                                 NOT FOR PUBLICATION WITHOUT THE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-3962-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAFAEL R. VILORIO-RAMIREZ,

     Defendant-Appellant.
_____________________________

                   Submitted December 10, 2018 – Decided March 4, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Municipal Appeal No. 17-
                   17.

                   Miller, Meyerson & Corbo, attorneys for appellant
                   (Gerald D. Miller, on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Charles C. Cho, Assistant Prosecutor, on
                   the brief).

PER CURIAM
        Defendant Rafael Vilorio-Ramirez appeals from his trial de novo

convictions of possessing an open container of alcohol in a motor vehicle,

N.J.S.A. 39:4-51b, and driving while intoxicated (DWI), N.J.S.A. 39:4-50.

Because the results of defendant's breathalyzer test were inadmissible due to

lack of foundation, his conviction was based on the arresting police officer's

observations of defendant and the presence of two allegedly opened bottles of

alcohol in his car. We, however, are constrained to reverse because defendant's

due process rights were violated when the State spoliated the evidence of the

alcohol bottles.

                                         I

        The record reveals the following details. Around midnight on March 11,

2017, West New York Police Officer Carlos Henriquez testified that he and his

partner1 were investigating a report of a car blocking the driveway of a residence

when they saw defendant sleeping in the driver's seat with the keys in the

ignition and the engine running. After waking defendant, Officer Henriquez

noticed a strong odor of alcohol coming from defendant's breath, and claimed

that he saw two open bottles of alcohol – wine and vodka – in the car.

Concluding defendant was giving inconsistent responses to his questions,


1
    The record only reveals that his last name is Angers, spelled phonetically.
                                                                           A-3962-17T1
                                         2
Officer Henriquez asked defendant to step out of the car and detected what

appeared to be fresh vomit on the car. Adding to Officer Henriquez's belief that

defendant was intoxicated was his observation that defendant had droopy

eyelids, and bloodshot and watery eyes.      According to Officer Henriquez,

defendant stated that he had three beers that evening. Defendant was arrested

for DWI after he failed a horizontal gaze nystagmus (HGN) test and a field

sobriety test. He was charged with DWI after being given a breathalyzer test.2

      At the trial, the municipal court judge granted defendant's motion to

suppress the breathalyzer results due to lack of foundational documents.

Additionally, the bottles of alcohol were not admitted into evidence as Officer

Henriquez testified that it was his police department's "policy" not to retain

alcohol related to an offense.

      Defendant and his wife, who picked him up from the police station when

he was released from custody, both testified. Defendant stated he was a block

away from the condominium, which he and his wife had sold a few days earlier,

where he was going to retrieve two grills left behind in the backyard that would



2
  Defendant was also issued summonses for uninsured vehicle, N.J.S.A. 39:6B-
2, DWI in a school zone, N.J.S.A. 39:4-50(g)(1), and parking in front of a
driveway without the owner's permission, N.J.S.A. 39:4-138(d). The first two
charges were dismissed, and he was found not guilty of the last charge.
                                                                        A-3962-17T1
                                       3
be discarded by the new owners if they were not picked-up. According to

defendant, he pulled his car over to park in order to take his medication for high

blood pressure, diabetes, and cancer. Defendant stated that after turning the car

off and taking the key out of the ignition, he fell asleep because he was fatigued

from working two jobs during the previous two weeks.

      Defendant testified he did not drink alcohol that evening and did not tell

Officer Henriquez that he had three beers. He also denied vomiting, urinating

or that he was given a HGN test, as Officer Henriquez alleged. In regards to the

bottles of alcohol, he explained they were purchased that day because his wife

wanted to celebrate the sale of their condominium, and asserted they were

unopened and in a bag with his purchase receipt. He claimed Officer Henriquez

confiscated them and poured out the contents of each bottle, right in front him.

      Defendant's wife testified that when she picked up defendant at the police

station upon his release between 2:00 a.m. and 2:30 a.m., he did not smell of

alcohol or appear to be drunk. She did not smell or see vomit on his clothing.

She also confirmed that she had asked him to buy the alcohol to celebrate the

sale of their condominium. She further stated that surgeries on both of her

husband's knees affects his mobility when he walks a lot.




                                                                          A-3962-17T1
                                        4
      In reaching their respective findings, both the municipal court and Law

Division judges found Officer Henriquez's testimony credible.         However,

neither judge made credibility findings with respect to the testimony of

defendant or his wife.

      Significantly, the Law Division judge was disturbed by the State's failure

to produce the wine and vodka bottles as evidence. He stated: "[I]t [was]

completely in bad faith that [the West New York Police Department's Policy

does not] preserve [the] evidence. That absolutely vitiates a defendant's due

process rights to properly defend himself." The judge expressed further dismay

that, at the least, a cell phone picture of the bottles showing they were opened

and containing less than their full amounts could have been, but was not, taken

at the time of defendant's arrest.

      Despite finding that a negative inference should be drawn due to the

State's spoliation of the alcohol bottles, the Law Division judge, on de novo

review, nonetheless ruled there was sufficient evidence to find defendant guilty

of DWI and possession of an open container of alcohol based solely upon Officer

Henriquez's observations. On the other hand, the judge refused to draw a

negative evidence on Officer Henriquez's failure to use the mobile vehicle

recording device (MVR) equipped on his patrol car to record defendant's


                                                                        A-3962-17T1
                                       5
conduct while he was being questioned and performing the field sobriety tests.

The judge found there was no merit to defendant's argument that the $25 fine

imposed for a DWI, which goes to the cost of equipping police vehicles with a

MVR, established an obligation on Officer Henriquez to record defendant's DWI

arrest. In the absence of a MVR, the judge found credible Officer Henriquez's

testimony that defendant was intoxicated based on observation, despite "some

evidence that it was cold that night, [defendant] was sleeping and possibly

disoriented, [and defendant] suffered from medical issues[.]

                                       II

      In this appeal, defendant makes two arguments. First, he argues that both

of his convictions should be reversed because he was denied due process of the

law when the State destroyed evidence of the two bottles of alcohol. Second,

he argues for reversal of his DWI conviction because a negative inference should

have been drawn by the failure of Officer Henriquez to record his conduct prior

to his arrest. We initially address defendant's second argument because it can

be resolved briefly.

      Lack of Evidence - MVR Recording

      As the Law Division judge stated, there is no legal requirement, be it state

law or guidelines governing the West New York Police Department, which


                                                                          A-3962-17T1
                                        6
required Officer Henriquez to activate the MVR to memorialize the roadside

investigation that resulted in defendant's probable cause arrest for possible DWI.

In many situations involving charges of DWI as well as other offenses, the

technology of MVRs has demonstrated to be a useful qualitative aid in

determining the factual issues presented to the trial courts as well as issues on

appeal. See North Jersey Media Group, Inc. v. Township of Lyndhurst, 229 N.J.

54, 575-76 (2017) ("[MVR] recordings, made while an event unfolds, protect

the public and police alike in that the videos can expose misconduct and debunk

false accusations.") And we have little doubt that the use of the MVR in this

case could have meaningfully aided the trier of fact in determining the respective

credibility of Officer Henriquez and defendant's testimony, as well as aiding us

in our decision resolving the issue before us.

      That said, we cannot sustain defendant's argument that a negative

inference should be drawn from the failure of Officer Henriquez to activate the

MVR when there was no legal obligation to do so. Of course, had a recording

been created and was not made available to defendant, we might surely have a

different view of the prosecution's conduct, depending on the cause of the

recording's unavailability.

      Destruction of Evidence - Alcohol Bottles


                                                                          A-3962-17T1
                                        7
      Fundamental principles of due process generally require the State to

disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963); see

also State v. Carrero, 428 N.J. Super. 495, 516-18 (App. Div. 2012) (applying

Brady to quasi-criminal motor vehicle violations).

      A Brady violation occurs when the prosecution suppresses evidence that

is both material and favorable to the defense. State v. Martini, 160 N.J. 248,

268 (1999). "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 N.J. Super. 47, 67 (App. Div.

2014) (quoting State v. Knight, 145 N.J. 233, 246 (1996)). "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) (quoting California v. Trombetta, 467 U.S.

