Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Thursday, October 27, 2011



Defendant presented legally competent evidence that (a) his attorney misinformed him that his guilty plea to criminal sexual contact could not result in his later civil commitment under the Sexually Violent Predator Act, and (b) he would have insisted on going to trial if he had been correctly advised. Defendant filed the PCR petition immediately after he was civilly committed based, in part, on his guilty plea in this case. Mistakenly finding that defendant was uninformed rather than misinformed, and concluding that his claim was barred because it arose prior to State v. Bellamy, 178 N.J. 127 (2003), the trial judge denied the petition. Because the petition involved emerging legal issues, and defendant presented a prima facie case on both Strickland prongs, we concluded that the case should be decided based on a complete record and remanded the matter for an evidentiary hearing. 10-27-11



Relying on the public safety exception in New York v. Quarles, 467 U.S. 649, 655-56, 104 S. Ct. 2626, 2631, 81 L. Ed. 2d 559, 557 (1984), and State v. O'Neal, 190 N.J. 601, 618 (2007), the trial court admitted inculpatory statements defendant gave in response to officers' questions about the location of the handgun he used to kill his wife. Defendant was in custody and had invoked his right to counsel.

Assuming the claimed "public safety" meets the criteria in State v. Stephenson, 350 N.J. Super. 517, 525 (App. Div. 2002), we are persuaded by the reasoning in United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989), and hold that the same "exigent circumstances" that permit the pre-Miranda interrogation of a defendant, permit the police to question a defendant after he or she has invoked the right to counsel.Pursuant to Stephenson, we hold there was an insufficient basis to apply the public safety exception. We affirm, however, because the trial court correctly found defendant waived his right to counsel, independent of the initially tainted interrogation. 10-26-11

Saturday, October 22, 2011



We affirm defendant's convictions for his role in a planned bankruptcy, also known as a "bust-out" scheme. We find that the indictment was returned within the statute of limitations period because the theft by deception was not completed until the contractual period for repayment had ended, not when the goods were received. Additionally, we reject defendant's argument that an oral plea agreement existed. 10-20-11

Thursday, October 13, 2011

STATE v. ARTHUR T. CHESTER, III conviction on de novo reversed and remanded where law division did not make findings


v. ARTHUR T. CHESTER, III conviction on de novo reversed and remanded where law division did not make findings

DOCKET NO. A-1942-10T4

Submitted September 14, 2011 - DecidedOctober 11, 2011

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 06-10.


PER CURIAM Defendant Arthur T. Chester, III appeals his conviction for

driving while intoxicated on December 22, 2008, N.J.S.A. 39:4- 50. He filed a motion to suppress, alleging that the motor vehicle stop was unconstitutional. The municipal court judge denied the motion to suppress, finding that the 4:45 a.m. stop


of defendant's car at a security checkpoint to a nuclear plant in Lower Alloways Creek was constitutional. Although defendant's brother testified that he, rather than defendant, drove the car, the municipal judge concluded that defendant was the driver. Defendant stipulated that he was under the influence of alcohol. Testing revealed a .14 blood alcohol content.

Defendant was again found guilty after a trial de novo in the Law Division, conducted by agreement on the papers without oral argument.

On appeal, defendant raises the following arguments: POINT I




The Law Division judge did not make sufficient findings of fact or conclusions of law to allow us to review her decision. The judge put no reasons on the record and made no factual findings. She prepared an order stating in pertinent part the following:

1. The stop of the defendant was supported by reasonable suspicion based on the totality of the circumstances.



2. The State did prove beyond a reasonable doubt that the defendant operated the motor vehicle while intoxicated; therefore the defendant's appeal is DENIED.

When considering appeals from the municipal court, the Law Division must consider the record de novo and make independent findings of fact and conclusions of law in support of an independent finding of guilty or not guilty. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983) (citing State v. States, 44 N.J. 285, 293 (1965)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012).

Under our court system, defendants are entitled to two independent considerations of the evidence, one by the municipal court after a trial and one de novo on the record by the Law Division. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2012). If defendant appeals, we then apply the appellate standards of review in analyzing the Law Division decision. Our analysis is limited to a determination of whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011)



(citing State v. Johnson, 42 N.J. 146, 162 (1964)). We "consider only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)).

We therefore remand this matter to the Law Division to make findings of fact and conclusions of law.

Reversed and remanded.



Sunday, October 09, 2011

E. M., v. G. M. No DV if no purpose to harass

E. M., v. G. M.

No DV if no purpose to harass


September 15, 2011



DOCKET NO. A-4952-09T2


Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, Docket No. FV-12-1777-10.



(Central Jersey Legal Services, Inc., attorneys;

Ms. McCue, on the brief).


Defendant G.M. appeals from a final restraining order (FRO) issued by the Family Part pursuant to a complaint filed by plaintiff E.M. under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. After considering the evidence presented at trial, the court found defendant committed the predicate offense of harassment. The court also found that the issuance of final restraints was necessary to prevent future abuse.

Defendant argues that the evidence presented at trial does not support a finding of harassment under N.J.S.A. 2C:33-4(c). We agree and reverse.


