Opinion
DOCKET NO. A-0871-11T2
05-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL PECHKO, Defendant-Appellant.
John Menzel argued the cause for appellant. Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal Docket No. 31-10.
John Menzel argued the cause for appellant.
Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael C. Pechko appeals his conviction, following a conditional guilty plea, for driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50(a). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Pechko was stopped for speeding by a North Hanover Township police officer on September 18, 2008. He was eventually arrested and taken to police headquarters, where he was administered breath tests on an Alcotest 7110 MKIII-C machine. Two breath samples were taken, resulting in readings well in excess of the legal limit of .08 percent blood alcohol concentration. Pechko was charged with DWI and two other motor-vehicle offenses.
During discovery, the State provided defense counsel with six compact discs containing downloaded files from six calibration cycles from the Alcotest machine used to test Pechko. After his expert reviewed the data, Pechko alleged that data related to the calibration, the control test, and the linearity test was missing from the downloaded data. The State took the position that it had supplied the same information in written form. The data at issue related to the periodic calibration of the machine by the New Jersey State Police, rather than the specific breath tests administered to Pechko.
The State eventually submitted documents, including an internal memorandum from the director of forensic sciences at the State Police, explaining that the data at issue could not be supplied in downloadable form because it was routinely erased following each re-calibration of an Alcotest machine. The State contends that the machine would not function properly if the data were retained. The problem was attributed to a firmware "bug."
Based on the information supplied by the State and Pechko, the municipal court judge denied Pechko's application for an evidentiary hearing to determine whether the State had complied with its discovery obligations. Pechko's application for an interlocutory appeal was denied by the Law Division. His subsequent application to dismiss the DWI charge on speedy-trial grounds was denied by the municipal judge on April 12, 2010.
Pechko entered the conditional plea of guilty on April 27. He preserved the following issues for appeal: (1) the admissibility of the breath test based on the missing data, (2) the denial of his motion for dismissal on speedy-trial grounds, (3) his argument that the breath samples were taken too far apart, and (4) his argument that he was entitled to a jury trial.
Pechko appealed the municipal judge's ruling on the four preserved issues to the Law Division for consideration de novo. Following oral argument, the Law Division judge denied three of Pechko's four motions. After detailing the events that occurred between the issuance of the summons in September 2008 and the conditional plea in April 2010, the judge determined that the delays were not unreasonable and that Pechko was not prejudiced by them. He further determined that there was no basis to conclude that the extra minute between the breath samples invalidated the test results. Finally, the judge denied the motion for a jury trial.
Although he was initially inclined to deny the motion to dismiss based on the missing data, the judge reserved decision on that issue and ultimately remanded the matter to the municipal court for an evidentiary hearing.
The remand hearing took place in March 2011. Pechko presented the testimony of his expert, an attorney who is a certified Alcotest operator and also registered with the United States Patent and Trademark Office. The State presented the testimony of the state trooper assigned to coordinate Alcotest usage in Burlington County. The municipal judge made no findings of fact. Instead, the hearing transcript was submitted to the Law Division judge.
Based upon the record created at the remand hearing, the Law Division judge denied the motion to exclude the Alcotest results. He stated his reasons, in part, as follows:
I know that the precondition for the admissibility of the Alcotest results was set forth in [State v. Chun, 194 N.J. 54, 134, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)], and the followup cases out of that same court. It requires the State to establish that the device, the Alcotest machine, was in proper working order. And that's really what we're focusing on here.
. . . . The defense here argues that it did not get . . . all the documents required by Chun. The State, of course, says it did. The State contends that the defense got the documents that reflected what was not in the redacted computer files, but they got them in a different form. They got them in a paper form. And thus, they argued the State gave everything to the defense that it was entitled to under Chun.
In the remand transcript . . . , it was admitted that the 12 foundational documents required by Chun were delivered to the defense. The narrow issue that remains is whether there were not additional documents. The electronic files corresponding to the calibration and control function, linearity function and solution change function were required to be produced for the admissibility of the test results. The defendant admits that it did receive the solution change report. So that was another part of the argument.
The State argues that these other reports were turned over to the defense in document form, in paper form. The electronic files that produced the written documents that the State refers to. Those electronic files were destroyed when the machine was purged by [the trooper], who was the coordinator, and required to test and re-calibrate the machine in question, according to the schedule set forth by,
again, Chun. The files that were purged and destroyed as a result of this operation were the calibration control and linearity electronic files.
Defense argues that the paper document records are not electronic and can't be searched and analyzed electronically. And the defense alleges that there was, quote, key information in those files, although not specified by either of the arguments or by . . . the [defense] expert. But they said that there was key information in those files that is not reproduced in the paper files.
I've reviewed the testimony of [the defense expert, who is an] expert witness and attorney, and also an expert in this area of electronics. And he also was a participant of the Chun case, up to his neck in it from what I remember him saying, for many months. So he's well versed in this business of Chun and the Alcotest, etcetera. [The expert] testified that he found the Alcotest machine in question . . . which was used to test the defendant in this case, was, in fact, used for 108 breath tests, 93 total tests, 15 refusals or other discontinued tests for other reasons other than a refusal.
[The expert] testified that the paper records he received as generated from the data stored and the data logs in the machine in question. But not all of the stored data is printed out on the paper records that were produced in discovery. The pre and post diagnostic results, he says, do not appear on the paper documents. He further testified that he didn't know if these matters would be an issue or not.
When cross-examined, [the expert] admitted, after examining all of the discovery produced, quote, he said, "I did
not see any problems on them that I recall." I'll refer to the transcript from the remand hearing. . . . [The expert] did admit examining the documents that purported . . . to be calibration control and linearity for this particular test of Mr. Pechko, but he did not get all the electronic file from which the printed document was generated. [The trooper] from the State Police was the breath test coordinator assigned to test and recalibrate the actual machine in question here that tested the defendant.
He[,] at least at the time he testified before [the municipal judge] in the remand, he had been there as a coordinator with that machine and tested and re-calibrated it two times. He testified he found that the machine had no problems. There were no repair records that were -- needed to be produced, since there weren't any. He . . . testified, "There are no missing files in the data downloads. They are captured on . . . hard copy," he says, referring to, I guess, again, the paper that was produced in lieu of the . . . files that got deleted on the re-calibration.
The trooper testified as to the required procedure he followed to test and re-calibrate the machine, I'll call it. Part of the procedure, he said, captures the data from the machine on . . . the trooper's laptop. From which data he produces two files, a redacted dis[c] that goes to the police department. And I think some of the names and particulars are redacted to -- so that the public is protected to a certain extent, I guess. And then, of course, a non-redacted file is . . . also produced, which he keeps.
Prior to the change of the solution that he is required to do as part of his procedure, he says he's required to clear
the memory of the machine. Without which . . . it would be unable to produce an alcohol influence report on any future tests. He said, "This is the process that I've been using and following on all machines since Chun." . . . This [c]ourt, having read all this -- and I've listened to the arguments, especially the arguments that suggest that . . . the State has destroyed material evidence -- I fail to find the materiality here, despite the argument of [defense counsel] and . . . the actual dignity of it.
You know, once the State has introduced the trial documents and produced the discovery which it has in its possession, the burden then, of course, shifts to show that the machine is not in working order. After a full consideration of everything in this case, the submissions, the oral arguments, the transcripts, I find the State has complied with the Chun discovery, as well as [State v. Holup, 253 N.J. Super. 320 (App. Div. 1992)] . . . . that talked about discovery.
The defense, I find, received all the available discovery to which it was entitled. None of which I find, also, has produced anything that would support an argument that the Alcotest device was not in . . . proper working order . . . at the time of Mr. Pechko's testing. The fact that part of discovery is in non-electronic form does not persuade me, this [c]ourt, to deny the admissibility of the test results. The Chun Court recognized that tests of tests are too -- and I'll use a quote from that Court -- too attenuated to require that they be admitted as part of the pre-admission requirements. The fact that the discovery was in non-electronic form and reduced to paper form does not persuade this [c]ourt to deny the admissibility of the test results.
. . . .
There is an absence here, I find, of material exculpatory evidence, as well -- that might support a Brady violation argument. There is an absence of anything, I find, to suggest that the electronic files, had they been available, would have significantly changed the outcome here on Mr. Pechko's test. All of the data that was reduced to discovery indicates -- including . . . the testing by the trooper himself who has no personal interest in this -- that the machine was in proper working order then, and remains so.
I find . . . that since there is an absence of anything to suggest that . . . had the electronic files, as part of these things been available that they would have significantly changed the outcome of this proceeding. There's nothing to suggest that [the expert] was purely speculating that it . . . might have. Yes, it might have. But . . . this was all of the documentation that was available. The system that requires -- should we say the destruction is . . . part of the re-calibration is recognized by me.
