STATE OF NEW JERSEY VS. JUAN J. FIGUEROA (6023, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3112-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN J. FIGUEROA,
Defendant-Appellant.
____________________________
Submitted August 1, 2018 – Decided August 7, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal Appeal
No. 6023.
Juan J. Figueroa, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Pro se defendant Juan J. Figueroa appeals from the February
15, 2017 Law Division judgment finding him guilty of driving while
intoxicated (DWI), N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A.
39:4-50(g); possessing an open container of alcohol in a motor
vehicle, N.J.S.A. 39:4-51b; careless driving, N.J.S.A. 39:4-97;
and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a.
Defendant contends the State violated his right to a speedy trial
and his right to due process by failing to preserve evidence.
Finding no violation, we affirm.
I
We previously remanded this case to the Law Division to
address defendant's appeal on the merits. The factual background
is discussed at length in our prior opinion. State v. Figueroa,
No. A-3265-14 (App. Div. Jan. 24, 2017) (slip op. at 2-5). A
brief summary will suffice here.
On June 28, 2013, police observed defendant driving
erratically, pulled him over, and detected a strong odor of
alcohol. Defendant failed multiple field sobriety tests and
refused to submit to a breath test. Police also found an open
bottle of alcohol in defendant's car. Eight months after his
arrest, defendant made a discovery request for electronically-
stored information. The State sent defendant computer aided
dispatch (CAD) reports and further responded that any other
electronic data had been deleted before defendant's request as
part of routine maintenance. Defendant sent the court letters
requesting a dismissal for "lack of speedy trial" and "lost or
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destroyed evidence." Defendant orally argued the motion regarding
lost evidence, which the court denied. Defendant failed to raise
the motion regarding a speedy trial even after the judge asked if
there were any other motions.
After the municipal court found defendant guilty of all
charges, defendant filed a de novo appeal to the Law Division. On
January 8, 2015, the Law Division judge dismissed the appeal
because defendant was not in the courtroom when the judge called
his case. However, defendant actually arrived early for the
hearing and waited outside the courtroom for his case to come up.
Because the record contained no indication of anyone checking the
hallway outside the courtroom to see if defendant was present
before the court dismissed his appeal, we vacated the dismissal
order and remanded the matter to the Law Division for trial. Id.
at 8.
On February 15, 2017, the Law Division conducted a trial de
novo. After hearing oral argument from defendant and the
prosecutor, the judge made substantially similar findings to the
findings the municipal court judge made and found defendant guilty
of all charges. Specifically, the judge found:
I find that Officer Van Gough was justified
in stopping defendant's motor vehicle. He
observed defendant driving at approximately
[forty-five] and [fifty] miles per hour in a
[twenty-five] mile per hour speed zone.
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When turning onto Broad Street,
approximately one half of defendant's vehicle
crossed over a double yellow line.
Consequently, [Officer Van Gough]
observed violations of the motor vehicle act.
He had an articulable and reasonable suspicion
that the defendant had violated motor vehicle
laws.
. . . .
Although defendant refused to submit to
a[n] [Alcotest], so that his blood alcohol
concentration could be measured, I find that
[t]he State has proven beyond a reasonable
doubt that defendant was under the influence
of alcohol . . . and that his mental faculties
were so impaired that it was unsafe for him
to operate a motor vehicle.
The judge based his conclusion on defendant's erratic
driving, his bloodshot and watery eyes and strong odor of alcohol,
his poor performance on all three field sobriety tests, and the
professional opinions of both Officer Van Gough and Sergeant Brodie
"that defendant was under the influence of alcohol, to the extent
that it was improper or wrong for him to drive." The judge further
found Officer Van Gough and Sergeant Brodie "credible in their
testimony. Each were knowledgeable about the events which took
place and gave clear testimony."
The judge found Officer Van Gough had probable cause to
request defendant to submit to the Alcotest, "based upon
defendant's driving, smell of alcohol and poor performance on the
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field sobriety tests." When the officer requested defendant submit
to the test, defendant responded, "I refuse." The judge also
found defendant guilty of driving while intoxicated in a school
zone based on a school zone map in evidence. The judge found
defendant guilty of the open container charge based on Officer Van
Gough's observation of an open bottle of alcohol with some liquid
missing. Finally, the judge found defendant guilty of careless
driving based on his excessive speed and his vehicle crossing over
a double yellow line.