The parties are married[1] and have two daughters ages five and two. The incident that gave rise to this litigation occurred on January 25, 2010, at approximately eight o'clock in the morning. According to plaintiff, defendant came into the bedroom where she had been sleeping and "snatch[ed] the covers off of [her] and pulled [her] out of bed." Plaintiff described defendant's demeanor as "like he was ready to do [her] in . . . ." Plaintiff testified defendant then "proceeded to push [her] out of the bedroom."[2] She prevented defendant from pushing her down the steps by going into the bathroom.

From this point, plaintiff testified she was "holding on for dear life" because defendant allegedly tried to pull her "any way he could, [by her] neck, hair, arms with two hands to get [her] out of the bathroom to tell [her], come on let's go downstairs." When defendant was unable to get plaintiff out of the bathroom, he allegedly pushed her and she "fell back . . . in the bathroom" and "hit" her head against the bathtub. According to plaintiff, at the point when it looked to her as if defendant "was getting ready to strike [her]," one of their daughters came out of the bedroom crying. Defendant immediately went over to comfort the child and ceased his attack on plaintiff.

Plaintiff testified that she and defendant remained in the house together for the entire day without further incident. She kept mostly to herself in the upstairs part of the house, while defendant remained downstairs. Plaintiff did not call the police nor seek a temporary restraining order at the time. The next day, January 26, 2010, plaintiff left her house with the two girls and moved into a "temporary protective shelter," where she remained up to the date this matter came to trial on May 13, 2010.

Plaintiff did not file a domestic violence complaint against defendant until February 18, 2010. The complaint alleged simple assault, N.J.S.A. 2C:12-1(a), and harassment, N.J.S.A. 2C:33-4(c), as the predicate offenses for the relief sought. When her attorney asked why she waited twenty-four days after the incident to seek judicial relief, plaintiff gave the following response:

PLAINTIFF: Well, I finally mustered the courage to go out on my own -- to proceed to do that. Prior to that, I've been getting rides to all my appointments, even court ordered appointments, they schedule . . . persons to pick me and my girls up from DYFS[3] to take us to the girls appointments, to my appointments. And they finally . . . indicated that I needed to possibly start driving, you know my own because they knew I was going to file the restraining order.

PLAINTIFF'S COUNSEL: Okay. So from . . . January 26th [2010] until actually, now you've been in . . . a shelter?

PLAINTIFF: Yes. I'm still there now.

PLAINTIFF'S COUNSEL: And during that time [twenty-four days] what prevented you from going sooner to get a restraining order?

PLAINTIFF: Well, the main thing was my girls. I mean because as early as November he indicated he had [an] unregistered gun, he didn't mind going to jail, he's ready to die. And I knew I had to -- as much as possible, although I was -- starting to put me in distress, I knew I had to be there for the girls. I tried to keep a distance but at some point, you know he feels he can do whatever he wants to do and you know, and push boundaries. So, when it came [to] a point where [it trickled] down to my girls, I had to make a move that the emotions really was just overwhelming.

PLAINTIFF'S COUNSEL: Okay. I'm just asking you what prevented you from going sooner? Just a brief answer.

PLAINTIFF: Well, I seen and I've heard of even worse situations but when it came to me having to be a responsible parent, I -- I was even more moved to make a move to --


PLAINTIFF: To be in a safe environment.

PLAINTIFF'S COUNSEL: Okay. So, what took you so long from January 26th [2010] until February 18th [2010] to get your restraining order?

PLAINTIFF: Well, like I said — I finally got the courage to go out on my own to do it.

PLAINTIFF'S COUNSEL: So, you're saying before then —

PLAINTIFF: I came on my own — before then.

PLAINTIFF'S COUNSEL: You did not have the courage to go out on your own?

PLAINTIFF: No, I did not. I was afraid.

Further questioning revealed that, along with DYFS's assistance, plaintiff had a van available to her "parked outside" that she could have used to drive to the courthouse.

In addition to the two predicate offenses, the domestic violence complaint alleged past incidents of domestic violence. Generally, the complaint alleged that defendant "was always verbally abusive," which began to escalate to physical violence. The complaint further noted that "[p]olice have been called in the past." Specifically, the complaint mentioned an incident in 2007 that occurred while plaintiff was pregnant when defendant allegedly held plaintiff by the neck, causing "scratches."

On March 4, 2010, with the assistance of counsel, plaintiff amended the initial complaint to include several more incidents of past domestic violence: (1) in July 2009, defendant "pulled the plaintiff down four steps and then got on top of her and held her down because she had stayed with a relative overnight"; (2) in June 2009, defendant "pushed the plaintiff down on the ground for the same reason"; (3) on October 18, 2006, defendant pulled plaintiff's arm, raised his arm in a menacing manner, and verbally threatened her by insinuating he would stab or shoot her; (4) in December 2004, defendant grabbed plaintiff's hand and cut off her engagement ring during an argument; and (5) in 2003 or 2004, defendant pulled plaintiff's legs out from under her, causing her to fall and strike a dresser. Plaintiff attempted to elaborate at trial as to these alleged past incidents of domestic violence. As the trial judge noted, however, plaintiff's testimony in this respect was evasive, confusing, and at times incomprehensible. She was consistently non-responsive to the questions posed by her own counsel.

On cross-examination, defense counsel confronted plaintiff with a police report indicating that she had called the police on January 26, 2010, the day after the alleged assault, to accuse defendant of sexually molesting their daughters. The report does not mention, however, any incident of domestic violence committed by defendant against plaintiff. Plaintiff could not explain why she did not tell the police that defendant had assaulted her the previous day. Plaintiff also indicated that she had not filed a domestic violence complaint or sought police assistance for any of the alleged past incidents of domestic violence described in her pleadings, thus calling her credibility into question.

Defendant denied he assaulted plaintiff on January 25, 2010, labeling it "a fabrication." According to defendant, on the Friday before the alleged January 25, 2010 incident, plaintiff and he had plans to go to his brother's house in Maryland to watch a football game. Defendant had purchased steaks and seafood to take to his brother's house. The couple had agreed to leave around two o'clock in the morning.

That evening, plaintiff and defendant's other brother, J.M., who also resided in the marital home, left the house to buy supplies and personal toiletries for plaintiff. Some time later, J.M. returned without plaintiff, who did not return to the marital residence until three o'clock Sunday morning "wreaking of alcohol and smoke." Defendant told plaintiff he did not want to share a bed with her in this condition, and told her to take a shower. She eventually complied and was remorseful about her prolonged, unexpected absence.

Defendant testified he kept his distance from plaintiff the rest of that day. Because the Maryland trip had not taken place, defendant decided to grill the steaks and seafood and share them with J.M. Plaintiff became upset at defendant when he and J.M. ate the food without sharing it with her. According to defendant, he deliberately decided not to cook for plaintiff because he was still angry about her two-day absence. He claims he did not have any interaction with plaintiff for the remainder of the day.

When defendant left for work the following day, Tuesday, January 26, 2010, he took the keys to the family van because he did not want plaintiff driving around with the children. When he returned home at the end of the work day, the van was gone, together with plaintiff and the two girls. At first, defendant thought the van had been stolen. When he called plaintiff to inquire, however, she told him she had taken the van[4] and was in a hospital with the girls. It was at this time that defendant learned plaintiff had reported to DYFS that he was sexually molesting his daughters.[5]

J.M. testified on defendant's behalf. He corroborated defendant's account of what occurred on Friday night and during the day on January 25, 2010. He saw his brother and sister-in-law arguing about breastfeeding one of the girls. According to J.M., his brother was concerned about plaintiff "hanging out" that weekend and how her consumption of alcohol might affect the quality of the breast milk. Although he witnessed "very loud yelling back and forth," J.M. did not see any physical confrontation.

On cross-examination, J.M. testified about an incident in November 2007 in which the police responded to an altercation between plaintiff and defendant. Plaintiff had testified earlier that this incident involved an argument between herself and the defendant over a problem with the washing machine. J.M. testified that he separated the two, "restraining both of them . . . ." According to J.M., defendant held plaintiff by her wrists to prevent her from striking him. J.M. was also asked about an incident in October 2006 when the police again responded to an argument between the parties. Once again, J.M. described his role as separating the two, without expressing an opinion as to who was to blame.


Against this record, the trial judge found plaintiff did not prove, by a preponderance of the evidence, that defendant assaulted her on January 25, 2010. The court made the following preliminary findings in support of this ruling:

The issues before the court essentially boil down to credibility findings. The Court has certainly had the opportunity to observe both of the parties, as well as the witness on behalf of the defendant, who was his brother [J.M.]. And in making some determinations with credibility the plaintiff for example tended to be rambling in her responses, she was not responsive in her responses. Both are indicative of . . . a lack of credibility.

The court found plaintiff's testimony evasive and rambling, despite "being told several times by the court that it's necessary for her to be responsive to the questions that are being asked." The court also found defendant's testimony to be "similarly lacking in credibility." The judge focused on defendant's statement that his wife did not "deserve[ ] . . . to have any steak," and his refusal to allow his wife access to the keys to the van, finding his behavior "indicative of somebody that's — [somewhat] of a controlling nature." In short, the court found serious credibility problems with both parties' account of events.

Despite this evidentiary void, the court found defendant engaged in the predicate act of harassment, as defined in N.J.S.A. 2C:33-4(c). The court articulated its findings in this respect in a supplemental written opinion filed pursuant to Rule 2:5-1(b). The court first described the statutory elements on harassment under subsection (c):

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . .

(c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4(c).]

The court found that "a combination of four factors" established defendant "committed an act of harassment." These four factors were: (1) the October 2006 incident; (2) the November 2007 incident; (3) defendant's refusal to cook plaintiff the steak on January 25, 2010; and (4) defendant's refusal to give plaintiff the van keys the following day. The court then cited H.E.S. v. J.S.C., 175 N.J. 309, 327 (2003), for the proposition that a purpose to harass may be inferred from the totality of the evidence presented. With this legal principle as a backdrop, the court concluded that "the cumulative effects of the Defendant's actions . . . gave rise to a determination that he intended to harass the Plaintiff."


