Opinion
DOCKET NO. A-3630-10T3
04-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SIME BACIC, Defendant-Appellant.
William Z. Shulman argued the cause for appellant. David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Harris.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-24-10.
William Z. Shulman argued the cause for appellant.
David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano, of counsel and on the brief). PER CURIAM
Defendant Sime Bacic entered a conditional plea of guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusing to submit to an Alcotest, N.J.S.A. 39:4-50.2. As made clear by defense counsel before the municipal court judge, defendant agreed to plead guilty while specifically reserving his right to challenge the court's ruling denying his motion: (1) to suppress all physical evidence, because the police officer who stopped his car did not have a reasonable articulable basis for doing so; and (2) to dismiss the charges against him based on spoliation of evidence by the State for its failure to properly focus the camera on the arresting officer's patrol car that created a video and audio record of the initial motor vehicle stop.
The Municipal Court of Cliffside Park sentenced defendant to pay all appropriate fines and penalties and attend twelve hours in the programs offered by the Intoxicated Driver Resource Center, and suspended his driving privileges for seven months. The Law Division reviewed defendant's conviction de novo, and again found him guilty of these two Title 39 offenses. The trial court imposed the same penalties initially ordered by the municipal court. After reviewing the record presented to us, we discern no legal basis to set aside defendant's conviction.
See State v. Kashi, 360 N.J. Super. 538, 545 (2003) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983)) (reaffirming that "'[a] trial de novo by definition requires the trier to make his own findings of fact'"), aff'd, 180 N.J. 45 (2004).
I
We derive the following facts from the findings made by the Law Division after conducting a de novo review of the record developed before the municipal court, including the transcript of the evidentiary hearing conducted by the municipal court to adjudicate defendant's motion to suppress.
On September 7, 2008, at around 11:17 p.m., Sergeant Jay D. York of the Borough of Cliffside Park Police Department was on routine patrol in his marked police car in the area of Palisades Avenue and Franklin Avenue, when he saw defendant's car driving south on Palisades Avenue. Because defendant's car was directly in front of his patrol car, York noticed that "[a]t some point the [defendant's] vehicle swerved to the left, and then back to the right . . . [and] it did that probably approximately two, three times maybe."
York activated his patrol car's Mobile Video Recorder (MVR) and continued to follow defendant, until the latter made "a wide turn to the right in front of [a] 7-Eleven." York decided at this point to stop defendant's car to investigate the matter further. The Law Division Judge found this part of York's testimony "uncontradicted" and "credible," giving the officer "an appropriate basis for a motor vehicle stop."
The Law Division judge found that York activated the MVR after observing the violations. In fact, the Judge noted that defendant's erratic driving was the reason York activated the MVR. Thus, there was never any video record of the alleged probable cause that led to the initial motor vehicle stop.
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According to York, immediately upon stopping, defendant attempted to get out of his car. York ordered defendant to get back in his car "for his safety, because obviously he would have been in the roadway walking around." At York's request, defendant produced his driving credentials, although York emphasized that "[h]e was fumbling around with them." York also indicated that he "detected an odor of an alcoholic beverage on [defendant's] breath" and that "his eyes were bloodshot." Defendant allegedly admitted to York to having had "one beer at work."
At this point in the proceedings, the municipal prosecutor attempted to play the CD recording of the encounter from York's MVR camera. After some initial technical difficulties, the prosecutor noted for the record that when York took defendant to the side "the camera was not repositioned." York explained that he did not return to his patrol car to reposition the camera because, at that point, he was by himself with defendant and did not "feel right going back to [his] car leaving [his] back to [defendant]." As a result, the video record of the initial motor vehicle stop did not capture the interaction between York and defendant.
As noted earlier, the MVR also has the capacity to record audio. However, the municipal prosecutor noted for the record that "we had audio part of the time and didn't have audio other parts of the time." York gave the following testimony in response to the prosecutor's request for an explanation of this anomaly:
It's actually a common thing with these cameras for some reason or another. I don't know if everybody noticed on the video itself. When the red part is lit, that means something's happening, like, if you hit the brakes it'll be red. If the lights are on it'll be red. If you have the siren, it'll be red. And for some reason or another sometimes the audio goes in and out. And I'm not sure. I'm not - - not an audio/video guy.
At this point, noting that defendant's motion to suppress was exclusively based on, and limited to, the reasons proffered by the State for stopping defendant's car, the prosecutor declined to question York as to the physical coordination tests he asked defendant to perform that lead him to conclude he had probable cause to arrest defendant for DWI.
York admitted on cross-examination that he could have turned the MVR camera to focus on the location where defendant was standing. This occurred when York returned to his patrol car to retrieve another flashlight after the one he had been using stopped working. Defense counsel argued to the Law Division that York's failure to adjust the camera when he returned to the patrol car to get the second flashlight was enough to undermine his credibility as to his entire testimony. As the following excerpt from the trial court's oral opinion indicates, the Law Division judge rejected this argument:
The defendant argues that Sergeant York was less than candid about activating the video. However, this Court finds Sergeant York credible . . . . [H]e's out there on the road without backup. The flashlight seemed important so he could see . . . . [H]e candidly admitted he made a mistake when he forgot to adjust the camera. I don't find that there was bad faith on his part. Particularly because the audio was discernable [f]or some of it.
Although the camera was not positioned to record the [field sobriety] tests, the audio recordings from the camera were made. The audio reveals that Mr. Bacic was having some difficulty performing the sobriety tests and listening to instructions from the officer.
II
Against this record defendant now appeals, raising the following arguments:
POINT I
THERE WAS NO ARTICUABLE BASIS TO STOP AND ARREST THE DEFENDANT.
POINT II
DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY REASON OF SPOILATION OF EVIDENCE.
We reject these arguments and affirm substantially for the reasons expressed by Judge Lois Lipton in her oral opinion delivered from the bench on March 14, 2011. Our standard of review requires us to defer to the factual findings made by the motion judge, as long as they are supported by sufficient competent evidence on the record. State v. Minitee, 210 N.J. 307, 317 (2012) (citing State v. Robinson, 200 N.J. 1, 15 (2009)). We have no legal basis to question Judge Lipton's factual findings, which are amply supported by the record. In this light, given the circumstances Sergeant York encountered when he first noticed defendant's car, the officer had objectively reasonable grounds to stop defendant's car and investigate the matter further. Judge Lipton's findings also support York's decision to arrest defendant for DWI. See State v. Locurto, 157 N.J. 463, 474 (1999).
With respect to defendant's spoliation argument, we are in complete agreement with Judge Lipton. As a starting point, the State is not obligated to videotape the encounter between York and defendant at the scene of the stop. State v. Gordon, 261 N.J. Super. 462, 465 (App. Div. 1993). Defendant has not shown that repositioning the camera on the patrol car would have produced materially exculpatory evidence. As noted by Judge Petrella twenty years ago:
The State's failure to videotape [the defendant] did not violate his due process rights. There is no duty on the part of the police to create evidence by videotaping
suspected drunken drivers. Moreover, [the defendant] has not shown that any failure to videotape him was caused by bad faith and he has shown no prejudice from the lack of a videotape. Thus, even if videotaping were required, he would not be entitled to relief. Obviously, there was testimony available from the police officers who could give their lay opinion with respect to [the defendant's] condition and express their opinion with respect to whether he was under the influence.
[Id. at 464-65 (citing State v. Johnson, 42 N.J. 146, 166 (1964)).]
Since defendant's appeal was predicated exclusively on the two arguments discussed, we discern no reason to elaborate further.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION