State v. Robert J. Stein(074466)

SYLLABUS

(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Robert J. Stein (074466) (A-26-14)

Argued February 1, 2016 – Decided July 19, 2016

ALBIN, J., writing for a unanimous Court.

In this appeal from defendant’s conviction for driving while intoxicated (DWI) and careless driving, the
Court considers the obligations of a municipal prosecutor under Rule 7:7-7(b), which governs discovery in
municipal court proceedings.

Defendant Robert Stein was charged with DWI and careless driving after a motor vehicle accident in
Wayne Township. The responding officers observed that defendant’s eyes were bloodshot and watery, his speech
was slurred, his breath smelled of alcohol, and, as he walked, he swayed and grasped for support. Defendant also
failed the field sobriety tests. Defendant claimed that, while performing the sobriety tests, he was suffering the
effects of the crash of his vehicle and deployment of the air bags, which hit him squarely in the face. The two breath
samples that defendant gave during a breathalyzer test revealed blood alcohol concentrations of 0.17 and 0.18
percent.

In pretrial discovery, defendant requested the names of the police officers who responded to the scene,
including those from a neighboring township. The municipal prosecutor did not provide the names of the
neighboring township’s officers, and defendant did not raise the issue with the municipal court. Defendant also
requested videotapes which may have recorded his appearance, behavior, and motor skills at the accident scene and
police headquarters. The municipal prosecutor repeatedly stated, at a pretrial hearing and trial, that videotapes did
not exist. Defendant disputed that contention, and continued to request the tapes. The record is unclear on whether
videotapes existed when defendant requested them because that issue was neither presented to, nor determined by,
the municipal court.

The municipal court found defendant guilty of DWI and careless driving. The court based its DWI finding
on the breathalyzer readings and the officers’ observations of defendant. The court sentenced defendant, as a third-
time DWI offender, to incarceration for a term of 180 days in the county jail and loss of his license for a period of
ten years. After a trial de novo on the record, the Law Division also convicted defendant of DWI and careless
driving, based on the breathalyzer readings and, separately, on observational evidence. The court imposed the same
sentence as did the municipal court. Additionally, the Law Division ruled that the municipal prosecutor was not
required to provide discovery of the names of the neighboring police officers or the videotapes that defendant
requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery
rulings. This Court granted limited certification. 220 N.J. 97 (2014).

HELD: Under Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the
police officers from the adjacent jurisdiction who responded to the accident scene. Because, when the prosecutor
failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under
the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant
requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot
determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further
proceedings on this issue.

1. The resolution by the trial court of a discovery issue is entitled to substantial deference and will not be overturned
absent an abuse of discretion. On appeal, a court need not defer to a discovery order that is based on a mistaken
understanding of the applicable law. In reviewing the meaning of a court rule, this Court owes no deference to the
interpretations of the trial court and the Appellate Division, unless they are persuasive in their reasoning. (pp. 12-
13)
2. The discovery rules governing the municipal court and the Criminal Part of the Law Division are nearly identical,
and both mandate the disclosure of the same categories of information. Broad discovery and the open-file approach
apply in criminal cases to ensure fair and just trials. In light of the similarity between criminal and municipal court
cases, the procedural protections afforded, and their discovery rules, the liberal approach to discovery in criminal
cases is applicable in municipal court cases. Rule 7:7-7(b) provides that a defendant has a right to discovery of all
relevant material in a municipal court case. The Rule sets forth eleven specific categories of information that a
defendant is entitled to receive, on written request to the municipal prosecutor. (pp. 13-14)

3. Under Rule 7:7-7(b)(7), if the municipal prosecutor knows that police officers from an adjoining jurisdiction
have relevant information pertaining to a DWI case, their names and addresses must be disclosed to the defendant.
The Rule does not distinguish between individuals with relevant information who are located within the
municipality having jurisdiction over the charges against a defendant, and those located outside the jurisdiction. (pp.
14-15)