Our standard of review requires us to uphold a trial court's findings provided they are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The need to defer to the trial court's findings is even more acute "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citation omitted). Thus, we will not disturb the "factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Rova Farms, supra, 65 N.J. at 484 (internal quotation marks and citation omitted). Finally, our Supreme Court has also recognized that Family Part judges have "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

In her initial complaint, plaintiff alleged she was brutally assaulted by defendant in her own bedroom, while their two young daughters slept in a nearby room. She spent the remainder of the day in the marital residence with defendant. The following day, plaintiff left the marital residence with her daughters and took refuge in a shelter for victims of domestic violence, where she resided up to the date of trial for the FRO. That same day, plaintiff called the police and accused defendant of sexually molesting his two daughters. She did not mention to the police the assault that had allegedly occurred the previous day.

With the assistance of competent counsel, plaintiff amended her initial complaint to further allege a history of domestic violence expanding over seven years. The pleadings described a series of violent episodes through which plaintiff was repeatedly assaulted by defendant, requiring the intervention of the police on at least two occasions.

Unexamined, these allegations paint a picture of a harrowing ordeal of violence and emotional terror. The court found and the record reflects, however, that plaintiff's testimony was evasive and unresponsive, even when responding to her own attorney's questions on direct examination. Through the rigor of cross-examination by defense counsel, as well as the court's own independent observations and assessments, plaintiff's account of events proved to be less than credible.

The court thus found plaintiff did not prove, by a preponderance of competent and credible evidence, that defendant committed the predicate offense of simple assault, as defined in N.J.S.A. 2C:12-1(a). That decision is not challenged on appeal. The court also did not find credible plaintiff's allegations of a history of domestic violence at the hands of defendant.

Despite these well-founded reservations concerning plaintiff's credibility, the court found defendant committed domestic violence based on the petty disorderly persons offense of harassment, as defined in N.J.S.A. 2C:33-4(c). This finding is not supported by the record. The court relied on four separate incidents that, when viewed in the totality of the circumstances, it found amounted to harassment. This conclusion is not legally sustainable.

The first incident relied on by the court to find harassment occurred in October 2006. According to defendant's brother J.M., he restrained both parties to prevent them from "going at each other." Defendant was yelling at plaintiff and "keeping her at bay" and holding her by the wrists "because she seemed out of control." The police responded to the scene. No arrests were made and plaintiff did not seek a temporary restraining order.

The second incident relied on by the court to support a finding of harassment occurred in November 2007. Plaintiff testified that during an altercation, defendant grabbed her by the wrists, causing some scratching. Defendant denied the allegation. J.M. testified that he was forced to separate the parties because defendant, not plaintiff, "got scratched in the face." The police again responded to the scene. No one was arrested or charged with a domestic violence offense.

The third incident relied on by the court occurred on January 25, 2010. On this date, defendant had purchased steaks and seafood which he intended to grill during a family trip to Maryland. When plaintiff returned to the marital residence that evening, after being away for two days, defendant grilled steaks for himself and his brother, but refused to cook for plaintiff. The court characterized defendant's action as "condescending" and "indicative of a superiority attitude."

The final incident occurred the following day, January 26, 2010. According to defendant, he took plaintiff's keys to the van after she returned home after being away for the weekend. Defendant did this because he did not want plaintiff to drive around with the children or "hang out with her drug friends." Defendant testified he had taken the keys on other occasions when plaintiff had gone away for three or four days at a time. The court characterized defendant's conduct here as "spiteful" and "one additional example of his efforts at seriously annoying the Plaintiff."

Under N.J.S.A. 2C:33-4(c), a person commits the petty disorderly persons offense of harassment if he engages in a course of alarming conduct or repeatedly committed acts with the purpose to alarm or seriously annoy another person. The key element of this offense is evidence showing a purpose to harass. State v. Hoffman, 149 N.J. 564, 576 (1997). As our Supreme Court has recently held:

[H]arassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of "ordinary domestic contretemps" presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application.

[J.D. v. M.D.F, ____ N.J. ____, _____ (2011) (slip op. at 17-18) (internal citations omitted).]

Here, the four incidents relied on by the court are devoid of evidence showing defendant's purpose was to harass plaintiff. The incidents involving defendant's refusal to cook plaintiff a steak and taking away the van keys clearly fall within the category of "ordinary domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995). The 2006 and 2007 incidents were not listed in support of the predicate offenses in the complaint. Their role should have been restricted to the secondary determination of whether a restraining order is necessary to prevent future abuse. Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006).

Finally, there is no competent credible evidence to find that final and permanent restraints are necessary to protect plaintiff from future abuse. Ibid. The court's rejection of plaintiff's account of physical abuse at the hands of defendant as not credible directly undermines any need for an FRO.


[1] Although they have been married for only five years, plaintiff testified that she and defendant "have been together" for approximately sixteen years.

[2] Although their young daughters were sleeping in their room nearby, plaintiff testified they were not awakened by the incident because defendant closed the door to the girls' bedroom. Plaintiff claimed this gesture by defendant was indicative of his pattern of hiding his violent conduct from witnesses, including their daughters.

[3] Division of Youth and Family Services.

[4] Although not clear from the record, it appears plaintiff had her own set of keys to the van, because defendant testified he took the keys to the van when he left for work on Tuesday, January 26, 2010.

[5] The record before us does not disclose the status of the DYFS investigation. The only oblique reference to this issue is found in the following remark made by defense counsel during his summation: "The DYFS proceedings . . . have taken a toll on [defendant.] He's now only granted supervised visitation to see his children."

Saturday, October 08, 2011

STATE v MARK DAVID CARLSON digital data dwi




DOCKET NO. A-0772-10T1


September 14, 2011

Submitted April 12, 2011 - Decided

Before Judges Baxter and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 61-2009.




Defendant Mark Carlson appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division. After a careful review of the record and the contentions of the parties, we affirm the Law Division judge's denial of defendant's motion to suppress the evidence of intoxication and remand for a hearing on defendant's discovery request.

The record reveals the following undisputed facts. On March 26, 2009, at 11:21 p.m., Police Officer Leonard Thomas observed defendant as he drove in the Borough of Princeton. While on Wiggins Street, the officer observed defendant's vehicle travel over the center double yellow line for approximately thirty feet with the left tires about one foot in the oncoming lane. Other than the vehicles of defendant and the officer, there were no other vehicles or objects on the road.

After proceeding about one thousand feet, defendant turned onto Moore Street. While traveling on Moore Street, defendant drove partially in the driving lane and partially over marked parking stalls on the right side of the street. No center dividing line is painted on Moore Street. The officer first turned his video camera on when he viewed defendant driving over the marked parking stalls.

After defendant turned at the next block, the officer pulled him over. Subsequently, the officer arrested defendant and brought him to the police station. There, defendant participated in a breathalyzer test with an Alcotest, which measured defendant's blood alcohol concentration (BAC) as .13. Defendant received traffic summonses for driving under the influence of alcohol, N.J.S.A. 39:4-50, driving under the influence in a school zone, N.J.S.A. 39:4-50(g), failure to keep right, N.J.S.A. 39:4-82, failure to maintain a lane, N.J.S.A. 39:4-88(b), and reckless driving, N.J.S.A. 39:4-96.

Defendant filed a motion in municipal court seeking to suppress evidence of his intoxication on the basis that the officer did not have a reasonable and articulable suspicion to make the stop. On June 4, 2009, the municipal court judge heard and denied defendant's motion.

On July 9, 2009, the municipal court judge entered a discovery order at the request of defendant with the consent of the prosecutor. The order required the State to provide, among other items,

For Alcotest 7110 ser. no. ARUM-0054 used to test Defendant's breath: All sequentially numbered files in the random access memory and downloaded to read only memory (including alcohol influence report, calibration, control, linearity, solution change, and any and all other tests) for all calibration cycles, including the calibration cycle of which Defendant's breath tests are part, in a digital format readable in a program generally available to consumers in the open market.

The prosecutor told the judge that the State would have no problem producing the ordered information, because it was routinely provided. At the August 13, 2009 hearing, the State had not yet provided complete information, and the prosecutor again represented that he would provide it soon. Defense counsel, on September 21, 2009, in a motion to suppress the results of the Alcotest for failure of the State to provide discovery, wrote:

While the State provided downloaded data for alcohol influence reports and solution changes during the calibration cycle in which Mr. Carlson's breath was tested, it has not provided and downloaded data for calibration, control, linearity, and any and all other tests for that cycle. As for other calibration cycles, the State has provided no data at all. Consequently, Mr. Carlson's ability to review data supposedly supporting the reliability of his breath test result and the operability of the Alcotest used to test his breath has been denied.

On the day of the trial, September 24, 2009, defendant argued that the results of the Alcotest should be inadmissible because "there's been a discovery failure in this case." The prosecutor stated, "I just showed up here today so . . . I cannot represent the ex[tent] of what's been supplied. But I am told that the downloaded information has been supplied." After conferring with the Borough police department, the prosecutor represented that the police department had supplied everything in its possession. Defense counsel argued:

When the prosecutor says that they've supplied downloaded information, he's referring to the entered solution change and Alcohol Influence Report information that's within the custody and control of the Princeton Borough. But he's not making a representation as far as the State Police or Attorney General's Office, is that correct?

. . . .

I've made my representation about what was received and I do make that representation to the Court. We have the solution change, Alcohol Influence Report, and header information, but not the calibration, control or linearity.

In denying defendant's motion, the municipal judge held:

I don't feel that this is a material non-compliance from the order signed . . . on July 9th. And part of that is because . . . I'm satisfied that the Chun foundational documents were supplied. These are not those documents. I'm satisfied that the State has provided you with all the documents that are available. . . . I'm not convinced that I understand how this becomes vital and material and exculpatory to this defendant.

Defendant then pled guilty to the reckless driving charge. Under the plea agreement, the State dismissed the charges for failure to keep right and failure to maintain a lane. Defendant lost his driving privileges for three months and paid court costs and fees.

That same day the municipal court judge held a trial on the DWI charges. The court found a per se violation of N.J.S.A. 39:4-50 based solely on the Alcotest BAC reading of .13. The court suspended defendant's driver's license for seven months, required him to attend the Intoxicated Driver Resource Center for 12 hours, and assessed court fines and costs. The State dismissed the charge for DWI in a school zone.

Defendant filed an appeal de novo to the Law Division, which was heard on June 28, 2010. Defendant again argued that the vehicle stop was an unreasonable seizure and that the failure to provide discovery amounted to an unconstitutional withholding of exculpatory evidence. While acknowledging that the State had provided the requisite foundational documents, defendant stated that the downloads of the calibration, control and linearity data logs had not been provided. Defense counsel represented to the court that the electronic downloads contained data in addition to that provided in the written documents, including "certain areas of information, some no less significant than the results of internal diagnostics, that are done by the machine by itself to make sure it's working, that are not disclosed on those paper documents."

On the other hand, the prosecutor argued that the State had established the reliability of defendant's Alcotest results. He explained that "those data logs are only deleted after . . . the pertinent information is downloaded from those data logs and handed over in discovery." The prosecutor represented to the court that all data logs had been printed and provided to defendant. Nevertheless, the prosecutor acknowledged that he did not know if defense counsel's statement that the downloads contained more information than the printed documents was true or not but noted that defendant had provided no expert testimony to support his claim. The prosecutor argued that substantial compliance with the discovery order had occurred because the request for downloads of data was duplicative of the documents already provided.

On August 24, 2010, the Law Division judge issued a written decision. First, he found that the officer had reasonable and articulable suspicion that a motor vehicle violation had occurred sufficient to justify stopping defendant and investigating the basis for his deviation from his lane of travel. Next, the judge declined to suppress the results of the Alcotest for failure to provide discovery. He reasoned that all the requisite foundational documents had been provided and the requested data download had been provided in written form. The judge held that defendant failed to provide proof that the omitted data could have affected the admissibility of the test results and failed to show any prejudice to his case. The judge also found that although defendant alleged that the evidence had been destroyed in bad faith, he provided no facts to support this assertion. In addition, the judge denied defendant's request for a jury trial.

Consequently, the judge found defendant guilty of DWI under N.J.S.A. 39:4-50 and imposed the same sentence as the municipal court. Defendant then filed this appeal.

On appeal defendant argues:

I. This court should suppress the fruits of the state's unconstitutional stop of defendant's motor vehicle.

II. The state's failure to provide underlying data and documentation renders the Alcotest result here unreliable and inadmissible.

a. The court must protect a defendant's rights, especially in light of the Alcotest instrument's recognized short-comings.

b. The state concealed material, relevant, exculpatory evidence.

c. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

d. The failure of the process in this matter was so blatant, the denial of the fundamental fairness was so great, and the integrity of the judicial process so crippled, as to warrant dismissal.

III. To preserve the record, defendant asserts his right to a jury trial, given the legislature's packing of penalties for DWI.

Municipal court decisions are appealed first to the Law Division of the Superior Court. State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972)). When the appeal is from municipal court to the Law Division, the review is de novo on the record. R. 3:23-8. The function of the Law Division judge is to decide the case anew on the record made in the Municipal Court, giving due, although "'not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.'" State v. Kashi, 180 N.J. 45, 48 (2004) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)); see R. 3:23-8(a). The issue for this court on an appeal from a trial de novo is "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence presented in the record.'" State v. Segars, 172 N.J. 481, 488 (2002) (citing State v. Barone, 147 N.J. 599, 615 (1998)). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Initially, defendant contends that, as the police lacked a reasonable basis for stopping his vehicle, the stop violated his constitutional rights. "The Fourth Amendment prohibits unreasonable searches and seizures by the Government," United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002) (internal quotations and citations omitted), but permits seizures where there is an "articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Place, 462 U.S. 696, 702; 103 S. Ct. 2637, 2642; 77 L. Ed. 2d 110, 118-19 (1983) (citation omitted). Such seizures are commonly called "Terry stops," and "'[a] traffic stop is analogous to a Terry stop.'" United States v. Ruesga-Ramos, 815 F. Supp. 1393, 1397 (E.D. Wash. 1993) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984)). Consequently, the police must have a reasonable and articulable suspicion that defendant was violating the law. State v. Golotta, 178 N.J. 205, 212-13 (2003); State v. Davis, 104 N.J. 490, 500 (1986).

