STATE OF NEW JERSEY VS. RICHARD JONES, JR. Â (07-15, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4002-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD JONES, JR.,
Defendant-Appellant.
_______________________________________________
Argued May 9, 2017 – Decided August 14, 2017
Before Judges Messano and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Municipal Appeal No. 07-15.
Robert J. Pinizzotto argued the cause for
appellant (Mr. Pinizzotto, attorney; Mr.
Pinizzotto and Nicole E. Wise, on the
brief).
Stephen C. Sayer, Assistant Prosecutor,
argued the cause for respondent (Jennifer
Webb-McRae, Cumberland County Prosecutor,
attorney; Mr. Sayer, of counsel and on the
brief).
PER CURIAM
Defendant Richard Jones, Jr., pled guilty to operating "a
motor vehicle with a blood alcohol concentration of 0.08% or
more," N.J.S.A. 39:4-50(a), but he reserved his right to appeal
the municipal court's denial of his pre-trial motion to exclude
the Alcohol Influence Report (AIR) generated by an Alcotest 7110
MKIII-C breath-testing device (Alcotest). State v. Chun, 194
N.J. 54, 63 (2008), cert. denied, 555 U.S. 825, 129 S. Ct. 158,
172 L. Ed. 2d 41 (2008); see R. 7:6-2(c) (authorizing guilty
pleas reserving "the right to appeal [an] adverse determination
of any specified pretrial motion").
In entering his plea, defendant acknowledged State Trooper
Michael Katz had reason to stop his car in Millville on June 24,
2014, and reason to ask him to submit to a test of his breath.
Katz performed the breath-test utilizing Alcotest # ARWC-0054
located at the New Jersey State Police Barracks in Port Norris.
The AIR reported a blood alcohol concentration (BAC) of .20%,
which defendant acknowledged he had no reason to believe was
inaccurate.1
Accepting the plea, the municipal court imposed the minimum
penalties available given defendant's prior conviction for
driving while under the influence. The court also granted the
1
The prosecutor was also prepared to establish defendant's guilt
through Trooper Katz's testimony on his observations. He
provided his consent to the conditional plea, but he reserved
his right to present evidence establishing guilt without
reliance on the Alcotest results in the event defendant
prevailed on appeal.
2 A-4002-15T3
State's motion to dismiss a related charge for an unsafe lane-
change, N.J.S.A. 39:4-88(b).
Defendant appealed to the Law Division. For reasons stated
in a written opinion filed on April 8, 2016, the judge affirmed
the municipal court's evidentiary ruling and addressed and
rejected additional claims defendant had not raised or preserved
in the municipal court. Those claims are fairly characterized
as general challenges to municipal court prosecutions for drunk
driving. Defendant appeals and challenges the Law Division's
determinations, which we now affirm.2
Defendant presents these issues for our consideration:
I.
THE COURT IMPROPERLY ADMITTED INTO EVIDENCE
THE ALCOHOL INFLUENCE REPORT AND ALCOTEST
CALCULATION RESULTS DOCUMENTS OVER DEFENSE
OBJECTION, AND THUS, IMPROPERLY ADMITTED
DEFENDANT'S BREATH TEST RESULT.
II.
DUE PROCESS AND JUDICIAL INDEPENDENCE MUST
REMAIN HALLMARKS OF AMERICAN AND NEW JERSEY
JURISPRUDENCE.
III.
THE STATUTORY SCHEME OF THE MUNICIPAL COURTS
OF THE STATE OF NEW JERSEY PREVENTED THE
2
Defense counsel included the Law Division's written decision in
the appendix but did not provide a copy of a judgment or order
entered in the Law Division. Defense counsel provided documents
admitted in municipal court in response to the court's request.
3 A-4002-15T3
DEFENDANT FROM OBTAINING A FAIR AND
IMPARTIAL HEARING ON THE MERITS.
IV.