4. Under Rule 7:7-7(b)(6), a municipal prosecutor is required to provide a defendant, upon his request, with relevant
documentary evidence, including video and sound recordings and images if it is within the State’s custody or
control. A video or sound recording, such as a recording from a patrol car’s dashboard camera, or a video recording
of a breathalyzer test, or defendant’s appearance, behavior and motor skills, including his performance of
psychomotor physical or sobriety tests, is relevant to prove or disprove a DWI defendant’s intoxication. The State
may seek the redaction of a video recording, or an in camera review, if necessary, under appropriate circumstances
and consistent with a defendant’s fair-trial rights. To ensure the availability of such evidence, a defendant should
give written notice to the municipal prosecutor to preserve pertinent videotapes. (pp. 15-18)

5. In this case, the municipal prosecutor had an obligation under Rule 7:7-7(b)(7) to provide defendant with the
names of the police officers from the adjoining town of Pequannock who had responded to the accident scene, based
on the two discovery letters that defense counsel sent to the municipal prosecutor. However, defendant did not seek
to compel the prosecutor to comply with the State’s disclosure obligations, as authorized by Rule 7:7-7(j). Because
defendant did not raise or preserve the issue in municipal court, the Court declines to consider it on appeal. (pp. 18-
21)

6. The two discovery letters that defendant’s counsel sent to the municipal prosecutor requesting videotapes, or
recordings made by a video-equipped police vehicle, of the accident scene and of defendant’s appearance and
performance of the sobriety tests, unquestionably sought relevant evidence. This Court disagrees with the
determination of the courts below, and holds that the videotapes must be disclosed under Rule 7:7-7(b)(6), provided
that such recordings existed at the time defendant sought the information. Such tapes would provide evidence
relevant to defendant’s sobriety and the officers’ conclusion that defendant was under the influence. (pp. 21-22)

7. The Court remands this matter to the Law Division for further proceedings to determine whether any relevant
video recordings ever existed, or were available when defendant made the discovery requests. Depending on the
court’s conclusions on remand regarding whether the tapes existed, the Law Division has wide latitude to fashion an
appropriate remedy pursuant to Rule 7:7-7(j). (pp. 22-24)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the Law Division for further proceedings consistent with the Court’s opinion.

CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON and JUDGE CUFF (temporarily assigned), join in JUSTICE ALBIN’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-26 September Term 2014
074466

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. STEIN,

Defendant-Appellant.

Argued February 1, 2016 – Decided July 19, 2016

On certification to the Superior Court,
Appellate Division.

Kam S. Minhas argued the cause for appellant
(Mr. Minhas, attorney; Mr. Minhas and
William E. Reutelhuber, on the briefs).

Marc A. Festa, Senior Assistant Prosecutor,
argued the cause for respondent (Camelia M.
Valdes, Passaic County Prosecutor,
attorney).

JUSTICE ALBIN delivered the opinion of the Court.

This appeal involves the application of Rule 7:7-7, the

discovery rule in municipal court cases.

Defendant Robert Stein was involved in a motor vehicle

accident in Wayne Township and charged with driving while

intoxicated (DWI) and careless driving. In pretrial discovery,

defendant requested the names of the police officers who

responded to the accident scene, including those from a

1
neighboring township. The municipal prosecutor did not provide

the names of the neighboring township’s officers, and defendant

did not raise the issue with the municipal court. Defendant

also requested videotapes, which may have recorded his

appearance, behavior, and motor skills at the accident scene and

police headquarters. The municipal prosecutor repeatedly stated

at a pretrial hearing and trial that such videotapes did not

exist, but defendant apparently did not accept those

representations. The record is not clear on whether such

videotapes existed at the time of the discovery request because

that issue was never clearly presented to the municipal court.

Therefore, no definitive ruling was made on that issue.

The municipal court found defendant guilty of DWI and

careless driving. In a de novo trial on the record, the Law

Division also convicted defendant of DWI and careless driving.

Additionally, the Law Division ruled that the municipal

prosecutor was not required to provide in discovery the names of

the neighboring police officers or the videotapes requested.

The Appellate Division affirmed the motor-vehicle convictions

and the Law Division’s discovery rulings.

We affirm in part and reverse in part. First, in

accordance with Rule 7:7-7(b), the municipal prosecutor was

required to provide defendant with the names of the police

officers from the adjacent jurisdiction who were present at the

2
DWI accident scene. Defendant, however, did not seek relief

from the court pursuant to Rule 7:7-7(j). Here, the discovery

issue was never truly placed before the municipal court. The

court could not grant relief on an issue of which it was

unaware. Defendant cannot raise the purported discovery

violation for the first time on appeal and therefore the issue

is waived.

Second, pursuant to Rule 7:7-7(b), the municipal prosecutor

was required to provide the requested videotapes that may have

recorded defendant’s appearance, behavior, and motor skills.

Such information, if available, was clearly relevant to a DWI

defense. We cannot determine from the record whether any such

videotape ever existed or existed at the time of defendant’s

discovery request. Therefore, we remand to the Law Division to

conduct a hearing to address that issue. If any relevant video

recordings were withheld -- and we do not suggest any were --

the Law Division has wide latitude to fashion an appropriate

remedy pursuant to Rule 7:7-7(j).

I.

At the conclusion of a trial in the Wayne Township

Municipal Court, defendant was found guilty of DWI, N.J.S.A.

39:4-50, and careless driving, N.J.S.A. 39:4-97. The court

sentenced defendant as a third-time DWI offender to 180 days in

the county jail. It also imposed a ten-year license suspension

3
and applicable fines and fees and mandated that defendant

install an ignition-interlock device for one year after

completing his license suspension. The court merged the

careless driving conviction into the DWI conviction.

The relevant facts come from the testimony adduced at the

municipal court proceedings, which were held on December 2,

2009, May 12, 2010, and August 13, 2010.1

A.

On the evening of November 15, 2008, while dining at a

restaurant with his girlfriend, defendant consumed a number of

beers. After dinner, defendant drove a 2008 Nissan Altima in

which his girlfriend was a passenger. While traveling on Route

23 in Wayne Township in the rain, the Nissan slid from the

middle lane into the far left lane, crashing into the rear of a

2006 Audi A4 stopped at a light. The air bags in the Nissan

deployed. Defendant testified that the air bag hit him square

in the face, stunning him and causing particles released from

the air bag to get in his eyes. Although his face was

scratched, defendant did not suffer any major injuries.

A police officer from the neighboring township of

Pequannock arrived on the scene immediately following the

accident, and other Pequannock police officers arrived

1 For the most part, the operation of the breathalyzer is not an
issue in this appeal.
4
afterwards. The testimony of the driver and passenger of the

Audi differed on when the Wayne Township officers arrived at the

crash site, one saying they appeared twenty minutes following

the accident and the other saying they appeared in just seconds.

Defendant believed that Wayne Township officers arrived two to

three minutes after the accident. No one disputes that Wayne

Township officers relieved the Pequannock Township officers.

Two Wayne Township police officers who responded to the

accident, Sergeant (then-Officer) Andrew Verdon and Officer

Alexander DeLuccia, gave substantially similar accounts at

trial. The officers, collectively, observed that defendant’s

eyes were bloodshot and watery, his speech was slurred, his

breath smelled of alcohol, and he was swaying and grasping for

support. One of the officers drove defendant to a nearby empty

parking lot, where defendant was asked to perform several field

sobriety tests -- the walk and turn, the one-leg stand, and the

horizontal gaze nystagmus.2 According to the officers, the

parking lot was well lit and evenly paved, and rain was not

falling. Both officers stated that defendant failed the three

tests and was then arrested for DWI. In contrast, defendant

2 According to the Sergeant Verdon, the horizontal gaze nystagmus
requires a suspected DWI driver to follow the tip of a pen with
each eye. If the suspect is unable to smoothly do so, that is
one indicator that the suspect may be intoxicated. See State v.
Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000).
5
testified that the parking lot was not well lit and that the

pavement was wet from rain, which was still falling. Defendant

claimed that he was suffering the effects of the automobile

crash and the deployment of the air bags while performing the

sobriety tests.