After merging the careless driving charge and the DWI in a
school zone charge, the Law Division judge imposed the same
sentence as the municipal court judge, ordering: suspension of
defendant's driver's license for four years; forty-eight hours at
an Intoxicated Driver Resource Center; installation of an ignition
interlock device during the license suspension period and two
years after; one day jail time with credit for one day already
served; a $1250 fine; and mandatory penalties and assessments.
This appeal followed. Defendant's brief contained the
following point heading:
I JUAN FIGUEROA BELIEVE THAT I AM INTITLED TO
EXCULPATORY EVIDENCE. AFTER SIX CERTIFIED
MOTION AND THE PROSECUTION DELAY CAUSED
EROSION OF DUE PROCESS. THE 14TH AMENDMENT
PROVIDE FOR THE AVAILABILITY OF EVIDENCE. THE
PROSECUTION CANNOT EVADE BRADY REQUIREMENTS BY
KEEPING ITSELF IGNORANT OF INFORMATION. I
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ALSO BELIEVE MY RIGHTS TO A SPEEDY TRIAL WERE
VIOLATED WHEN THE JUDGE SKIP MY CERTIFIED MAIL
MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL
WHICH VIOLATES MY 6TH AMENDMENT AND MY RIGHTS
TO DUE PROCESS. I ALSO BELIEVE MY RIGHTS TO
DUE PROCESS WERE VIOLATED FOR THE SECOND TIME
FOR DISQUALIFICATION UNDER 28 U.S.C § 47
PROVIDES THAT "NO JUDGE SHALL HEAR OR
DETERMINE AN APPEAL FROM THE DECISION OF A
CASE OR ISSUE TRIED BY HIM[.]"
II
The United States and New Jersey Constitutions guarantee a
defendant the right to a speedy trial. U.S. Const. amend. VI;
N.J. Const. art. I, ¶ 10. To determine if a speedy trial violation
exists, we must consider four factors: "[l]ength of delay, the
reason for the delay, the defendants assertion of his right, and
prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530
(1972). No single factor under this four-part test is dispositive;
rather, they are related and must be considered together, along
with any "such other circumstances as may be relevant." State v.
Szima, 70 N.J. 196, 201 (1976). "[N]o set length of time . . .
fixes the point at which delay is excessive." State v. Tsetsekas,
411 N.J. Super. 1, 11 (App. Div. 2009). The remedy for a violation
of the right to a speedy trial is dismissal of the indictment.
Barker, 407 U.S. at 522. However, a trial judge's factual
determination on a speedy trial issue "should not be overturned
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unless clearly erroneous." State v. Merlino, 153 N.J. Super. 12,
17 (App. Div. 1977).
"Generally, an appellate court will not consider issues, even
constitutional ones, which were not raised below." State v.
Galicia, 210 N.J. 364, 383 (2012). Parties must timely raise
issues so that the trial court can rule on them in a timely manner.
See State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v.
Robinson, 200 N.J. 1, 19 (2009)). "For sound jurisprudential
reasons, with few exceptions, our appellate courts will decline
to consider questions or issues not properly presented to the
trial court when an opportunity for such a presentation is
available." Ibid. (quoting Robinson, 200 N.J. at 20). Ordinarily,
we "decline to consider issues not presented to the trial court
unless they 'go to the jurisdiction of the trial court or concern
matters of great public interest.'" Kvaerner Process, Inc. v.
Barham-McBride Joint Venture, 368 N.J. Super. 190, 196 (App. Div.
2004) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973)).
On appeal, defendant asserts that he was not given a trial
date until nine months after his arrest, and over the course of
eighteen court appearances. However, defendant failed to provide
any transcripts of hearings that occurred during the delay.
Defendant further argues the prosecutor's "unpreparedness and
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procrastination" caused the delay, yet he failed to provide any
factual support for his bald assertion.
Officer Van Gough arrested defendant on June 28, 2013. On
April 2, 2014, defendant submitted a letter titled "MOTION TO
DISMISS FOR LACK OF SPEEDY TRIAL" to the municipal court.
Defendant then appeared pro se for trial on August 29, 2014;
however, defendant failed to pursue this motion. Just before the
start of trial court, defendant argued his motion regarding
electronically-stored data, which the court denied. The court
then asked if there were "[a]ny other pretrial motions?" Defendant
remained silent and the trial transcript contains no mention of
defendant's speedy trial motion. Accordingly, the Law Division
judge found that defendant failed to raise the speedy trial issue
in municipal court, "where it should have been addressed when [the
judge] asked if there were any further motions." Regardless, the
judge did not "see any impairment to the defense because of the
delay here."
