STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
GEORGE TSOULLIS, JR.,
SUPERIOR COURT
APPELLATE DIVISION
__________________________________________
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- Decided
Before Judges Wefing, Payne and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-06-10.
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the briefs).
John J. Bruno, Jr., argued the cause for respondent (Bruno & Ferraro, attorneys; Mr. Bruno, of counsel and on the brief; Salvatore R. Vargo, on the brief).
PER CURIAM
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,
POINT I
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 discovery obligations. The municipal judge therefore only barred the introduction of the Alcotest results. Defendant thereafter entered a conditional plea of guilty to the subjective prong of the DWI statute.
Defendant did not at any point move to vacate his plea but argued on appeal in the Law Division that the charges against him should have been dismissed in their entirety because of the discovery violation. The Law Division judge, however, did not adopt that course of reasoning but instead held that the data could have been exculpatory and therefore the State’s failure to provide it constituted a constitutional violation under Brady v. Maryland, 373 U.S. 73, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The judge framed the issue by saying, “the question here is has the failure to provide this discovery raised an issue of reasonable doubt.” He proceeded to find defendant not guilty, stating,
I find that there was not [sufficient evidence] to convict even on the subjective prong . . . when we don’t know what the readings would have been, or what the data would have provided and that is what I find creates a reasonable doubt.
Thus, the Law Division judge found defendant not guilty because he found the evidence that was not provided by the State could have exculpated defendant, and he believed that he had authority to review the guilty finding even though it was the result of a guilty plea.
We have held that a judgment of acquittal under these circumstances may be overturned on appeal. State v. Sohl, 363 N.J. Super. 573, 580-81 (App. Div. 2003). As we stated in Sohl, “[a]n appeal from a conviction entered in municipal court upon a conditional guilty plea is an appeal of the municipal judge’s denial of the defendant’s motion in limine.” Id. at 581 (citing State v. Golotta, 354 N.J. Super. 477, 483 (App. Div. 2002) rev'd on other grounds, 178 N.J. 205 (2003)). We held in Stohl that because the defendant did not retract his municipal guilty plea, the Law Division judge “was unable to enter a finding of not guilty as defendant’s plea of guilty remained entered upon the record in municipal court.” Stohl, supra, 363 N.J. Super. at 581. Defendant’s guilty plea also remained as he was appealing only the denial of his motion to dismiss for failure to provide complete discovery.
Although he did not have the authority to find defendant not guilty, the Law Division judge could have granted defendant’s motion to dismiss the charge if the judge found a Brady violation warranting such a drastic remedy. See State v. Nelson, 330 N.J. Super. 206 (App. Div. 2000) (where we reversed a conviction based on a Brady violation because the prosecution failed to disclose a prior conviction of one of its witnesses). It is unnecessary to remand the case to the judge to determine whether or not he found such a Brady violation because it is clear from the record that he found the State's failure to provide the Alcotest data constituted a failure to provide exculpatory evidence.
We disagree with the judge’s finding of a Brady violation. Defendant points to no evidence that would indicate that the Alcotest data, which might reveal the accuracy of the reading,[1] would have supported a finding that he was not driving while under the influence of alcohol. Generally, if the State is unable to prove the reliability of a scientific test, that test is excluded by the court. See State v. Torres, 183 N.J. 554, 568-70 (2005) (explaining that the party seeking to introduce scientific evidence must establish that the evidence "relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge[,]" and the technique used to obtain the evidence has a sufficiently scientific basis) (internal quotation marks and citations omitted); see also State v. Marcus, 294 N.J. Super. 267, 275 (App. Div. 1996) (when addressing the admissibility of DNA evidence we stated that "[i]n addition to showing its general acceptance in the scientific community, a party offering scientific evidence must show that the technique, methodology or procedure was correctly used to produce that evidence"), certif. denied, 157 N.J. 543 (1998); State v. Dishon, 297 N.J. Super. 254, 278-80 (App. Div.), certif. denied, 149 N.J. 144 (1977).
A lack of foundational evidence of reliability does not demonstrate that the scientific test in fact would have proved the opposite of the fact the State seeks to prove by its admission. Although the record does not provide the Alcotest reading, presumably if it had supported a not guilty verdict, defendant would have sought to admit it. Brady violations cannot be based on the unsupported assertion that evidence, if produced, would have been exculpatory. Brady violations require demonstration of the existence of "material exculpatory evidence," and that simply does not exist here. State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009) (where we found that a trial court in a DWI prosecution was not required to assume that a videotape of the defendant's traffic stop and arrest, which the State had erased, was "material exculpatory evidence.") (quoting State v. Marshall, 123 N.J. 1, 109 (1991) (citation and internal quotation marks omitted), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).
Reversed and remanded for the Law Division to reinstate defendant’s guilty plea and sentence.
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[1] This data consists of "the test subject's identifying information, date, time, and test results for each stage of the procedure." Chun, supra, 194 N.J. at 82. It also "includes a variety of other information relevant to the test, including the serial number of the device used in the test, dates of and file numbers for calibration and linearity checks, and solution control lot and bottle numbers." Ibid.
