On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-42-08.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Defendant Steven Mustaro appeals and challenges the denial of his post-sentence motion to vacate his plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50.*fn1 Relying upon the court's decision in State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001), defendant claimed he would not have pled guilty if the State had provided him with a videotape recorded by the camera in the arresting officer's patrol car. By the time defendant filed his motion, which was about twenty months after he was sentenced, the videotape had been destroyed. Because defendant did not present evidence that would permit the trial court to conclude that the videotape was exculpatory and material to his decision to plead guilty or that withdrawal of his guilty plea is necessary to correct a manifest injustice, we affirm.
On November 29, 2006, defendant pled guilty to driving while intoxicated on September 27, 2006. The plea was entered pursuant to the State's agreement to dismiss additional charges for violations of N.J.S.A. 39:4-88, failure to maintain a lane; N.J.S.A. 39:3-29, failure to exhibit the vehicle's registration; N.J.S.A. 39:4-57, failure to comply with the officer's direction; N.J.S.A. 39:4-96, reckless driving; N.J.S.A. 39:4-98, speeding; N.J.S.A. 39:4-89, following too closely; N.J.S.A. 2C:29-2a(1), resisting arrest; and a violation of a municipal zoning ordinance. At the time of his plea, defendant acknowledged that he was operating a vehicle, had consumed four or five beers and had a blood alcohol content of .14 as measured by an Alcotest device.
In conformity with the Supreme Court's order of January 1, 2006, which governed disposition of violations of N.J.S.A. 39:4-50 pending the Court's determination of the reliability of the Alcotest device, defendant reserved "the right to appeal in the event [the Court] concluded that the Alcotest is not reliable." State v. Chun, 194 N.J. 54, 64-68, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008). His plea was not entered subject to any other condition or reserved right. R. 7:6-2(c).*fn2
This was defendant's first conviction for violation of N.J.S.A. 39:4-50, and he was sentenced immediately following his plea. The judge dismissed the pending charges for other violations in conformity with the plea bargain, suspended defendant's license for seven months, required him to spend twelve hours in the Intoxicated Driver's Resource Center, and imposed a $306 fine, $33 in court costs, a $50 VCCB assessment, a $200 DWI surcharge, and a $75 SNSF penalty. Consistent with the Supreme Court's order in Chun, the judge stayed execution of that sentence. 194 N.J. at 67-68, 150.
On March 17, 2008, the Supreme Court concluded that the Alcotest device is reliable and specified conditions for admission of Alcotest results. Id. at 65, 145, 150-51. The opinion includes an order defining the scope of the limited challenge available to defendants who entered conditional pleas pending its decision in Chun. Id. at 68, 150-51.
In July 2008, defendant, who had retained different counsel, filed a motion in the municipal court seeking leave to vacate the guilty plea he had entered on November 29, 2006.
Defense counsel acknowledged that his client was not entitled to relief under Chun. He argued, however, that defendant should be permitted to withdraw his plea, because he had since learned that the State failed to produce and subsequently destroyed a videotape recorded on a camera installed in the patrol car. In support of that application, defendant relied upon his prior attorney's request for "all Brady v. Maryland material," a certification from his new attorney, his own certification and the police report prepared by the arresting officer, Patrolman Adam Errico of the Audubon Police Department.
Aside from defendant's prior admissions to driving after consumption of four or five beers and a shot of tequila, the only factual information about defendant's violation before the trial court was the following account provided in Errico's report. Errico took note of defendant's Mercedes at 00:46 hours on September 27, 2006. The Mercedes approached the rear of his patrol car from the south at a high rate of speed, swerved into the northbound traffic lane, and returned to the southbound lane at a point behind and "extremely close to" the rear bumper of the patrol car. Errico pulled into an intersecting street, allowed the Mercedes to pass and then followed it from behind. The driver turned onto another street and parked in front of defendant's home. At that point, Errico turned on his overhead lights and parked behind the Mercedes. When the Mercedes came to a stop, defendant got out of the car and started to walk away from the officer; he did not comply with Errico's direction to return to the Mercedes. After detecting alcohol on defendant's breath, Errico administered sobriety tests, some of which defendant was unable to perform. Defendant subsequently resisted the officer's attempt to arrest him, and Errico needed assistance to effectuate his arrest. At headquarters, defendant was cooperative, but he told Errico that "all the charges would be dropped because he was never driving a car."
The certification defendant submitted in support of his motion to vacate the plea did not include a denial of driving on September 27, 2006.*fn3 Instead, defendant noted that he told "Patrolman Errico that [he] was not operating [the] vehicle prior to the 'stop'" and quoted the corroborating passage from Errico's report. He also asserted that he told his attorney he "wanted to testify that [he] never operated the car," but he did not ...