STATE OF NEW JERSEY VS. BIJAL AMIN(42-14, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2926-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BIJAL AMIN,
Defendant-Appellant.
__________________________
Submitted March 29, 2017 – Decided September 5, 2017
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Municipal
Appeal No. 42-14.
Levow DWI Law, PC, attorneys for appellant
(Evan M. Levow, of counsel and on the brief;
Michael V. Troso, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Robin A. Hamett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
On September 22, 2013, defendant Bijal Amin was arrested in the
Borough of Stratford and charged with driving while intoxicated
(DWI) in a school zone, N.J.S.A. 39:4-50(g)(1), and careless
driving, N.J.S.A. 39:4-97. Following the municipal court's denial
of his motion to dismiss the charges or suppress the Alcotest
results, defendant entered a conditional guilty plea to an amended
charge DWI under N.J.S.A. 39:4-50(a). The municipal court
sentenced defendant as a first-time offender to a seven-month
driver's license suspension, ordered him to participate in the
Intoxicated Driver Resource Center program for a period of twelve
hours, and imposed the appropriate fines, costs, and surcharges.
Defendant's appeal to the Law Division was limited to the
motion to suppress the results of the Alcotest based on alleged
missing repair records and as a discovery sanction. The Law
Division judge rejected defendant's arguments, upheld the Alcotest
results, and found defendant guilty of DWI.
In this appeal, defendant raises the following contentions:
POINT I: THE COURT ERRED IN NOT GRANTING
[DEFENDANT'S MOTION TO DISMISS]
BASED ON THE STATE'S FAILURE TO
PROVIDE "EXTREMELY MATERIAL"
DISCOVERY.
POINT II: THE COURT ERRED IN FAILING TO
GRANT [DEFENDANT'S] MOTION TO
DISMISS [FOR] THE COURT'S FAILURE
TO ENFORCE THE DISCOVERY ORDER.
We reject these contentions, and affirm.
The following facts are pertinent to our review. Defendant's
Alcotest results revealed he had a blood alcohol concentration of
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0.12 percent. To verify the Alcotest machine on which he was
tested was in proper working order, defendant requested a document
known as a Breath Testing Instrumentation Service Report (BTISR),
which would show whether the CU34 simulator solution unit used
with the Alcotest machine had been repaired. A BTISR is a document
generated by the Division of State Police that certifies the
results of inspections of specific breath test devices.
On December 12, 2013, Municipal Court Judge John Morelli
entered a Holup1 order that compelled the State to produce "the
[BTISR], detailing any problems for placing the machine out of
service and returning the machine to Draeger; . . . Draeger 'Return
& Repair Form', and the Draeger 'Packing Slip' if in the possession
of the State or [the State is] able to obtain." The order provided
that failure to produce this discovery within thirty days "may
result in dismissal of this matter." (Emphasis added).
Defendant moved to dismiss the charges or suppress the
Alcotest results based on the State's alleged failure to produce
repair records for simulator solution unit DDUK S3-0133, which was
the unit used with the Alcotest machine at the time of defendant's
1
State v. Holup, 253 N.J. Super. 320 (App. Div. 1992). A Holup
order provides a more formal mechanism by which to notice the
State of defendant's discovery requests, and practically, advises
the State of defendant's reservation of the right to seek dismissal
or suppression for non-compliance.
3 A-2926-15T3
testing (unit 133). Defendant conceded the State produced a BTISR,
dated April 10, 2013, which showed unit 133 was placed in service
that day (the April 2013 BTISR), but argued he did not receive a
BTISR showing when and why the unit was removed from service (the
alleged missing April 2013 BTISR).
The municipal prosecutor represented to the municipal court
judge that all discovery had been provided and there was no missing
April 2013 BTISR. The prosecutor explained that the Stratford
Police Department (SPD) had two simulator solution units, unit 133
and unit 163. When one unit was in use, the other unit was sent
to Draeger for recertification and then returned to the SPD ready
for use. Unit 163 had malfunctioned on April 10, 2013, five months
before defendant's Alcotest. New Jersey State Trooper Michael P.
Gibson removed unit 163 from service, sent it to Draeger for
repair, placed unit 133, which was recertified and fully
functional, into service, and issued the April 2013 BTISR
certifying that unit 133 was "returned from outside evaluation and
placed back in service" and "found to be in proper working order."
The prosecutor also represented that the Alcotest machine on
which defendant was tested never left the SPD and the machine was
in proper working order at the time of testing. He argued the
alleged missing April 2013 BTISR was irrelevant because the
Alcotest machine on which defendant was tested was recalibrated
4 A-2926-15T3
in June 2013, three months before defendant's testing, and found
to be operating properly, and there was a valid recertification
for unit 133 on the day of defendant's testing. The municipal
court judge denied defendant's motion without prejudice and
ordered the prosecutor to provide further explanation about the
alleged missing April 2013 BTISR.