. . . .
And I don't find, also, that there was a Brady violation as a result of the destruction of this part of the files that was otherwise reduced to paper.
The mere fact that it was not in the electronic form, I do not feel gives me the authority to feel that I should deny the admissibility of the results.
The order implementing the judge's rulings was entered on September 26, 2011. The order stayed the sentence and driver's license suspension pending this appeal.
II.
Pechko raises the following issues on appeal:
I. BY FAILING TO PROVIDE DOWNLOADABLE DATA FOR ALL FUNCTIONS RUN ON THE ALCOTEST INSTRUMENT USED TO TEST DEFENDANT'S BREATH, THE STATE BREACHED ITS DUTY TO PROTECT DEFENDANT'S RIGHT TO ASSURE THE RELIABILITY OF HIS BREATH TEST RESULT AND VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
A. Suppression by the prosecution of evidence favorable to an accused upon request violates due process in that the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.II. THE FOUR MINUTES BETWEEN BREATH SAMPLES IN THIS CASE IS A DEVIATION FROM OPERATIONAL PARAMETERS DESCRIBED BY OUR SUPREME COURT SO SIGNIFICANT AS TO WARRANT EXCLUSION OF ALCOTEST RESULTS HERE.
B. The failure of the process in this matter was so blatant, the denial of fundamental fairness so great, and the integrity of the judicial process so crippled, as to warrant dismissal.
III. DELAYS CAUSED BY DENIALS OF, REVERSALS FOR, AND REFUSAL TO PROVIDE DISCOVERY SO CRIPPLED JUDICIAL PROCESS AND UNDERMINED FUNDAMENTAL FAIRNESS IN THE MATTER AS TO VIOLATE DEFENDANT'S RIGHT TO A SPEEDY TRIAL.
A. Factor 1 -- Length of delay: The extraordinarily long delay of 584 days weighs heavily in finding that defendant's right to a speedy trial was violated.
B. Factor 2 -- Reasons for delay: Delays caused by the tortured discovery history of this case are directly attributable to the State and violated defendant's right to a speedy trial.IV. DEFENDANT ASSERTS HIS RIGHT TO A JURY TRIAL, GIVEN THE PACKING OF PENALTIES FOR DWI.
C. Factor 3 -- Asserting the right: Defendant did not acquiesce to delay but rather repeatedly asserted his right to a speedy trial.
D. Factor 4 -- Prejudice to defendant: Even in the absence of specifically identifiable prejudice, delay here was so excessive and egregious as to warrant dismissal.
Our role in an appeal such as this is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). The Law Division determination is de novo on the record from the municipal court. R. 3:23-8(a). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
A.
Pechko contends that the DWI charge against him should have been dismissed because the State failed to provide him with the complete calibration, control test, and linearity test data in downloadable form, thereby violating its obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963) .
The State has a "constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession." State v. Marshall, 148 N.J. 89, 154, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Knight, 145 N.J. 233, 245-46 (1996)). "[T]he 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." Knight, supra, 145 N.J. at 245 (quoting Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218) (internal quotation marks omitted).
Thus, the question is "whether evidence is sufficiently 'material' to require its timely disclosure to the defendant." Id. at 246. Material evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 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). "[R]egardless of the specificity of the defendant's request, evidence is material for Brady purposes if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Marshall, supra, 148 N.J. at 155 (citation and internal quotation marks omitted). "A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.'" State v. Martini, 160 N.J. 248, 269 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).
Some context is necessary for a resolution of the Brady issue in this case. For the results of an Alcotest to be admissible at trial, the State must establish that "(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." Chun, supra, 194 N.J. at 134 (citing Romano v. Kimmelman, 96 N.J. 66, 81 (1984)).
In order to facilitate a defendant's potential challenge to "the good working order of the machine as of the time of the test" or "the accuracy of the devices used and chemical composition of the solutions used to routinely test and calibrate the machine," see id. at 142, the Supreme Court required the State to disclose twelve "foundational" documents during discovery. Id. at 148, 153. However, the Court determined that it was not necessary for the State to admit each of the foundational documents into evidence at trial to establish the admissibility of the Alcotest results. Id. at 144.
In every case, the State must introduce: "(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 145. The Court did not require introduction of other foundational documents because they were mainly "tests of tests," and "not fundamentally a part of demonstrating that the particular device was in good working order." Id. at 144-45.