THE COURT ERRED IN DENYING DEFENDANT'S
MOTION SEEKING RECUSAL OF THE MUNICIPAL
COURT JUDGE WHO SAT BELOW.
V.
THE MUNICIPAL PROSECUTOR IS NOT A FAIR AND
IMPARTIAL ADVOCATE AS REQUIRED BY NEW
JERSEY'S SYSTEM OF JUSTICE AND MUST BE
DISQUALIFIED/RECUSED FROM PROSECUTING THE
WITHIN MATTER.
I.
Defendant moved to exclude the AIR by oral application on
the day of trial, and the municipal court conducted a hearing on
admissibility pursuant to N.J.R.E. 104(a). In conformity with
the Supreme Court's order in Chun, Trooper Katz, as the
"operator who conducted the tests," was "available to testify."
194 N.J. at 154. Defense counsel did not challenge Trooper
Katz's qualifications to operate or his operation of the
Alcotest and in fact stipulated Katz is a certified Alcotest
operator.
Defense counsel challenged the admissibility of
"foundational documents" required by Chun, 194 N.J. at 154, for
admission of defendant's AIR — specifically, the most recent
Alcotest 7110 Calibration Record, the "Alcotest 7110 Calibration
4 A-4002-15T3
Certificate Part I - Control Tests," and its "Part II -
Linearity Tests." We refer to the documents at issue
collectively as the calibration documents.
Sergeant Michelle Goncalves, of the New Jersey State
Police, was the qualified coordinator who performed the
calibration and certified and signed the calibration documents,
all of which related to testing of Alcotest # ARWC-0054, which
is the device Trooper Katz operated. The Supreme Court's order
in Chun includes the calibration documents in the select group
of "foundational documents" that "shall be offered into evidence
to demonstrate the proper working order of the device." Ibid.
The order in Chun does not require the State to make the
coordinator available to testify. Id. at 150-54.
Defense counsel sought exclusion of the calibration
documents based on the State's failure to authenticate them and
establish an adequate foundation for their admission as business
records pursuant to N.J.R.E. 803(c)(6). The only witness,
Trooper Katz, could not identify Goncalves's signature, had
never met her and had no personal knowledge of her assignment or
duties. Moreover, he testified he had not seen the calibration
documents until they were shown to him during the hearing.
5 A-4002-15T3
Relying on Chun, the municipal court determined the
calibration documents were admissible without the need for
testimony from the coordinator.
In the Law Division, the judge relied on Chun, but not
exclusively. The judge considered Sergeant Goncalves's detailed
certifications, which were included in and part of the
calibration documents she had signed.
The calibration documents were duplicate copies. See
N.J.R.E. 1001, 1003. The copies show the seal of the New Jersey
State Police printed under or over the text of the
certifications. The copies plainly show a signature purporting
to be that of Sergeant Michelle Goncalves, her badge number,
and, among other things, the serial number of the Alcotest
device she tested on May 6 and Trooper Katz operated on June 25,
2014.
The text of Sergeant Goncalves's identical certifications
state:
Pursuant to law, and the "Chemical Breath
Testing Regulations" N.J.A.C. 13:51, I am a
duly appointed Breath Test
Coordinator/Instructor. In my official
capacity, and consistent with "Calibration
Check Procedure for Alcotest 7110," as
established by the Chief Forensic Scientist
of the Division of State Police, I perform
calibration checks on approved instruments
employing infrared analysis and
electrochemical analysis, when utilized in a
6 A-4002-15T3
single approved instrument as a dual system
of chemical breath testing. Pursuant to, and
consistent with, the current "Calibration
Check Procedure for Alcotest 7110," as
established by the Chief Forensic Scientist,
I performed a Calibration Check on the
approved instrument identified on this
certificate. The results of my Calibration
Check are recorded on this certificate, which
consists of two parts on two pages: Part I -
Control Tests; and Part II - Linearity Tests.
