STATE OF NEW JERSEY VS. ALEJANDRO CRUZ-JUAREZ (20-11, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0754-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALEJANDRO CRUZ-JUAREZ,
Defendant-Appellant.
___________________________
Submitted September 16, 2021 – Decided October 4, 2021
Before Judges Fuentes, Gilson, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Municipal Appeal No. 20-
11.
Hugo Villalobos, attorney for appellant.
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren E. Bland, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Alejandro Cruz-Juarez appeals from the October 7, 2020 Law
Division order convicting him after a trial de novo of driving while intoxicated
(DWI), N.J.S.A. 39:4-50, and driving with an expired driver's license, N.J.S.A.
39:3-10(a). The Law Division judge imposed the same penalties as the
municipal court judge, including a two-year loss of license and other mandatory
fines and penalties for a second DWI offense.
On appeal, defendant challenges only the DWI conviction, raising the
following points for our consideration:
POINT I
THE OFFICER LACKED REASONABLE
ARTICULABLE SUSPICION TO CONDUCT AN
INVESTIGATORY STOP AFTER FOLLOWING THE
DEFENDANT ON A HUNCH.
POINT II
THE DETENTION, STOP AND SEARCH WAS VOID
UNDER N.J. [CONST. ART. I], PAR[A]. 7.
POINT III
INDEPENDENTLY THERE WAS NO PROOF BY A
PREPONDERANCE OF THE EVIDENCE THAT
PROBABLE CAUSE EXISTED TO ARREST THE
DEFENDANT FOR DRIVING WHILE
INTOXICATED, (DWI).
A-0754-20
2
POINT IV
THE ALCOTEST RESULTS WERE NOT RELIABLE
AS THE STATE DID NOT PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT THE ALCOTEST
INSTRUMENT WAS IN GOOD WORKING ORDER,
INSPECTED ACCORDING TO PROCEDURE, THE
OPERATOR WAS CERTIFIED AND THE TEST
WAS ADMINISTERED ACCORDING TO
PROCEDURE.
Leading Questions To An Alcotest
Operator Who Was Reading From An
Unidentified Hearsay Document
Operator Entered The Wrong Time In The
Alcotest
The [Twenty-]Minute Observation Of
Defendant Was Not Performed And The
Alleged Synchronization And Delay Of
Time Were Speculation
The Two[-]Minute Lockout Violation
Showed The Alcotest Was Not In Good
Working Order And Operator Error
Mouthpiece Proper Use Was Planted Via
Leading Questions
POINT V
THE DEFENDANT DID NOT GET A FAIR TRIAL
BECAUSE THE PROCEDURAL FAILINGS IN THIS
TRIAL ESTABLISHED THAT THE "CUMULATIVE
IMPACT OF THE ERRORS WAS NOT HARMLESS."
A-0754-20
3
A. In Violation Of The Defendant's Due
Process The Judge Failed To Wait For All
The Evidence To Be In Before He Blurted
Out Findings Of Fact And Used Evidence
That Was Not Provided In The Requested
Discovery Contrary To Discovery
Demanded, Ordered And Filed Motion In
Limine.
B. The Court Erred In Entering The Results
Of The Air Report In Evidence Over
Defendant's Objection, . . . Before The
Foundational Documents Were Offered In
Evidence, Before Completing Direct,
Before Cross-Examination Of The Alcotest
Operator, Before Expert Testimony And
Before The Defendant Testified.
C. The Unexplained Destruction Of The
Video Was A Denial Of Defendant's Due
Process Rights And Prejudiced The
Defendant Who Was Unable To Place
Before The Trier Of Fact The Best
Evidence.
D. The Judge Failed To Control The Trial
And The Palpable Mistake Was A Clear
Abuse Of Discretion Which Deprived
Defendant Of A Fair Trial.
We have considered these arguments in light of the record and applicable
legal principles. We reject each of the points raised and affirm substantially for
the reasons expressed by the Law Division judge in his cogent written statement
of reasons accompanying the October 7, 2020 order.
