Opinion
DOCKET NO. A-2269-10T3
06-14-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHELE ZANES, Defendant-Appellant.
McKenna McIlwain, L.L.P. and the Mullen Law Firm, attorneys for appellant (Corinne M. Mullen, on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 43-10.
McKenna McIlwain, L.L.P. and the Mullen Law Firm, attorneys for appellant (Corinne M. Mullen, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michele Zanes appeals from a November 30, 2010 judgment after a trial de novo before Judge Robert Neustadter in the Law Division, finding her guilty of exceeding the speed limit established by N.J.S.A. 39:4-98, for which she was fined $155 and assessed $33 in court costs. The Law Division judge also found her guilty of failure to exhibit her driver's registration certificate in violation of N.J.S.A. 39:3-29, for which she was fined $155 and assessed $33 in court costs. After a careful review of the record as well as defendant's contentions, we affirm.
The statute that prohibits speeding is N.J.S.A. 39:4-99.
I.
On appeal, the record discloses the following facts and procedural history.
At trial in the municipal court on July 1, 2010, the State's witnesses testified to the incident that led to defendant's prosecution. Kevin P. Devlin is a police officer employed by the Egg Harbor Township Police Department. On July 2, 2009, he was traveling westbound on the Black Horse Pike when he observed defendant's vehicle traveling eastbound in the passing lane. Devlin testified that there were no vehicles in front of or behind defendant and that the road was very open. He made an observation of her vehicle, which appeared to be exceeding the posted speed limit of forty-five miles per hour. He then turned on his Stalker Dual DSR radar unit (Stalker) and began a tracking history, which indicated a read-out of defendant's vehicle's speed at sixty-five miles per hour. He compared the analogue speedometer on his patrol car with that of the digital read-out on the Stalker and they were approximately the same. Devlin testified, "I did lock my radar on as her vehicle was approaching me."
Devlin then slowed his vehicle, moved into the center turn lane, initiated a U-turn eastbound, and accelerated to close the gap with defendant's vehicle. He stated that although defendant's vehicle was traveling in the opposite direction, while he turned he never lost sight of her vehicle. At this point, both vehicles were traveling eastbound toward Atlantic City.
Devlin activated his lights and siren and executed a motor vehicle stop of defendant at 8:04 a.m. After approaching the passenger side of her vehicle, Devlin requested defendant's license, registration, and insurance card. Defendant, in the course of handing her license to Devlin, identified herself as an Atlantic City police officer. Devlin again requested her registration and insurance card. Defendant then produced her insurance card but failed to produce her registration.
Because of an earlier experience he had during a traffic stop of defendant's vehicle in November 2008, Devlin requested that a supervisor from the Egg Harbor Police Department and a supervisor from Atlantic City Police Department come to the scene of the stop. Devlin's police car vehicle did not have a mounted camera, so he also requested a vehicle equipped with a video camera from the Egg Harbor Police Department. He testified that he made these requests because "I wanted to make sure that she was treated fairly on this date and that I was treated fairly."
Devlin had previously stopped defendant for speeding in November 2008 in the same area. Although on that occasion he did not issue her a summons, defendant filed an Internal Affairs complaint against Devlin. As a result, an Education Performance Notice and a Training Performance Notice were issued to him. He was informed that he did not follow proper procedure, which necessitated the remedial education.
As Devlin was filling out the two summonses in question, the supervisors, together with other officers, arrived at the scene. He then approached defendant's vehicle and issued her a speeding summons as well as a summons for failure to exhibit her registration. At trial, he explained that he issued the summonses because,
I told her the last time I had stopped her I had given her a warning for her eighty-five in a fifty or seventy-two in a forty-five at that point, and I told her I had recently had a pedestrian struck and killed in the exact same spot where I had clocked her speeding on both occasions and that I wasn't going to give her a warning this time.
Devlin testified that he performed certain diagnostic tests on the Stalker prior to starting his shift that day, which included tests for using the radar when his vehicle is stationary and when it is moving. He testified that he was a certified operator of radar devices and has "been recertified multiple times through certified instructors [] in Egg Harbor Township." He stated that on March 5, 2009, he was issued his State radar operator card, which permits him to operate the Stalker.
