                                 NOT FOR PUBLICATION WITHOUT THE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-4928-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAM HERCHAKOWSKI,

          Defendant-Appellant.


                   Submitted March 24, 2020 – Decided April 20, 2020

                   Before Judges Fisher and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Monmouth County, Municipal Appeal
                   No. 19-004.

                   Wolf Law, PC, attorney for appellant (Robert W.
                   Ruggieri, of counsel and on the brief; Randolph H.
                   Wolf, on the briefs).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Monica Lucinda
                   do Outeiro, Assistant Prosecutor, of counsel and on
                   the brief).

PER CURIAM
      Following denial of his suppression and dismissal motions in municipal

court, defendant William Herchakowski entered a conditional guilty plea to

driving while intoxicated (DWI), N.J.S.A. 39:4-50.         The court sentenced

defendant to a three-month revocation of his driving privileges, twelve hours at

an Intoxicated Driver Resource Center, and imposed appropriate fines and

penalties. Upon de novo review, the Law Division judge denied defendant's

motions, found defendant guilty, and imposed the identical sentence.

      On appeal, defendant raises the following points for our consideration:

                                   POINT I.

            THE COURTS BELOW ERRED IN DENYING THE
            MOTION TO DISMISS AND/OR BAR EVIDENCE
            AND IN DENYING THE MOTION TO SUPPRESS.
            IF EITHER OF THE MOTIONS HAVE [SIC] BEEN
            GRANTED,      THE   CHARGES     AGAINST
            DEFENDANT WOULD HAVE HAD TO BE
            DISMISSED    FOR  LACK   OF   EVIDENCE.
            THEREFORE, DEFENDANT'S GUILTY PLEA AND
            CONVICTION MUST BE SET ASIDE.

            A.    The decisions of the courts below to deny
            Defendant's Motion to Dismiss and/or Bar Evidence
            were erroneous and must be reversed. Defendant's
            attorney made a timely discovery request for
            production of the recording of the 9-1-1 call that led to
            Defendant's traffic stop. The State, however, did not
            follow through on the request until it was too late and
            the recording was permanently unavailable. While not
            deliberate, the failure of the State to do anything to
            obtain the discovery until it was too late cannot simply

                                                                        A-4928-18T3
                                      2
              be ignored. The decisions of the courts below were
              based on nothing but assumptions – assumptions that
              had no basis in the record or in logic.

              B.     The decisions of the courts below to deny
              Defendant's Motion to Suppress Evidence were
              erroneous and must be reversed. If the information
              about the 9-1-1 call is barred, there is no proper basis
              for the traffic stop. Even if the information about the
              call is considered, the information from that call is so
              vague and lacking in specifics that it is [sic] fails to
              satisfy the criteria established by the courts for a
              constitutionally permissible stop. The decisions of the
              courts below were based on factual assumptions that
              are not supported by either the record or logic, and by
              a misunderstanding of the relevant law.

Finding no merit in these contentions, we affirm.

      On the night of August 21, 2018, in response to a 9-1-1 dispatch,

Rumson Police Officer Daniel Campanella stopped defendant's vehicle and

arrested him for DWI.         Three days later, defendant's retained counsel

demanded from the Rumson municipal prosecutor discovery, including the

9-1-1 dispatch recording, and "specifically request[ed]" that all recordings "be

preserved."    Defendant did not receive the recording from the municipal

prosecutor.

      Three months later, on November 20, 2018 counsel requested the

recording from the Monmouth County Sheriff's Office (MCSO) as "the entity

responsible for the 9-1-1 service in that county." In a letter dated December

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                                        3
17, 2018, the MCSO informed the prosecutor, who forwarded the

correspondence, to defense counsel, that the recordings were only retained for

ninety days. The MCSO also "provided the computer aided dispatch report."

      No witnesses testified at the municipal court hearing. Instead, defendant

and the prosecutor moved into evidence Campanella's narrative report, a

Google map of the intersection at issue, counsel's letter demanding discovery

from the municipal prosecutor, the letter from the MCSO, and the dispatch

report.   Campanella's report contained the sole account of his stop of

defendant's vehicle, stating he

            was dispatched to the area of Rumson/Ward. A caller
            had reported an erratic driver that was driving
            erratically, went over Sea Bright Rumson Bridge and
            had made a hard left once over the bridge. I was near
            the area and knew it to be a neighborhood where there
            was [sic] only two ways out of the neighborhood and
            it is isolated. The caller had given a license tag
            number . . . . [that] came back to a silver BMW
            [registered to defendant], from [defendant's address]
            in Rumson which is in the direct neighborhood of
            where the vehicle turned into.

                  As I was checking for the vehicle and driving
            south on [defendant's street] making my way to
            [defendant's] address I observed the vehicle in
            question with the exact plate number coming towards
            me. I turned around and stopped the vehicle on
            Washington Ave[nue] just west of [defendant's street].



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                                     4
         Following argument, the municipal court denied defendant's motions,

ruling that the 9-1-1 dispatch provided Campanella with an articulable and

reasonable suspicion to stop defendant's vehicle, and defendant was not

prejudiced by the State's failure to preserve the 9-1-1 recording. Defendant

entered a conditional guilty plea, reserving his right to appeal the motions.

Following a trial de novo, the Law Division judge denied defendant's motions

on similar grounds as the municipal court, convicted defendant of DWI,

imposed an identical sentence, and stayed the sentence pending appeal.

         On appeal defendant maintains both courts erroneously denied his

"motion to dismiss the charges and/or bar evidence of the 9-1-1 call, and the

motion to suppress the evidence flowing from the improper traffic stop." Our

review following a trial de novo in the Law Division conducted on the record

developed in the municipal court, however, is limited to "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); see also State v. Clarksburg Inn, 375 N.J.

Super. 624, 639 (App. Div. 2005). We therefore confine our review to the

Law Division judge's decision. We address defendant's arguments in reverse

order.




                                                                         A-4928-18T3
                                      5
      Defendant contends Campanella unlawfully stopped his vehicle because

the officer did not have an articulable suspicion that defendant had committed

a traffic violation.   Defendant also argues the anonymous caller did not

provide sufficient detail to relieve Campanella of his obligation to verify the

information received before stopping defendant's vehicle. We disagree.

      Our function as a reviewing court, generally, is to determine whether the

findings of the Law Division "could reasonably have been reached on

sufficient credible evidence present in the record." State v. Johnson, 42 N.J.

146, 162 (1964). We will reverse only after being "thoroughly satisfied that

the finding is clearly a mistaken one and so plainly unwarranted that the

interests of justice demand intervention and correction." Ibid. "However, a

trial court's interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference on appeal." State v.

Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009) (internal quotation and

citation omitted). We owe no deference to conclusions of law made by trial

courts in suppression decisions, which we instead review de novo. State v.

Watts, 223 N.J. 503, 516 (2015).

      Our Supreme Court has long recognized "a police officer is justified in

stopping a motor vehicle when he has an articulable and reasonable suspicion


                                                                        A-4928-18T3
                                       6
that the driver has committed a motor vehicle offense." State v. Locurto, 157

N.J. 463, 470 (1999). "The test is 'highly fact sensitive and, therefore, not

readily, or even usefully, reduced to a neat set of legal rules.'"      State v.

Golotta, 178 N.J. 205, 213 (2003) (quoting State v. Nishina, 175 N.J. 502, 511

(2003)). "An informant's tip is a factor to be considered when evaluating

whether an investigatory stop is justified."         Ibid.    "[T]he degree of

corroboration necessary to uphold a stop of a motorist suspected of erratic

driving" is reduced when the initial tip is provided by an anonymous 9 -1-1

caller who provides an adequate description of the vehicle, the location and the

purportedly erratic driving. Golotta, 178 N.J. at 218, 222. The Court has

explained:

             The information must convey an unmistakable sense
             that the caller has witnessed an ongoing offense that
             implicates a risk of imminent death or serious injury
             to a particular person such as a vehicle's driver or to
             the public at large. The caller also must place the call
             close in time to his first-hand observations. When a
             caller bears witness to such an offense and quickly
             reports it by using the 9-1-1 system, those factors
             contribute to his reliability in a manner that relieves
             the police of the verification requirements normally
             associated with an anonymous tip.

             [Id. at 221-22.]




                                                                        A-4928-18T3
                                       7
      The content of the 9-1-1 call demonstrated that the caller based the

information on first-hand observations made either close in time to those

observations or as they were occurring.        The caller not only identified

defendant's vehicle as a silver BMW and provided the license plate number,

but also reported the vehicle's location, allowing Campanella to identify

defendant's vehicle and stop defendant in that vicinity.            The caller's

observation of defendant operating the vehicle in an erratic manner implicated

a risk of imminent death or injury to the operator or others. We therefore

discern no impropriety with the stop.

