Opinion
DOCKET NO. A-2443-12T3 DOCKET NO. A-2444-12T3
04-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AUGUSTINE V. CALABRO, JR., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. SCOTT M. CARNIE, Defendant-Appellant.
Matthew W. Reisig argued the cause for appellants (Reisig & Associates, LLC, attorneys, Mr. Reisig, of counsel and on the brief; Jeffrey Zajac, on the brief) Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal Nos. MA-11-034 in A-2443-12 and 11-035 in A-2444-12. Matthew W. Reisig argued the cause for appellants (Reisig & Associates, LLC, attorneys, Mr. Reisig, of counsel and on the brief; Jeffrey Zajac, on the brief) Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief). PER CURIAM
Defendants were both charged separately in 2009 with driving while intoxicated, N.J.S.A. 39:4-50. Because of similarities, they were treated together in municipal court for purposes of resolving issues about the sufficiency of the prosecution's turnover of discovery relating to the Alcotests performed. The municipal judge ruled against both defendants in those regards, and they both entered conditional guilty pleas; they then separately appealed to the Law Division.
The matters were remanded by way of separate orders by different judges at different times. In defendant Carnie's appeal, the Law Division judge remanded for a municipal court hearing to determine whether digital downloads from the Alcotest device were "incomplete" and, if so, whether defendant was prejudiced as a result; the judge also directed that the municipal court "set forth its factual and legal basis for its determination that the failure to utilize an Ertco-Hart thermometer did not constitute a basis for dismissal," and she directed the municipal judge to issue his findings within ninety days. The judge also stayed the Law Division proceedings pending completion of the remand proceedings. In Calabro's appeal, another Law Division judge described his remand as necessitated by the need for "developing a factual record" to further consider the discovery issues raised in the appeal.
The municipal judge permitted additional discovery beyond the terms of the Law Division orders and, as directed, conducted a N.J.R.E. 104 hearing, during which he heard the testimony of a State trooper and defendants' expert. The municipal judge, applying correct standards, concluded that the prosecution had provided "all the requisite regularly uploaded data."
With the completion of the remand proceedings, yet another Law Division judge rejected the arguments posed in both defendants' appeals. Defendants then moved in the Law Division for reconsideration or amended findings pursuant to Rule 1:7-4(b). These motions were found by the judge to be time-barred but the judge also explained in her written opinion why defendants' arguments were without merit.
Defendants separately appeal. Their appeals, which we now consolidate, pose the same arguments, namely: (1) the Law Division judge erroneously miscalculated the time for filing a Rule 1:7-4(b) motion for amendment of a judge's findings; (2) the earlier orders remanding to the municipal court violated Rule 3:23-8(a), which, defendants argue, requires that defendants now be freed from the consequences of their guilty pleas and that the matters be remanded to the municipal court for trial; (3) the Law Division judge erred in failing to grant new trials in these matters "on the basis that the municipal prosecutor's failure to turn over discovery in [the prosecution's] possession and failure to comply with the continuing duty to disclose discovery," citing subsections (b) and (h) of Rule 7:7-7; (4) the Law Division judge erred in "failing to amend its findings and failing to hold that [the] defense expert [] was qualified to testify as an expert witness"; and (5) the Law Division judge erred by failing to apply the proper standard of review concerning the issues examined at the N.J.R.E. 104 hearing.
We agree the Law Division judge miscalculated the time-bar applicable to defendants' Rule 1:7-4(b) motions by mistakenly assuming the time commenced from the entry of the order in question instead of the date the order was served on the movant. Although the motions should not have been denied on that basis, we conclude, as the judge's written opinion reveals, that the motions were also rejected on their merits.
Notwithstanding our agreement with defendants' first point, we find, pursuant to Rule 2:11-3(e)(2), insufficient merit in defendants' remaining arguments to warrant further discussion in a written opinion; indeed, defendants acknowledge our recent decision in State v. Robertson, 438 N.J. Super. 47 (App. Div. 2014), eviscerates much of what they argue here.
We add only the following brief comments about the procedure followed when the matters were first appealed to the Law Division. Defendants argue in their second point that, in light of Rule 3:23-8(a)(2), the Law Division judges who remanded the matters either intended that by remanding they were also vacating the conditional guilty pleas or that the conditional guilty pleas must be deemed vacated by operation of the Rule.
We disagree. To be sure, Rule 3:23-8(a)(2) states that, in deciding a municipal appeal, a judge "may reverse and remand for a new trial or may conduct a trial de novo on the record below." We reject, however, the contention that this Rule limits a judge in the manner urged by defendants, and we see no offense to the letter or spirit of the Rule for a judge, in attempting to understand what has occurred in municipal court, or in redressing some limitation in the pretrial proceedings in municipal court, to remand for further development of the record — in aid of the Law Division judge's ultimate disposition of the appeal — without necessarily vacating a conviction. See State v. McLendon, 331 N.J. Super. 104, 109 (App. Div. 2000).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION