On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-06-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 4, 2011 - Decided
Before Judges Wefing, Payne and Koblitz.
On Sunday, May 30, 2009, at about 3 a.m., defendant George Tsoullis, Jr., was stopped at a DWI checkpoint. Defendant admitted to the police that he had consumed four or five beers, and he was unable to satisfactorily complete the roadside sobriety tests. He was charged with driving while intoxicated.
At municipal court, defendant moved to dismiss the charge due to the State's failure to provide the court-ordered downloaded Alcotest data as required by State v. Chun, 194 N.J. 54, 90 (2008). The municipal court denied defendant's application for a dismissal of the charge but did suppress defendant's Alcotest reading due to the discovery violation. Defendant entered a conditional plea of guilty, pursuant to Rule 7:6-2(c), admitting that he drove while impaired by alcohol under the subjective prong of N.J.S.A. 39:4-50. The charge of failure to exhibit a driver's license, N.J.S.A. 39:3-29, was dismissed by the State.
The municipal court sentenced defendant as a second offender, pursuant to N.J.S.A. 39:4-50(a)(2), to $757 in fines, $33 in court costs, a $50 Victims of Crime Compensation Board assessment, a $200 DWI surcharge, a $75 Safe Neighborhood assessment, a two-year driver's license suspension, forty-eight hours in the Intoxicated Driver Resource Center Program and thirty days of community service.
Defendant preserved his right to argue to the Law Division that the DWI charge should have been dismissed as a result of the discovery violation. Upon de novo review of defendant's conditional plea of guilty, the Law Division judge found that the discovery violation raised a reasonable doubt as to defendant's guilt and found defendant not guilty.
Defendant argues that principles of double jeopardy preclude our review of the not guilty finding in the Law Division. The State argues that only the possible remedy of dismissal for the discovery violation was before the Law Division. Such a dismissal would be appealable by the State.
R. 2:3-1. Because a guilty plea had been entered, the State argues that the Law Division judge had no authority to find the defendant not guilty. The State argues that we should reverse the Law Division's unauthorized not guilty finding and find that the municipal court's suppression of the Alcotest result was a sufficient remedy for the discovery violation. After review of the record in light of applicable law, we reverse and remand for reinstatement of the guilty plea and sentence imposed by the municipal court.
The State argues on appeal,
BECAUSE THE ISSUE OF DEFENDANT'S GUILT OF THE CHARGE WAS NOT BEFORE THE TRIAL COURT ON THE DE NOVO APPEAL, THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE STATE FAILED TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.
In his decision, the Law Division judge properly distinguished this matter from State v. Holup, 253 N.J. Super. 320 (App. Div. 1992), where we opined that dismissal would be appropriate where the State failed to provide any discovery after a court-ordered deadline. Here, the defense complied with the procedures delineated in Holup to obtain discovery. Defendant sent a letter to the municipal prosecutor and the police seeking discovery of the Alcotest data twenty-six days after his arrest. Almost five months later, he had not received the data, and he sought relief from the municipal court judge who required that this discovery be provided within ten days. The data was not produced within the period set by the court, although the State timely provided all other discovery, thereby complying in part with its ...