Defendant later conceded he had received the twelve
foundational documents required by Chun.2 However, he argued he
still had not received the alleged missing April 2013 BTISR, and
also had not received April 11, 2005 BTISRs removing unit 133 from
and returning it to service or a Draeger packing slip. Defendant
acknowledged he had received a May 16, 2013 Draeger return packing
slip, but argued he had not received BTISRs removing the unit from
and returning it to service (the alleged missing May 2013 BTISRs).
The prosecutor represented that the SPD Chief of Police had
searched for the above documents and found they did not exist, and
the State produced all documents to which it had access. The
prosecutor subsequently contacted Trooper Gibson, who advised he
searched but found no documents showing that unit 133 was removed
from service and repaired on May 16, 2013. The prosecutor argued
that the May 16, 2013 Draeger return packing slip did not indicate
2
State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S.
Ct. 158, 172 L. Ed. 2d 41 (2008).
5 A-2926-15T3
unit 133 was repaired; rather, it showed that Draeger recalibrated
and recertified the unit on May 16, 2013 and returned it to the
SPD along with the packing slip. The prosecutor also argued that
Trooper Gibson's inability to find any repair records for May 16,
2013 proved that unit 133 was not removed from service and repaired
on that date.
In a July 17, 2014 oral opinion, the municipal court judge
denied defendant's motion. Citing State v. Ford, 240 N.J. Super.
44 (App. Div. 1990), the judge found that the April 11, 2005
documents defendant sought were too remote in time to be relevant.
The judge also found there was nothing supporting defendant's
continued argument about the missing April 2013 BITSR, and the
April 2013 BTISR showed that unit 133 was in proper working order.
The judge determined the May 16, 2013 Draeger packing slip did not
make clear that unit 133 was removed from service and repaired,
and the State sufficiently explained that the alleged missing May
2013 BTISRs did not exist. The judge concluded that the State's
alleged failure to produce repair records did not mean the Alcotest
machine was not in proper working order at the time of defendant's
testing, and the documents the State produced were sufficient to
meet its discovery obligation.
Defendant appealed to the Law Division, arguing that the
State's failure to produce the April 11, 2005 documents and the
6 A-2926-15T3
alleged missing April 2013 and May 2103 BTISRs constituted a
discovery violation under Rule 7:7-7 and a violation of the Holup
order.3
Following a trial de novo, in a February 2, 2016 written
opinion, Judge Daniel A. Bernardin denied defendant's appeal. The
judge acknowledged the State's discovery obligation under Rule
7:7-7, but, quoting State v. Robertson, 438 N.J. Super. 47, 66
(App. Div. 2014), found that defendant's right to discovery within
the context of a DWI proceeding was "limited to items as to which
there is a reasonable basis to believe they will assist the
defense." Quoting State v. Maricic, 417 N.J. Super. 280, 284
(App. Div. 2010), the judge found that "allowing a defendant to
forage for evidence without a reasonable basis is not an ingredient
of either due process or fundamental fairness[.]"
Judge Bernardin then found that under Chun, the State was
required to admit three core documents to lay foundational proofs:
(1) the most recent Calibration Report prior
to a defendant's test, including control
tests, linearity tests, and the credentials
3
Defendant also argued the State failed to meet its discovery
obligation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963). Because he did not address this issue
in his merits brief, it is deemed waived. N.J. Dep't of Envtl.
Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.),
certif. denied, 222 N.J. 17 (2015); Pressler & Verniero, Current
N.J. Court Rules, comment 5 on R. 2:6-2 (2017).
7 A-2926-15T3
of the coordinator who performed the
calibration;
(2) the most recent New Standard Solution
Report prior to a defendant's test; and
(3) the Certificate of Analysis of the 0.10
Simulator Solution used in a defendant's
control tests.
[Chun, supra, 194 N.J. at 154.]
The judge also found that while not required to be admitted at
trial, Chun required the State to produce twelve foundational
documents:
(1) New Standard Solution Report of the most
recent control test solution change, and the
credentials of the operator who performed that
change;
(2) Certificate of Analysis for the 0.10
percent solution used in that New Solution
Report;
(3) Draeger Safety Certificate of Accuracy
for the Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy
for the Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy
for the Alcotest 7110 Instrument;
(6) Calibration Records, including control
tests, linearity tests, and the credentials
of the coordinator who performed the
calibration;
(7) Certificate of Analysis for the 0.10
percent solution used in the calibration
control test;
8 A-2926-15T3
(8) Certificate of Analysis for the 0.04,
0.08, and 0.16 percent solutions used in the
calibration linearity test;
(9) New Standard Solution Report, following
the most recent calibration;
(10) Draeger Safety Certificates of Accuracy
for the Simulators used in calibration;
(11) Draeger Safety Certificate of Accuracy
for the Alcotest 7110 Temperature Probe used
in calibration; and
(12) Draeger Safety Ertco-Hart Calibration
Report.
[Id. at 153.]
Judge Bernardin noted that under State v. Holland, 422 N.J.