Defendant was transported to Wayne police headquarters,

where the officers attempted to test his blood alcohol content

with an Alcotest. Because the machine malfunctioned, defendant

was then taken to a nearby State Police barracks. There,

Officer DeLuccia administered a Breathalyzer test to defendant,

who gave two breath samples. The two test results indicated

that defendant had a blood alcohol concentration of 0.17 and

0.18 percent. See N.J.S.A. 39:4-50(a) (stating that “a person

who . . . operates a motor vehicle with a blood alcohol

concentration of 0.08% or more by weight of alcohol in the

defendant’s blood” is guilty of DWI). Officer DeLuccia

testified that no radios or cell phones were in the room while

the Breathalyzer was in use.3

In his testimony, defendant claimed that Sergeant Verdon

told him to advise his lawyer “to pull the videotape because we

were wearing the radios the whole time and we never took your

3 Under certain conditions, radio frequency interference may
cause an erroneous Breathalyzer reading. Romano v. Kimmelman,
96 N.J. 66, 82-84 (1984).
6
cell phone away.” Defendant called to the stand Dr. Richard

Saferstein, who was qualified as an expert witness. Dr.

Saferstein offered his opinion that a driver who suffers trauma

in an automobile crash in which air bags deploy may have

difficulty performing psychomotor physical tests. He also

testified that defendant should have been asked to perform the

psychomotor physical tests indoors if the parking lot surface

was slippery due to the rain.

On December 9, 2010, the municipal court found defendant

guilty of DWI and careless driving, crediting the State’s

witnesses, particularly the testimony of Sergeant Verdon and

Officer DeLuccia. The court based its DWI finding on both the

Breathalyzer readings and the officers’ observations of

defendant.

B.

A month after defendant’s arrest, defense counsel submitted

to the municipal prosecutor the first of two letters requesting

discovery. A December 16, 2008 discovery letter requested,

pursuant to Rule 7:7-7(b), the “[n]ames and addresses of any

persons whom the prosecuting attorney or any

representative/agent of the State knows to have relevant

evidence or information” and “video tapes, tape recordings or

any other means of electronic or mechanical means of preserving

evidence, which are within the possession, custody, or control

7
of the State.” The letter also sought the production of any

relevant video or audio recording made by a camera-equipped

vehicle and any relevant 9-1-1 and dispatch recordings.

In a follow-up to a conversation with the municipal

prosecutor, defense counsel requested in a January 26, 2009

letter various categories of documents that remained

outstanding, including (1) the “[n]ame, badge number and rank of

each police officer, as well as the unit number for each police

vehicle, that responded . . . to the alleged accident”; (2) any

video recordings of defendant at the scene, the Wayne Township

police station, or State Police barracks, including any

recordings of his performance of any psychomotor physical tests;

and (3) “any video recordings of defendant while he was in the

custody of or being questioned by members of the Wayne Township

or Pequannock Police Department.”

At a pretrial conference on January 16, 2009, defense

counsel stated that, according to his client, the officers told

defendant that he was being videotaped during his transport to

State Police headquarters and during the Breathalyzer test. The

municipal prosecutor responded that the Wayne Township patrol

cars did not have videotaping capability and that the State

Police reported that there was no video recording of the

Breathalyzer examination. In a letter dated March 3, 2009, the

8
prosecutor further explained that the Wayne Township police and

State Police did not have videotapes of defendant.

At trial, Sergeant Verdon testified that the Wayne Township

Police Department had security cameras in the parking lot and

hallways on the date of defendant’s arrest. In response to

defense counsel’s cross-examination, Officer DeLuccia indicated

his belief that the State Police barracks had video cameras for

security purposes, but he did not know whether they were

operational. The prosecutor cut off any further questioning on

this topic, stating that “[t]here [were] no videotapes

available.” Defense counsel did not press during trial for the

names of the Pequannock police officers, who were present at the

accident scene.