A-0754-20
4
We discern these facts from the record. Shortly before midnight on
September 17, 2012, Bound Brook Police Officer Frank Waller was "on routine
patrol" when he noticed a "red vehicle" travelling east on Talmage Avenue
towards Vosseller Avenue. After following the vehicle in his marked police
cruiser, Waller observed the car make a left turn and "nearly [strike] multiple
cars . . . before jerking back to the center of the lane." Shortly thereafter, Waller
observed the vehicle make "a left [turn] from the right lane."
Based on these observations, Waller conducted a motor vehicle stop and
approached the driver, later identified as defendant. When Waller asked
defendant for his "license, registration and insurance," defendant responded he
"did not have a license." Waller immediately noticed "an odor of alcohol
emanating from [defendant's] vehicle and . . . breath." Waller also noticed
defendant's "eyes were bloodshot," "watery," and "droopy," and "[h]is speech
was slurred." According to Waller, as defendant was retrieving his registration
and insurance, his "movements were abnormally slow" while he "fumbl[ed]
through documents." Upon further inquiry, defendant was unable to provide his
home address or his birthday. When Waller asked defendant "if he had anything
to drink," defendant "replied that he had one beer." Sergeant Vito Bet soon
A-0754-20
5
arrived on the scene as backup. Upon arrival, Bet also observed defendant's
"bloodshot," "red," and "[w]atery eyes," as well as his "droopy eyelids."
Once Bet arrived, Waller directed defendant to exit the vehicle "to
perform sobriety testing." After defendant exited his vehicle, he "seemed . . . a
little off balance," reaching towards his car "in an attempt to steady himself."
Waller noted defendant was "visibly swaying as he stayed in . . . place" and "his
clothing was dirty and . . . mussed." Additionally, Bet noted defendant "did
[not] have proper balance, was leaning and swaying." After Waller and
defendant proceeded to a "dry and flat" area of the sidewalk, Waller asked
defendant "if he had any issues" that would cause a problem for him in
performing the tests. Although defendant indicated "he had problems with his
knee," Waller did not observe "any physical deformities or imperfections."
As Waller began explaining the field sobriety tests, defendant "stopped
[him] and told [him] that he didn't speak English." Up to that point, Waller and
defendant had communicated in English. Bet, who was fluent in Spanish, then
"asked . . . defendant in Spanish if he would like to do the testing in Spanish."
In response, defendant placed "his arms behind his back" and told Waller "just
arrest me." After Bet and Waller provided defendant with additional
A-0754-20
6
opportunities to complete the tests, defendant "refused to take the field sobriety
test." Instead, defendant repeated "several . . . times 'just lock me up.'"
Based on their training and experience, both Waller and Bet believed
defendant was intoxicated. Waller arrested defendant for driving while
intoxicated and transported him to police headquarters for processing. While in
the back of the patrol car, Waller observed defendant's "mood" alternate between
"crying" and "indifferen[ce]." Waller also detected the odor of alcohol in the
interior of his patrol car once defendant entered the vehicle. Upon arrival at
headquarters, Waller noted defendant continued to have "trouble walking."
After defendant was read the Attorney General's Standard Statement for Motor
Vehicle Operators, advising him in Spanish that he was required to submit breath
samples for testing to determine alcohol content, or be issued a separate
summons for refusing,1 defendant verbally agreed in English to provide breath
samples.
Bound Brook Police Officer Gary Ulmer, a certified Alcotest operator,
administered defendant's test. Ulmer detailed his training and experience as an
Alcotest operator and authenticated the foundational documents required under
1
A "print" version of the statement was provided to defendant while an "audio"
recording of the statement was played for defendant from the computer.
A-0754-20
7
State v. Chun, 194 N.J. 54 (2008).2 Ulmer explained "[t]he Alcotest 7110 is a
relatively simple machine . . . you turn it on and you just follow the instructions."
According to Ulmer, after ensuring there were no radios, cell phones or
other electronic devices in the processing room, he observed defendant for the
required twenty-minute period prior to taking any breath samples. During the
twenty-minute observation period, which Ulmer calculated using the clock on
the wall,3 Ulmer confirmed there was no "foreign object . . . com[ing] back into
[defendant's] mouth," such as "vomit" or "regurgitat[ion]" of any kind to
contaminate the breath test results. After twenty minutes, Ulmer instructed
defendant how to blow into the machine to ensure an adequate breath sample.
On his first attempt, defendant provided an insufficient sample evidenced by the
2
The documents included Ulmer's up-to-date Alcotest certification card, the
calibration records indicating the Alcotest machine was calibrated within six
months of defendant's test, the coordinator's up-to-date certification card
attesting to the coordinator's certification to inspect and calibrate Alcotest
machines statewide, the New Standard Solution Report documenting that the
simulator solution of the Alcotest machine was changed within thirty days of
defendant's test, the Certificate of Analysis confirming that the simulator
solution was tested and found to be within acceptable tolerances, and the
Alcohol Influence Report generated by Ulmer documenting the administration
of defendant's test.
3
Waller also stated defendant was observed for "[o]ver [twenty] minutes"
immediately preceding the administration of the test.
A-0754-20
8
machine indicating "[m]inimum volume not achieved." Ulmer then changed the
mouthpiece and repeated the process. Thereafter, Ulmer obtained two valid
breath samples, showing defendant's blood-alcohol content (BAC) was 0.140%
for each test. Ulmer changed the mouthpiece before each breath sample.
Waller ultimately issued defendant motor vehicle summonses for DWI,
driving without a license, and careless driving, N.J.S.A. 39:4-97.4
On June 6, 2019, following a testimonial hearing, the municipal court
judge denied defendant's suppression motion, crediting Officer Waller's
testimony and finding the officer had a reasonable and articulable suspicion to
justify the motor vehicle stop based on his observation of "two motor vehicle
infractions." The municipal court trial was conducted on October 17, 2019,
during which the State produced Waller, Bet, and Ulmer as witnesses.
Defendant produced Herbert Leckie, who was qualified without objection as an
expert in the use of the Alcotest. During his testimony, Leckie challenged the
reliability of the Alcotest results on various grounds. Numerous documentary
exhibits, including the foundational documents, were also admitted into
4
"A person who drives a vehicle carelessly, or without due caution and
circumspection, in a manner so as to endanger, or be likely to endanger, a person
or property, shall be guilty of careless driving." N.J.S.A. 39:4-97.
A-0754-20
9
evidence. Following the trial, on November 19, 2019, 5 the municipal court judge
found defendant guilty of DWI and driving without a license, and merged the
careless driving summons into the DWI.
Defendant appealed to the Law Division pursuant to Rule 3:23-1.
Following a trial de novo based on the record developed in the municipal court,
Judge Michael J. Rogers entered an order on October 7, 2020, finding defendant
guilty of DWI and an amended charge of driving with an expired driver's license.
In his accompanying statement of reasons, the judge recited at length the
governing legal principles. Giving "due" but not "necessarily controlling []
regard to the municipal judge's . . . credibility" findings, Judge Rogers found the
officers' testimony "factual, credible, and supported by the record."
5
Although the trial occurred almost seven years after defendant's arrest, nothing
in the record credibly explains the reason for the delay. When the parties
appeared for a pre-trial conference on February 5, 2019, in response to the
municipal court judge's inquiry regarding the delay, defense counsel responded
he "[thought defendant] was arrested . . . . by immigration." Throughout the
proceedings, defense counsel protested the prosecutor's failure to provide
various items in discovery despite counsel's specific request pursuant to State v.
Holup, 253 N.J. Super. 320 (App. Div. 1992). The prosecutor responded that
given the age of the case, the items were not preserved because there had not
been an immediate request. The municipal court judge found it was
"unreasonable" to "expect the Bound Brook Police Department to retain records
for that length of time." In fact, Bet, who was promoted to Chief of Police by
the time defendant's trial was conducted, testified Bound Brook Police
Department's retention schedule was sixty-two days.