Because defendant alleged that the Egg Harbor police had destroyed the audio recording of the radio transmissions, the State called Harry Sullivan, who on the date of the incident was the Manager of Information Technology for Egg Harbor Township. Sullivan stated that on July 2, 2009, he received "a call from dispatch[] saying that he wasn't able to listen to the instant playback on the computer, [so] he put a work-order in[,] which is our system for tracking trouble." The work-order indicated that all police dispatching consoles, radios and telephones were not working, requiring him to reset the system. He also testified that on July 5, another dispatcher indicated that the system was having the same problem. According to Sullivan, when he later went to retrieve the July 2 recordings, there was no audio due to a malfunction.
After defendant complained that several subpoenaed witnesses failed to appear, the municipal judge ruled that the Egg Harbor Township officers who arrived at the scene to meet Devlin were not subject to respond at trial pursuant to defendant's subpoena because they were not personally served. See Rule 7:7-8(e); Pressler & Verniero, Current N.J. Court Rules, comment on R. 7:7-8(e) (2012).
The judge also rejected defendant's argument that she was targeted in retaliation for a previous lawsuit she filed against Atlantic City. The judge held that the testimony did not support defendant's charge that Devlin identified defendant and inappropriately stopped her.
In 2006, defendant settled a lawsuit in which she was a plaintiff, alleging sexual harassment and religious discrimination against the Atlantic City Police Department and several of its officers. The settlement resulted in an award of $750,000 for defendant. She maintained at trial that Devlin's stop was retaliatory and a continuation of the Atlantic City Police Department's continued harassment of her.
The judge also found that Devlin was properly using the Stalker and that the State's proofs showed defendant was traveling at high rate of speed, in excess of the forty-five mile per hour speed limit. Further, he found that defendant "clearly did not have her registration in possession" and that she was guilty of both violations beyond a reasonable doubt.
Defendant appealed to the Law Division, and a trial de novo was conducted on November 18, 2010. At the conclusion of trial, Judge Neustadter issued an oral decision, finding that Devlin's credible testimony as a veteran police officer, coupled with the lack of proof demonstrating that the State destroyed evidence, both established defendant's guilt beyond a reasonable doubt with regard to the summonses issued in 2009.
The judge found Devlin's testimony admissible under the business records exception to the hearsay rule, N.J.R.E. 803(c)(8).
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II.
Defendant raises the following issues for our consideration on appeal:
POINT I
A. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE TWO SUMMONSES DUE TO THE DESTRUCTION OF DISCOVERABLE EVIDENTIARY MATERIAL BY THE STATE.
B. THE TRIAL PROCEEDINGS BEFORE [THE MUNICIPAL COURT JUDGE] WERE FUNDAMENTALLY UNFAIR.
POINT II
THE CONVICTION BASED ON USE OF THE STALKER D.S.R. OR ALTERNATIVELY, OPERATION, SHOULD BE REVERSED.
The scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, as with the Law Division, we are not in a position to judge credibility, and do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Our deference is properly extended when two prior courts have agreed the witness testimony was credible and supported by the evidence in the record. In such an instance, we will not alter those determinations absent an obvious showing of error. Locurto, supra, 157 N.J. at 474. Unless we are convinced the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).
III.
We turn first to defendant's contention in Point I that the State denied her access to exculpatory evidence, and that the proceedings in the municipal court were fundamentally unfair.
Defendant specifically argues the Egg Harbor Police Department destroyed the audio recordings that would have supported her version of the events resulting in the motor vehicle stop. Defendant asserts she requested the recordings within thirty days of the date she was charged with committing the offenses, and that bad faith is evidenced because the initial response to her request for the recordings was that they were not available "due to [the request] being over 30 days from the date of the incident."
The State is required 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 State v. Marshall, 123 N.J. 1, 107-09 (1991). To establish a due process violation, defendant must demonstrate that: "(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001). We have held that
[w]hen 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. Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can show only that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith.
[State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (internal quotations and citations omitted).]