The record does not make clear whether any videotapes

existed at the time defendant made his first discovery request,

one month after his arrest.

C.

In a trial de novo on the record, the Superior Court, Law

Division found defendant guilty of DWI based on the Breathalyzer

readings and, separately, “on observational evidence alone.”4

Defendant was also found guilty of careless driving and given

4 The arguments before the Law Division concerning the
admissibility of the Breathalyzer results are not germane to
this appeal.
9
the same sentence that was imposed in municipal court. At the

conclusion of the trial de novo, the court also addressed the

discovery issues raised by the defense. The court held that

“the State [was] under no obligation to produce the tape of a

suspected drunk driver performing field sobriety tests” or “a

tape from the surveillance camera [at] Wayne Township Police

headquarters” during the discovery process. The court,

moreover, determined that the State was not required to produce

phone logs of the Wayne Township Police Department that would

have assisted defendant in identifying the Pequannock police

officer who first arrived on the scene.

Defendant appealed.

D.

In an unpublished decision, the Appellate Division affirmed

defendant’s DWI conviction based solely on the observations of

the officers and therefore found it did not have to reach issues

raised by defendant related to the admissibility of the

Breathalyzer results. The appellate panel also affirmed the Law

Division’s discovery rulings, for the most part quoting the

reasoning of the Law Division.5

5 We will not discuss issues raised before the Appellate Division
that are not pertinent to this appeal.

10
 We granted defendant’s petition for certification “limited

to the issue of whether defendant was improperly denied

discoverable information.” State v. Stein, 220 N.J. 97 (2014).

II.

A.

Defendant argues that the State was required to provide, as

part of discovery, any videotapes that recorded his appearance

and other indicia of his sobriety. In short, defendant contends

that any videotape that existed at the time of his discovery

request had relevance to the issue of whether he was under the

influence and would have had utility in testing the credibility

of the police officers who testified. He also asserts that

because the State uses such tapes for inculpatory purposes in

DWI cases, the defense should have a right to introduce the same

tapes for exculpatory purposes.

Furthermore, defendant claims that the State should have

provided the names of the Pequannock Township officers who first

arrived on the scene because they “could well have supported

[his] case.” Last, he indicates that the municipal prosecutor

cannot “hide behind the fact that these officers were from a

different town” because the charges were brought in the name of

the State.

B.

The State counters that this Court should not consider the

11
discovery issues because defendant did not raise or litigate the

matter before the municipal court.6 The State maintains that

“no specific discovery violation was presented to the judge,”

and “[a]s a result there was no decision made regarding

discovery.” The State posits that defendant cannot be granted a

new trial based on unsubstantiated claims of discovery

violations that he did not press in the municipal court.

The State also argues that it had no duty to provide the

names of the Pequannock Township police officers and any

videotapes, if they did exist. The State, moreover, contends

that, even if videotapes did exist, “[g]iven the testimony and

evidence there is no reasonable probability that video of

defendant at the Wayne Police Department or the New Jersey State

Police Barracks would have altered the judge’s perspective.”

III.

A.

A trial court’s resolution of a discovery issue is entitled

to substantial deference and will not be overturned absent an

abuse of discretion. State v. Hernandez, ___ N.J. ___ (2016)

(slip op. at 14). “We need not defer, however, to a discovery

order that is . . . ‘based on a mistaken understanding of the

6 The State did not present this argument in its Appellate
Division brief on which it relied in opposing defendant’s
petition for certification.
12
applicable law.’” Ibid. (quoting Pomerantz Paper Corp. v. New

Cmty. Corp., 207 N.J. 344, 371 (2011)). In reviewing the

meaning of a court rule, “we owe no deference to the

interpretative statements of the trial court and Appellate

Division, unless they are persuasive in their reasoning.” Ibid.

(citing State ex rel. A.B., 219 N.J. 542, 554-55 (2014)).

B.

The discovery rules governing the municipal court and

Criminal Part of the Law Division are almost identical; both

mandate the disclosure of the same categories of information.

Compare R. 7:7-7, with R. 3:13-3(b). Indeed, the municipal

court discovery rules are patterned from the criminal discovery

rules. See Verniero & Pressler, Current N.J. Court Rules,

comment 7 on R. 7:7-7 (2016) (“This rule restates the discovery

provision of [Rule] 3:13-3.”).

Broad discovery and the open-file approach apply in

criminal cases “to ensure fair and just trials.” Hernandez,

supra, __ N.J. at __ (slip op. at 1); State v. Scoles, 214 N.J.

236, 252 (2013) (“[A] defendant has a right to automatic and

broad discovery of the evidence the State has gathered in

support of its charges.”). Criminal cases and quasi-criminal

cases, such as DWI, which are tried in municipal court, share

many of the same procedural protections -- the State bears the

burden of proving guilt beyond a reasonable doubt and the

13
defendant has the right to counsel, to present and cross-examine

witnesses, and not to testify, to name a few. See State v.

Widmaier, 157 N.J. 475, 494-95 (1999). In light of the

similarity between criminal and municipal court cases and their

discovery rules, the liberal approach to discovery in criminal

cases is applicable in municipal court cases.

Rule 7:7-7(b) sets forth a defendant’s right to discovery

in municipal court. The discovery rule states that “in all

cases the defendant, on written notice to the municipal

prosecutor . . . shall be provided with copies of all relevant

material, including but not limited to” the information set

forth in eleven discrete categories. Rule 7:7-7(b)(1)-(11).7

Only two categories are germane to this case.

The first applicable rule states that the municipal

prosecutor is required to provide the “names, addresses, and

birthdates of any persons whom the prosecuting attorney knows to

7 We note that the disclosure requirements of Rule 7:7-7(b)(1)-
(11), which mandate the release of all evidence or information
relevant to a legitimate defense, are more expansive than the
due process disclosures mandated by Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny. In
Brady, the United States Supreme Court held that due process
forbids the government from withholding material evidence
favorable to an accused that has been requested by the defense.
Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. This
bears stating because, to some extent, both the State and
defendant in their arguments refer to Brady as a reference point
for analysis.

14
have relevant evidence or information.” R. 7:7-7(b)(7). This

subsection does not distinguish between relevant evidence

possessed by police officers in the municipality in which the

local prosecutor has jurisdiction and relevant evidence

possessed by police officers from a neighboring municipality.

Provided that the municipal prosecutor knows that police

officers from an adjoining jurisdiction have relevant

information pertaining to a DWI case, the names of those

officers must be disclosed to a defendant.

The second applicable rule provides that the municipal

prosecutor must provide “all relevant . . . books, originals or

copies of papers and documents, or tangible objects, . . .

including, but not limited to, writings, drawings, graphs,

charts, photographs, video and sound recordings, [and] images.”

R. 7:7-7(b)(6) (emphasis added).8 “Relevancy is the hallmark of

8 The version of Rule 7:7-7(b)(6) at the time of trial, unlike
the current rule, did not explicitly identify photographs and
video and sound recordings as discoverable, but the disclosure
of video and sound recordings was understood to be encompassed
within the then-language of the rule. See State v. Mustaro, 411
N.J. Super. 91, 102 (App. Div. 2009) (holding that 2009 version
of Rule 7:7-7(b)(6) required disclosure of videotape of
defendant’s arrest for DWI). The 2010 version of Rule 7:7-
7(b)(6) required disclosure of “books, originals or copies of
papers and documents, or tangible objects, buildings or places
that are within the possession, custody or control of the
government.” No one disputes that, at the time of the
proceedings in this case, the scope of Rule 7.7-7(b)(6)
encompassed photographs and video and sound recordings.

15
admissibility of evidence.” State v. Darby, 174 N.J. 509, 519

(2002). Evidence is relevant if it “ha[s] a tendency in reason

to prove or disprove any fact of consequence to the

determination of the action.” N.J.R.E. 401.9

Just as testimony regarding a DWI suspect’s failure to

perform psychomotor physical or sobriety tests, or walk and

stand without stumbling and grasping for support, or talk

without slurring his speech is relevant evidence to prove

intoxication, likewise is a video or sound recording that would

depict the very same things. The adage that a picture is worth

a thousand words is an apt expression of the value and

importance of video and sound recordings, if they are available

in DWI cases. Indeed, a video recording of events in many cases

may be equal or superior to testimonial evidence. Clearly, if

such evidence is relevant to proving guilt, then the converse

must hold true. Evidence that would have a tendency in reason

to disprove a DWI defendant’s intoxication is relevant and

therefore must be disclosed to a defendant, if such evidence is

in the State’s custody or control.

9 Nothing in N.J.R.E. 401 suggests that the definition of
relevance is different for quasi-criminal cases, such as DWI,
than for actual criminal cases. To the extent that the
Appellate Division intimated otherwise in State v. Carrero, 428
N.J. Super. 495, 507-08 (App. Div. 2012), and State v. Ford, 240
N.J. Super. 44, 48-49 (App. Div. 1990), we reject that notion.
16
 Discovery in a municipal court case, like in a criminal

case, “‘is appropriate if it will lead to relevant’

information.” Hernandez, supra, __ N.J. at __ (slip op. at 15)

(quoting State v. Ballard, 331 N.J. Super. 529, 538 (App. Div.

2000)). In the same vein, the discovery rule requires that the

State provide defendant with “‘material evidence affecting [the]

credibility’ of a State’s witness whose testimony may be

determinative of guilt or innocence.” Id. at __ (slip op. at

16) (quoting State v. Carter, 69 N.J. 420, 433 (1976)).

The recordings from a patrol car’s dashboard camera that

depict the interactions between a DWI suspect and police

officers or the sobriety tests performed by the suspect are

clearly relevant, and if the recordings contradict an officer’s

testimony, such evidence has vital impeachment value to the

defense. A video recording of a Breathalyzer test or a

defendant’s appearance, behavior, and motor skills at police

headquarters is also relevant because it may have “a tendency in

reason to prove or disprove” that the defendant was under the

influence. See N.J.R.E. 401. To ensure the availability of

such relevant evidence, a defendant should give written notice

to the municipal prosecutor to preserve pertinent videotapes

pursuant to Rule 7:7-7. Although the defense carries this

obligation, the State also has a duty to preserve evidence that

it knows is relevant to a DWI prosecution.

17
 The State may move for the redaction of a video recording,

and an in camera review if necessary, under appropriate

circumstances. If the State can show that a video recording (1)

discloses features or the outlay of headquarters that is likely

to compromise security, (2) captures people not relevant to the

proceedings and whose privacy rights may be infringed, or (3) is

necessary for another justifiable reason, the court may order

redaction consistent with the fair-trial rights of the

defendant.

We now apply those simple, straightforward principles to

the facts of this case.

IV.

A.

The municipal prosecutor had the discovery obligation to

provide defendant with the names of the Pequannock police

officers present at the scene of the motor vehicle accident in

this case. See R. 7:7-7(b)(7) (requiring municipal prosecutor

to disclose “names . . . of any persons whom [he or she] knows

to have relevant evidence or information”). Defense counsel

made the appropriate request in his first and second discovery

letters, seeking the names of “any persons whom the prosecuting

attorney . . . knows to have relevant evidence or information”

(first letter) and the “[n]ame, badge number and rank of each

police officer, as well as the unit number for each police

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vehicle, that responded . . . to the alleged accident” (second

letter). The second letter specifically referenced the

Pequannock Police Department by requesting any relevant video

recordings made by its officers.

