Opinion
A-66-21
08-08-2024
State of New Jersey, Plaintiff-Appellant, v. Thomas Zingis, Defendant-Respondent
Regina M. Oberholzer, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; Regina M. Oberholzer and Robyn B. Mitchell, Deputy Attorney General, of counsel and on the briefs). Michael B. Cooke argued the cause for respondent (Michael B. Cooke and The Hernandez Law Firm, attorneys; Michael B. Cooke and Steven Hernandez, on the briefs). Michael R. Noveck, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Jennifer Sellitti, Public Defender, attorney; Michael R. Noveck, of counsel and on the brief). Jeffrey Evan Gold argued the cause for amicus curiae New Jersey State Bar Association (Timothy F.McGoughran, President, New Jersey State Bar Association, attorneys; Timothy F. McGoughran, of counsel, and Jeffrey Evan Gold, on the brief).
Remanded July 28, 2022
Argued March 26, 2024
Special Adjudicator Report September 15, 2023
On certification to the Superior Court, Appellate Division No. 087132, whose opinion is reported at 471 N.J.Super. 590 (App. Div. 2022).
SYLLABUS
This syllabus is not part of the Court's opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Regina M. Oberholzer, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; Regina M. Oberholzer and Robyn B. Mitchell, Deputy Attorney General, of counsel and on the briefs).
Michael B. Cooke argued the cause for respondent (Michael B. Cooke and The Hernandez Law Firm, attorneys; Michael B. Cooke and Steven Hernandez, on the briefs).
Michael R. Noveck, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of
New Jersey (Jennifer Sellitti, Public Defender, attorney; Michael R. Noveck, of counsel and on the brief).
Jeffrey Evan Gold argued the cause for amicus curiae New Jersey State Bar Association (Timothy F.McGoughran, President, New Jersey State Bar Association, attorneys; Timothy F. McGoughran, of counsel, and Jeffrey Evan Gold, on the brief).
NORIEGA, J., writing for a unanimous Court.
In State v. Cassidy, 235 N.J. 482, 486 (2018), the Court addressed the consequences of then-Sergeant Marc Dennis's certification of improperly conducted calibration checks of certain Alcotest machines "used to determine whether a driver's blood alcohol content is above the legal limit," which called into question over 20,000 Alcotest results. In this appeal, the Court addresses issues arising from the notification procedure required after Cassidy.
In August 2018, defendant Thomas Zingis was charged with careless driving and driving while under the influence (DWI). He had a prior DWI conviction in April 2012. In December 2018, a trial was held in the municipal court and Zingis was found guilty of DWI. The State requested that Zingis be sentenced as a second offender due to his April 2012 DWI conviction. Relying on Cassidy, Zingis argued that his first conviction should be disregarded for sentencing purposes because the State failed to prove beyond a reasonable doubt that his 2012 DWI conviction was not predicated on a Dennis-calibrated Alcotest. The State responded by asserting that (1) Camden was not one of the Dennis-affected counties, and (2) Zingis's failure to receive notice, consistent with this Court's order in Cassidy, was proof that he was not a Dennis-affected defendant.
The municipal court accepted the prosecutor's representation and sentenced Zingis as a second DWI offender. On appeal, the Law Division also found Zingis guilty of DWI and rejected his request to be sentenced as a first-time offender.
The Appellate Division affirmed Zingis's conviction but vacated the enhanced sentence. 471 N.J.Super. 590, 608 (App. Div. 2022). The Appellate Division held that the State failed to prove beyond a reasonable doubt that Zingis's 2012 DWI conviction was not based on an inadmissible Alcohol Influence Report (AIR). Id. at 607. The Court granted certification and remanded the matter to a Special Adjudicator for a plenary hearing on two questions: (1) which counties were affected by Dennis's conduct, and (2) what notification was provided to defendants affected by Dennis's conduct. 251 N.J. 502 (2022).
The Special Adjudicator filed a comprehensive 370-page report detailing his findings of fact and conclusions of law, which the Court summarizes. The parties largely agree with the Special Adjudicator's findings and conclusions. Relevant to this appeal, there are two areas of disagreement: (1) the availability of Exhibit S-152 -- a 180-page Excel Spreadsheet that sets forth solution changes and calibrations on all Alcotest Instruments in New Jersey from November 5, 2008 through June 30, 2016 -- and (2) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI.
The State asks the Court to accept the Special Adjudicator's factual findings and recommendations with two exceptions: (1) Exhibit S-152's availability should be limited; and (2) the validity of a prior DWI should be pursued through PCR in the municipal court where the prior conviction occurred and not be litigated at sentencing for a successive DWI. The State agrees with the Special Adjudicator that prior to seeking an enhanced DWI sentence, it must inform defendants "that a prior DWI conviction it intends to" rely on "was potentially affected by Dennis's malfeasance." The State contends, however, that this notification obligation extends only to cases confirmed to be Dennis-affected cases, not those in which there is no known evidence that would justify overturning convictions on PCR.
HELD: The Court now resolves those limited areas in which the parties could not agree regarding the implementation of the Special Adjudicator's findings and legal conclusions: (1) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI; and (2) the appropriate availability of Exhibit S-152.
1. During the initial conference for a DWI matter, the court shall inquire whether the pending matter represents the first or subsequent DWI for a defendant. If the record reflects that the defendant has a prior conviction for DWI, the prosecutor must inform the court, defendant, and defense counsel whether it occurred between the critical dates of November 5, 2008 and April 2016. If so, the court must then schedule a discovery conference for the State to fulfill its obligation and provide to the defendant and counsel, as well as the court, discovery indicating whether the defendant is a Dennis-affected defendant. The prosecutor will accomplish this by using the summons number from the earlier offense to search Exhibit S-152, which will be redacted to include only non-personal identifying information. Once the corresponding entry is located within Exhibit S-152, the prosecutor is to "copy and paste" that row of data into a new document. The AIR number from that entry must then be compared against the Dennis Calibration Repository, which shall be made publicly available by placing it on a State website and shall also be summarized in a Dennis AIR Summary sheet. If the State determines that the defendant's prior offense involved a Dennis-affected Alcotest Instrument that produced an evidential BAC reading, corroborated by Exhibit S-152 and the Dennis AIR Summary sheet, judges should afford the defendant a reasonable amount of time to decide whether to challenge the prior conviction. If the defendant wishes to challenge that earlier conviction, the defendant shall do so by filing for PCR in the jurisdiction of the previous conviction. If the defendant, after being made aware of the existence of a Dennis-affected matter, chooses to proceed without challenging the earlier conviction, the court will inquire on the record that the defendant's decision is knowing and voluntary, and the matter may proceed in the usual course. The Court calls on judges to resolve PCRs and related new matters as expeditiously as possible. The Court provides detailed guidance on all of these points. (pp. 18-23)
2. With regard to Exhibit S-152, the Court adopts a process that balances the State's concerns for privacy with defendants' due process need for notification. Once a summons number is cross-referenced in Exhibit S-152, it shall be provided to the defendant and defense counsel in discovery. Through that process, the defendant and counsel can see the date and location of offense, summons number, and the defendant's name. The prosecutor must then use the summons number to search Exhibit S-152. Therefore, Exhibit S-152 in its newly redacted form, excluding all personal identifiers, must be publicly released on the State's website. The prior disposition, along with the complete row of data from Exhibit S-152 and the Dennis AIR Summary sheet, together will be deemed proof beyond a reasonable doubt of whether a defendant's prior DWI conviction is a Dennis-affected matter. (pp. 23-25)
3. The Court adopts the remainder of the Special Adjudicator's findings, which are supported by substantial credible evidence in the record. (p. 25)
AFFIRMED and REMANDED.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE join in JUSTICE NORIEGA's opinion.
OPINION
NORIEGA, JUSTICE
This case calls upon this Court to revisit the consequences that remain from then-Sergeant Marc Dennis's certification of improperly conducted calibration checks of certain Alcotest machines "used to determine whether a driver's blood alcohol content is above the legal limit," which called into question over 20,000 Alcotest results. State v. Cassidy, 235 N.J. 482, 486 (2018). Specifically, defendant Thomas Zingis's matter illuminates a flaw in the notification procedure required after our Cassidy decision.
All parties to this matter have made significant efforts to reach consensus in order to arrive at a fair resolution. With the comprehensive and extraordinary work the Special Adjudicator performed in this case, there remain only two issues on which the parties still have lasting concerns. We now resolve those issues.
I.
We briefly highlight the following facts from the record. We rely heavily on Special Adjudicator's comprehensive report for the full details of the present case and those events predating it.