Super. 185, 198-99 (App. Div. 2011), once the State produced the
foundational documents, the burden shifted to defendant to show
why the Alcotest machine was not in proper working order; however,
the State must explain any facial irregularity in the foundational
documents with which the defendant may make such a showing. The
judge found defendant received the twelve foundational documents,
and determined there was no evidence suggesting there was any
irregularity in those documents that would merit further
explanation beyond what the State had provided. Regarding the
alleged missing April 2013 and May 2013 BTISRs, the judge found
the State sufficiently demonstrated that unit 133 had not undergone
any repairs for which a BTISR would have been produced. The judge
9 A-2926-15T3
accepted the State's explanation that unit 133 was placed into
service on April 10, 2013, after unit 163 malfunctioned, and that
on May 16, 2013, the unit had undergone recertification for which
no BTISR would be generated.
Judge Bernardin found it doubtful that defendant was entitled
to repair records for the CU34 simulator unit beyond what the
State provided. The judge noted that while Chun specifically
required the State to produce repair records for the Alcotest
machine, there was no similar requirement for the CU34 simulator
unit. To support this finding, the judge quoted the following
passage from Chun:
many of the documents on the Special Master's
list of foundational proofs are tests of tests
and, therefore, are too attenuated to require
that they be admitted as part of the evidence.
We include in that category all of the
documents relating to the working order of the
simulator, the reports of the solutions used
during simulation and calibration, the
certificate of accuracy of the simulator used
to calibrate the device, and the temperature
probe documents. Although, as all parties
agree, these documents should continue to be
produced in discovery, they are not
fundamentally a part of demonstrating that the
particular device was in good working order.
[Chun, supra, 194 N.J. at 144-45.]
The judge concluded as follows:
The Court's mention of documents relating to
the working order of the simulator, and its
inclusion of certain documents pertaining to
10 A-2926-15T3
the functionality of the CU34 Simulator [Unit]
in the enumerated list of "foundational
documents" appears to limit the State's
obligations during discovery to the
Certificates of Accuracy for the simulator;
not, as the defendant contends, the repair
records for the simulater. See Id. at 153.
As such, the documents that the defendant
seeks in this case appear to be documents
regarding "tests of tests" that the Court in
Chun declined to require the State to provide
when crafting the discovery obligations
mandated in cases involving the Alcotest
machine.
Addressing the State's alleged violation of the Holup order,
Judge Bernardin found the order did not require dismissal, but
rather, dismissal was discretionary and the order did not provide
for dismissal if the State was unable to comply. The judge also
found there was no indication the repair records defendant sought
ever existed, and he was not persuaded by defendant's speculative
claim there was a reasonable probability that the State's
disclosure of the alleged missing BTISRs would result in a
different outcome.
Lastly, Judge Bernardin found no evidence that unit 133 was
repaired on April 11, 2005. The judge agreed with the municipal
court judge that defendant's request for April 11, 2005 documents
was contrary to the holding in Ford. The judge noted that in
Ford, we specifically stated with regard to repair histories that
"[r]equiring routine production of the entire repair record . . .
11 A-2926-15T3
or similar documents without appropriate time limitations would
be unreasonable." Ford, supra, 240 N.J. Super. at 51. The judge
concluded as follows:
In the instant case, the defendant has failed
to make any showing that repair records for
the CU 34 simulator unit, alleged to have been
created nearly ten (10) years before defendant
was tested on the breath-testing machine, had
any relevance in demonstrating that the
breath-testing machine was not in proper
working order on the date of the defendant's
breath test. Accordingly, the municipal
court's determination that the defendant was
not entitled to this information was correct.
In this appeal, defendant reiterates the arguments made to Judge
Bernardin.
On appeal from a municipal court to the Law Division, the
review is de novo on the record. R. 3:23-8(a). The Law Division
judge must make independent findings of fact and conclusions of
law based upon the evidentiary record of the municipal court and
must give due regard to the opportunity of the municipal court
judge to assess the witnesses' credibility. State v. Johnson, 42
N.J. 146, 157 (1964). On appeal from a Law Division decision, the
issue is whether there is sufficient credible evidence present in
the record to uphold the findings of the Law Division. State v.
Segars, 172 N.J. 481, 488 (2002). "We do not weigh the evidence,
assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). However,
12 A-2926-15T3
we exercise plenary review of legal conclusions that flow from
established facts. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
In addition, we will not disturb a trial court's ruling on
discovery matters absent an abuse of discretion. See State v.
Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied,
205 N.J. 183 (2011). "[A]n abuse of discretion only arises on
demonstration of 'manifest error or injustice[,]'" Hisenaj v.
Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.
554, 572 (2005)), and occurs when the trial judge's "decision is
made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Milne
v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
We have considered defendant's arguments in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
expressed by Judge Bernardin in his comprehensive and well-written
opinion. However, we add the following brief comment.
Defendant admits receipt of the twelve foundational Chun
documents, but seeks additional material that, as Judge Bernardin
properly found, did not exist. Defendant has not provided any
13 A-2926-15T3
persuasive evidence to the contrary. There is nothing in the
record that requires reversal. State v. Locurto, 157 N.J. 463,
471 (1999).
Affirmed.
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