On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 14-2009.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, C.L. Miniman and Waugh.
Defendant John Green appeals from a July 7, 2009, judgment after de novo review by the Law Division finding him guilty of speeding in violation of N.J.S.A. 39:4-98,*fn1 for which he was fined $173 and assessed $33 in court costs. Because the judge did not order the State to provide defendant the discovery to which he was entitled, we now reverse and remand.
On September 8, 2008, at 6:25 a.m. on Route 18 in East Brunswick, Officer Christopher Soke was on patrol conducting laser surveillance with a Stalker Lidar device. He observed defendant's vehicle traveling at a high rate of speed in the left lane. He targeted the vehicle with the Lidar device for three to five seconds. The device made an audible tone indicating excessive speed and displayed a speed of sixty-three miles per hour. The officer was stationed where he had a clear and unobstructed view of the roadway for one thousand feet. He pursued and stopped defendant and issued a summons for speeding, doing sixty-three in a forty-five mile-per-hour zone.
On October 23, 2008, defendant sought discovery in the case. First, he went to the municipal prosecutor to submit his request for discovery and was instructed to go to the Police Department to make this request. Second, he handed a written request for discovery to a person in the Police Department, but the person was unsure of how to proceed. Third, he submitted his written request for discovery on October 27, 2008, to the municipal prosecutor, seeking the following items:
1. Copies of both sides of the arresting officer's ticket.
2. Copies of any notes taken in regards to this traffic stop.
3. A description of the speed measuring device, make and model.
4. The complete history of the officer[']s training on the radar device, where he was trained and by whom.
5. Training manuals from the manufacture[r] of the speed measuring device unit include[ing] operating manuals.
6. Training manuals for the [S]tate of New Jersey and operating procedure for the speed measuring device.
7. Officer[']s log book showing what tickets [were] issued that day by him on Sept 8, 2008.
9. List and description of any disciplin[e] taken against this officer in the last year.
10. Repair history of the speed measuring device for the last 12 months.
Defendant added another request on October 27, 2008:
11. Any engineering and speed study used to set the speed limit.
There was some subsequent communication from the municipal prosecutor's office to defendant, and then the police officer apparently sought guidance from the municipal court judge. The upshot of this was judicial consideration, ex parte, of the request for discovery and an undated order inscribed on the written discovery request denying requests numbers five, six, seven, nine, ten, and eleven. Request number four was limited to the laser card,*fn2 and request number two was required only if the requested notes were in existence. The judge required that the items be turned over within thirty days.
Defendant filed a motion for reconsideration, which was heard on November 10, 2008. As the Middlesex County prosecutor observed on appeal, "[t]here is some indication that the municipal-justice system did not operate altogether smoothly, and by the time defendant first appeared in court on November 10, 2008, he had not received everything to which he was entitled, let alone everything that he wanted."
On November 10, 2008, the date set for trial, the judge ruled that defendant could get the information sought in request number eleven from the State Department of Transportation (DOT) because Route 18 was a state highway and the information could be obtained with a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Thus, the judge relieved the prosecutor of the burden of producing this information where he was not going to use it in his case in chief, as he represented. The judge found that request number four would be satisfied by production of the laser card. The judge denied reconsideration of requests numbers five, six, and seven. As to request number nine, the judge determined that defendant had to request this information from the County Prosecutor under OPRA. Last, she denied request number ten. She provided no explanation for these rulings.
The trial was then adjourned, giving defendant an opportunity to receive the ordered discovery. However, on November 13, 2008, defendant wrote to the judge urging that the discovery procedures being used were improper. On December 22, 2008, defendant sought an adjournment of the trial because he still did not have the speed survey from the DOT. He then withdrew this application because he subsequently received that survey.
On January 7, 2009, the matter was reached for trial before another judge. At that time, defendant represented to the trial judge that he had not yet received both sides of the ticket and the description of the speed measuring device, including make and model. However, he had received the speed survey from the DOT. The municipal prosecutor advised the judge that he had the missing discovery with him, except for the model number of the Stalker Lidar device.
The defendant then moved to dismiss for failure to provide discovery, but the prosecutor argued that there was only one model of the Stalker Lidar and, thus, failure to provide the information was not prejudicial. He pointed out that the information defendant sought in this regard was on the ticket he had been issued, even though he did not understand it. The judge concluded that dismissal was inappropriate as a result. He offered to proceed to trial or adjourn the matter to permit defendant to obtain further information about the Stalker Lidar device. Defendant chose to go to trial.
Soke testified to the facts surrounding the issuance of the ticket to defendant. He then went on to testify that when the Lidar device is not directed at a vehicle, it emits a clicking noise indicating that it is operating. When it is so directed, it emits a higher and higher pitched tone depending on the rate of speed. On September 8, 2008, the tone that was emitted was higher than it should be for a car going forty-five miles per hour, telling him the vehicle was speeding. The device then posted a speed of sixty-three miles per hour. According to Soke, the posted speed limit on that section of roadway was forty-five miles per hour.
Soke calibrated the Lidar device before using it on September 8, 2008. When he first turned it on, it did a self-test and displayed eights across the LED screen. The device then displayed the word "pass" and gave an audible tone. Soke then "put the instrument in test mode" and did a series of vertical and horizontal tests at a known fixed object at the town's Public Works Department. The Lidar device passed those tests, and Soke then calibrated the device for two known distances of 100 and 150 feet. Those tests assured Soke that the device was measuring distance correctly.
At that point, the State marked three documents, a March 2007 certificate of accuracy for the Lidar gun, a laminated radar operator card, and a memorandum regarding Lidar field measurements. Soke testified that the certificate was provided by the manufacturer with the device. Soke wrote the serial number from the certificate on the September 8, 2008, summons. The second document was Soke's Lidar operator card attesting to his training, as certified by the manufacturer. The third document was from the town ...