      Defendant also argues the State's failure to preserve and produce the

9-1-1 recording warranted dismissal of the charges. Under the facts presented,

we disagree.

      In our review of a trial court's resolution of a discovery issue, we afford

the court substantial deference and will not overturn its decision "absent an

abuse of discretion[,]" State v. Stein, 225 N.J. 582, 593 (2016), meaning that

the decision is "well 'wide of the mark,' or 'based on a mistaken understanding

of the applicable law[.]'"   State v. Hernandez, 225 N.J. 451, 461 (2016)

(citations omitted). But, "[o]ur review of the meaning or scope of a court rule

is de novo; we [will] not defer to the interpretations of the trial court . . .


                                                                        A-4928-18T3
                                        8
unless we are persuaded by [the trial court's] reasoning." State v. Tier, 228

N.J. 555, 561 (2017) (citing Hernandez, 225 N.J. at 461).

      Defendant contends he was prejudiced by the State's failure to preserve

the 9-1-1 recording, but he does not expressly articulate how he was

prejudiced by that failure. Although defendant notes the State never offered

"any justification for the failure to provide the recording," he does not claim

the State acted in bad faith.     In fact, he concedes the State's failure to

preserve/produce the 9-1-1 recording was "not deliberate." Relying on our

Supreme Court's decision in Stein, he argues the discovery violation requires

dismissal of the charges. We disagree.

      In Stein, the defendant in a DWI municipal court prosecution requested

in discovery video recordings that "may have recorded his appearance,

behavior, and motor skills at the accident scene and police headquarters." 255

N.J. at 586. The municipal prosecutor claimed the recordings did not exist, but

before the Law Division, the prosecutor switched gears, contending the State

was under no obligation to produce the recordings. Id. at 586, 600. The Court

found the recordings, "if available" were "clearly relevant to a DWI defense."

Id. at 586. But, because the record did not reflect whether the recordings "ever

existed or existed at the time of defendant's discovery request," the Court


                                                                       A-4928-18T3
                                      9
remanded the matter to the Law Division "out of an abundance of caution" to

conduct a hearing addressing that issue. Id. at 586-87, 601. In doing so, the

Court recognized "the Law Division has wide latitude to fashion an

appropriate remedy pursuant to Rule 7:7-7(j)."         Id. at 601.     That Rule

empowers the court to order production of the "materials not previously

disclosed, grant a continuance, prohibit the party from introducing in evidence

the material not disclosed or enter such other order as it deems appropriate ."

Here, by contrast, it is undisputed that the 9-1-1 recording no longer exists.

      Our courts have considered the destruction of evidence in the context of

whether a defendant's due process rights are violated. See State v. Hollander,

201 N.J. Super. 453, 479 (App. Div. 1985). If potentially useful evidence has

been destroyed, the court must assess three factors: "(1) whether there was

bad faith or connivance on the part of the government; (2) whether the

evidence . . . destroyed was sufficiently material to the defense; [and] (3)

whether [the] defendant was prejudiced by the loss or destruction of the

evidence." Ibid. (citations omitted).




                                                                         A-4928-18T3
                                        10
       In a footnote of his merits brief defendant claims Hollander applies to a

Brady1 violation; not to the discovery rule violation he has asserted in th is

case. He argues Hollander's second prong must be considered under the test

espoused by the Court in Stein.        But, defendant also acknowledges the

remaining Hollander factors "are certainly relevant in deciding whether there

[was] a discovery violation." In essence, his argument is focused more on the

State's discovery violation than how the 9-1-1 recording was material to his

defense. See Hollander, 201 N.J. Super. at 479.

       We conclude even if the caller had been identified and testified at the

hearing to further describe his or her observations, the effect of the call on

Campanella together with his observation of defendant's vehicle in motion in

the area described by the caller, provided sufficient information to stop the

vehicle.   In reaching our conclusion, we reject defendant's claim that the

caller's information was "multiple[-]level hearsay."    See N.J.R.E. 803(c)(1)

(excepting from the hearsay rule statements based on present sense

impressions).

       Affirmed.



1
    Brady v. Maryland, 373 U.S. 83 (1963).


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                                     11