I certify that the foregoing statements made
by me are true. I am aware that if any of the
foregoing statements made by me are willfully
false, I am subject to punishment.
We agree with the judge that this certification provides
the necessary authentication. Pursuant to N.J.R.E. 902(a),
"[e]xtrinsic evidence of authenticity as a condition precedent
to admissibility is not required with respect to . . . [a]
document purporting to bear a signature affixed in an official
capacity by an officer or employee of the State of New Jersey."
Sergeant Goncalves's certification includes a signature
purporting to be hers and states she prepared and signed the
document in her official capacity as a duly appointed Alcotest
coordinator. Thus, the calibration documents were self-
authenticating, N.J.R.E. 902(a).
In the Law Division, defendant argued the calibration
documents did not qualify as self-authenticating pursuant to
N.J.R.E. 902(a), because they were copies and required an
additional certification in conformity with N.J.R.E. 902(d). We
7 A-4002-15T3
disagree. N.J.R.E. 902(d) provides an additional basis for
self-authentication, not an additional requirement for
authenticating a copy of a document that is self-authenticating
pursuant to N.J.R.E. 902(a).
As defense counsel acknowledges on appeal, N.J.R.E. 1003
allows admission of copies as duplicates. He now contends that
either a certification or testimony indicating these copies were
"true copies" was required. In making that argument, he ignores
N.J.R.E. 901, which permits authentication or identification "by
evidence sufficient to support a finding that the matter is what
its proponent claims," and N.J.R.E. 1003, which provides copies
are admissible "unless (a) a genuine question is raised as to
the authenticity of the original, or (b) in the circumstances it
would be unfair to admit the duplicate in lieu of the original."
The circumstances under which defense counsel received the
copies of the calibration documents, as part of the discovery
mandated by Chun, provided adequate circumstantial evidence to
demonstrate the documents were copies of the self-authenticating
calibration documents. There was no unfairness in admitting the
documents because the State was willing to obtain a witness or
proceed to trial on Trooper Katz's observations, efforts
defendant mooted by entering the conditional plea.
8 A-4002-15T3
As the judge explained in his written decision, there was
"no genuine issue raised as to the authenticity of the
original." Defense counsel's only argument was that it is
possible to alter the calibration documents the State produced
in discovery. A possibility of alteration does not raise a
genuine issue.
The certifications quoted above also provide the foundation
required for admission of the calibration documents as business
records pursuant to N.J.R.E. 803(c)(6). They establish that
Sergeant Goncalves tested the device and reported the results on
May 6, 2014, in the regular course of her duties as a duly
authorized Alcotest coordinator and based on what she did and
observed. And, in Chun, the Supreme Court plainly stated that
all of the "foundational documents" it recognized "qualify as
business records." 194 N.J. at 142.
Defendant has not demonstrated error warranting reversal of
the denial of his motion to exclude the calibration documents.
II.
Defendant's remaining arguments, which were not raised in
municipal court or preserved for appeal with his conditional
guilty plea, have insufficient merit to warrant extended
comment. R. 2:11-3(e)(2).
9 A-4002-15T3
"Generally, a defendant who pleads guilty is prohibited
from raising, on appeal, the contention that the State violated
his constitutional rights prior to the plea." State v. Crawley,
149 N.J. 310, 316 (1997); accord State v. Knight, 183 N.J. 449,
470 (2005) (quoting Crawley and citing and quoting Tollett v.
Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d
235, 243 (1973)). We address defendant's claims of judicial
partiality and threats to judicial independence creating an
appearance of partiality because the claims implicate
proceedings that followed entry of his guilty plea.
Defendant's first point in this series of arguments (Point
II of his brief) is a general discussion of the importance of
judicial independence and impartiality. It provides a backdrop
for the arguments that follow and requires no comment.
His second point in this series (Point III of his brief)
includes two arguments concerning the municipal courts in this
State.
