On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 0025-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Holston, Jr.
Defendant, Warren Jones, appeals from the Law Division's September 8, 2006 order finding defendant guilty of driving while under the influence of alcohol (DUI) in violation of N.J.S.A. 39:4-50, after conducting a trial de novo on the record of the Atlantic City Municipal Court. We affirm.
On January 28, 2006, defendant was charged with DUI and reckless driving. Following trial before the Atlantic City Municipal Court, defendant was found guilty of DUI. The reckless driving charge was dismissed on the State's motion. Following de novo appeal to the Law Division on September 8, 2006, Judge Neustadter found defendant guilty of DUI for the reasons set forth in his August 28, 2006 written decision.
The facts giving rise to the conviction are as follows: On January 29, 2006, Officer Fair of the Atlantic City Police Department observed defendant driving his vehicle northbound on Pacific Avenue. He observed defendant suddenly slam on his brakes, skid for about twenty feet, and hit the curb. Defendant then exited the vehicle and walked across the street where Officer Fair drove near to him, asked him if he was okay, and instructed him to remain on the curb until he parked his vehicle.
Officer Fair then approached defendant and made various observations. Fair observed that defendant had a strong odor of alcohol on his breath, his eyes were watery and bloodshot, his speech was slurred, and he was swaying. The officer administered a number of sobriety tests, which defendant performed inadequately. Defendant was placed under arrest.
Two breathalyzer tests were administered by Officer O'Hala, a certified breathalyzer operator, at the Public Safety Building to which defendant was transported. O'Hala testified to the check-list steps he utilized in preparing the breathalyzer machine before administering the tests. Certifications that the machine was in proper working order were admitted into evidence. O'Hala testified defendant did not indicate he was sick, injured or taking medications in response to O'Hala's inquiries. O'Hala also observed defendant's breath had an odor of alcohol, his eyes were bloodshot and watery, and his speech was slowed and slurred.
Defendant's counsel, by letter dated February 6, 2006, made a demand of the court administrator of the Atlantic City Municipal Court, with copy to the municipal prosecutor, for discovery pursuant to Rule 7:7-7(b). The letter requested that all video and other recorded evidence be preserved and provided to defendant. A second letter of the same date, sent via facsimile and regular mail to the municipal prosecutor and the records department of the Atlantic City Police Department, requested copies of "any and all video tapes taken in the above referenced matter." The letter further stated:
For your edification, I am aware of at least one place where a video camera is maintained and recordings are generated; that being, the room containing the Breathalyzer. I should note as well and based upon my prior experience with D.W.I. cases arising out of Atlantic City, those tapes are reutilized every thirty days. As such, your attention in preserving the evidence as well as providing a copy of the tape in an expedited manner is of the utmost importance considering the potential ramifications to both sides should the evidence be lost.
On February 23, 2006, the municipal prosecutor sent discovery. The prosecutor's covering letter stated: "[i]f this is a matter that involves a surveillance tape, please contact this office to arrange an inspection of the tape." Defense counsel concedes he has no recollection of calling to arrange to review the tape.
At trial, defense counsel raised the issue of videotaping during O'Hala's testimony concerning his administration of the breathalyzer tests. O'Hala, when asked whether there was video recording in the breathalyzer room, responded, "I don't know . . . . [T]he video system is looped through the entire building and it takes, I guess you would call it a freeze frame shot maybe every few seconds. And it goes, rotates through the entire building." Counsel then followed with, "Like one of those that takes like one second or so," to which the officer responded, "Yeah. It would . . . take a still of the breath room, then it would move to the hallway, then the back door, then the lobby. I don't know how many cameras it loops through, but it's on a continuous loop." When asked by whom the tape was maintained, O'Hala responded that he assumed by security, but that he did not know. Nor did O'Hala know who monitored the tapes, but "it's not within the traffic bureau."
Following O'Hala's testimony, defense counsel indicated to the court that he was not provided the videotape as requested in discovery. The trial prosecutor stated: "We requested whatever discovery is available from the police and there was absolutely no videotape given to us." As a result of further discussion between the court, defense counsel, and the prosecutor concerning the nature of the videotape, the ...