Opinion
DOCKET NO. A-2206-12T3
02-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JENIFER IANNONE, Defendant-Appellant.
Robert J. Pinizzotto argued the cause for appellant (Law Offices of Robert J. Pinizzotto, LLC, attorneys; Mr. Pinizzotto and Nicole E. Wise, on the brief). Deborah A. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0030-12.
Robert J. Pinizzotto argued the cause for appellant (Law Offices of Robert J. Pinizzotto, LLC, attorneys; Mr. Pinizzotto and Nicole E. Wise, on the brief).
Deborah A. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, on the brief). PER CURIAM
Following the trial de novo in the Law Division of her municipal appeal, defendant Jenifer Iannone was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and driving while her license was suspended, N.J.S.A. 39:3-40. This was defendant's third DWI conviction, and the Law Division judge imposed the same sentences as did the municipal court judge, specifically, the mandatory minimum term of 180 days in jail, a ten-year license suspension and installation of an ignition interlock device for one year. On the violation of N.J.S.A. 39:3-40, the judge imposed a concurrent ten-day jail sentence and six-month license suspension. Appropriate financial penalties were imposed on both violations. The judge stayed defendant's incarceration for forty-five days "pending appeal to the Appellate Division."
We did not enter any further stay of defendant's sentence.
Because several of defendant's arguments relate to the proceedings in municipal court, we take time to explain the procedural history, referencing only briefly the testimony at trial to place the issues in proper context.
In the early morning hours of May 22, 2011, defendant was stopped by Northfield police sergeant Scott Pollack as she drove her vehicle into Egg Harbor Township (Egg Harbor). Egg Harbor police officer Shawn Owen arrived on the scene and administered field sobriety tests to defendant, after which she was arrested and transported to police headquarters. An Alcotest was administered, and defendant's blood alcohol level was .16 percent.
Defense counsel filed his appearance with the Egg Harbor municipal court in early June, and, on June 17, 2011, he sent a letter to the municipal prosecutor demanding all discovery, including "[a]ny and all mobile recording device images . . . and/or videotapes of the defendant at or about the time of arrest and afterwards." The letter further advised "that upon receipt of the State's discovery materials," counsel would assume he had been provided with all discovery and would by motion seek to preclude the State from relying upon any additional "materials." The letter also indicated that defendant was invoking her Fifth Amendment right against self-incrimination, and her rights under N.J.R.E. 503.
The letter was sent to the municipal court and addressed to the attention of "Municipal Prosecutor."
N.J.R.E. 503 provides that, subject to certain exceptions, "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate[.]"
Based upon defendant's request for a stay, the case was not listed before the municipal court judge until January 12, 2012. A trial date of February 16 was set. On that date, defendant appeared ready for trial, but the State sought an adjournment to subpoena Pollack. The judge granted the adjournment over defendant's objection. At defendant's request, the judge indicated he was setting the next date as "a firm trial date," although he added it was "subject to the witness appearing pursuant to the subpoena."
Defendant's brief indicates the stay was occasioned by the desire to await our decision in State v. Holland, 422 N.J. Super. 185 (App. Div. 2011). We take that to actually mean our decision following our initial remand, i.e., State v. Holland, 423 N.J. Super. 309 (App. Div. 2011) (Holland II), which was decided on December 20, 2011. There we held "that the Control Company digital thermometer is comparable in all material respects to the Ertco-Hart digital thermometer previously used during the Alcotest calibration process, and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by [State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)]." Id. at 319.
Defendant asserts this was "to be a firm trial date[,]" but there is no transcript of the proceedings, and the State contends otherwise.
On the next scheduled date, April 19, 2012, defense counsel made an oral motion in limine before trial began. He claimed that the prosecutor had just served him with additional reports, and citing Rule 7:7-7, counsel sought an order limiting the prosecutor from relying upon any other, as yet, unfurnished, discoverable material. The judge denied the motion, noting in part, that the Rule was intended "to promote some flexibility" in the court's ability "to rule on whether or not the trial should continue or whether . . . it should be stopped because of a failure to produce one, two or three documents."