We begin by noting that defendant's contention regarding the exculpatory nature of the audio recordings is speculative. The Law Division judge held that the trial testimony revealed that there was no evidence to be destroyed because there were no recordings or radio transmissions created on July 2, 2009. Nevertheless, defendant surmises that the recordings would have supported her version of the events. Conversely, we note that any recordings, if they existed, may have instead supported Devlin's version of the events. Because the judge determined that the audio recordings do not exist, no one can say whether they would have been exculpatory, inculpatory, or neutral.
Turning to the issue of bad faith, we conclude that the evidence defendant presented failed to prove the existence of bad faith on the part of the State. We agree with the judge that defendant's arguments regarding the intentional destruction are not supported by the record, and do not demonstrate bad faith on the part of the State. We defer to the judge's assessment of the witnesses' credibility as well as the sufficient credible evidence in the record, and reject defendant's contentions on this issue.
Defendant also argues that the proceedings in the municipal court were fundamentally unfair because certain police officers from Egg Harbor did not appear in response to her subpoenas. The municipal judge correctly held that officers were not personally served pursuant to Rule 7:7-8(e), which requires personal service. Pressler & Verniero, Current N.J. Court Rules, comment on R. 7:7-8(e) (2012). The Law Division did not specifically make any findings with regard to defendant's arguments regarding the subpoena, although he held Devlin's credible testimony in the record essentially established defendant's guilt. We see no reason to disturb the Law Division's findings of defendant's guilt beyond a reasonable doubt on these grounds.
IV.
We now address defendant's contention in Point II that her conviction, based on use of the Stalker should be reversed.
Defendant raised for the first time in the Law Division an argument that the Stalker "has not been accepted by any New Jersey court as being scientifically reliable" and that "the admission of such evidence constitutes plain error" regardless of whether she objected to its admission. See State v. Green, 417 N.J. Super. 190, 208-09 (App. Div. 2010) (holding that the Stalker's scientific reliability has not yet been minimally and independently tested in New Jersey, which prevents it from being used in trial courts as proof of a defendant's speed). Defendant reiterates her position in this regard before us, notwithstanding the Law Division's finding that she was barred from arguing the issue because it was not properly raised in the municipal court.
We are satisfied that defendant's argument, that the State failed to present evidence that the Stalker radar is scientifically reliable, was not timely made. See State v. Van Syoc, 235 N.J. Super. 463, 465 (Law Div. 1988), aff'd o.b., 235 N.J. Super. 409 (App. Div. 1989). In Van Syoc, the defendant, an attorney appearing pro se, failed to object to the introduction of K-55 radar evidence of excessive speed until the trial had been concluded, and he then argued that the charge against him should be dismissed because the State had failed to demonstrate that the K-55 radar unit was being operated in the manual mode, as required. Supra, 235 N.J. Super. at 465. Upon de novo review, the judge held that the defendant had waived his right to object, noting that if an objection had been interposed in a timely fashion, the State would have been in a position to supply the missing evidence. Id. at 466. In sustaining the conviction, the judge observed that "[t]rial errors which are induced, encouraged or acquiesced in, or consented to by defense counsel ordinarily are not a basis for a reversal on appeal." Id. at 465.
Here, defendant objected to the admissibility of the May 12, 2009 and February 17, 2010 speedometer certifications for Devlin's patrol vehicle, the certificate of calibration by R&R Radar, and the certificate of accuracy from the Stalker manufacturer. However, defendant did not object to the introduction of the radar evidence, including that the Stalker radar is not scientifically reliable. As a consequence, the Law Division judge's ruling was correct as a matter of law.
Defendant further argues that the speedometer certifications for Devlin's patrol vehicle were inadmissible hearsay. An objection to their admissibility was timely made at trial in the municipal court. We agree with Judge Neustadter's conclusion that the certificates are hearsay statements but nevertheless admissible under the business records exception to the hearsay rule. N.J.R.E. 803(c)(6). See also State v. Chun 194 N.J. 54, 142 (2008).
Finally, defendant's contention that Devlin's testimony was inadequate to support her conviction is without sufficient merit to justify discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION