IN THE MATTER OF THE DENIAL OF THE APPLICATION BY GEORGE WINSTON, JR., FOR A FIREARMS PURCHASER IDENTIFICATION CARD A-1512-12T1

IN THE MATTER OF THE DENIAL OF THE APPLICATION BY GEORGE WINSTON, JR., FOR A FIREARMS PURCHASER IDENTIFICATION CARD 

A-1512-12T1 

The question presented by this appeal is whether the Full Faith and Credit Clause of the United States Constitution requires New Jersey to treat appellant George Winston's New York criminal convictions, for which he has obtained certificates of relief from disabilities, as not disqualifying him from obtaining a firearms purchaser identification card or a permit to purchase a handgun under N.J.S.A. 2C:58-3c(1). We conclude that the Constitution does not compel that result and affirm the denial of those firearms permits. 

FRANK ALFANO, JR., Plaintiff-Appellant, v. MARGATE CITY, DAVID WOLFSON, CHIEF OF POLICE and THOMAS HILTNER, MUNICIPAL CLERK OF MARGATE, DOCKET NO. A-3797-11T4

« Citation
Dat

FRANK ALFANO, JR.,

Plaintiff-Appellant,

v.

MARGATE CITY, DAVID WOLFSON,

CHIEF OF POLICE and THOMAS

HILTNER, MUNICIPAL CLERK OF

MARGATE,

DOCKET NO. A-3797-11T4

September 25, 2012

Argued September 12, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, Docket No. L-141-12.

Donald M. Doherty, Jr., argued the cause for appellant.

John Scott Abbott argued the cause for respondents.

PER CURIAM

Plaintiff Frank Alfano, Jr. made a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), for police reports generated in connection with an incident involving a bicyclist falling from the Margate Bridge. Defendant Margate City denied the request and plaintiff instituted an action to secure the production of the records sought. After oral argument on the return date of an order to show cause, the trial judge dismissed the complaint. We reverse and remand for further proceedings consistent with this opinion.

I.

The relevant facts are not in dispute. On November 18, 2011, a newspaper reported that a bicyclist had "tumbled over the railing on the Margate Bridge." The bicyclist fell onto the roof of a building and was injured.

On November 21, 2011, plaintiff filed an OPRA request for all police and fire department reports generated by Margate City concerning this incident. The Margate Fire Department complied with this request and provided plaintiff with a copy of a November 18, 2011 report. The report did not identify the bicyclist, but it did indicate that the Department had responded to a report that "a male had jumped off the bridge." The report further stated that, after the "male had jumped on the roof of a building under the bridge," he was "subdued by police and handcuffed."

The Margate Police Department denied plaintiff's request for a report it had prepared concerning this incident. Upon the advice of the county prosecutor's office, it advised plaintiff that the report he sought was exempt from disclosure because it was a "criminal investigatory record" not accessible under OPRA. Plaintiff thereafter filed a complaint and order to show cause against Margate City, the Chief of Police and the City's custodian of records, alleging violations under OPRA.

After oral argument on the order to show cause, the trial judge entered an order supported by a written opinion dismissing plaintiff's complaint with prejudice. The judge reviewed the police department's report in camera. He stated that

[a] review of the records sought reveals that this investigation involves a suicide attempt. The male attempted to jump off the Margate Bridge into the water, but instead landed on the roof of a small building by a piling. The report also reveals the man's name, certain comments he made, together with names of family members, friends and witnesses.

Because the Margate Police had "concluded its investigation with no charges being filed" against any party, the judge found that the report did not constitute a criminal investigatory record that is exempt from disclosure under OPRA.

However, the judge went on to find that the report could not be disclosed because to do so would violate the reasonable expectation of privacy of the bicyclist and the individuals interviewed by the police. The judge explained that

[w]hile the law has traditionally viewed suicide and attempted suicide as a crime, any enlightened person recognizes that such a traumatic event affects more people than the principal. The Court believes that when furnishing information to an investigating police officer, anyone close to the principal, and the principal as well, did so with a reasonable expectation of privacy that the information provided would be kept confidential.

In balancing plaintiff's interest in obtaining the report and the right to privacy of the affected individuals, the judge primarily focused on

the potential harm from nonconsensual disclosure. This matter involves a suicide attempt; the man involved and his family and friends were interviewed for the police report shortly thereafter. The potential impact of a suicide attempt on this gentleman and his family is huge: disclosure of same, especially in such a small community, could have severe adverse effects on the man and his family.

Based upon these considerations, the judge found that plaintiff was not entitled to the police report because disclosure would violate the privacy expectations of the individuals referred to in the report.

In so ruling, the judge rejected plaintiff's offer, proffered for the first time during oral argument, to accept a redacted copy of the report with the names of all of the individuals and "the salacious details" of the incident redacted. While not addressed in his written opinion, at oral argument, the judge advised plaintiff's counsel that "I could give you a very heavily redacted copy here, but I don't know what value it'd be to you at all."

On appeal, plaintiff argues that the trial judge erred in dismissing his OPRA claim by refusing to provide him with a redacted copy of the police report with all of the parties' names and identifying information redacted. He requests that we reverse the order and remand the matter to the trial court to redact the report and to address his request for counsel fees.

II.

The trial judge's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review on appeal.O'Shea v. Twp. of West Milford, 410 N.J. Super. 371, 379 (App. Div. 2009).

The purpose of OPRA "'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)(quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). In furtherance of that purpose, the Legislature has declared that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

OPRA defines "[g]overnment record" broadly as

any paper, . . . document, . . . data [] or image processed document, information stored or maintained electronically . . . or any copy thereof, that has been made, maintained or kept on file in the course of his or her official business by any officer, . . . agency . . . of the State or of any political subdivision thereof.

[N.J.S.A. 47:1A-1.1.]

That same statute, however, contains exemptions from the definition of government record. One of these exemptions is for a "criminal investigatory record," which is defined as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." Ibid.

We have reviewed the disputed police report and we agree with the trial judge that it is not exempt from disclosure as a "criminal investigatory record." There is nothing in the record to support a finding that the police were actively investigating a crime or attempted crime when the report was prepared. No criminal charges were ever filed after the report was prepared. The report, therefore, is similar to an incident report that is regularly maintained on file, and provided to the public, by police departments.

We also agree with the trial judge that the bicyclist who was the subject of the report, and the individuals who spoke to the police, had a reasonable expectation of privacy concerning the subject matter of the report. Indeed, plaintiff conceded as much by seeking a redacted copy of the report with all personal identifying information deleted.

Under OPRA, "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1. Our Supreme Court has recognized that, when privacy interests are implicated, in order to balance the competing interests of OPRA - the public's right to access and a public agency's duty to safeguard from public access a person's private information - the following seven factors should be applied:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Burnett v. Cnty. of Bergen, 198 N.J. 408, 427-28 (2009) (citing Doe v. Poritz, 142 N.J. 1, 88 (1995)).]

The trial judge correctly applied these factors in concluding that disclosure of the bicyclist's identity could have severe consequences for him and his family because of the "traumatic event" that was the subject of the report. The disclosure of the names of bicyclist's family members would also serve to reveal his identity. Thus, we believe that the judge correctly held that there was "no overarching need for a citizen to obtain this individual and his family's names."

Where we part company with the trial judge, however, is with his decision to bar access to the entire report rather than provide plaintiff with a redacted copy that would have deleted all personal identifying information. While plaintiff originally sought the entire report, he eventually agreed to accept a redacted version with all names and information that might identify the bicyclist deleted.

We disagree with the judge's conclusion that plaintiff could not be given a redacted report. While finding that the report raised privacy concerns, the judge nevertheless advised plaintiff, on the record and in his written opinion, that the report concerned a suicide attempt and the judge went on to describe some of the information in the report. Thus, the judge implicitly recognized, and we hold, that there was information in the report that could be publicly disclosed without adversely affecting the privacy rights of any person.

In the face of the statutory requirements that "government records shall be readily accessible [,]" N.J.S.A. 47:1A-1, and that "any limitations on the right of access . . . shall be construed in favor of the public's right of access[,]" ibid., plaintiff should have been provided with a copy of the report with the names of the individuals, together with any personal information that could be used to identify them, redacted. Accordingly, we reverse the order dismissing plaintiff's complaint and remand for the trial court to redact the report to remove this identifying information. On remand, the court shall also address plaintiff's request for counsel fees. We do not retain jurisdiction.

Reversed and remanded.

State v. Boyce Singleton, Jr.

State  v. Boyce Singleton, Jr. (A-124-10; 067746)

 The trial court did not commit plain error by failing to give, sua sponte, a Worlock charge as part of the insanity-defense jury instruction.  The evidence does not clearly indicate defendant killed Cazan as a result of a deific command. 7-30-12

In re Ronald C. Kollman, Jr., Petition for Expungement (A-126-10; 067807)

In re Ronald C. Kollman, Jr., Petition for Expungement (A-126-10; 067807)

Defendants seeking relief under the statute’s new five-year pathway to expungement have the burden of proving why expungement of a criminal record is in the public interest. Because petitioner appears to have met that burden, the Court reverses the denial of his expungement application and remands to the trial court to assess the petitioner’s character and conduct as of the date of its new ruling. 7-9-12

state v GEORGE TSOULLIS, JR., A-5679-09T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

GEORGE TSOULLIS, JR.,

SUPERIOR COURT

APPELLATE DIVISION

DOCKET NO. A-5679-09T2

__________________________________________

	March 7, 2011

- 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.

---

[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.