There is no question that the State supplied Pechko with each of the required twelve foundational documents. Pechko sought and received additional discovery, including certain categories of downloaded data.
There also appears to be no dispute that the State did not supply the data at issue in downloadable form, as requested by Pechko, and that its inability to do so was the direct result of the decision by the State Police to delete the information to solve what it has described as a firmware "bug." Despite the fact that the deletion of the data was deliberate, there is no support in the record for a finding that it was done in bad faith or to conceal exculpatory information.
Although considerable documentary evidence was supplied, Pechko's expert opined that some of the data deleted is not reflected in the written documentation he reviewed. Because the judge made no specific factual finding on that issue, we will assume for the purposes of this decision that there was some missing data.
The issue before us is whether that missing data was material and whether the State's failure to make it available warrants dismissal of the DWI charge against Pechko, which was based solely on his Alcotest reading. Having reviewed the judge's oral decision finding that there was no material evidence missing, in light of the record before us and the applicable law, we conclude that the judge did not err in denying the motion to exclude the Alcotest report.
Pechko's expert never testified that there was any reason to believe that the Alcotest machine used for Pechko's test was not functioning properly. He merely asserted that he could not say that it was working properly without access to all of the data. The following exchange took place during the cross-examination of Pechko's expert:
Q. From the data that you have seen you can't tell us affirmatively that there's anything -- there was anything wrong with this machine?
A. The data I have seen has told me that there is data missing. And based on the data missing, not knowing whether it's a problem or not, I can't reach a conclusion.
Q. And that's the best you can tell us, right?
A. That's the best I can do.
In addition, the expert never opined that, had he been given access to the missing data, there was "a reasonable probability" that he would have discovered exculpatory information sufficient to change the result of the State's prosecution of Pechko for DWI. In that regard, we note that the data at issue here was not a component of one of the three foundational documents required to be introduced into evidence to gain admission of the test results, nor was it a component of a foundational document required to be served during discovery.
Consequently, we are satisfied that there is nothing in the record before us to support a finding of the type of "reasonable probability[,] . . . sufficient to undermine confidence in the outcome," Martini, supra, 160 N.J. at 269, that would warrant dismissal of the DWI charge on the basis of withheld discovery.
B.
We have considered Pechko's other arguments and determined they are without sufficient merit to require an extended discussion in this opinion. R. 2:11-3(e)(2). We add only the following.
With respect to the delay between the breath tests, Pechko points to (1) the fact that the test result document shows that the two successful breath tests started four minutes apart, at 20:31 and 20:35, respectively, and (2) the language in Chun, supra, 194 N.J. at 81, that "[t]he device gives the operator three minutes to collect each sample. If that time expires without a sample, the device will present the operator with three options. The options are to terminate the test, report that the person refused the test, or continue with the test." He argues that, because the machine did not offer the operator of the machine taking his breath the three choices mentioned in Chun, it must have malfunctioned during the testing.
Our reading of the document reveals that test 2, the first successful test, occurred at 20:31. A blank test, run automatically by the machine after every breath sample, took place at 20:32. The sample for test 3 was collected at 20:35, within three minutes of the blank test. Alternatively, Chun, supra, 194 N.J. at 81, indicates that between tests, the Alcotest machine imposes "a two-minute lock-out period during which [it] will not perform another test," and that it does not prompt the operator to collect the next sample until after the lock-out. This suggests that at the earliest, the three-minute span for collecting Pechko's test 3 sample started at about 20:34 or 20:35. However one interprets the three-minute interval mentioned in Chun's description of the Alcotest process, we see no excessive-time anomaly. In addition, Pechko's expert, who was asked whether there were any indications the Alcotest machine malfunctioned, did not offer any testimony to support Pechko's assertion concerning the timing issue.
Pechko also argues that he was denied a speedy trial. The Law Division judge, who carefully analyzed the delay between the issuance of the summons and the conditional plea, found no unreasonable delay and no prejudice to Pechko. That decision was fully consistent with the Supreme Court's recent decision in State v. Cahill, 213 N.J. 253, 270, 276-77 (2013), in which the Court noted that discovery in Alcotest cases typically takes more time.
Finally, it is well established that a defendant charged with a violation of N.J.S.A. 39:4-50(a) does not have a right to a jury trial. State v. Hamm, 121 N.J. 109, 111 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991).
Consequently, we affirm Pechko's conviction and dissolve the stay pending appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION