                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3112-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUAN J. FIGUEROA,

     Defendant-Appellant.
____________________________

              Submitted August 1, 2018 – Decided August 7, 2018

              Before Judges Hoffman and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Municipal Appeal
              No. 6023.

              Juan J. Figueroa, appellant pro se.

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Marc A. Festa, Senior
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Pro se defendant Juan J. Figueroa appeals from the February

15, 2017 Law Division judgment finding him guilty of driving while

intoxicated (DWI), N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A.
39:4-50(g); possessing an open container of alcohol in a motor

vehicle, N.J.S.A. 39:4-51b; careless driving, N.J.S.A. 39:4-97;

and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a.

Defendant contends the State violated his right to a speedy trial

and his right to due process by failing to preserve evidence.

Finding no violation, we affirm.

                                          I

    We previously remanded this case to the Law Division to

address defendant's appeal on the merits.           The factual background

is discussed at length in our prior opinion.             State v. Figueroa,

No. A-3265-14 (App. Div. Jan. 24, 2017) (slip op. at 2-5).                       A

brief summary will suffice here.

    On     June    28,   2013,   police       observed   defendant   driving

erratically, pulled him over, and detected a strong odor of

alcohol.    Defendant failed multiple field sobriety tests and

refused to submit to a breath test.             Police also found an open

bottle of alcohol in defendant's car.              Eight months after his

arrest, defendant made a discovery request for electronically-

stored information.        The State sent defendant computer aided

dispatch   (CAD)   reports   and   further      responded   that   any     other

electronic data had been deleted before defendant's request as

part of routine maintenance.        Defendant sent the court letters

requesting a dismissal for "lack of speedy trial" and "lost or

                                     2                                   A-3112-16T2
destroyed evidence."   Defendant orally argued the motion regarding

lost evidence, which the court denied.        Defendant failed to raise

the motion regarding a speedy trial even after the judge asked if

there were any other motions.

     After the municipal court found defendant guilty of all

charges, defendant filed a de novo appeal to the Law Division.           On

January 8, 2015, the Law Division judge dismissed the appeal

because defendant was not in the courtroom when the judge called

his case.     However, defendant actually arrived early for the

hearing and waited outside the courtroom for his case to come up.

Because the record contained no indication of anyone checking the

hallway outside the courtroom to see if defendant was present

before the court dismissed his appeal, we vacated the dismissal

order and remanded the matter to the Law Division for trial.           Id.

at 8.

     On February 15, 2017, the Law Division conducted a trial de

novo.   After     hearing   oral   argument   from   defendant   and   the

prosecutor, the judge made substantially similar findings to the

findings the municipal court judge made and found defendant guilty

of all charges.    Specifically, the judge found:

            I find that Officer Van Gough was justified
            in stopping defendant's motor vehicle.    He
            observed defendant driving at approximately
            [forty-five] and [fifty] miles per hour in a
            [twenty-five] mile per hour speed zone.

                                    3                             A-3112-16T2
                When   turning   onto    Broad   Street,
           approximately one half of defendant's vehicle
           crossed over a double yellow line.

                Consequently,    [Officer    Van   Gough]
           observed violations of the motor vehicle act.
           He had an articulable and reasonable suspicion
           that the defendant had violated motor vehicle
           laws.

                   . . . .

                Although defendant refused to submit to
           a[n] [Alcotest], so that his blood alcohol
           concentration could be measured, I find that
           [t]he State has proven beyond a reasonable
           doubt that defendant was under the influence
           of alcohol . . . and that his mental faculties
           were so impaired that it was unsafe for him
           to operate a motor vehicle.

     The   judge    based    his   conclusion    on   defendant's   erratic

driving, his bloodshot and watery eyes and strong odor of alcohol,

his poor performance on all three field sobriety tests, and the

professional opinions of both Officer Van Gough and Sergeant Brodie

"that defendant was under the influence of alcohol, to the extent

that it was improper or wrong for him to drive." The judge further

found Officer Van Gough and Sergeant Brodie "credible in their

testimony.    Each were knowledgeable about the events which took

place and gave clear testimony."

     The judge found Officer Van Gough had probable cause to

request    defendant    to   submit   to   the   Alcotest,   "based     upon

defendant's driving, smell of alcohol and poor performance on the

                                      4                             A-3112-16T2
field sobriety tests." When the officer requested defendant submit

to the test, defendant responded, "I refuse."          The judge also

found defendant guilty of driving while intoxicated in a school

zone based on a school zone map in evidence.           The judge found

defendant guilty of the open container charge based on Officer Van

Gough's observation of an open bottle of alcohol with some liquid

missing.    Finally, the judge found defendant guilty of careless

driving based on his excessive speed and his vehicle crossing over

a double yellow line.

     After merging the careless driving charge and the DWI in a

school zone charge, the Law Division judge imposed the same

sentence as the municipal court judge, ordering: suspension of

defendant's driver's license for four years; forty-eight hours at

an Intoxicated Driver Resource Center; installation of an ignition

interlock device during the license suspension period and two

years after; one day jail time with credit for one day already

served; a $1250 fine; and mandatory penalties and assessments.

     This   appeal   followed.   Defendant's   brief    contained   the

following point heading:

            I JUAN FIGUEROA BELIEVE THAT I AM INTITLED TO
            EXCULPATORY EVIDENCE.    AFTER SIX CERTIFIED
            MOTION AND THE PROSECUTION DELAY CAUSED
            EROSION OF DUE PROCESS.    THE 14TH AMENDMENT
            PROVIDE FOR THE AVAILABILITY OF EVIDENCE. THE
            PROSECUTION CANNOT EVADE BRADY REQUIREMENTS BY
            KEEPING ITSELF IGNORANT OF INFORMATION.      I

                                  5                            A-3112-16T2
           ALSO BELIEVE MY RIGHTS TO A SPEEDY TRIAL WERE
           VIOLATED WHEN THE JUDGE SKIP MY CERTIFIED MAIL
           MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL
           WHICH VIOLATES MY 6TH AMENDMENT AND MY RIGHTS
           TO DUE PROCESS. I ALSO BELIEVE MY RIGHTS TO
           DUE PROCESS WERE VIOLATED FOR THE SECOND TIME
           FOR DISQUALIFICATION UNDER 28 U.S.C § 47
           PROVIDES THAT "NO JUDGE SHALL HEAR OR
           DETERMINE AN APPEAL FROM THE DECISION OF A
           CASE OR ISSUE TRIED BY HIM[.]"

                                    II

     The United States and New Jersey Constitutions guarantee a

defendant the right to a speedy trial.            U.S. Const. amend. VI;

N.J. Const. art. I, ¶ 10. To determine if a speedy trial violation

exists, we must consider four factors: "[l]ength of delay, the

reason for the delay, the defendants assertion of his right, and

prejudice to the defendant."       Barker v. Wingo, 407 U.S. 514, 530

(1972). No single factor under this four-part test is dispositive;

rather, they are related and must be considered together, along

with any "such other circumstances as may be relevant."             State v.

Szima, 70 N.J. 196, 201 (1976).          "[N]o set length of time . . .

fixes the point at which delay is excessive."        State v. Tsetsekas,

411 N.J. Super. 1, 11 (App. Div. 2009).       The remedy for a violation

of the right to a speedy trial is dismissal of the indictment.

Barker,   407   U.S.   at   522.   However,   a   trial   judge's   factual

determination on a speedy trial issue "should not be overturned




                                    6                                A-3112-16T2
unless clearly erroneous."      State v. Merlino, 153 N.J. Super. 12,

17 (App. Div. 1977).

      "Generally, an appellate court will not consider issues, even

constitutional ones, which were not raised below."                  State v.

Galicia, 210 N.J. 364, 383 (2012).           Parties must timely raise

issues so that the trial court can rule on them in a timely manner.

See State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v.

Robinson, 200 N.J. 1, 19 (2009)).            "For sound jurisprudential

reasons, with few exceptions, our appellate courts will decline

to consider questions or issues not properly presented to the

trial   court   when   an   opportunity    for    such   a   presentation      is

available." Ibid. (quoting Robinson, 200 N.J. at 20). Ordinarily,

we "decline to consider issues not presented to the trial court

unless they 'go to the jurisdiction of the trial court or concern

matters of great public interest.'"              Kvaerner Process, Inc. v.

Barham-McBride Joint Venture, 368 N.J. Super. 190, 196 (App. Div.

2004) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973)).

      On appeal, defendant asserts that he was not given a trial

date until nine months after his arrest, and over the course of

eighteen court appearances.      However, defendant failed to provide

any   transcripts   of   hearings   that   occurred      during   the    delay.

Defendant further argues the prosecutor's "unpreparedness and

                                     7                                  A-3112-16T2
procrastination" caused the delay, yet he failed to provide any

factual support for his bald assertion.

     Officer Van Gough arrested defendant on June 28, 2013.                        On

April 2, 2014, defendant submitted a letter titled "MOTION TO

DISMISS      FOR    LACK   OF   SPEEDY    TRIAL"    to    the   municipal    court.

Defendant then appeared pro se for trial on August 29, 2014;

however, defendant failed to pursue this motion.                 Just before the

start   of    trial    court,    defendant    argued      his   motion   regarding

electronically-stored data, which the court denied.                      The court

then asked if there were "[a]ny other pretrial motions?" Defendant

remained silent and the trial transcript contains no mention of

defendant's speedy trial motion.              Accordingly, the Law Division

judge found that defendant failed to raise the speedy trial issue

in municipal court, "where it should have been addressed when [the

judge] asked if there were any further motions."                 Regardless, the

judge did not "see any impairment to the defense because of the

delay here."

        Defendant's        failure   to    raise    the    speedy   trial     issue

deprived      the    municipal    court    and     the   Law    Division    of   the

opportunity to consider any available evidence and analyze the

Barker factors, and denied the prosecutor the opportunity to refute

the assertion that he was partially responsible for the delay.

Additionally, defendant admitted he "fired" his attorney, but

                                          8                                 A-3112-16T2
failed to provide any evidence that his decision to discharge his

attorney did not contribute to the delay.

     Regarding prejudice, defendant failed to provide any evidence

that the alleged delay impaired his ability to defend the case.

Like the Law Division judge, we do not "see any impairment to the

defense because of the delay here."           Because defendant did not

pursue the speedy trial issue in the municipal court and the record

otherwise lacks evidence to support his contention, we conclude

the Law Division did not err in rejecting defendant's claim that

his right to a speedy trial was violated.

                                  III

     Defendant further contends the prosecutor violated his due

process   rights    by    failing       to     preserve        evidence      of

"electronically-stored"   information        from    the   police   officer's

laptop computer.   We disagree.

     Due process requires the State disclose exculpatory evidence.

Brady v. Maryland, 373 U.S. 83, 87 (1963).                 A Brady violation

occurs when the prosecution suppresses evidence that is material

and favorable to the defense.     State v. Martini, 160 N.J. 248, 268

(1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95 (1972)).

"Evidence is material 'if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.'"             State v. Robertson, 438

                                    9                                 A-3112-16T2
N.J. Super. 47, 67 (App. Div. 2014) (quoting State v. Knight, 145

N.J. 233, 246 (1996)) (internal quotation marks and citation

omitted).

     "When    the    evidence   withheld   is    no   longer    available,    to

establish a due process violation a defendant may show that the

evidence had 'an exculpatory value that was apparent before [it]

was destroyed' and that 'the defendant would be unable to obtain

comparable evidence by other reasonably available means.'"               State

v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (alteration

in original) (quoting California v. Trombetta, 467 U.S. 479, 489

(1984)).     However, a different standard applies to evidence that

is only potentially useful.       "Without bad faith on the part of the

State, 'failure to preserve potentially useful evidence does not

constitute a denial of due process of law.'"              George v. City of

Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting Arizona

v. Youngblood, 488 U.S. 51, 57 (1988)).

     When evidence has been destroyed, the court must focus on

"(1) whether there was bad faith or connivance on the part of the

government,    (2)    whether   the   evidence    . . .   was    sufficiently

material to the defense, [and] (3) whether [the] defendant was

prejudiced by the loss or destruction of the evidence."              State v.

Hollander, 201 N.J. Super. 453, 479 (App. Div. 1985) (citations

omitted).

                                      10                               A-3112-16T2
       Defendant contends his "motion regarding the electronically-

stored data" referred to the "times of the events" stored in police

computers. He submitted his first request for electronic discovery

about seven months after his arrest.            The State searched for the

requested information, but found it was no longer available due

to    routine    purging    of   computer   records.    Because   defendant

requested the information seven months after the arrest, we find

it was not unreasonable for the State to have deleted it.                    We

conclude the State made reasonable efforts to provide discovery

and did not act in bad faith.

       Furthermore, defendant failed to establish that the police

computer records would have contained any relevant or exculpatory

evidence.       Defendant argues the computer records are material to

his   defense     because   Officer   Van    Gough   testified   he   stopped

defendant at 2:32 a.m. but the CAD report indicated a 2:38 a.m.

time of stop.       However, the record supports the municipal court

and the Law Division's conclusion that the discrepancy between the

CAD report and the officer's testimony regarding the time of the

motor vehicle stop did not alter Officer Van Gough's credibility

or affect the guilty verdict.               Moreover, defendant failed to

present evidence that the destroyed computer records impaired his

ability to defend the case; therefore, we find no resulting

prejudice to defendant.

                                      11                              A-3112-16T2
     Finally,    defendant   appears   to   suggest,   in   his    brief's

argument point, that the Law Division judge who initially dismissed

his appeal, and then presided at his trial de novo on remand,

should have been disqualified.     However, defendant's brief failed

to address this issue.       As a result, we deem the issue waived.

See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48

n.1 (App. Div. 1989) (noting that an issue not briefed is waived).

Regardless, defendant's argument clearly lacks substantive merit

as the Law Division judge who presided at the trial de novo did

not "determine an appeal" from a case tried by him.               When the

matter first came before him, the Law Division judge dismissed the

case, based upon his mistaken belief that defendant failed to

appear; he did not conduct a trial de novo.

     Affirmed.




                                  12                               A-3112-16T2
