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State of New Jersey v. Dennis J. Lustenberg

May 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DENNIS J. LUSTENBERG, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-10-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued January 13, 2011

Before Judges Gilroy and Nugent.

Following denial of his suppression motion in municipal court, defendant Dennis Lustenberg entered a conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. The judge sentenced defendant to a seven-month revocation of his driving privileges, twelve hours at an Intoxicated Driver Resource Center, and imposed appropriate fines and penalties. Upon de novo review, the Law Division judge denied defendant's suppression motion, found defendant guilty, and imposed the identical sentence.

Defendant raises the following arguments in this appeal:

I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE AUTOMOBILE STOP WAS NOT BASED ON REASONABLE SUSPICION.

a. The Stop By Patrolman James Was Unreasonable Because The Anonymous Tip conveyed By The 911 Call Lacked Indicia Of Reliability, And Was Not Corroborated By Independent Police Work.

b. Contrary To The Trial Court And Law Division, The Investigatory Stop Here Did Not Fall Within The Exception Set forth in State V. Golotta, 178 N.J. 205 (2003).

c. The Anonymous Tip Did Not Convey A Sufficient Quantity Of Information About Any Alleged Traffic Offense To Justify The Stop.

II. THE NONPRODUCTION AND DESTRUCTION OF THE 911 TAPE WERE IN DEROGATION OF MR. LUSTENBERG'S DUE PROCESS AND SIXTH AMENDMENT CONFRONTATION CLAUSE RIGHTS AND RENDERED THE PROCEEDINGS FATALLY DEFECTIVE.

We affirm.

On the night of June 19, 2008, in response to a 9-1-1 dispatch, Ridgewood Patrolman Heath James stopped defendant and arrested him for DWI. Thereafter, defendant retained counsel who wrote to the Ridgewood municipal prosecutor on June 27, 2008, and demanded discovery, but did not specifically request a copy of the 9-1-1 dispatch tape. Defendant did not receive the tape from the municipal prosecutor. Dispatch tapes were not maintained by the municipality, but by Northwest Bergen Central Dispatch (NBCD).

Defendant subsequently retained new counsel who attempted to obtain a copy of the dispatch tape. In a letter dated January 30, 2009, the Director of NBCD informed counsel that tapes were only retained for ninety days "[a]nd this ...


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