479, 489 (1984)) (alteration in original). Suppression of exculpatory evidence

violates due process regardless of whether the prosecutor acted in bad faith.

Knight, 145 N.J. at 245.




                                                                         A-3962-17T1
                                       8
      A different standard, however, 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)); see also State v. Marshall, 123 N.J. 1,

109 (1991) (applying Youngblood's bad faith standard); Mustaro, 411 N.J.

Super. at 103. 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).

      In addition to the dictates of due process, our discovery rules impose

obligations upon the State to preserve and produce evidence to a defendant. See

R. 3:13-3 (governing criminal proceedings in Superior Court); R. 7:7-7

(governing municipal court proceedings). In Robertson, where we reviewed the

scope of allowable discovery, we held:

             A DWI defendant's "right to discovery . . . is limited to
             items as to which 'there is a reasonable basis to believe
             will assist a defendant's defense.'" [Carrero, 428 N.J.


                                                                             A-3962-17T1
                                         9
            Super. at 507] (quoting State v. Ford, 240 N.J. Super.
            44, 48 (App. Div. 1990)).

            A defendant is not entitled to information that "merely
            could lead to other information that is relevant." Ibid.
            (citing [State v.] Maricic, 417 N.J. Super. [280,] 284,
            [(App. Div. 2010);] Ford, 240 N.J. Super. at 48).
            Discovery "must be relevant in and of itself." Carrero,
            428 N.J. Super. at 508. "However, at least with respect
            to certain classes of information," including repair
            records, "a DWI defendant need not have actual
            knowledge of the facts supporting the contentions that
            underlie his discovery requests."

            [438 N.J. Super. at 66-67.]

      A person is deemed to have been driving while intoxicated if that person

"operates a motor vehicle while under the influence of intoxicating liquor,

narcotic, hallucinogenic or habit-producing drug[.]"          N.J.S.A. 39:4-50.

Intoxication may be proven by evidence of a defendant's physical condition.

State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003). "The statute does

not require as a prerequisite to conviction that the accused be absolutely 'drunk'

in the sense of being sodden with alcohol. It is sufficient if the presumed

offender has imbibed to the extent that his physical coordination or mental

faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608

(App. Div. 1988) (quoting State v. Emery, 27 N.J. 348, 355 (1958)). In State v.

Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), we upheld a DWI


                                                                          A-3962-17T1
                                       10
conviction, finding that slurred speech, disheveled appearance, bloodshot eyes,

alcoholic odor on the breath and abrasive demeanor were evidence of the

defendant's intoxication.

      Applying these principles, we agree with the Law Division judge's finding

that the implementation of the West New York Police Department's policy

calling for the destruction of the critical evidence of the two bottles of alcohol

constituted "bad faith," thereby depriving defendant of his due process rights.

However, we must depart from the judge's finding that the destruction of

evidence is overcome by the determination that Officer Henriquez's "credible"

testimony that defendant was intoxicated while driving and possessed two

bottles of open alcohol. Thus, both convictions should be reversed.

      The destruction of the alcohol bottles prevented the defense from

establishing his assertion that the bottles were unopened, lending support to

defendant's testimony that he had not been drinking that evening and was not in

possession of open containers of alcohol. Thus, the destruction was sufficiently

material to the defense and, as such, defendant was prejudiced by the State's loss

or destruction of the evidence.

      We are further troubled by the fact that the Law Division judge, in

deciding defendant's appeal of the municipal court conviction on de novo


                                                                          A-3962-17T1
                                       11
review, did not make credibility assessments of the testimony provided by

defendant, as well as his wife, in finding defendant guilty of the two offenses.

Defendant testified that: his inability to perform the field sobriety test was due

to his knee surgeries and fatigue; he did not urinate in front of the police; he did

not vomit; and he was not given the HGN test. His wife testified regarding the

lack of vomit on his clothes and that he lacked any indication of being drunk.

The Law Division judge was required to assess their credibility, not this court.

State v. Locurto, 157 N.J. 463, 471 (1999).

      Accordingly, for these multiple reasons, we are constrained to reverse

defendant's convictions.

            Reversed.




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                                        12