Defendant's failure to raise the speedy trial issue
deprived the municipal court and the Law Division of the
opportunity to consider any available evidence and analyze the
Barker factors, and denied the prosecutor the opportunity to refute
the assertion that he was partially responsible for the delay.
Additionally, defendant admitted he "fired" his attorney, but
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failed to provide any evidence that his decision to discharge his
attorney did not contribute to the delay.
Regarding prejudice, defendant failed to provide any evidence
that the alleged delay impaired his ability to defend the case.
Like the Law Division judge, we do not "see any impairment to the
defense because of the delay here." Because defendant did not
pursue the speedy trial issue in the municipal court and the record
otherwise lacks evidence to support his contention, we conclude
the Law Division did not err in rejecting defendant's claim that
his right to a speedy trial was violated.
III
Defendant further contends the prosecutor violated his due
process rights by failing to preserve evidence of
"electronically-stored" information from the police officer's
laptop computer. We disagree.
Due process requires the State disclose exculpatory evidence.
Brady v. Maryland, 373 U.S. 83, 87 (1963). A Brady violation
occurs when the prosecution suppresses evidence that is material
and favorable to the defense. State v. Martini, 160 N.J. 248, 268
(1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95 (1972)).
"Evidence is material 'if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different.'" State v. Robertson, 438
9 A-3112-16T2
N.J. Super. 47, 67 (App. Div. 2014) (quoting State v. Knight, 145
N.J. 233, 246 (1996)) (internal quotation marks and citation
omitted).
"When the evidence withheld is no longer available, to
establish a due process violation a defendant may show that the
evidence had 'an exculpatory value that was apparent before [it]
was destroyed' and that 'the defendant would be unable to obtain
comparable evidence by other reasonably available means.'" State
v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (alteration
in original) (quoting California v. Trombetta, 467 U.S. 479, 489
(1984)). However, a different standard applies to evidence that
is only potentially useful. "Without bad faith on the part of the
State, 'failure to preserve potentially useful evidence does not
constitute a denial of due process of law.'" George v. City of
Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting Arizona
v. Youngblood, 488 U.S. 51, 57 (1988)).
When evidence has been destroyed, the court must focus on
"(1) whether there was bad faith or connivance on the part of the
government, (2) whether the evidence . . . was sufficiently
material to the defense, [and] (3) whether [the] defendant was
prejudiced by the loss or destruction of the evidence." State v.
Hollander, 201 N.J. Super. 453, 479 (App. Div. 1985) (citations
omitted).
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Defendant contends his "motion regarding the electronically-
stored data" referred to the "times of the events" stored in police
computers. He submitted his first request for electronic discovery
about seven months after his arrest. The State searched for the
requested information, but found it was no longer available due
to routine purging of computer records. Because defendant
requested the information seven months after the arrest, we find
it was not unreasonable for the State to have deleted it. We
conclude the State made reasonable efforts to provide discovery
and did not act in bad faith.
Furthermore, defendant failed to establish that the police
computer records would have contained any relevant or exculpatory
evidence. Defendant argues the computer records are material to
his defense because Officer Van Gough testified he stopped
defendant at 2:32 a.m. but the CAD report indicated a 2:38 a.m.
time of stop. However, the record supports the municipal court
and the Law Division's conclusion that the discrepancy between the
CAD report and the officer's testimony regarding the time of the
motor vehicle stop did not alter Officer Van Gough's credibility
or affect the guilty verdict. Moreover, defendant failed to
present evidence that the destroyed computer records impaired his
ability to defend the case; therefore, we find no resulting
prejudice to defendant.
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Finally, defendant appears to suggest, in his brief's
argument point, that the Law Division judge who initially dismissed
his appeal, and then presided at his trial de novo on remand,
should have been disqualified. However, defendant's brief failed
to address this issue. As a result, we deem the issue waived.
See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48
n.1 (App. Div. 1989) (noting that an issue not briefed is waived).
Regardless, defendant's argument clearly lacks substantive merit
as the Law Division judge who presided at the trial de novo did
not "determine an appeal" from a case tried by him. When the
matter first came before him, the Law Division judge dismissed the
case, based upon his mistaken belief that defendant failed to
appear; he did not conduct a trial de novo.
Affirmed.
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