A-0754-20
10
Judge Rogers held the motor vehicle stop "was lawful and appropriate"
based on Waller's "reasonable [and] articulable suspicion that the driver ha[d]
committed a motor vehicle violation." See State v. Atwood, 232 N.J. 433, 444
(2018) ("An officer may stop a motor vehicle only upon 'articulable and
reasonable suspicion' that a criminal or motor vehicle violation has occurred.").
Specifically, the judge noted Waller testified "he observed defendant's vehicle
'nearly [strike] multiple parked cars . . . before jerking back to the center of the
lane'" and "fail[] to follow a marked turning course" by making "a left turn from
the right lane."
Regarding the arrest, the judge determined Waller "had probable cause to
believe that defendant operated his motor vehicle while under the influence of
alcohol." In support, the judge relied "on the officer's observations of
defendant's erratic driving, admission of alcohol consumption, and other on -
scene observations and indication of intoxication." See State v. Moskal, 246
N.J. Super. 12, 21 (App. Div. 1991) ("[T]he yardstick for making [an] arrest for
driving while under the influence of intoxicating liquor . . . is whether the
arresting officer 'had reasonable grounds to believe' that the driver was operating
a motor vehicle in violation [of N.J.S.A. 39:4-50]." (alteration in original)
(quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App.Div.1967))).
A-0754-20
11
Next, the judge determined the evidence established "defendant's guilt
beyond a reasonable doubt of operating a motor vehicle while under the
influence of alcohol" to sustain both "an observation case" and "a per se case,"
"either" of which "may form the basis for a DWI conviction." See State v. Kashi,
360 N.J. Super. 538, 544-45 (App. Div. 2003) (explaining that "the offense of
driving while intoxicated" under N.J.S.A. 39:4-50 may be "proved through
either of two alternative evidential methods: proof of a defendant's physical
condition or proof of a defendant's blood alcohol level").
As to the observation case, the judge found evidence sufficient to establish
defendant's guilt "based on the observations and opinion testimony" of Waller
and Bet. The judge concluded the observations and opinions of the officers were
"grounded in factual evidence," and based on their "training and experience in
the detection of motorists operating while under the influence of alcohol."
"In addition to the erratic driving and motor vehicle violations," the
judge's opinion recited a detailed list of the officers' other observations: "slurred
speech"; "incorrect birthday"; "unable to provide address"; "[o]ff balance while
walking"; "visibly swaying"; "[b]loodshot, watery, and droopy eyes"; "[o]dor of
alcohol on breath"; "[c]lothing mussed and disheveled"; "[s]low movements";
"fumbling for documents"; "[a]dmitted consuming alcohol prior to operating
A-0754-20
12
motor vehicle"; refusal "to continue field tests"; "patrol car smell[ing] of
alcohol" after defendant entered; "alternat[ing]" "demeanor"; and "[t]rouble
walking at headquarters." See State v. Federico, 414 N.J. Super. 321, 327 (App.
Div. 2010) ("[T]he judge could accept the observations of the police regarding
defendant's disheveled appearance, slurred language, watery eyes, and smell of
alcohol, and make credibility determinations to conclude defendant was
operating the vehicle while intoxicated from drinking alcohol.").
As to the per se case, the judge found "the breath test results
[scientifically] reliable and admissible in evidence to prove a per se case beyond
a reasonable doubt." In that regard, citing Chun, 194 N.J. at 134, the judge
acknowledged "[a]s a precondition for admissibility of Alcotest results, the State
must establish by clear and convincing evidence that: (1) the Alcotest was in
proper working order and had been 'inspected according to procedure'; (2) 'the
operator was certified'; and (3) the operator administered the test 'according to
official procedure.'"
Further, the judge noted:
The third Chun factor requires the Alcotest
operator to "wait twenty minutes before collecting a
sample to avoid overestimated readings due to residual
effects of mouth alcohol," and "observe the test subject
for the required twenty-minute period of time to ensure
that no alcohol has entered the person's mouth while he
A-0754-20
13
or she is awaiting the start of the testing sequence."
Chun, 194 N.J. at 79.