A.
On August 27, 2018, a Berkeley Township patrolman stopped defendant Thomas Zingis for driving his motorcycle erratically. During the traffic stop, the patrolman became suspicious that Zingis was under the influence and asked him to perform a field sobriety test. Based on his observations, the patrolman concluded Zingis was under the influence of alcohol and arrested him. Zingis was charged with careless driving and driving while under the influence (DWI), contrary to N.J.S.A. 39:4-50. Notably, he had a prior DWI conviction in April 2012 from Collingswood in Camden County.
In December 2018, a trial was held in the municipal court and Zingis was found guilty of DWI. The State requested that Zingis be sentenced as a second offender, pursuant to N.J.S.A. 39:4-50(a)(2), due to his April 2012 DWI conviction. Zingis opposed the State's sentencing recommendation. Relying on our decision in Cassidy, Zingis argued that his first conviction should be disregarded for sentencing purposes because the State failed to prove beyond a reasonable doubt that his 2012 DWI conviction was not predicated on a Dennis-calibrated Alcotest. The State responded by asserting that (1) Camden was not one of the Dennis-affected counties, and (2) Zingis's failure to receive notice, consistent with this Court's order in Cassidy, was proof that he was not a Dennis-affected defendant.
The municipal court accepted the prosecutor's representation and sentenced Zingis as a second DWI offender pursuant to N.J.S.A. 39:4-50. Zingis successfully moved to stay his sentence pending his appeal to the Law Division.
B.
In October 2020, Zingis appealed to the Law Division. Following a trial de novo, the Law Division also found Zingis guilty of DWI and rejected his request to be sentenced as a first-time offender. Relying on the Special Adjudicator's report in Cassidy, the trial judge found that Dennis's misfeasance was limited to Middlesex, Monmouth, Ocean, Somerset, and Union Counties. The trial judge also viewed the State's failure to notify Zingis of his status as a Dennis-affected defendant to be outcome determinative.
C.
Zingis appealed his conviction and sentence to the Appellate Division. In a published opinion, the court rejected the State's two arguments that (1) Zingis's prior conviction was not tainted because his name did not appear on the Attorney General's list of Dennis-affected defendants, and (2) Dennis's misconduct did not affect any DWI convictions in Camden County. State v. Zingis, 471 N.J.Super. 590, 606 (App. Div. 2022). The court determined that both the municipal court and the Law Division erred in accepting the prosecutor's assertion and ultimately affirmed the conviction but vacated the enhanced sentence. Id. at 608.
The Appellate Division held that the State failed to prove beyond a reasonable doubt that Zingis's 2012 DWI conviction was not based on an inadmissible Alcohol Influence Report (AIR). Id. at 607. In doing so, the court found that the record did not contain "evidence with respect to how the Attorney General's list . . . was compiled and whether it definitively includes all DWI convictions tainted by Dennis's malfeasance." Id. at 606. Moreover, the court noted that the record lacked support for the prosecutor's assertions and in some instances undermined the State's proffer that all Dennis-affected defendants had been notified. Id. at 606-07. The Appellate Division reasoned that in future cases the State may meet its burden to prove beyond a reasonable doubt that a DWI defendant was not convicted in the first instance based on a faulty AIR with a "more robust record." Id. at 607. Accordingly, the appellate court remanded to the municipal court to resentence Zingis as a first-time offender. Id. at 608.
The State moved for reconsideration, arguing for the first time that Cassidy imposes an obligation on defendants to seek post-conviction relief (PCR) for any DWI conviction defendants believed to be tainted by an inadmissible AIR, while relieving the State from any burden to prove that a prior DWI conviction was not tainted when seeking a sentencing enhancement.
The Appellate Division considered and rejected both arguments. In its order and statement of reasons, the appellate court found that a defendant's failure to seek PCR should not insulate a prior conviction from scrutiny if the State later aims to rely on it. The court found that the State's position had no support under Cassidy, particularly its argument that it had no obligation to prove whether a prior DWI conviction was premised upon tainted evidence. The court also held that the State's argument that defendants could easily search the publicly available Alcotest Inquiry System (AIS) contradicted its representation to the Law Division court that proving a prior conviction was not tainted by Dennis would be "almost impossible."
D.
We granted the State's petition for certification and motion to stay. 251 N.J. 502 (2022). We remanded the matter to retired Appellate Division Judge Robert A. Fall as a Special Adjudicator for a plenary hearing to consider and decide two questions: (1) which counties were affected by Dennis's conduct, and (2) what notification was provided to defendants affected by Dennis's conduct. Ibid. We instructed that the Special Adjudicator had the discretion to address any other relevant issues. We invited the Office of the Public Defender (OPD) to participate as amicus curiae. Ibid. The Special Adjudicator granted the New Jersey State Bar Association's (NJSBA) motion to appear as amicus curiae.
After briefing and plenary hearings, the Special Adjudicator filed a comprehensive 370-page report detailing his findings of fact and conclusions of law. Expanding on the two questions in the order from this Court, the Special Adjudicator divided the issues further and concluded, in summary, the following:
(1) the State did not identify all individuals who were requested to provide breath samples on Alcotest instruments calibrated by Dennis during the relevant time period;
(2) the classification of those defendants entitled to notification of the Court's decision in Cassidy is limited to those who were requested to provide breath samples on an Alcotest instrument calibrated by Dennis that resulted in the reporting of an evidential blood alcohol content (BAC) reading;
(3) the State did not fully provide the ordered notification to all defendants affected by the Court's decision in Cassidy;
(4) there are solutions available that should be implemented to better assure the proper identification of those individuals who have provided breath samples on Alcotest instruments calibrated by Dennis and to provide those individuals with additional notification:
(a) the use of the proposed "Dennis Calibration Repository," in conjunction with Exhibit S-152, is the best available method of determining whether an individual was requested to provide breath samples on an Alcotest instrument calibrated by Dennis and an evidential BAC was obtained;
(b) where an enhanced sentence is sought for a DWI conviction on the basis of a prior DWI conviction, the State should be required to provide discovery to defendant and counsel regarding the applicability of a Dennis-affected matter;
(c) where a defendant files an application seeking PCR based on the Court's ruling in Cassidy contending he is a Dennis-affected defendant, discovery should be provided from Exhibit-152 and Exhibit-28, under a protective order, regarding that original conviction;
(d) the State's recommendations regarding additional notification to those individuals identified as Dennis-affected defendants, who have been omitted from several of the spreadsheets produced, are persuasive and should be accomplished.
II.
With the case before us once more, the parties largely agree with the Special Adjudicator's findings and conclusions. Relevant to this appeal, there are two areas of disagreement: (1) the availability of Exhibit S-152 and (2) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI.
Exhibit S-152 is an Excel Spreadsheet that sets forth solution changes and calibrations on all Alcotest Instruments in New Jersey from November 5, 2008 through June 30, 2016. It contains 236,664 subject test records and comprises 25,180 pages.
A.
The State asks this Court to accept the Special Adjudicator's factual findings and recommendations with the following exceptions: (1) Exhibit S-152's availability should be limited; and (2) any suggestion that the validity of a prior DWI may be litigated at sentencing for a successive DWI should be rejected. Instead, the State contends that such a challenge must be pursued through PCR in the municipal court where the prior conviction occurred.
First, with respect to the availability of Exhibit S-152, the State objects to the Special Adjudicator's recommendation that the document be released publicly subject to a protective order as determined by the Court. The State asserts that privacy concerns would remain in the face of such an order.
Namely, the State contends that Exhibit S-152 contains sensitive identifying information of those who are confirmed not to be a Dennis-affected defendant, contrary to this Court's requirement in State v. Chun, 194 N.J. 54 (2008), that sensitive information be redacted in the public AIS. The State argues further that merely subjecting Exhibit S-152 to a protective order would still expose the document to significantly more individuals than currently have access, which the State asserts stands at around twenty-five people across the state. The State argues access to Exhibit S-152 should be limited to "County Prosecutors' Municipal Prosecutor Liaisons -- or another designated Assistant Prosecutor in the County Prosecutors' Offices" -- and not extended to municipal prosecutors, defendants, defense counsel, or the general public.
Second, the State agrees with the Special Adjudicator that prior to seeking an enhanced DWI sentence, it must inform defendants "that a prior DWI conviction it intends to" rely on "was potentially affected by Dennis's malfeasance." The State contends, however, that this notification obligation extends only to cases confirmed to be Dennis-affected cases, not those in which there is no known evidence that would justify overturning convictions on PCR. The State avers that its notification obligation may be satisfied using the Dennis Calibration Repository and a certification from the Municipal Prosecutor Liaison or the assigned Assistant Prosecutor who maintains Exhibit S-152 for each county, as an officer of the court.
The State disagrees with the Special Adjudicator's report to the extent that the report recommends that the validity of a prior DWI conviction should be litigated at sentencing on a subsequent DWI conviction. The State asserts that any such challenge can proceed only by filing a petition for PCR in the court in which the prior conviction occurred. It further contends that if a defendant first becomes aware of grounds to challenge the validity of a prior DWI in a subsequent DWI case, the second DWI case should be stayed pending the PCR process. According to the State, this Court acknowledged this procedure in Cassidy and thus, it should be adopted here.
B.
Zingis asks us to affirm the Appellate Division's judgment that he should be sentenced as a first-time offender. He asserts that the State must prove beyond a reasonable doubt that prior DWI convictions being used to impose enhanced penalties or otherwise relied upon in subsequent cases are not Dennis-affected cases. He argues that the State failed to prove beyond a reasonable doubt that his prior DWI conviction was not a Dennis-affected conviction. Zingis further contends that nothing in Cassidy, or any other source cited by the State, limits defendants' relief to PCR applications.
C.
Amicus curiae the New Jersey State Bar Association (NJSBA) agrees with the Special Adjudicator's proposed solution of using the Dennis Calibration Repository and Exhibit S-152 to identify Dennis-affected defendants and argues that in discovery, the State must disclose "whether or not Dennis was involved in any predicate DWI related offense that occurred during Dennis's tenure." NJSBA asserts that, to the extent the Special Adjudicator recommends that an individual must file for PCR prior to obtaining any access to the documents, Cassidy does not require the filing of a PCR application "to get notice that Dennis was involved." It contends that such a requirement would result in unnecessary PCR applications.
NJSBA requests that this Court reject the State's proposed modifications to the Special Adjudicator's recommendation of subjecting Exhibit S-152 to a protective order. It contends that (1) Exhibit S-152 should be accessible to defense counsel to allow independent review and that, to account for the State's privacy concerns, an online version could be subject to a protective order through implementing a "click through certification"; and (2) AIS is not a solution to quickly confirm whether Dennis was involved. It also asks that the Court make a partially redacted version of Exhibit S-152 publicly available -- removing Name, Driver License Number, Issuing State-- to end the Cassidy notice issue.
After oral argument, NJSBA drew the Court's attention to the United States Supreme Court's decision in Erlinger v. United States, 602 U.S._, 144 S.Ct. 1840 (2024), in which the Court held that whether a defendant's prior convictions were "committed on occasions different from one another" for purposes of 18 U.S.C. § 924(e)(1) must be decided by a unanimous jury, not by a judge at sentencing. See 144 S.Ct. at 1851-52. Erlinger did not hold that the existence of a prior conviction must be found by a unanimous jury, and it is thus not relevant to our disposition here.
D.
Amicus curiae OPD disagrees with the State that the State may satisfy its notification obligation with a certification by the prosecutor. It argues instead that the State should be required to provide the actual data contained in Exhibit S-152 pertinent to a defendant facing an enhanced sentence or other collateral penalties based on a prior DWI conviction with an arrest date between November 5, 2008 and April 9, 2016. OPD proposes that the State use this data to make a prima facie showing that the prior matter was not adjudicated based on an Alcotest reading from a Dennis-calibrated machine, and failure to make this showing should result in waiver of any sentencing enhancement. As to the issue of PCR, OPD agrees with the State that any challenge to a Dennis-affected conviction must be made through PCR in the court where the prior conviction occurred. OPD also submits that Zingis should be sentenced as a first-time offender because the prosecutor's assertions about notice and affected counties in this case were incorrect.
III.
A.
The Law Division reviews municipal court judgments de novo. R. 3:23-8(a)(2). Appellate courts "focus[] on whether there is 'sufficient credible evidence . . . in the record' to support the [Law Division's] findings." State v. Robertson, 228 N.J. 138, 148 (2017) (omission in original) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, legal rulings are reviewed de novo and not afforded any deference. Ibid. Likewise, when faced with an appeal dealing with a special adjudicator's report, the Court owes no deference to a special adjudicator's legal conclusions but will generally defer to a special adjudicator's credibility findings regarding the testimony of expert witnesses. Cassidy, 235 N.J. at 491. "The Court also accepts the fact findings of a special [adjudicator] to the extent they are supported by 'substantial credible evidence in the record.'" Ibid. (quoting Chun, 194 N.J. at 93).
