                                NOT FOR PUBLICATION WITHOUT THE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-3189-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MIRAJ A. PATEL,

     Defendant-Appellant.
__________________________

                   Argued May 28, 2019 – Decided June 21, 2019

                   Before Judges Mitterhoff and Susswein.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Municipal Appeal No. 44-
                   2013.

                   Thomas Michael Cannavo argued the cause for
                   appellant (The Hernandez Law Firm, PC, attorneys;
                   Steven W. Hernandez and Thomas Michael Cannavo,
                   of counsel and on the brief).

                   Joie D. Piderit, Assistant Prosecutor, argued the cause
                   for respondent (Andrew C. Carey, Middlesex County
                   Prosecutor, attorney; Joie D. Piderit, of counsel and on
                   the brief).
PER CURIAM

      Defendant Miraj Patel appeals from his 2014 driving while intoxicated

(DWI) conviction, which arises from an arrest that occurred in December 2011.

This is the second time we have heard an appeal in this case. In our prior

unpublished opinion, State v. Patel, No. A-1683-14 (App. Div. May 2, 2016),

we remanded the matter to the Law Division with instructions to determine,

among other things, whether the State's proofs adduced at the municipal court

trial were sufficient to support defendant's DWI conviction based on

observational evidence. 1 The Law Division judge on remand did not address

that part of our decision.

      It is vitally important to complete the de novo review of defendant's DWI

conviction in light of the New Jersey Supreme Court's decision in State v.



1
  Under N.J.S.A. 39:4-50, a defendant can be convicted of DWI in two distinct
ways. The first is characterized as the observational method, and depends on
testimony from the arresting officer concerning the defendant's driving
behavior, physical appearance, demeanor, the odor of alcoholic beverages,
admissions as to recent alcohol consumption, and performance during field
sobriety tests.
      The second way to prove a DWI offense is characterized as the "per se"
method, and is based on objective measurement of the suspect's blood alcohol
content (BAC) through chemical blood tests or chemical breath testing using the
Alcotest 7110 MKIII-C machine. In this case, the municipal court judge found
defendant guilty under both methods for proving a violation of N.J.S.A. 39:4-
50.
                                                                       A-3189-16T1
                                      2
Cassidy, 235 N.J. 482 (2018), where the Court invalidated the Alcotest breath

test results in many cases, including this one. Id. at 498. As a result, defendant's

conviction based on a per se violation of N.J.S.A. 39:4-50 is void. We therefore

remand this case to complete the de novo review of the municipal court judge's

decision to convict defendant based on the observational method for proving a

DWI offense.

                                         I.

      Defendant was arrested for DWI on December 2, 2011.                 The facts

pertaining to the arrest and DWI investigation were recounted in our prior

opinion and need only be summarized in this opinion. In describing the State's

proofs at the municipal court trial, we explained:

            Shortly before midnight on December 2, 2011,
            Woodbridge Police Officer Joseph A. Angelo stopped
            defendant after observing him travel 44 m.p.h. in a 25
            m.p.h. zone. Defendant fumbled with his credentials
            and smelled of alcoholic beverages. After exiting his
            vehicle to perform field sobriety tests, defendant
            swayed while standing in place. He raised his arms for
            balance during the one-leg-stand test. While he
            performed the walk-and-turn test, he failed to place the
            heel of one foot closely in front of the toes of the other,
            and he twice deviated from a straight line. He admitted
            he consumed two beers and a shot. His eye movements
            were not smooth while performing the Horizontal Gaze
            Nystagmus test.

            [Patel, slip op. at 2.]

                                                                            A-3189-16T1
                                         3
      Defendant produced an expert witness at trial who challenged Officer

Angelo's interpretation of defendant's performance during the field sobriety tests

and disagreed with the officer's conclusion that defendant was intoxicated. After

considering the evidence adduced by the State and by defendant at trial, the

municipal court judge found defendant guilty of DWI based on both Alcotest

chemical breath test results (a per se violation of N.J.S.A. 39:4-50) and Officer

Angelo's testimony concerning defendant's appearance and behavior (an

observational violation of N.J.S.A. 39:4-50).

      On October 30, 2014, a Superior Court judge conducted a de novo review

of the municipal court trial record and affirmed defendant's DWI conviction.

However, the judge only addressed the per se method of proving the DWI

offense based on the Alcotest results. The judge made no ruling with respect to

the observational method for proving DWI.

      Defendant appealed and on May 2, 2016, we issued an opinion affirming

in part and remanding in part to the Law Division. Patel, slip op. at 28. Most

of the issues that were raised in the first appeal related to the admissibility of

the Alcotest evidence. We remanded the case to the Law Division to decide, for

example, whether it should draw an adverse inference against the State based on


                                                                          A-3189-16T1
                                        4
our conclusion that there had been a discovery violation when police failed to

preserve a stationhouse surveillance video recording of the events that occurred

in the processing room where the Alcotest was administered.2            We also

instructed the Law Division judge on remand to rule on the observational method

of proving a DWI offense.

      The Law Division judge conducted the remand hearing on December 7,

2016. The judge did not rule explicitly on whether he was drawing an adverse

inference based on the discovery violation we had found, although we infer from

his brief mention of the issue that he did not draw such an inference.

Furthermore, the remand judge did not address the observational method for

proving a DWI offense.

      On March 13, 2017, defendant moved for reconsideration arguing that the

Law Division judge failed to rule on the observational method and failed to


2
  We held in our prior opinion that the failure to preserve the surveillance video
recording did not violate due process, but nonetheless was a discovery violation
under Rule 7:7-7. In reaching that conclusion, we found that the surveillance
video was relevant and discoverable material because it might have provided
direct evidence of a fact in issue, that is, whether the officer who administered
the breath test continuously observed defendant for twenty minutes as required
by breath testing protocols. Defendant argued that the officer was distracted
from that task when he received a call on his cell phone – a circumstance that
might have been corroborated by the deleted surveillance video. Defendant also
sought production of the officer's personal cell phone records to establish that
the officer used the phone during the twenty-minute pre-test observation period.
                                                                          A-3189-16T1
                                        5
consider the negative inference arising from the discovery violation. On March

16, 2017, the Law Division judge denied the motion for reconsideration.

      Defendant's present appeal was stayed by a November 2, 2017 order

issued by the Special Master appointed by the Supreme Court in Cassidy. That

case addressed the impact of a State Police coordinator's failure to properly

calibrate the Alcotest machines that were used in five counties. Cassidy, 235

N.J. at 501, 512. On November 8, 2018, the Supreme Court issued its decision

in Cassidy, ruling that the Alcotest results from the machines that had been

calibrated by that coordinator are inadmissible. Id. at 498. The Supreme Court's

ruling affects more than 20,000 cases, including this one. Id. at 496-98.

                                       II.

      On this second appeal, defendant presents the following contentions:

            POINT I: THE LAW DIVISION FAILED TO
            FOLLOW     THIS    COURT'S     REMAND
            INSTRUCTIONS IN NOT RULING ON THE DWI
            OBSERVATIONAL PRONG. THUS, THIS COURT
            SHOULD EXERCISE ORIGINAL JURISDICTION
            AND ACQUIT DEFENDANT ON THIS PRONG.

            POINT II: THIS COURT SHOULD SUA SPONTE
            APPLY A NEGATIVE INFERENCE TO ALL
            REMAINING ISSUES FROM THE DISCOVERY
            VIOLATION IN LIGHT OF THE RECENTLY
            DECIDED STATE SUPREME COURT CASE OF
            STATE V. STEIN.


                                                                            A-3189-16T1
                                       6
            POINT III: GIVEN THE NEGATIVE INFERENCE,
            THE LAW DIVISION ERRED IN FAILING TO
            EXCLUDE THE ALCOTEST RESULTS BECAUSE
            THE STATE FAILED TO SATISFY THE TWENTY-
            MINUTE OBSERVATION REQUIREMENT.

            POINT IV: THE LAW DIVISION ERRED IN
            AFFIRMING THE MUNICIPAL QUASHING OF
            THE SUBPOENA FOR THE OFFICER'S CELL
            PHONE RECORDS. DEFENDANT'S DUE PROCESS
            AND    CONFRONTATION   RIGHTS    WERE
            VIOLATED.

                                      III.

      In view of the Supreme Court's definitive ruling in Cassidy, all of the

issues raised by defendant pertaining to the administration of the Alcotest are

moot. See Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App.

Div. 2006) (an issue is moot when the decision sought in a matter, when

rendered, can have no practical effect on the existing controversy). We therefore

need only address the remaining issues that pertain to the observational method

for proving a violation of N.J.S.A. 39:4-50.

                                       A.

      The Court's decision in Cassidy underscores the need in this case to

complete the de novo review of the municipal court judge's decision to convict

defendant based on observational evidence. Defendant now urges us to exercise

original jurisdiction pursuant to Rule 2:10-5 and undertake the de novo review

                                                                         A-3189-16T1
                                       7
ourselves. We decline to do so. Original jurisdiction by an appellate court is

disfavored where fact-finding is involved. See State v. Santos, 210 N.J. 129,

142 (2012). Relatedly, an appellate court should not invoke original jurisdiction

where evidence needs to be weighed anew. Cannuscio v. Claridge Hotel &

Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). See also State v. Micelli,

215 N.J. 284, 293 (2013) (original jurisdiction by an appellate court is

disfavored if the evidence poses issues of credibility or requires the subjective

and intuitive evaluations of a trial court).

      In this instance, were we to exercise original jurisdiction, we would have

to weigh the competing testimony of the arresting officer and the defense expert

who criticized the officer's interpretation of the field sobriety test results. The

Law Division is better suited to perform the de novo review of the municipal

court record, and we are confident that the Law Division on remand will

expeditiously review the municipal court's finding of guilt based on the

observational method of proving a DWI offense.

                                         B.

      We next consider whether the discovery violation/adverse inference issue

has become moot in light of Cassidy, and if not, whether the Law Division judge

on remand should draw an adverse inference against the State when considering


                                                                           A-3189-16T1
                                         8
whether the State has proved beyond a reasonable doubt that defendant is guilty

of DWI based on the observational evidence adduced at the municipal court trial.

      When we addressed the adverse inference issue in our prior decision, we

analyzed the alleged discovery violation in the context of whether the officer

who administered the Alcotest deviated from standards that require that a DWI

suspect be observed continuously for twenty minutes before he or she submits a

breath sample for chemical testing. We held that the surveillance video was

relevant because it might have shown whether the officer complied with Alcotest

breath testing procedures. See footnote 2. Defendant now frames the relevance

issue in a different fact-sensitive context, arguing that the improperly deleted

surveillance video remains relevant after Cassidy because it also would have

shown defendant's appearance and demeanor (e.g., swaying, falling asleep, etc.),

and not just whether the officer complied with breath-testing procedures.

      We agree that the video recording might have shown whether defendant

was visibly intoxicated. We therefore conclude that the adverse inference issue

is not moot after Cassidy because the surveillance video would have been

relevant evidence pertaining to the observational method of proving DWI and

not just the per se method.      We recognize that the evidential value of

stationhouse surveillance video may be considerably less substantial than, for


                                                                        A-3189-16T1
                                       9
example, a mobile audio-video recording or body worn camera audio-video

recording of field sobriety tests and a suspect's interactions with the arresting

officer at roadside. Even so, we are satisfied that a security camera video

recording of defendant's physical appearance and behavior in the stationhouse

would meet the threshold test of relevance with respect to the observational

method of proving a violation of N.J.S.A. 39:4-50. See N.J.R.E. 401 ("'Relevant

evidence' means evidence having a tendency in reason to prove or disprove any

fact of consequence to the determination of the action."). See also State v.

Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005).

