On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Bilder, Baime and Wallace, JJ. The opinion of the court was delivered by Bilder, J.A.D. Wallace, J.s.c. (Temporarily Assigned), Dissenting.
These are four separate appeals from orders of the Law Division denying motions by the separate defendants in which they sought new trials on grounds of newly discovered evidence and/or on grounds that such action is required in the interest of Justice. See R. 7:4-7. All stem from pled convictions of driving while under the influence of alcohol, N.J.S.A. 39:4-50 which arose from arrests and subsequent breathalyzer tests made by Patrolman Robert Kane of the Oaklyn Police Department. Kane later was charged and pled guilty to falsifying breathalyzer examination readings and unlawfully taking or exercising unlawful control over moveable property of the arrested drivers. Although none of the defendants were involved in the matters which led to criminal charges against Kane, each contends that Kane's criminal conduct represents newly discovered evidence of fraud relating to the reliability and validity of their breathalyzer test results and requires the grant of a new trial in the interest of Justice. Their separate appeals have been consolidated for the purpose of this opinion.
Initially, it is important to understand the nature of Kane's criminal conduct. On August 29, 1991, Kane entered guilty pleas to accusations charging second degree misconduct in office involving the falsification of breathalyzer test results and third degree misconduct in office involving the taking of money belonging to arrested drivers. The first offense dealt with during that plea hearing charged that on May 7, 1991 Kane falsified a breathalyzer examination reading performed on Dwight Newlin by recording a .10 blood alcohol content and a .11 blood alcohol content when, in fact, the true reading was .00 blood alcohol and that he had exercised unlawful control of $30 belonging to Dwight Newlin or the Camden County Prosecutor's Office*fn1 with purpose of depriving the owner thereof
during an alleged drunk driving car stop and processing of Newlin. The accusations also referred to fourteen other incidents with other drivers in which motor vehicle stops were made and moneys taken. With Kane's permission, his colloquy was supplemented by the prosecutor who, on the basis of the files, described Kane's conduct in clearer terms.
These are all basically car stops, some for drunk driving, others for motor vehicle violations, expired tags, that sort of a thing, but they are all car stops. They are all situations where the driver would be removed from the car. He would be searched, his wallet would be taken. His or her wallet would be taken and then they would be taken to the station and when the wallets would be returned, certain moneys would be missing. So the scenario is almost identical in each case to the one that the prosecutor's office orchestrated.
After the prosecutor's recital, Kane said he didn't remember the individual details but he did not dispute the account. And he acknowledged that in each matter it was his purpose to keep the money and in fact he did so.
Turning back to these appeals. In each case, the defendant was stopped by Kane, arrested and taken to the Oaklyn police station. There, Kane administered a breathalyzer test and informed the driver of the reading, in each case over .10*fn2 At least three of the defendants, Falcone, Cunningham and Littles admitted consuming some alcohol.*fn3 The record of Gookins is silent on the subject. Faced with the evidence of the breathalyzer results, each pled guilty to the charge of driving while intoxicated. There is no contention that any of the defendants had any money taken or missing.
The use of Kane's conviction must be examined from two perspectives. First, as evidence which might be used to affect credibility. See Biunno, Current N.J. Rules of Evidence, Comment 14 to Evid.R. 20 (1993) at 302. It is to this use that much of the lower courts' opinions were directed and we entertain no doubt of the correctness of their rulings, substantially for the reasons given by the municipal court Judge and adopted by the Law Division Judge. Also see People v. Sherman, 83 Misc. 2d 563, 372 N.Y.S. 2d 546, 548 (1975).
The more critical aspect of Kane's convictions is the question of whether they represent material evidence casting doubt on the Justice of defendants' DWI convictions -- on the reliability of the breathalyzer test results recorded by Kane. We entertain no doubt that if Kane's convictions evidenced that false readings had been recorded for any of these particular defendants (as was done to Newlin), Justice would require that such a defendant be given a new trial. The question in this case is whether Kane's convictions and the facts upon which they were based constituted evidence that similar misconduct occurred with respect to these DWI defendants. We are persuaded they did not. The pattern displayed in the misconduct situations did not occur in any of these cases. Kane's misconduct was part of a scheme to obtain money. In these cases, there is no evidence of any such efforts. Standing alone, the fact that these defendants were stopped by Kane does not create the logical nexus to permit the inference that he falsified the breathalyzer results.*fn4
To be relevant there must be sufficient similarities between the arrests in which Kane was guilty ...