasonable doubt and the
13
defendant has the right to counsel, to present and cross-examine
witnesses, and not to testify, to name a few. See State v.
Widmaier, 157 N.J. 475, 494-95 (1999). In light of the
similarity between criminal and municipal court cases and their
discovery rules, the liberal approach to discovery in criminal
cases is applicable in municipal court cases.
Rule 7:7-7(b) sets forth a defendant’s right to discovery
in municipal court. The discovery rule states that “in all
cases the defendant, on written notice to the municipal
prosecutor . . . shall be provided with copies of all relevant
material, including but not limited to” the information set
forth in eleven discrete categories. Rule 7:7-7(b)(1)-(11).7
Only two categories are germane to this case.
The first applicable rule states that the municipal
prosecutor is required to provide the “names, addresses, and
birthdates of any persons whom the prosecuting attorney knows to
7 We note that the disclosure requirements of Rule 7:7-7(b)(1)-
(11), which mandate the release of all evidence or information
relevant to a legitimate defense, are more expansive than the
due process disclosures mandated by Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny. In
Brady, the United States Supreme Court held that due process
forbids the government from withholding material evidence
favorable to an accused that has been requested by the defense.
Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. This
bears stating because, to some extent, both the State and
defendant in their arguments refer to Brady as a reference point
for analysis.
14
have relevant evidence or information.” R. 7:7-7(b)(7). This
subsection does not distinguish between relevant evidence
possessed by police officers in the municipality in which the
local prosecutor has jurisdiction and relevant evidence
possessed by police officers from a neighboring municipality.
Provided that the municipal prosecutor knows that police
officers from an adjoining jurisdiction have relevant
information pertaining to a DWI case, the names of those
officers must be disclosed to a defendant.
The second applicable rule provides that the municipal
prosecutor must provide “all relevant . . . books, originals or
copies of papers and documents, or tangible objects, . . .
including, but not limited to, writings, drawings, graphs,
charts, photographs, video and sound recordings, [and] images.”
R. 7:7-7(b)(6) (emphasis added).8 “Relevancy is the hallmark of
8 The version of Rule 7:7-7(b)(6) at the time of trial, unlike
the current rule, did not explicitly identify photographs and
video and sound recordings as discoverable, but the disclosure
of video and sound recordings was understood to be encompassed
within the then-language of the rule. See State v. Mustaro, 411
N.J. Super. 91, 102 (App. Div. 2009) (holding that 2009 version
of Rule 7:7-7(b)(6) required disclosure of videotape of
defendant’s arrest for DWI). The 2010 version of Rule 7:7-
7(b)(6) required disclosure of “books, originals or copies of
papers and documents, or tangible objects, buildings or places
that are within the possession, custody or control of the
government.” No one disputes that, at the time of the
proceedings in this case, the scope of Rule 7.7-7(b)(6)
encompassed photographs and video and sound recordings.
15
admissibility of evidence.” State v. Darby, 174 N.J. 509, 519
(2002). Evidence is relevant if it “ha[s] a tendency in reason
to prove or disprove any fact of consequence to the
determination of the action.” N.J.R.E. 401.9
Just as testimony regarding a DWI suspect’s failure to
perform psychomotor physical or sobriety tests, or walk and
stand without stumbling and grasping for support, or talk
without slurring his speech is relevant evidence to prove
intoxication, likewise is a video or sound recording that would
depict the very same things. The adage that a picture is worth
a thousand words is an apt expression of the value and
importance of video and sound recordings, if they are available
in DWI cases. Indeed, a video recording of events in many cases
may be equal or superior to testimonial evidence. Clearly, if
such evidence is relevant to proving guilt, then the converse
must hold true. Evidence that would have a tendency in reason
to disprove a DWI defendant’s intoxication is relevant and
therefore must be disclosed to a defendant, if such evidence is
in the State’s custody or control.
9 Nothing in N.J.R.E. 401 suggests that the definition of
relevance is different for quasi-criminal cases, such as DWI,
than for actual criminal cases. To the extent that the
Appellate Division intimated otherwise in State v. Carrero, 428
N.J. Super. 495, 507-08 (App. Div. 2012), and State v. Ford, 240
N.J. Super. 44, 48-49 (App. Div. 1990), we reject that notion.
16
Discovery in a municipal court case, like in a criminal
case, “‘is appropriate if it will lead to relevant’
information.” Hernandez, supra, __ N.J. at __ (slip op. at 15)
(quoting State v. Ballard, 331 N.J. Super. 529, 538 (App. Div.
2000)). In the same vein, the discovery rule requires that the
State provide defendant with “‘material evidence affecting [the]
credibility’ of a State’s witness whose testimony may be
determinative of guilt or innocence.” Id. at __ (slip op. at
16) (quoting State v. Carter, 69 N.J. 420, 433 (1976)).
The recordings from a patrol car’s dashboard camera that
depict the interactions between a DWI suspect and police
officers or the sobriety tests performed by the suspect are
clearly relevant, and if the recordings contradict an officer’s
testimony, such evidence has vital impeachment value to the
defense. A video recording of a Breathalyzer test or a
defendant’s appearance, behavior, and motor skills at police
headquarters is also relevant because it may have “a tendency in
reason to prove or disprove” that the defendant was under the
influence. See N.J.R.E. 401. To ensure the availability of
such relevant evidence, a defendant should give written notice
to the municipal prosecutor to preserve pertinent videotapes
pursuant to Rule 7:7-7. Although the defense carries this
obligation, the State also has a duty to preserve evidence that
it knows is relevant to a DWI prosecution.
17
The State may move for the redaction of a video recording,
and an in camera review if necessary, under appropriate
circumstances. If the State can show that a video recording (1)
discloses features or the outlay of headquarters that is likely
to compromise security, (2) captures people not relevant to the
proceedings and whose privacy rights may be infringed, or (3) is
necessary for another justifiable reason, the court may order
redaction consistent with the fair-trial rights of the
defendant.
We now apply those simple, straightforward principles to
the facts of this case.
IV.
A.
The municipal prosecutor had the discovery obligation to
provide defendant with the names of the Pequannock police
officers present at the scene of the motor vehicle accident in
this case. See R. 7:7-7(b)(7) (requiring municipal prosecutor
to disclose “names . . . of any persons whom [he or she] knows
to have relevant evidence or information”). Defense counsel
made the appropriate request in his first and second discovery
letters, seeking the names of “any persons whom the prosecuting
attorney . . . knows to have relevant evidence or information”
(first letter) and the “[n]ame, badge number and rank of each
police officer, as well as the unit number for each police
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vehicle, that responded . . . to the alleged accident” (second
letter). The second letter specifically referenced the
Pequannock Police Department by requesting any relevant video
recordings made by its officers.
Common sense tells us that the first responding police
officers at the scene of an accident caused by a driver
suspected of DWI will have evidence or information relevant to
the case. The officers may know whether the suspect exhibited
injuries resulting from the accident, whether he smelled of
alcohol, whether his speech was slurred, whether he made
admissions, or whether his balance was impaired, to name a few
observations that would be of relevance.
We reject any suggestion in the decisions of the Law
Division and Appellate Division that, as a matter of discovery,
defendant did not have a right to the names of the Pequannock
police officers or, to the extent that those names were not
readily known, to evidence, such as phone logs, that would have
revealed their names.
Having said that, although defendant made the request for
the names of those officers in his discovery letters, at no time
during the municipal court hearings did he seek in a meaningful
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way to compel the municipal prosecutor to comply with the
State’s disclosure obligation.10 Rule 7:7-7(j) provides:
If at any time during the course of the
proceedings it is brought to the attention of
the court that a party has failed to comply
with this rule . . . , the court may order
that party to provide the discovery of
materials not previously disclosed, . . . or
enter such other order as it deems
appropriate.
Defendant did not seek to avail himself of the enforcement
mechanism of Rule 7:7-7(j). Defendant never brought before the
municipal court his demand for the names of the Pequannock
police officers. Defendant may not remain silent on a discovery
violation known to him in municipal court and strategically
calculate that he can bring it to life in a trial de novo before
the Law Division.
10In his mid-trial, municipal court motion brief, under a point
heading entitled, “THE FAILURE OF THE POLICE TO PRESERVE
EVIDENCE . . . ,” defendant mostly focuses on his contention
that the municipal prosecutor failed to preserve videotape
evidence. Under that same point heading, however, defendant
mentions that one of the Pequannock police officers may have
witnessed the accident and therefore may have knowledge “whether
the accident actually happened in Wayne Township or Pequannock.”
For that reason, defendant states that the identity of the
officer is important. But nowhere in the transcripts of the
municipal court proceedings does defendant ask the court to
order the municipal court prosecutor to disclose the names of
the Pequannock officers. Nor does defendant ever question that
the Wayne Township municipal court had jurisdiction to hear the
DWI case. The precise location of the accident was known, and
no challenge was raised concerning the municipality that had
jurisdiction over the case.
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In sum, although the Law Division and Appellate Division
erred in suggesting that the municipal prosecutor could withhold
from defendant the names of relevant witnesses or the means of
identifying them, defendant did not raise or preserve the issue
in the municipal court proceedings. See N.J. Div. of Youth &
Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (noting that
“issues not raised below will ordinarily not be considered on
appeal”); see also Alpert, Goldberg, Butler, Norton & Weiss,
P.C. v. Quinn, 410 N.J. Super. 510, 539 (App. Div. 2009) (noting
that because discovery issue was not presented to trial court,
that issue would not be considered on appeal), certif. denied,
203 N.J. 93 (2010). We therefore decline to grant defendant a
remedy that he did not seek at the appropriate time in the
appropriate forum.
B.
In his two discovery letters, defendant requested “video
tapes . . . which are within the possession, custody, or control
of the State”; any recordings made by a video-equipped police
vehicle at the accident scene; any recordings by cameras at the
Wayne Township police headquarters or State Police barracks
depicting defendant, his arrest, or his performance of
psychomotor physical tests; and any video recording made by
officers of the Pequannock Police Department. The discovery
requests unquestionably sought relevant evidence that must be
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disclosed pursuant to Rule 7:7-7(b)(6) -- provided, of course,
that such video recordings existed at the time defendant sought
the information. At the time of the municipal court
proceedings, any such videotape in the State’s possession was a
“tangible object[],” which, if it contained relevant evidence or
information, had to be disclosed to defendant. R. 7:7-7(b)(6)
(2010) (governing discovery rule at time of proceedings in this
case); see also Mustaro, supra, 411 N.J. Super. at 102.
We reject the Law Division’s determination, affirmed by the
Appellate Division, that the State did not have a discovery
“obligation to produce the tape of a suspected drunk driver
performing field sobriety tests” or “a tape from the
surveillance camera [at] Wayne Township Police headquarters,” or
a tape from any other police department that depicted
defendant’s appearance, behavior, and motor skills, or other
evidence or information relevant to the case. As discussed,
such tapes may have value in the prosecution and defense of a
DWI case. In this case, any video recording was relevant if it
had a tendency in reason to show defendant’s sobriety or impeach
the officers’ accounts that supported the conclusion that
defendant was under the influence.
We cannot conclude with any certainty from the record that
the video recordings sought by defendant never existed or did
not exist at the time he made his discovery requests. The
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municipal prosecutor at the January 16, 2009 pretrial conference
stated that the Wayne Township patrol cars did not have
videotaping capability, but he did not provide information
concerning whether the Pequannock Township patrol cars possessed
such a capability. Although the municipal prosecutor explained
in a March 3, 2009 letter that the Wayne Township Police and
State Police did not have videotapes of defendant, the trial
testimony of Sergeant Verdon and Officer DeLuccia raised some
questions about the operability of cameras in the Wayne Township
Police Department and State Police barracks. Moreover, the
municipal prosecutor did not state that videotapes never existed
or did not exist at the time of defendant’s discovery requests.
Additionally, in the trial de novo before the Law Division, the
prosecutor did not argue that the videotapes requested in
discovery never existed, but rather that the State had no
obligation to produce them.
Surely, defense counsel could have made a better record or
pressed with greater clarity the relief that he sought before
the municipal court. The failure to do so is partly responsible
for the confused record. We find no fault in the way the
municipal court handled the proceedings.
Nevertheless, out of an abundance of caution, we remand to
the Law Division for proceedings to determine whether any
relevant video recordings ever existed or were available at the
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time that defendant made his discovery requests. See R. 3:23-
8(a)(2) (“[T]he court may permit the record to be supplemented
for the limited purpose of correcting a legal error in the
proceedings below.”). We 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).
V.
Accordingly, we affirm in part and reverse in part the
judgment of the Appellate Division, and remand to the Law
Division to conduct proceedings consistent with this opinion.
We do not retain jurisdiction.
CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON and JUDGE CUFF (temporarily assigned),
join in JUSTICE ALBIN’s opinion.
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