      We turn next to the appropriate remedy for the discovery violation in the

specific context of the observational method for proving a violation of N.J.S.A.

39:4-50. In our prior opinion, we concluded that exclusion of the Alcotest

results would be excessive. Patel, slip op. at 21. We held, "[i]nstead, the Law

Division may, if it deems it warranted under the facts, draw an inference that the

contents of the video were unfavorable to the State." Ibid. We believe that

affording discretion to draw an adverse inference is an appropriate remedy with

respect to the observational method of proving a DWI offense and therefore

should apply as well on the second remand.




                                                                          A-3189-16T1
                                       10
      Defendant urges us to go one step further and order that a negative

inference be drawn against the State. In support of that contention, defendant

relies on State v. Stein, 225 N.J. 582 (2016), for the proposition that when the

State commits this type of discovery violation, a remedy is required and is not

optional. We do not read Stein as requiring that an adverse inference be drawn.

For one thing, the Court did not find that there had been a discovery violation in

that case and never specifically mentioned the option of using an adverse

inference. Rather, the Court explained, "[w]e do not suggest that any discovery

violation occurred. If any relevant video recordings were withheld, the Law

Division has wide latitude to fashion an appropriate remedy pursuant to Rule

7:7-7(j)." Id. at 601.

      Nor does our decision in State v. Richardson, 452 N.J. Super. 124 (App.

Div. 2017), require that we order that an adverse inference be drawn against the

State because of the discovery violation. That case involved the failure to

preserve surveillance video recordings from the police booking room that likely

would have documented the search of the defendant's sock that revealed multiple

packets of heroin. Id. at 128. We concluded that a discovery violation had

occurred and that the trial court abused its discretion when it refused defendant's

request for an adverse inference jury instruction. Id. at 137-42. We interpret


                                                                           A-3189-16T1
                                       11
Richardson to require that the trier of fact be instructed that it may3 draw an

adverse inference against the State; we do not read Richardson to direct the trier

of fact to draw a negative inference.

      In the present case, of course, there is no jury to charge. Accordingly, we

instead instruct that as part of the de novo review of the municipal court's

decision to convict defendant of DWI based on the observational evidence

adduced at trial, a determination shall be made on the record whether to draw an

adverse inference against the State in view of the discovery violation we have


3
   In Richardson, we set forth in a footnote the complete text of the analogous
Model Jury Charge to be read to the jury when police fail to preserve their
interview notes. 452 N.J. Super. at 136 n.5. That instruction reads in pertinent
part:

            It is for you the jury to decide the credibility of the
            evidence presented.       In evaluating the officer's
            credibility, you may infer that notes lost or destroyed
            by an officer before trial contained information
            unfavorable or inconsistent with that officer's trial
            testimony or final report. In deciding whether to draw
            this inference, you may consider all the evidence in the
            case, including any explanation given as to the
            circumstances under which the contemporaneous notes
            were lost or destroyed. In the end, however, the weight
            to be given to the testimony, and to the loss or
            destruction of the notes, is for you, and you alone, to
            decide.

            [Model Jury Charge (Criminal), "Failure of Police to
            Preserve Notes" (2011) (emphasis added).]
                                                                          A-3189-16T1
                                        12
already found. The reasons for drawing or refraining from drawing a negative

inference against the State, and the impact of any such adverse inference, if

drawn, shall be placed on the record to allow for appropriate review of the

exercise of judicial discretion. We believe this approach is consonant with the

principles established in Stein and Richardson, ensuring that the discovery

violation is addressed while affording latitude to tailor the remedy to the

particular facts and circumstances of this case.

      Any arguments posed by defendant that we have not addressed lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      For the foregoing reasons, we remand this case to the Law Division to

complete the de novo review of defendant's municipal court DWI conviction

based on the observational method for proving a violation of N.J.S.A. 39:4 -50.

The Law Division judge shall issue its decision by August 15, 2019. We do not

retain jurisdiction.




                                                                         A-3189-16T1
                                       13