The first argument is a claim that statutes addressing
appointment of the municipal court judges and the duration of
their appointments pose a threat to defendant's right to a
neutral magistrate. The laws defendant challenges are
authorized by Article VI, Section 1, ¶ 1 of our State
Constitution. The municipal officials and governing bodies
10 A-4002-15T3
authorized to appoint municipal court judges, N.J.S.A. 2B:12-1,
do so as "statutory" agents of the Legislature. Kagan v.
Caroselli, 30 N.J. 371, 379 (1959). Moreover, municipal courts
and the judges appointed to serve there are subject to oversight
of the Supreme Court. Ibid.
The second claim is an argument supported with reference to
extrajudicial statements and reports of revenue collected from
costs, fees, fines and monetary penalties imposed by courts.
Defendant perceives this system as one providing undue pressure
and incentive for judges to order monetary sanctions and enhance
revenue available to fund municipal courts and their judges.
Remuneration for services of judges of the municipal court is
based on salary established pursuant to N.J.S.A. 2B:12-7(b), not
on the volume of revenues from fines and penalties. Any impact
such revenues may have on judicial salaries and working
conditions is indirect, attenuated and simply not comparable to
circumstances addressed in cases defendant cites involving
impartiality and its appearance attributable to judges' personal
interest in the outcome of cases.
The next argument defendant presents (Point IV of his
brief) suggests a claim that the Law Division erred in denying
his motion to recuse the municipal court judge, which the judge
properly denied because it was not presented to the municipal
11 A-4002-15T3
court judge. R. 2:12-2. In actuality, defendant quotes
passages from Supreme Court decisions torn from their context
and contends the Court's enunciated "judicial policy" has placed
judges of the municipal and superior courts "in the untenable
and unenviable position of being required to follow the policy
. . . , which conflicts with the Code of Judicial Conduct."3 He
continues and argues, "Defendant herein is therefore deprived of
fundamental due process rights under the Constitutions of the
United States and the State of New Jersey and therefore must be
acquitted of all charges."
Defendant argues the quotations he selected direct judges
to favor conviction of drunk drivers. The Court's decisions
cannot be understood to direct anything other than an impartial
consideration of the evidence in light of the relevant
substantive, procedural and constitutional law. In selecting
quotes, defendant overlooks what the Court said in Chun —
"Zealousness in ridding our roads of drunk drivers cannot
overcome our ordinary notions of fairness to those accused of
these offenses." 194 N.J. at 118.
3
The quotations are from State v. Tischio, 107 N.J. 504, 514
(1987) (discussing developments in the drunk driving laws and
their application), appeal dismissed, 484 U.S. 1038, 108 S. Ct.
768, 98 L. Ed. 2d 855 (1988), and In re Collester, 126 N.J. 468,
472 (1992) (discussing appropriate collateral consequences).
12 A-4002-15T3
Defendant's final argument is based on N.J.S.A. 22A:3-4.
He contends the statute provides an impermissible financial
incentive for municipal prosecutors to pursue convictions and
disregard their obligation to do justice. See State v.
Timmendequas, 161 N.J. 515, 587 (1999) (discussing prosecutors'
well-established duty to serve the interest of justice). The
statute requires a "prosecutor" who seeks, but fails to obtain,
a municipal court conviction to pay statutory costs. N.J.S.A.
22A:3-4. Defendant presents no evidence or authority
establishing the Legislature intended the reference to include
"municipal prosecutors," who are "person[s] appointed to
prosecute all offenses over which the municipal court has
jurisdiction." N.J.S.A. 2B:25-2(a). When questioned about
application of the statute in the Law Division, defense counsel
did not provide a responsive answer. Without any indication
municipal courts order individual municipal prosecutors to pay
costs pursuant to N.J.S.A. 22A:3-4, the claim does not warrant
discussion.
In conclusion, review of the record and briefs discloses no
reason to reverse or modify any determination made by the judge
who decided the de novo appeal in the Law Division.
Affirmed.
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