Reasonable suspicion is less than probable cause. Golotta, supra, 178 N.J. at 213; Davis, supra, 104 N.J. at 501. Reasonable suspicion in the traffic context requires a "particularized and objective basis" for believing that the motorist is or was committing a traffic violation. Davis, supra, 104 N.J. at 501. While Article I, paragraph 7 of the New Jersey Constitution may provide additional protections against unreasonable searches and seizures, id. at 502, the observation of a motor vehicle violation is sufficient to constitute a reasonable, articulable suspicion and justifies an investigatory stop. State ex rel. D.K., 360 N.J. Super. 49, 54 (App. Div. 2003). Traffic violations such as lane violations can justify a vehicle stop. See State v. Washington, 296 N.J. Super. 569 (App. Div. 1997).

Although the State must demonstrate by a preponderance of the evidence that a reasonable, articulable suspicion existed at the time of the stop, it is not required to prove that the violation actually occurred. D.K., supra, 360 N.J. Super. at 54 (citing State v. Williamson, 138 N.J. 302, 304 (1994)); Pineiro, supra, 181 N.J. at 19-20. In determining whether, by a totality of the circumstances, there was a reasonable, articulable suspicion, all circumstances known to the police officer must be considered by the court. Davis, supra, 104 N.J. at 501. Abnormal operation of a motor vehicle may provide a reasonably objective basis to justify a stop. See State v. Cummings, 184 N.J. 84, 89 (2005)(stop justified for crossing the center line); State v. Widmaier, 157 N.J. 475, 481-82 (1999)(stop justified for crossing center line, no turn signal and skidding); State v. Stever, 107 N.J. 543, 546, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987)(stop justified for crossing center line twice).

Here the underlying traffic offenses asserted by the officer were failure to keep right, N.J.S.A. 39:4-82[1], failure to maintain a lane, N.J.S.A. 39:4-88(b)[2], and reckless driving, N.J.S.A. 39:4-96. On the day of the scheduled trial, defendant, admitting that he had been driving recklessly, pled guilty to N.J.S.A. 39:4-96. Defendant argues that the State did not have the requisite reasonable and articulable suspicion to justify the stop of his vehicle. We disagree.

In the instant case, it is undisputed that defendant crossed the double yellow lines for 30 feet. By crossing over the double lines into the lane for oncoming traffic, he failed to drive "on the right half of the roadway . . . as closely as possible to the right-hand edge or curb of the roadway." N.J.S.A. 39:4-82. As a result, the officer had reasonable suspicion that defendant violated N.J.S.A. 39:4-82, failure to keep right. Under the totality of the circumstances, including the lateness of the hour, the failure to keep right and the subsequent straddling of the driving lane and parking stalls, we agree with the Law Division judge's ruling that the police officer was justified by a reasonable, articulable suspicion to pull over the vehicle to determine the basis for defendant's deviation from the right lane. Accordingly, we affirm the Law Division judge's denial of defendant's motion to suppress.

We next turn to defendant's argument that the State's failure to provide the electronic downloads of certain documents made available in discovery renders defendant's Alcotest result unreliable and inadmissible.

Rule 7:7-7 governs discovery in municipal court. In "all cases involving a consequence of magnitude . . . relevant discovery substantially similar to that enumerated in Rule 3:13-3(b) shall be provided on written notice to the municipal prosecutor." R. 7:7-7. The consequence for a DWI conviction in New Jersey is considered "a consequence of magnitude to which the discovery rule applies." State v. Maricic, 417 N.J. Super. 280, 283-84 (App. Div. 2010)(citations omitted).

The discovery permitted in drunk driving cases includes "all the relevant materials listed in the 11 categories enumerated in R. 3:13-3(a)." State v. Ford, 240 N.J. Super. 44, 47 (App. Div. 1990). However, "'[u]nlike discovery in civil cases, information cannot be demanded which merely leads to other information which is "relevant."'" Maricic, supra, 417 N.J. Super. at 284 (citing Ford, supra, 240 N.J. Super. at 48). Thus, while defendant has a right to complete discovery, "allowing a defendant to forage for evidence without a reasonable basis is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws." Ibid. (internal citations omitted).

On appeal, defendant argues that by failing to produce the downloaded data logs for calibration, control and linearity, the State prevented defendant from gaining access to "critical files necessary to understanding the instrument's operability." Additionally, he argues that the State's failure to establish the statewide database the Supreme Court ordered in State v. Chun, 194 N.J. 54, 151-152 (2008), shows that the State intentionally lost exculpatory evidence.

Further, defendant argues that the failure to provide the downloaded material is a due process violation that must result in either the dismissal of the charge or the exclusion of the Alcotest evidence. "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963). Material evidence must "both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984); see also State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000). Where the prosecution fails to provide requested information, reversal may be required if the suppressed evidence "'might have affected the outcome of the trial.'" State v. Knight, 145 N.J. 233, 246 (1996), certif. denied, 170 N.J. 205, (2001)(citing United States v. Agurs, 427 U.S. 97, 104, 96 S. Ct. 2392, 2398, 49 L. Ed. 2d 342, 350 (1976)).

The State counters that all the mandatory foundational documents were produced in discovery but acknowledged that the data logs for the calibration, control and linearly function files were not provided in electronic form. However, the State insists that the information provided to defendant in written form was the identical information. The State denies that clearing the memory of three fields after the pertinent information is reduced to written form and handed over to defendant constituted destruction of exculpatory evidence. Moreover, since defendant obtained comparable evidence by other means, and none of that evidence proved exculpatory, the State argues that the cleared data could not have been exculpatory.