State Trooper Joseph Dellanoce testified regarding the foundational documents necessary for admission of defendant's Alcotest Alcohol Influence Report (AIR). Following voir dire, defendant objected to the admission of the New Standard Solution Report (the report), but the judge overruled the objection. We discuss this in more detail infra.
After a short break during which the judge addressed another matter, the prosecutor advised that defense counsel "indicated . . . that he did not have a video" of defendant's arrest. The prosecutor stated that he believed either it had already been provided or that "there was none." However, he confirmed that a video was indeed at police headquarters.
Defense counsel told the judge that he "knew . . . there was a piece of evidence" that had not been supplied because of a "note" in the "discovery package . . . that said video." Defense counsel argued it was not his "job . . . to tell the State their deficiencies." He moved to dismiss the summonses.
Presumably based on the State's breach of its discovery obligations, the judge ruled the video was inadmissible and precluded the State "from presenting the tape at any time." The judge further ordered that the video be produced for defense counsel's review. However, defense counsel pressed his objection, noting he was unable to conduct any further examination of witnesses until he viewed the video, any further delay of the trial was improper and dismissal was warranted pursuant to State v. O'Keefe, 135 N.J. Super. 430 (Law Div. 1975).
Citing State v. Holup, 253 N.J. Super. 320 (App. Div. 1992), the judge noted "there has to be a collegial . . . effort by attorneys to make sure that discovery is complete before the trial proceeds[,]" and that by both the prosecutor and defense counsel shared that obligation. He ordered the trial to be continued to permit defendant to review the tape, at which point defense counsel requested a postponement, which the judge granted.
Trial commenced again on May 24, 2012, and was completed the same day. During Owen's testimony, and over the objection of defendant, the State introduced the video recording of defendant's arrest made from the dashboard of Owen's police vehicle. Defendant was found guilty and filed a timely appeal to the Law Division.
Addressing each issue presented by defendant, the Law Division judge concluded that the municipal court judge did not mistakenly abuse his discretion in granting the State's first requested adjournment to produce Pollack as a witness, particularly in light of the many months of delay occasioned by defendant's requests for a stay pending our decision in Holland II. The judge also found no mistaken exercise of discretion by the municipal court judge regarding the video recording. The judge stated:
While I think it was wrong for the State not to present the video at the time the other discovery was presented, I think that was cured by allowing [defense counsel] to take the video, have another month or two to review it and prepare for its showing in municipal court.The judge also noted the video did not prejudice defendant.
The video recording is not part of the appellate record.
Lastly, addressing defendant's objection to the admission of the report in evidence, the judge accepted Dellanoce's testimony and concluded that whatever information had been added to the report did not affect its admissibility and was not prejudicial to defendant. The judge found defendant guilty and imposed the sentences already noted. This appeal followed.
Before us, defendant asserts that the municipal court judge abused his discretion in granting the State an adjournment of trial, in denying defendant's motion in limine before trial and in adjourning the trial once it began because the State failed to provide discovery in a timely fashion. Lastly, defendant contends the municipal court judge, and in turn, the Law Division judge, erred by admitting into evidence the report which had been "altered."
We have considered these arguments in light of the record and applicable legal standards. We affirm.
"'We have always recognized that ordinarily adjournments are within the discretion of the trial court.'" State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009) (quoting State v. Gallegan, 117 N.J. 345, 354 (1989)). "Adjournments should generally be granted to either party for legitimate reasons, including the unavailability of a necessary witness." Id. at 12. Rule 7:8-3 specifically provides that "the [municipal] court may adjourn the trial for not more than fourteen days, except that an adjournment for a longer period or additional adjournments may be granted if the court deems postponement of the trial to be reasonably necessary in the interest of justice."
In this case, the State asked to adjourn the first scheduled trial date so it could subpoena a police witness from another jurisdiction. The circumstances present in this case are nothing like the egregious delays occasioned by the State's inadequate preparation which we concluded denied the defendant his individual right to a speedy trial in Tsetsekas, supra, 411 N.J. Super. at 12-14.
We also find no error in the judge refusing to grant defendant's "motion in limine" which, as we view the record, essentially sought to foreclose the State from introducing any evidence other than what had been provided in the initial "discovery package." Defendant argues that had the motion been granted, certain documents, specifically defendant's driver history abstract and the report, as well as the video recording, would have been barred from evidence.
Initially, we note that defense counsel specifically did not object to the two documents furnished on the first trial date, stating to the judge:
I'm not even going to make the objection because I know what [y]our [h]onor is going to rule . . . . I know you're going to deny any application I have with that, but I received it tonight.The judge asked defense counsel what relief was sought, and, we discern from the transcript defendant sought relief that was prophylactic in nature, i.e., the State be foreclosed from admitting any other evidence that should have been produced in discovery but was not. The only other evidence subsequently brought to light was the video recording, which was initially mentioned to the judge after the first witness had testified.
Defense counsel referred to such evidence as "the next bomb . . . that the State's [going to] drop on me."
At that point, the judge denied defendant's motion to dismiss and barred the State from introducing the video recording. When defendant objected to continuing with the trial, the judge ultimately granted his request for an adjournment.
At the time of the trial, Rule 7:7-7(h) provided:
If a party . . . discovers, either before or during trial, additional material . . . previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence of these additional materials[.] If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule . . . , the court may order that party to permit the discovery, inspection, copying or photographing of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate.The judge viewed the Rule as requiring each party to cooperate to assure that all discovery had been furnished, and the matter was ready to proceed to trial. The judge also concluded that the Rule was intended to provide the court with "flexibility" in fashioning an appropriate remedy if a discovery violation occurred.
In Holup, supra, 253 N.J. Super. at 323, a case cited by the municipal court judge, despite the prosecutor's admitted discovery violation, we affirmed the Law Division's order remanding the case for trial, essentially denying the defendant's motion to dismiss. We recommended that where discovery was not provided, defense counsel should serve a motion seeking to limit the time for production of outstanding discovery, violation of which would result in dismissal. Id. at 325.
In State v. Utsch, 184 N.J. Super. 575, 580 (App. Div. 1982), interpreting then Rule 7:4-2(g), a forerunner to current Rule 7:7-7(h), we concluded the municipal court judge did not mistakenly exercise his discretion in granting an adjournment despite the prosecutor's admitted failure to timely furnish discovery. Judge Pressler, writing for the court, stated:
This was a bench trial; there was no apparent prejudice to defendant in the maintaining of his defense effected by the adjournment; the prosecutor's failure to supply the discovery was not willful and defendant's attorney himself made no effort after his initial letter to obtain the discovery requested.
[Ibid.]
We recognize that the discovery rules in Part VII have become increasingly more complex and subject to extensive periodic revision since Holup and Utsch were decided. However, we reject defendant's blanket assertion that the Rule essentially violates a defendant's due process rights because it forces him or her to incriminate herself by notifying the State of deficiencies in its case. Instead, the Rule provides the judge with the ability to address any discovery violation that may occur as it occurs, and with the ability to fully evaluate the circumstances and significance of any such violation on defendant's right to a fair trial. See e.g., State v. Wolfe, 431 N.J. Super. 356, 363 (App. Div. 2013) (noting the court's "broad discretion in determining what sanctions, if any, to impose when a party fails to comply with discovery obligations") (citation omitted).
Since the trial in this case, effective January 1, 2013, Rule 7:7-7 was amended in two pertinent aspects. First, Rule 7:7-7(g) now provides that "[i]f any discoverable materials known to a party have not been supplied, the party obligated with providing that discovery shall also provide the opposing party with a listing of the materials that are missing and explain why they have not been supplied." Former subparagraph (h) has now been re-designated as subparagraph (j) and provides:
Continuing Duty to Disclose; Failure to Comply. There shall be a continuing duty to provide discovery pursuant to this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to provide the discovery of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate.
Here, when the existence of the video recording was first brought to the judge's attention, he ruled the State could not introduce it at trial. That remedy was not a mistaken exercise of the judge's discretion, was entirely proper under the Rules and did not require defendant to incriminate herself in any respect. In other words, regardless of which party advised the court of the missing discovery, the remedy fashioned by the judge was wholly appropriate.
Ultimately, over defendant's objection, the video was seen by the municipal court judge, and the Law Division judge also viewed it at the trial de novo. Defendant has not raised any specific issue on appeal regarding the admissibility of the video, which, we assume may be because it was not prejudicial to defendant, as the Law Division judge noted.
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Lastly, we reject defendant's claim that admission of the report was reversible error. During voir dire, trooper Dellanoce, the State's expert witness on the Alcotest and the foundational documents, identified the report. Dellanoce was the certified coordinator for various municipal Alcotest machines, including the one use by Egg Harbor police. Dellanoce recognized the signature of the Egg Harbor police officer who prepared the report and testified that the report was produced on May 9, 2011 and included results from testing of the Alcotest machine used by Egg Harbor police and the report was kept in the ordinary course of business by the police department.
On cross-examination, Dellanoce testified that his job as coordinator was to "inspect[,] . . . maintain and recalibrate the Alcotest at the municipal and the state police level[.]" He also trained and recertified the municipal police Alcotest operators. Dellanoce acknowledged that officers should not "modify a document" related to the Alcotest.
Drawing attention to a stamp on the report containing information regarding the temperature probe used to test the Alcotest machine, defense counsel asked if Dellanoce was aware of any municipality that "allows their officers to put [on the report] the temperature probe notation beyond the one . . . which you put on." Dellanoce answered, "no."
The judge asked Dellanoce if the stamp "in any way change[s] the importance of this document or change[s] what the document stands for . . . ?" Dellanoce answered "it in no way changes the outcome of that document[.]" He explained that the purpose of the report was "to ensure that the lot number and bottle of solution produced control tests that were within the tolerance that's required to have a serviceable Alcotest." Dellanoce further testified the report demonstrated that "all tests passed. . . . [T]hat Alcotest at that time was running correctly." Dellanoce added that one of the stamps only "repeat[ed] . . . the lot number that's already printed on the top[,]" and the other was "the serial number of the temperature probe that was used with the simulator." The judge overruled defendant's objection to the admission of the report in evidence.
The report is one of the required foundational documents for admission of the AIR in evidence. See Chun, supra, 194 N.J. at 145. The Chun court held that the foundational documents were admissible "as business records in the traditional sense." Id. at 142. Rejecting arguments that the documents "should be viewed with suspicion" because they were prepared by law enforcement or the Alcotest manufacturer, the Court noted that "nothing . . . suggests that any of these foundational documents is subject to manipulation by the preparer." Id. at 142-43.
Defendant argues that the report in this case was "altered" by an unknown person, and therefore was inadmissible as a business record. The State counters in part by citing the Chun Court's recommendations which were agreed upon by all parties in the case. The recommendations included changes to the Alcotest firmware to "include the temperature probe serial number and probe value" on the report and calibration documents, i.e., the exact information supplied by the stamp on the report in this case. Id. at 89.
We conclude that the report was clearly admissible as a business record. "The standard for the admissibility of business records has remained constant." State v. Sweet, 195 N.J. 357, 370 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009). The proponent of the evidence must satisfy a three-prong test:
First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.The "rule does not require the testifying witness to have personally participated in the creation of the document or to know who actually recorded the information." Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996) (citation omitted).
[Ibid. (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985) (internal quotation marks omitted)).]
Dellanoce's testimony was sufficient for the State to meet these standards for admission of the report. More importantly, to the extent the report was altered, it clearly was not the type of "manipulation" which would have concerned the Chun court. The stamped information was, in part, additional to that already contained in the report, and the balance of the information not inconsistent with any already in the report. The essential purpose of the report, i.e., to demonstrate that the calibration of the machine was within tolerable limits, was not impugned in any way.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION