STATE OF NEW JERSEY,
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
Submitted October 25, 2011 - Decided
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-17-10.
The Appello Law Firm, LLC, attorneys for appellant/cross-respondent (John Appello, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent/cross-appellant (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
Following a de novo trial in the Law Division, defendant Suvasish Mukherjee was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. The judge imposed the following sentence: two days in an Intoxicated Driver Resource Center; thirty days of community service; a fine of $500; installation of an ignition interlock device; driver's license suspension for two years; and other appropriate financial penalties. Defendant raises the following arguments on appeal:
THE ALCOTEST DEVICE WAS IMPROPERLY ADMINISTERED IN VIOLATION OF THE TWO-MINUTE RULE
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE SCIENTIFIC RELIABILITY OF THE ALCOTEST INSTRUMENT USED
A. THE STATE BORE THE BURDEN OF INTRODUCING THE CORE DOCUMENTS
B. IT IS UNDULY PREJUDICIAL, AND CONTRARY TO THE LAW OF THIS STATE, TO REQUIRE THE DEFENDANT TO RAISE THE ISSUE OF THE STATE'S FAILURE TO INTRODUCE REQUIRED EVIDENCE PRE-TRIAL
THE COURT IMPROPERLY ALLOWED THE STATE TO REOPEN ITS CASE AFTER RESTING, IN VIOLATION OF STATE V. CHUN
THE DEFENDANT HAS BEEN UNDULY PREJUDICED AS A RESULT OF THE ALCOTEST BEING IMPROPERLY ADMITTED, ESPECIALLY IN LIGHT OF THE DEFENDANT BEING NOT GUILTY OF THE SUBJECTIVE PRONG OF DWI BY BOTH THE MUNICIPAL COURT AND LAW DIVISION, CRIMINAL PART
The State has cross-appealed, arguing:
THE LAW DIVISION ERRED BY NOT ADDRESSING THE SUBJECTIVE PRONG OF THE DWI STATUTE
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and sentence for DWI. As a result, the State's cross-appeal is moot.
We briefly recite the evidence adduced before the municipal court judge (MCJ), which became the record on appeal before the Law Division, incorporating as we do the procedural history that forms the basis of some of defendant's arguments.
Around 3:40 a.m. on March 2, 2010, State Trooper Mark Novembrino found defendant "slumped over" the steering wheel of a black Mercedes Benz in the Vince Lombardi rest area of the New Jersey Turnpike in Ridgefield. The car's lights were on and its engine was running. When Novembrino knocked on the car door, defendant lowered the window, and the trooper noticed a "strong odor" of alcohol coming from the car. Defendant's eyes were bloodshot. Novembrino asked defendant for his documents, and defendant complied.
Novembrino asked if defendant had been drinking that day, and defendant replied that he had one drink. Defendant told Novembrino that "he was driving along, and . . . he . . . stopped to rest." Defendant never mentioned that anyone else had been driving his car that evening.
Novembrino ordered defendant to exit the vehicle in order to perform a horizontal gaze nystagmus sobriety test (HGN test). Defendant had six out of six "positive hits" on the HGN test. Novembrino then attempted to administer the walk-and-turn sobriety test to defendant. After some difficulty balancing himself, defendant refused to do the test. The officer attempted to conduct a different physical test, but defendant refused to perform that test as well, claiming he was not physically able due to his size. At this point, Novembrino arrested defendant.
At the police station, State Trooper Thomas Krebs, Jr., a certified Alcotest operator who had conducted more than three dozen tests, administered the Alcotest to defendant. Krebs testified that defendant was monitored for twenty minutes preceding the test. The Alcotest machine properly self-calibrated, and defendant blew into the machine in accordance with the officer's instructions. The first test occurred at 4:42 a.m., but there was an insufficient volume for the machine to actually register results. Before the next attempt, Krebs replaced the mouthpiece, and the machine self-calibrated again. Krebs noted that it would be impossible to get a reading without the machine recalibrating.
The second test produced two readings of .116 percent Blood Alcohol Content (BAC) at 4:43 a.m. Krebs replaced the mouthpiece and conducted a third test, resulting in BAC readings of .111 and .114 percent at 4:46 a.m. Krebs entered the four readings into the Alcotest program, and defendant's overall BAC was calculated to be .11 percent. Krebs stated that based on his training and experience, the Alcotest machine worked properly that morning.
Defendant testified that on the evening before his arrest, he met friends at a New York City restaurant on 38th Street and 3rd Avenue. He ate some food and drank one "tall martini." Defendant claimed the drink did not react well with his hypertension medication, so he decided to leave the restaurant sometime between 6:30 and 7:00 p.m. Defendant contacted his friend, Stephanie Danko, who arrived at the restaurant. It was decided that she would drive defendant back to his residence in Green Brook, New Jersey, approximately 60 miles from the restaurant. The two departed for Green Brook around 10:30 p.m. with Danko driving defendant's car. They planned for a cab to follow them back to defendant's residence so Danko could return to Manhattan after dropping him off.
On the way, however, defendant became nauseous, and they pulled over at the rest area. Defendant felt guilty about Danko driving him further and told her to leave in the cab that followed them into the rest area. Defendant then contacted his ex-wife around midnight, and she agreed to pick him up much later in the early morning accompanied by someone who could drive his car. Danko subsequently left in the cab.
Defendant fell asleep and awoke to a police officer knocking on the window of the car. He told the officer that "we pulled over" because he was feeling sick, and defendant stressed that he never told the officer that he had been driving. Defendant performed the HGN test for the officer but refused to perform the walk-and-turn test claiming that his hypertension and lack of physical fitness did not permit him to complete it.
Danko testified and generally confirmed defendant's story. She produced phone records confirming that the two exchanged many text messages and phone calls on the evening of March 1 while defendant was waiting for her. Defendant's ex-wife briefly testified that defendant called her around midnight explaining his sickness, and she agreed to pick him up later in the morning with another driver.
The State rested after the testimony of Krebs. Defendant moved to suppress Novembrino's testimony regarding the HGN test. The MCJ denied the motion, but agreed that he would only consider the testimony "to show that there was probable cause to make an arrest."
Defense counsel then moved to suppress the results of the Alcotest, arguing that certain foundational documents necessary to establish the reliability of the instrument were not produced. The State responded by arguing that defendant never requested the documents, and that the prosecution should be allowed to reopen its case. Noting that the judge permitted defendant to reopen to admit Danko's phone records into evidence, the prosecutor believed that the same "courtesy" should be extended to the State.
The MCJ denied defendant's motion, reasoning he would allow the State to reopen its case "in fairness to the prosecution." Accordingly, Krebs was re-called as a witness. He authenticated a number of documents related to the proper functioning and reliability of the Alcotest machine, including: (1) the calibration report; (2) the new standard solution report; and (3) the certificate of analysis of the 0.10 simulator solution. The documents were admitted into evidence.
Considering all of testimony regarding the physical tests performed at the scene, the MCJ concluded the evidence was "insufficient to find guilt beyond a reasonable doubt." With regard to the Alcotest results, however, the MCJ found that the State "satisfie[d] the obligation for the proper foundational documents," even though the State had to reopen its case to admit the evidence. Moreover, he found that "Krebs did everything that was . . . proper and appropriate to do in the administration of the Alcotest, and . . . came up with a reading of .11 [percent] [BAC]." Reasoning that New Jersey was a "per se state," the judge concluded that "with a reading of .11 [percent] [BAC] . . . defendant was guilty of driving while intoxicated." The judge imposed the minimum penalties for conviction of a second DWI offense and stayed the sentence pending appeal.
Defendant raised three points on de novo appeal in the Law Division: 1) the State failed to prove his operation of the vehicle; 2) Novembrino lacked probable cause to arrest him; and 3) the Alcotest "was both improperly administered and . . . improperly admitted into the actual case in chief by the prosecutor." The State opposed those arguments and also urged, in the alternative, that defendant was guilty of DWI under the "subjective prong" of the statute.
Pertinent to the appeal before us, in a written opinion, the judge concluded that "the field sobriety tests alone [we]re not enough to find . . . defendant guilty beyond a reasonable doubt." However, the judge also found "the Alcotest results were properly admitted because there was no violation of the two minute rule for samples two and three, when defendant provided enough air to yield results." Citing Krebs' testimony, the judge found the machine "automatically recalibrated, and the mouthpiece had been changed" each time the test was administered to defendant.
With respect to defendant's argument that the test results should have been suppressed because the foundational documents were not entered into evidence before the State rested, the judge ruled that the State was not obligated to admit the documents in evidence until defendant challenged the admissibility of the test results. Accordingly, because the defendant did not raise the issue until the State rested, the State was relieved of the burden of proving the reliability of the breath analyzer. Alternatively, the judge held that the MCJ "acted within his discretion in allowing the State to reopen its case to admit the foundational documents."
The judge filed a "second amended order" approximately three weeks later on February 17, 2010, and this appeal followed. On July 19, 2011, we granted the State's motion to file its cross-appeal as within time.
In reviewing de novo Law Division trials of municipal court appeals, 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. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). 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), certif. denied, 202 N.J. 346 (2010).
Defendant asserts that the first sample, which did not register a reading due to insufficient volume, could have contaminated the second sample, which did register a reading and occurred less than two minutes later. As a result, he contends it was "palpably incorrect and an abuse of discretion" for the judge to deny his motion to suppress and "hold that the Alcotest was administered in conformance with the two-minute rule." We disagree.
In State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Supreme Court thoroughly addressed the scientific reliability of the Alcotest and adopted certain standards and procedures that must be followed by police and prosecutors before the Alcotest report is admitted in evidence. Contrary to defendant's assertions, the Court did not adopt a hard-and-fast "two-minute rule" as a predicate to admissibility.
In describing the administration process step-by-step, the Court noted that "[a]fter a two-minute lock-out period during which the device will not permit another test, the instrument prompts the operator to read the instruction again to the arrestee and collect the second breath sample." Id. at 81 (emphasis added). "[A]t least two breath samples" are necessary for the results to be valid. Id. at 118, 151.
The Special Master's Report, relied upon by the Chun Court, discussed possible contamination from one sample to the next whenever the a second sample was taken too soon. See Findings and Conclusions of Remand Court, No. 58, 879, 2007 N.J. Lexis 39 at 43 (N.J. Feb. 13, 2007).
Witnesses before the Special Master testified that the two-minute lockout period was one of the safeguards preventing residual alcohol from one sample contaminating a subsequent sample. Id. at 43, 135, 195. Two of the witnesses before the Special Master noted that although the Alcotest instrument did not always strictly adhere to the two-minute lockout period as per its design, the timing error was "very slight." Id. at 100, 135. Despite the possibility that the Alcotest would recalibrate before two minutes elapsed between samples, the Special Master nonetheless concluded that the Alcotest machine was "scientifically reliable in an evidentiary setting but that certain improvements could be made in the program to effect even greater confidence." Id. at 115.
In this case, the first sample was taken at 4:42 a.m. and the second at 4:43 a.m.. Krebs testified that the instrument recalibrated automatically during the lockout period in between, that a second sample could not be taken until the machine recalibrated itself, and he noted that the time on the printout for each sample is automatically rounded down (e.g., a reading taken at 4:43:59 will say 4:43). Considering Krebs' expert testimony regarding the proper functioning of the Alcotest machine, and the lack of any expert testimony to the contrary, the test results were properly admitted.
Defendant next argues that the State failed to prove the scientific reliability of the Alcotest results beyond a reasonable doubt. Specifically, he asserts the Law Division judge "effectively" shifted the burden of proving the test's reliability by requiring the defendant to challenge the admissibility of the Alcotest report before the State was obliged to produce the necessary documentary proof. We agree that the judge erred in concluding that the State was relieved of proving the reliability of the test results through introduction of the so-called "core documents" until defendant objected; but that error had no impact on the ultimate admissibility of the test results.
As an initial matter, the State is required to prove the admissibility of the Alcotest results by clear and convincing evidence; it is not required to prove the scientific reliability beyond a reasonable doubt. Ugrovics, supra, 410 N.J. Super. at 489 n.1. However, defendant is correct that pursuant to the Court's holding in Chun, supra, 194 N.J. at 153, the prosecutor should produce the foundational documents in discovery if the State plans to enter the test results into evidence at trial. In particular, the Court further held that three documents must be entered into evidence during trial in order to establish that the Alcotest instrument "was in good working order" at the time police administered the test to a defendant. Id. at 145, 154. To the extent the Law Division judge ruled that the State was relieved of its burden unless and until defendant objected to the admission of the test results, he erred.
Although the Law Division judge misconstrued the holding in Chun, the error was harmless because the three core documents establishing the admissibility of the Alcotest report were properly admitted after the MCJ allowed the State to reopen its case. Defendant argues that it was improper to permit the State to reopen, re-call Krebs as a witness and introduce the core documents. We reject this contention.
The Court has long held that a trial judge has the discretion to reopen a criminal case after one or both of the parties rest. State v. Wolf, 44 N.J. 176, 191 (1965); see State v. Cooper, 10 N.J. 532, 564 (1952). "[W]hen the ends of justice will be served by a reopening, it ought to be done." Wolf, supra, 44 N.J. at 191.
In his final point, defendant argues that allowing the State to reopen in this case was particularly prejudicial, since both the MCJ and the Law Division judge acquitted defendant of DWI under the subjective standard. However, the MCJ permitted the State to reopen its case, reasoning, in part, that he had exercised his discretion in permitting defendant to reopen and introduce Danko's telephone records. On appeal, the Law Division judge held that the MCJ "acted within his discretion in allowing the State to reopen its case to admit the foundational documents." The Law Division judge then considered the totality of the evidence in reaching the conclusion that defendant was guilty of a per se violation of DWI. We conclude that there was no abuse of the broad discretion accorded both judges in determining the conduct of the trial and the admissibility of evidence. As a result, there was substantial, credible evidence beyond a reasonable doubt of defendant's guilt under the per se DWI standard.
Affirmed. The cross-appeal is dismissed as moot.
 The State concedes in its brief that if defendant's conviction is affirmed based upon the Alcotest results, its cross-appeal is moot.
 The HGN test requires a suspect to follow a stimulus with his eyes while the officer looks for an involuntary jerking or bouncing in the eyeball.
 Following Novembrino's testimony, defense counsel objected to any testimony regarding the HGN test. The MCJ reserved decision.
 Krebs testified out of order after the defense witnesses because he was not present on the first day of trial.
 Krebs testified that with respect to the time on the readings, the machine always rounds the seconds down; thus, a sample obtained at 4:43:59 would be read as 4:43 on the machine's report.
 The MCJ allowed defendant to reopen his case in order to admit the phone records into evidence.
 At the end of the second day of trial, the State voluntarily dismissed a charge of careless driving, N.J.S.A. 39:4-97.