B.
Rule 7:10-2 governs PCR in municipal court and dictates that any petition for PCR that is not based upon correcting an illegal sentence "shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked." R. 7:10-2(b)(2). But we note that, in Cassidy, we lifted the stay on pending cases and relaxed Rule 7:10-2(b)(2)'s five-year time bar given that "the State waited approximately a year to notify the [defendants affected by a Dennis-calibrated Alcotest]." 235 N.J. at 498.
IV.
We resolve the limited areas in which the parties could not agree regarding the implementation of the Special Adjudicator's findings and legal conclusions. We begin with a brief review of the Special Adjudicator's two conclusions over which the parties have remaining concerns: (1) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI; and (2) the appropriate availability of Exhibit S-152.
First, the Special Adjudicator concluded that when the State seeks an enhanced DWI sentence premised upon a prior DWI conviction that is potentially open to challenge as a Dennis-affected case, "the State has the obligation to provide a defendant . . . information and documentation, prior to imposing any sentence, whether the DWI conviction did, or did not, involve an evidential BAC reading obtained from breath samples provided on an Alcotest Instrument calibrated by Sergeant Dennis." The Special Adjudicator also found that "an Alcotest Instrument reporting an 'Error Message' and, consequently, no BAC reading, has nothing to do with the fact that Sergeant Dennis calibrated a particular Alcotest Instrument, which is only relevant when an evidential BAC reading was produced." Thus, the Special Adjudicator concluded that "an AIR producing a 'Test Result' that the 'Subject Refused' can be admissible in evidence during a Refusal prosecution."
The Special Adjudicator held that in order to determine whether a defendant is a Dennis-affected defendant, the State should use the Dennis Calibration Repository in conjunction with Exhibit S-152, and that sentencing should not proceed until the State provides the Dennis Calibration Repository and Exhibit S-152 to the defendant, counsel, and the court. The Special Adjudicator also found that this burden applies equally to circumstances in which a defendant files an application for PCR based on the Court's ruling in Cassidy.
To facilitate the exchange of discovery where there is the possibility of a Dennis-affected prior DWI, the Special Adjudicator outlined a procedure relying on Zingis's case as an example:
First, conducting a search of [Exhibit S-152] discloses, on Row 75536, that Thomas Zingis was arrested on January 13, 2012 (Column A), in the Borough of Collingswood (Column S), in Camden County, and
charged with DWI.... Mr. Zingis provided breath samples on Alcotest Instrument ARUM-0042 (Column B), located at the Collingswood Police Station (Column D), calibrated on October 13, 2011 (Column C), which resulted in an evidential BAC reading of 0.178 (Column U). Turning to [the Dennis Calibration Repository], a review of same discloses that Alcotest Instrument ARUM-0042 is not an Instrument that was calibrated by Sergeant Dennis.
Second, due to sensitive personal information contained within Exhibit S-152, the Special Adjudicator concluded it should be subject to a protective order, available "for access by municipal courts, Superior Courts, Prosecutors, Public Defenders, Defense Counsel and unrepresented Cassidy-affected defendants when either postconviction relief or enhanced sentencing is sought." Regarding the notification issues that have arisen repeatedly in this matter since Dennis's misfeasance was discovered in 2015, the parties have all acknowledged the ineffectiveness of identifying new addresses and seeking out individuals who have heretofore been unidentifiable. Therefore, the Special Adjudicator held that it will be incumbent upon the State to identify these individuals when they face collateral consequences from a potentially Dennis-affected conviction. Be it in municipal court or in the Law Division, a collateral consequence that stems from a prior DWI conviction during the period of Dennis's misfeasance raises responsibilities and burdens that the Special Adjudicator concluded the State must now address.
The Special Adjudicator noted in his findings that "the State has expressed a willingness to mail the second postCassidy notification letter to the addresses secured by the AOC for some of those potentially affected defendants who had been omitted from Exhibit S-90 (also Exhibit S-148), and consequently omitted from both Exhibits S-91 and S-83." We agree with the Special Adjudicator's conclusion that this should be accomplished and that the State should proceed with notifying this omitted group of individuals.
To give effect to those conclusions, we adopt the following measures.
A.
We order that in any case in which the State seeks an enhanced sentence based on a prior DWI conviction with an arrest date between November 5, 2008 and April 9, 2016, the State must inform the court, defendant, and defense counsel whether defendant's prior DWI conviction involved a Dennis-calibrated Alcotest. The State shall rely upon a combination of the publicly accessible Exhibit S-152 and the Dennis Calibration Repository. As discussed more thoroughly below, the State must provide all defendants with a prior DWI during the effective dates the row of Exhibit S-152 that corresponds to that defendant's prior arrest. Given the fallibility of the notification procedures post-Cassidy, the parties will now be entitled to discovery, which is already readily available and capable of unearthing the procedural irregularities caused by Dennis's misfeasance. Such transparency and safeguards will both (1) allow the State to prove beyond a reasonable doubt whether a defendant is an affected defendant, permitting them to confidently discharge their duty in seeking sentencing enhancements when permitted by law, and (2) enable defendants to defend against such claims.
By statute, municipal prosecutors must review a defendant's prior driving history in order to determine whether a DWI represents their first or subsequent offense before recommending whether enhancements may apply. N.J.S.A. 2B:25-5.1. Thus, the municipal prosecutor will be able to identify whether a defendant's prior record reflects a DWI conviction during the relevant timeframe for a Dennis review.
We now order that during the initial conference for a DWI matter, the court shall inquire whether the pending matter represents the first or subsequent DWI for a defendant. If the record reflects that the defendant has a prior conviction for DWI, the prosecutor must inform the court, defendant, and defense counsel whether it occurred between the critical dates of November 5, 2008 and April 2016, information readily available to the State in the defendant's abstract. If so, we now order that the court must then schedule a discovery conference for the State to fulfill its obligation and provide to the defendant and counsel, as well as the court, discovery indicating whether the defendant is a Dennis-affected defendant.
The prosecutor will accomplish this by using the summons number from the earlier offense to search Exhibit S-152. As described below, that document will be redacted to include only non-personal identifying information. Once the corresponding entry is located within Exhibit S-152, the prosecutor is to "copy and paste" that row of data into a new document.The AIR number from that entry must then be compared against the Dennis Calibration Repository. The Dennis Calibration Repository is currently a virtual folder containing a portable document format (PDF) file of every AIR in which Dennis was the calibrating officer. There are 1,046 files contained in this virtual folder, each representing one AIR and labeled accordingly. The repository shall be made publicly available by placing it on a State website.
Every municipal court is equipped with access to a defendant's prior court history, including the ability to obtain the summons number for a prior disposition. Upon appointment, municipal prosecutors receive access to the Person Case Search and Manage (PCSAM) system, permitting them to search a defendant's prior court history, which would allow them to access the summons number for use in conjunction with Exhibit S-152.
The Excel spreadsheet program, like most other spreadsheet applications, permits one row of data to be highlighted entirely and, by using the "copy" feature, the entire row of data can be saved and "pasted" into a new document (either a new Excel spreadsheet or a Word document) that allows for the information to be isolated and printed individually, without any remaining reference to the other entries on the spreadsheet.
Additionally, for ease of reference and use in exchanging discovery, the Dennis Calibration Repository shall be summarized in a Dennis AIR Summary sheet, which shall be created as follows: the State shall compile a document -in as few pages as possible, preferably in multiple columns, and in a readable font -- that contains a sequential, alphanumeric list of the 1,046 file names, including only the instrument number (for example, "ARWA-0188"). This Dennis AIR Summary document is to be certified as accurate, and certified copies will be distributed to each municipality for use by the municipal prosecutor.
Once the cross-reference has been completed, the State can identify whether an AIR from Exhibit S-152 is a match with an AIR from the Dennis AIR Summary sheet or not. The State must also provide a copy of the Dennis AIR Summary sheet for the defendant and defense counsel to verify whether the number is or is not listed. If it is determined that the defendant's prior DWI conviction did not involve a Dennis-calibrated Alcotest, the defendant and defense counsel are still provided their copy of the one row of complete data from Exhibit S-152, along with the Dennis AIR Summary sheets, and the confirming prior disposition revealing the summons number for the defendant's prior DWI conviction. The matter then proceeds in the normal course, and the defendant may face enhanced sentencing based on the prior DWI.
If the State determines that the defendant's prior offense involved a Dennis-affected Alcotest Instrument that produced an evidential BAC reading, corroborated by Exhibit S-152 and the Dennis AIR Summary sheet, judges should afford the defendant a reasonable amount of time to decide whether to challenge the prior conviction. If the defendant wishes to challenge that earlier conviction, the defendant shall do so by filing for PCR in the jurisdiction of the previous conviction. A copy of the motion must be provided to the court for the subsequent DWI. Upon receiving the copy of the motion for PCR, the court for the subsequent DWI matter shall stay the disposition of the matter, unless the defendant elects to enter a guilty or both parties consent to a trial, irrespective of the filing of the PCR. All pretrial procedures in the subsequent DWI matter, including timely production of discovery and participation in case management conferences as directed by the court, shall continue during the pendency of the PCR. The goal is to have the subsequent case trial ready when the PCR is resolved.
If the defendant, after being made aware of the existence of a Dennis-affected matter, chooses to proceed without challenging the earlier conviction, the court will inquire on the record that the defendant's decision is knowing and voluntary, and the matter may proceed in the usual course.
Because of the serious public safety concerns that DWI charges present, we call on judges to resolve PCRs and related new matters as expeditiously as possible.
B.
Exhibit S-152 contains the following columns of information: arrest date, time, and location, Alcotest serial number and calibration date, as well as the Alcotest test result, case number, and summons. The document as presently constituted also contains the following unredacted personal identifying information: the subject's first name, middle initial, age, gender, weight, height, and driver's license issuing state. The State seeks a protective order and access granted only to certain stakeholders, including all municipal courts and superior courts, municipal liaisons, and an assistant prosecutor in each county who will coordinate with municipalities in order to provide defendants and counsel with the relevant discovery. The following process balances the State's concerns for privacy with defendants' due process need for notification.
As discussed previously, municipal prosecutors must review a defendant's driving abstract in every case. Armed with the date of the offense and the defendant's name, the prosecutor -- with the assistance of the municipal court -- can then locate the summons number for any prior DWI.
Once a summons number is identified, the disposition for that offense must be preserved; once it is cross-referenced in Exhibit S-152, it shall be provided to the defendant and defense counsel in discovery. Through that process, the defendant and counsel can see the date and location of offense, summons number, and the defendant's name. The prosecutor must then use the summons number to search Exhibit S-152. Therefore, Exhibit S-152 in its newly redacted form, excluding all personal identifiers, must be publicly released on the State's website. By itself, without personal identifying information, the data in Exhibit S-152 is ineffective; in combination with other pieces of information possessed by the municipal prosecutor and defense counsel, however, the document becomes serviceable. Using Exhibit S-152 in this way retains the subjects' privacy while serving as a valuable tool. The prosecutor must now provide the prior disposition, along with the complete row of data from Exhibit S-152, and the Dennis AIR Summary sheet in discovery, which together will be deemed proof beyond a reasonable doubt of whether a defendant's prior DWI conviction is a Dennis-affected matter.
Most word processing applications, as well as spreadsheet applications, contain a "find" feature that would permit the person searching for information to search, in moments, an entire document for a given term. Inputting the summons number into the "find" or "search" dialog box would produce the data set sought.
Defense counsel will also have an independent means of obtaining the same information through the Municipal Court Case Search (MCCS), should they find an independent evaluation of the evidence necessary.
Despite the lengths to which the State, the Special Adjudicator, and this Court go to secure the personal identifying information of the defendants in these matters, it is worth noting that this information is a matter of public record and attainable by anyone who chooses to seek it out. Nonetheless, risking possible embarrassment or encroaching on a defendant's privacy is not the goal, and we therefore adopt these measures to assure that those privacy concerns are honored.
V.
We take a moment to commend the parties for their valuable participation and willingness to reach consensus where possible. Additionally, such consensus could not have been possible without the extraordinary efforts of the Special Adjudicator, whose exceptional report was critical to the resolution of this matter. Because the remainder of his findings are supported by substantial credible evidence in the record, we adopt them.
In the present matter, we affirm the judgment of the Appellate Division as to vacating the sentence. We remand the matter to the municipal court to afford Zingis the benefit of the discovery process outlined herein, and the matter may then proceed consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE join in JUSTICE NORIEGA's opinion.
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