A brief review of applicable law on the admissibility of Alcotest results will provide a necessary framework to our analysis. After an extraordinarily thorough investigation and painstaking analysis of the Alcotest device for measuring BAC, our Supreme Court held that the Alcotest, utilizing New Jersey Firmware version 3.11, is "generally scientifically reliable," subject to certain conditions established by the Court. Chun, supra, 194 N.J. at 65. In order for the results of the Alcotest to be admitted into evidence, the State must establish three things: "(1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 143 (citing Romano v. Kimmelman, 96 N.J. 66, 81 (1984)). To this end, the Court mandated that the State must disclose in discovery twelve "foundational" documents. Id. at 148. In order to insure that the State met the requirements for determining that the Alcotest device was working properly in a particular case, the Court required that in every case the State must enter into evidence at trial three core foundational documents.[3] Chun, supra, 194 N.J. at 154.

However, the Court determined that it was not necessary to admit into evidence the other foundational documents to establish the admissibility of the Alcotest results because these documents were mainly "tests of tests," and "not fundamentally a part of demonstrating that a particular machine was in good working order." Id. at 144-45. Nonetheless, the Court ordered all foundational documents to be provided in discovery to allow a defendant to challenge "the accuracy of the devices used and chemical composition of the solutions used to routinely test and calibrate the machine." Id. at 142.

In this case the parties do not dispute that the State provided the core documents as well as the other foundational documents to defendant. However, defendant also requested the data log downloads for the Alcotest device used to test defendant "for all calibration cycles, including the calibration cycle of which defendant's breath test was a part." We have previously held that discovery in addition to the core and fundamental documents from Chun must be provided when relevant. Maricic, 417 N.J. Super. at 283-84. In Maricic, we stated:

We acknowledge that the two items of discovery requested by defendant in this case are not included in either Judge King's list of fundamental documents or in the more abbreviated list adopted by the Supreme Court. However, we do not regard that fact as a restriction on discovery. As is clear from the Supreme Court's opinion, the foundational documents are required in order to establish the reliability of the Alcotest device utilized in connection with a particular prosecution. As in Ford, discovery of the sort defendant seeks is "extremely material" as a means to test that reliability. Ford, supra, 240 N.J. Super. at 51. It is accordingly required.

[Id. at 285]

In Maricic, we remanded the case to the municipal court for the provision of, among other information, "[d]ownloaded Alcotest results from the subject matter instrument from the date of the last calibration until Defendant's breath tests." Id. at 282. Evidently, there was no question that the downloads existed, had not been provided and contained relevant information not disclosed to defendant in any other form.

In contrast, here a factual dispute exists as to whether the complete information from the downloaded data logs has been provided. The State represents that everything contained in the downloaded data logs was printed and provided to defendant in written form, and then the device was cleared as a routine procedure.[4] On the other hand, defendant represents that the downloaded data log contained information not provided in the written documentation of critical importance to the issue of the reliability of the machine.

While the Law Division judge found that all requested information contained in the downloads had been provided in written form, we cannot find in the record any indication as to the evidence, other than unsworn representations of counsel, that he relied upon to reach his conclusion. If the judge reviewed documents that allowed him to make such a determination, he failed to state the basis for his determination on the record and no such evidence is contained in the record on appeal for our review. Hence, we are unable to determine on the basis of the record provided on appeal whether or not all downloaded data requested was provided to defendant here and whether, pursuant to Chun and Maricic, it should have been.

Accordingly, we remand the case to the Law Division for a hearing to determine whether the State provided the complete downloaded data concerning calibration, control and linearity from the Alcotest to defendant. If the downloaded data was not provided, the judge must determine the nature of any missing data and its relevance to the issue of the reliability of defendant's test results. Lastly, if necessary, the judge must address the question of whether the evidence possessed exculpatory value and was of such a nature that no comparable evidence by other reasonably available means existed. See California v. Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422.

We have considered other arguments raised by defendant and have determined they are without sufficient merit to require discussion in this opinion. R. 2:11-3(e)(2). We add only that, as defendant acknowledges, the law is well settled in New Jersey that a defendant charged with a violation of N.J.S.A. 39:4-50 has no right to a jury trial. State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991).

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

[1] "Upon all highways of sufficient width . . . the driver of a vehicle shall drive it on the right half of the roadway. He shall drive a vehicle as closely as possible to the right-hand edge or curve of the roadway, unless it is impracticable to travel on that side of the roadway, and except when overtaking and passing another vehicle . . . ." N.J.S.A. 39:4-82.

[2] "[A] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety." N.J.S.A. 39:4-88(b).

[3] These documents are (1) the most recent calibration report prior to a defendant's test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant's test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests. Id. at 154.

[4] Although the State now takes the position that all the information in the data logs was provided in printed form, at the de novo hearing before the Law Division judge, the prosecutor stated that he did not know whether other data existed that was not printed out.