Once the requisite waiting period has elapsed, the
testing process can begin. Ibid. First, the device
automatically samples room air to check for
contaminants; this is commonly known as the blank air
test. Chun, 194 N.J. at 80. If the initial test is valid,
the machine performs the control test, which measures
a standard alcohol solution. Ibid. If that test is also
valid, that is, if the device accurately analyzes the
standard solution, a second blank air test is performed,
after which the operator can obtain a breath sample
from a defendant. Ibid. After the defendant provides a
sample, the device performs a third blank air test to
purge the defendant's sample from the device, and then
locks out for a two-minute period. Id. at 81. No less
than two minutes thereafter, a second breath sample is
taken from the defendant. Id. at 81.
The judge determined "[t]he foundation documents introduced into
evidence" by the State "were authenticated" and "demonstrate[d] by clear and
convincing evidence that the Alcotest device used in this case was functioning
properly and produced accurate breath test results. All procedural safeguards
were employed, including the [twenty]-minute observation period, and the
mouthpiece changes between the three breath tests." In support, the judge relied
on Ulmer's testimony that prior to administering the test, "he observed defendant
for the requisite [twenty] minutes." After "defendant provided an insufficient
sample" "[o]n the first breath test," Ulmer "changed the mouthpiece" and
A-0754-20
14
administered "[t]wo additional tests" "with a sufficient breath sample," "each
test report[ing] a BAC of 0.14%."
The judge expressly considered defendant's expert's contention that
because "there was no two-minute lockout between the first failed test for
insufficient sample, test [number one], and the first valid breath test, test
[number two]," the second test could not "be deemed reliable." In that regard,
Leckie posited:
The problem . . . is . . . [the] potential
contamination of that second breath sample, the first
valid breath sample could have been contaminated by
the air that remained in his mouth because the two-
minute lockout was not afforded by the instrument
which it should have been according to the protocol that
was set up for this instrument in the State of New
Jersey.
The judge rejected Leckie's contention as "pure speculation." In support,
the judge pointed to Ulmer's testimony that he "followed the prompts on the
device" and "[t]he device reported no error concerning a two-minute lockout
problem." The judge concluded:
The court finds the breath test results in this case
reliable because the two accepted tests [number two and
number three] were each 0.14% BAC. If the first
"failed" test resulted in mouth alcohol remaining that
affected or elevated the second test results, this would
have resulted in the second test result with a higher
reported BAC than the third test taken after the required
A-0754-20
15
two-minute lockout. It is noteworthy that defendant's
expert did not testify that there was a doubt about the
validity of the third breath test - only the second test
because there was no two-minute lockout between the
first failed test and the second test. The Alcotest has
built-in safeguards to [e]nsure the production,
recording, and reporting of reliable results. The device
is self-diagnostic. The device itself will warn the
operator of system malfunctions and reports its findings
in writing. The real inquiry is to determine whether the
Alcotest device was functioning properly not whether
there exists a hyper-technical collateral issue that
invites guesswork and speculation.
The judge also rejected defendant's reliance on the computer aided
dispatch (CAD) reports to undermine Ulmer's compliance with the twenty-
minute observation period. The judge stated:
[Ulmer] testified that he observed the defendant
continuously at headquarters for at least [twenty]
minutes by using a wall clock. The discrepancy of the
times in the CAD reports with this testimony may be
attributable to a time entry error, or lack of
synchronization of the computer clock that generates
CAD times with the wall clock.[6] The court accepts the
testimony of [Ulmer]. He was positive that he waited
the requisite [twenty]-minute period. The defense
expert acknowledged that there is no requirement in
Chun or any of the AG guidelines that this [twenty]-
minute observation period must be documented. The
operator's procedural error of entering the stop time as
6
Significantly, Waller testified the computer for the CAD times was not
synchronized with the clock in the police vehicle, the clock on the wall at
headquarters, or the internal clock of the Alcotest machine.
A-0754-20
16
opposed to the arrest time is of no moment because the
[twenty]-minute observation period was adhered to.
[Citations omitted.]
