STATE OF NEW JERSEY VS. DIONNDRE AMIS (17-15, OCEAN 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2041-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, v.

DIONNDRE AMIS,

Defendant-Appellant. ——————————————————————————————

Argued January 26, 2017 – Decided June 23, 2017

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 17-15.

Thomas M. Cannavo, argued the cause for appellant (The Hernandez Law Firm, attorneys; Mr. Cannavo, of counsel and on the brief).

John C. Tassini, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Mr. Tassini, on the brief).

PER CURIAM

Defendant Dionndre Amis appeals from his de novo conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test (Refusal), N.J.S.A. 40:4-50.4(a). He argues the Law Division erred when it rejected his request for dismissal based upon spoliation of evidence, after the State destroyed a video of his refusal to submit to a breath test. The municipal court reviewed the placement of the camera and the breath test, and it found the video would not have captured defendant's face during the test. It therefore concluded the video would not have shown anything "favorable" to defendant's defense, and it found defendant guilty of DWI and Refusal. Following a trial de novo on the record, the Law Division found no basis for dismissal based upon spoliation of evidence and entered the same convictions and sentence as the municipal court. For the reasons that follow, we affirm.

I.

On June 29, 2014, a Manchester Township police sergeant observed a speeding vehicle. While in pursuit, the sergeant saw the vehicle’s brake lights come on several times without an apparent reason to stop. The sergeant also watched the vehicle make several unprompted lane changes. Radar detected the vehicle traveling at double the speed limit. Upon pulling the vehicle over, the sergeant noticed defendant had droopy eyelids, smelled of alcohol, and slurred his speech. Defendant also admitted he consumed two to three beers that evening.

2 A-2041-15T2

The sergeant administered three field sobriety tests, which defendant failed. The sergeant then transported defendant to the police department for a chemical breath test. The sergeant instructed defendant on how to provide a proper breath sample. On his first attempt, defendant blew a sufficient sample of air to obtain a result; however, on his next two attempts, defendant failed to provide sufficient air for a valid test. The sergeant repeated the instructions and told defendant he would charge him with Refusal if he did not provide a sufficient sample on his next attempt. After defendant again failed to provide an adequate sample, the sergeant charged defendant with Refusal.

On July 1, 2014, defendant’s attorney requested discovery and preservation of in-station video recordings. The attorney repeated the request on July 14, 2014, as part of a motion to compel. The State destroyed the video without providing defendant a copy. The video system had automatically deleted the video after its storage system reached its limit, and this video was the oldest on the system. Defendant consequently filed a motion to dismiss the charges against him. In its written opinion denying defendant's motion, the municipal court wrote, "[D]uring the course of the hearing, we were able to observe the room where the breath test was administered. In that room is a video camera located on the opposite side of the [A]lcotest machine. The video

3 A-2041-15T2 is situated such that the defendant's back would be to the camera." The court noted, "The only question is whether the video had some potentially exculpatory depiction of the defendant's good faith attempt to give a breath sample." It found "due to the proximity of the camera, the video could not have shown what was happening from the back. In other words, the breath tube and defendant's mouth could not possibly be seen on the video footage." It therefore concluded, "[W]e have a situation where evidence favorable to the defendant cannot be identified."

In August 2015, after hearing the trial testimony of the arresting officer, the municipal court found defendant guilty of both charges. In December of 2015, the Law Division conducted a trial de novo and found defendant guilty of both charges. On appeal, defendant presents the following arguments:

POINT I

THE LAW DIVISION ERRED IN DENYING DEFENDANT'S SPOLIATION OF EVIDENCE MOTION. THIS COURT SHOULD REVERSE THAT DENIAL AND DISMISS THE DWI AND/OR REFUSAL CHARGE, OR, IN THE ALTERNATIVE EXCLUDE THE OBSERVATIONS OF THE POLICE DUE TO THE BAD FAITH AND GROSSLY NEGLIGENT DESTRUCTION OF THE POLICE IN-STATION VIDEO IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION.

A. The police conduct of not preserving the in-station video, after specifically requested[,] without justification, 4 A-2041-15T2

constitutes prima facie or sufficient evidence of "bad faith" requiring dismissal of the charges or exclusion of observational evidence.

B. Even if "bad faith" or prima facie evidence of "bad faith" is not found, this court should nevertheless find a due process spoliation of evidence violation based on the State Constitution and fundamental fairness to defendant as expressed in the Arizona v. Youngblood1 concurring opinion of Justice Stevens and other jurisdictions based on our State Constitution.

POINT II

EVEN IF THE DUE PROCESS AND RIGHT TO CONFRONTATION EVIDENCE SPOLIATION MOTION WAS PROPERLY DENIED, THE LAW DIVISION ERRED. THE STATE FAILED TO PROVE REFUSAL BEYOND A REASONABLE DOUBT AND DEFENDANT SHOULD THEREFORE BE ACQUITTED.

II.

In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a)(2), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside the Law

1 Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). 5 A-2041-15T2

Division and municipal court's "concurrent findings of facts." Id. at 474. However, when issues on appeal turn on purely legal determinations, our review is plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).

Due process requires the State to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963); see also State v. Carrero, 428 N.J. Super. 495, 516-18 (App. Div. 2012) (applying Brady to quasi-criminal motor vehicle violations). A Brady violation occurs when the prosecution suppresses evidence that is both material and favorable to the defense. State v. Martini, 160 N.J. 248, 268 (1999). "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 N.J. Super. 47, 67 (App. Div. 2014) (quoting State v. Knight, 145 N.J. 233, 246 (1996)), modified on other grounds, 228 N.J. 138 (2017) (stating "[b]ecause defendant has completed his license suspension, we do not apply the above standards to his case. The standards govern future requests for a stay of a license suspension by the municipal court and the Law Division."). "When the evidence withheld is no longer available, to establish a due process violation a defendant may show that the

6 A-2041-15T2 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) (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984)) (alteration in original). Suppression of exculpatory evidence violates due process regardless of whether the prosecutor acted in bad faith. Knight, supra, 145 N.J. at 245.

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 Youngblood, supra, 488 U.S. at 57, 109 S. Ct. at 337, 102 L. Ed. 2d at 289); see also State v. Marshall, 123 N.J. 1, 109 (1991) (applying Youngblood's bad faith standard); Mustaro, supra, 411 N.J. Super. at 103. 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.

7 A-2041-15T2 Div.) (citations omitted), certif. denied, 101 N.J. 335 (1985). Moreover, the fact that a discovery request was made prior to the routine destruction of evidence does not compel a finding of bad faith. See Illinois v. Fisher, 540 U.S. 544, 548, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004) ("We have never held or suggested that the existence of a pending discovery request eliminates the necessity of showing bad faith on the part of the police.").

In addition to the dictates of due process, our discovery rules impose obligations upon the State to preserve and produce evidence to a defendant. See R. 3:13-3 (governing criminal proceedings in Superior Court); R. 7:7-7 (governing municipal court proceedings). We reviewed the scope of allowable discovery in Robertson, supra, 438 N.J. Super. at 66-67:

A DWI defendant's "right to discovery . . . is limited to items as to which 'there is a reasonable basis to believe will assist a defendant's defense.'" [Carrero, supra, 428 N.J. Super. at 507] (quoting State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990)).

A defendant is not entitled to information that "merely could lead to other information that is relevant." Ibid. (citing [State v.] Maricic, [] 417 N.J. Super. [280,] 284 [(App. Div. 2010)], and Ford, supra, 240 N.J. Super. at 48). Discovery "must be relevant in and of itself." Carrero, supra, 428 N.J. Super. at 508. "However, at least with respect to certain classes of information," including repair records, "a DWI defendant need not have actual knowledge of the facts supporting the 8 A-2041-15T2

contentions that underlie his discovery requests." Ibid.

To sustain a conviction for Refusal under N.J.S.A. 39:4-50.4a, the State must prove, beyond a reasonable doubt,

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.

[State v. Marquez, 202 N.J. 485, 503 (2010).] "[A]nything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the [breath] test constitutes a refusal to do so." State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.) (quoting State v. Corrado, 184 N.J. Super. 561, 569 (App.Div.1982)), certif. denied, 126 N.J. 323 (1991). "[A] defendant bears the burden of proof regarding his or her alleged physical impairment to complete a chemical breath test." State v. Monaco, 444 N.J. Super. 539, 551 (App. Div.), certif. denied, __ N.J. __ (2016).

Defendant first argues, "The police conduct of not preserving the in-station video, after specifically requested without justification, constitutes prima facie or sufficient evidence of

'bad faith' requiring dismissal of the charges or exclusion of 9 A-2041-15T2

observational evidence." He also argues, "Even if 'bad faith' or prima facie evidence of 'bad faith' is not found, this court should nevertheless find a due process spoliation of evidence violation based on the State Constitution and fundamental fairness to defendant as expressed in the Arizona v. Youngblood concurring opinion of Justice Stevens and other jurisdictions based on our State Constitution."

We reject these arguments because the Law Division properly deferred to the municipal court's factual findings regarding the placement of the camera and the video's ability to show anything relevant to defendant's defense. See Locurto, supra, 157 N.J. at 471. The municipal court observed the room where defendant took the breath test, and it found the video could not have depicted anything "favorable" to defendant because he took the test with his back to the camera. We therefore conclude the video did not depict anything exculpatory, as required under Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, potentially useful, as required under Youngblood, supra, 488 U.S. at 57, 109 S. Ct. at 337, 102 L. Ed. 2d at 289, or relevant, as required under Rule 7:7-7(b). The Law Division did not err when it concluded the State did not violate defendant's rights when it destroyed the video.

Defendant next argues, "The Law Division ruling was . . . erroneous given that it is apparently based on inappropriately shifting the burden of proof to defendant to proffer an 'alternate theory' or respiratory illness as to why he could not provide a sufficient breath sample." We disagree. The Law Division noted defendant had not "offered any alternative theory as to why he was unable to provide adequate breath samples," but it said this in relation to defendant's arguments concerning the video and whether it could possibly show anything relevant to defendant's defense. The Law Division also said, "[D]efendant did not indicate he had any respiratory illness that would affect his ability to give a proper sample," but it said this in its summary of the police officer's testimony about why the police officer determined defendant refused to take the breath test. If the officer had testified defendant told him that he could not produce a proper breath sample because he had asthma or some other respiratory problem, the Law Division would have had to address such testimony. The Law Division correctly observed the record did not require such a digression. When defendant failed to produce a valid breath sample three times, without indicating any respiratory illness or other physical infirmity to the police officer administering the test, his conduct was "substantially short of an unqualified, unequivocal assent to an officer's request," constituting Refusal

11 A-2041-15T2 under N.J.S.A. 40:4-50.4(a). Bernhardt, supra, 245 N.J. Super. at 219.

Affirmed.

Footnotes

[10] A-2041-15T2

[12] A-2041-15T2