Finally, the judge rejected defendant's claims he was denied a fair trial,
stating:
Defendant raises several arguments alleging that
he was denied a fair trial by the municipal court judge,
i.e., testimony allowed that was not reflected in the
discovery, hearsay evidence introduced (arresting
officer reading from his police report), destruction of
the video, failure to control the trial, leading questions
permitted, etc.
A defendant is entitled to a fair trial, not a perfect
trial. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999) (quoting Ludwak v. U.S., 507 U.S.
929 (1993)[)]. The municipal court judge treated both
sides fairly and impartially, and explained all of his
rulings.
As for the videotape issue raised by defendant, at
the time of trial the case was over seven years old
through no fault of the State, and the videotape was
long before recorded over per police department policy.
The court finds no irregularity in this policy, nor any
discovery deficiency on the part of the State. [7]
7
See State v. Hollander, 201 N.J. Super. 453, 479 (App. Div. 1985) (explaining
that in determining "whether a due process violation has occurred when there
has been either suppression, loss or destruction of physical evidence in a
criminal trial," courts should consider "whether there was bad faith or
connivance on the part of the government," "whether the evidence suppressed,
lost or destroyed was sufficiently material to the defense," and "whether
A-0754-20
17
In this ensuing appeal, defendant renews the arguments explicitly rejected
by Judge Rogers, arguing the stop was not supported by the requisite reasonable
and articulable suspicion of a traffic violation; 8 his arrest for DWI was not
supported by probable cause; 9 his per se conviction was flawed due to non-
compliance with the requirements in Chun; and various due process violations
based on cumulative procedural errors, including failure to produce discovery,
particularly the State's failure to preserve the video from the motor vehicle
recorder (MVR).
"Our role in an appeal such as this one is limited, in that we 'consider only
the action of the Law Division and not that of the municipal court.'" State v.
Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011) (quoting State v.
defendant was prejudiced by the loss or destruction of the evidence") (citations
omitted).
8
Defendant takes issue with the fact that Waller's observation of the traffic
violations occurred after he had followed defendant's vehicle while on routine
patrol. However, we find no constitutional significance to that fact in the
circumstances of this case and defendant provides no authority mandating a
contrary conclusion.
9
Defendant attempted to undermine Waller's probable cause determination
based on his administration of the field sobriety tests. However, as the
municipal court judge pointed out, administration of the tests was
inconsequential "because [defendant] did [not] take the tests."
A-0754-20
18
Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). While "[t]he Law Division
determination is de novo on the record from the municipal court, [see R.] 3:23-
8(a), . . . the Law Division judge must give 'due, although not necessarily
controlling, regard to the opportunity of the magistrate to judge the credibility
of the witnesses.'" Id. at 176 (quoting State v. Johnson, 42 N.J. 146, 157 (1964)).
In turn, we consider only whether there is "sufficient credible evidence
present in the record" to uphold the findings of the Law Division, not the
municipal court. Johnson, 42 N.J. at 162. We do not "weigh the evidence, assess
the credibility of witnesses, or make conclusions about the evidence." State v.
Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615
(1997)) (internal quotation mark omitted). However, the legal determinations
of the Law Division judge are not entitled to any special deference, and we
review those decisions de novo. State v. Ugrovics, 410 N.J. Super. 482, 487-88
(App. Div. 2009).
Here, sufficient credible evidence exists in the record to support Judge
Rogers's finding that the arresting officer had an articulable and reasonable
suspicion that defendant committed motor vehicle violations to justify the stop,
and probable cause to believe defendant was operating a motor vehicle while
under the influence of intoxicating liquor. Further, there is ample credible
A-0754-20
19
evidence in the record to sustain the judge's finding that the State established
both an observation and a per se violation of the DWI statute beyond a
reasonable doubt. We discern no sound reason or justification for disturbing the
judge's findings and legal conclusions and reject defendant's contrary claims,
including his claims that he was denied a fair trial. Accordingly, the October 7,
2020 order finding defendant guilty of DWI is affirmed substantially for the
reasons expressed in Judge Rogers's written statement of reasons accompanying
the order. Any arguments not specifically addressed are without sufficient merit
to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
A-0754-20
20