Common sense tells us that the first responding police

officers at the scene of an accident caused by a driver

suspected of DWI will have evidence or information relevant to

the case. The officers may know whether the suspect exhibited

injuries resulting from the accident, whether he smelled of

alcohol, whether his speech was slurred, whether he made

admissions, or whether his balance was impaired, to name a few

observations that would be of relevance.

We reject any suggestion in the decisions of the Law

Division and Appellate Division that, as a matter of discovery,

defendant did not have a right to the names of the Pequannock

police officers or, to the extent that those names were not

readily known, to evidence, such as phone logs, that would have

revealed their names.

Having said that, although defendant made the request for

the names of those officers in his discovery letters, at no time

during the municipal court hearings did he seek in a meaningful

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way to compel the municipal prosecutor to comply with the

State’s disclosure obligation.10 Rule 7:7-7(j) provides:

If at any time during the course of the
proceedings it is brought to the attention of
the court that a party has failed to comply
with this rule . . . , the court may order
that party to provide the discovery of
materials not previously disclosed, . . . or
enter such other order as it deems
appropriate.

Defendant did not seek to avail himself of the enforcement

mechanism of Rule 7:7-7(j). Defendant never brought before the

municipal court his demand for the names of the Pequannock

police officers. Defendant may not remain silent on a discovery

violation known to him in municipal court and strategically

calculate that he can bring it to life in a trial de novo before

the Law Division.

10In his mid-trial, municipal court motion brief, under a point
heading entitled, “THE FAILURE OF THE POLICE TO PRESERVE
EVIDENCE . . . ,” defendant mostly focuses on his contention
that the municipal prosecutor failed to preserve videotape
evidence. Under that same point heading, however, defendant
mentions that one of the Pequannock police officers may have
witnessed the accident and therefore may have knowledge “whether
the accident actually happened in Wayne Township or Pequannock.”
For that reason, defendant states that the identity of the
officer is important. But nowhere in the transcripts of the
municipal court proceedings does defendant ask the court to
order the municipal court prosecutor to disclose the names of
the Pequannock officers. Nor does defendant ever question that
the Wayne Township municipal court had jurisdiction to hear the
DWI case. The precise location of the accident was known, and
no challenge was raised concerning the municipality that had
jurisdiction over the case.
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 In sum, although the Law Division and Appellate Division

erred in suggesting that the municipal prosecutor could withhold

from defendant the names of relevant witnesses or the means of

identifying them, defendant did not raise or preserve the issue

in the municipal court proceedings. See N.J. Div. of Youth &

Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (noting that

“issues not raised below will ordinarily not be considered on

appeal”); see also Alpert, Goldberg, Butler, Norton & Weiss,

P.C. v. Quinn, 410 N.J. Super. 510, 539 (App. Div. 2009) (noting

that because discovery issue was not presented to trial court,

that issue would not be considered on appeal), certif. denied,

203 N.J. 93 (2010). We therefore decline to grant defendant a

remedy that he did not seek at the appropriate time in the

appropriate forum.

B.

In his two discovery letters, defendant requested “video

tapes . . . which are within the possession, custody, or control

of the State”; any recordings made by a video-equipped police

vehicle at the accident scene; any recordings by cameras at the

Wayne Township police headquarters or State Police barracks

depicting defendant, his arrest, or his performance of

psychomotor physical tests; and any video recording made by

officers of the Pequannock Police Department. The discovery

requests unquestionably sought relevant evidence that must be

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disclosed pursuant to Rule 7:7-7(b)(6) -- provided, of course,

that such video recordings existed at the time defendant sought

the information. At the time of the municipal court

proceedings, any such videotape in the State’s possession was a

“tangible object[],” which, if it contained relevant evidence or

information, had to be disclosed to defendant. R. 7:7-7(b)(6)

(2010) (governing discovery rule at time of proceedings in this

case); see also Mustaro, supra, 411 N.J. Super. at 102.

We reject the Law Division’s determination, affirmed by the

Appellate Division, that the State did not have a discovery

“obligation to produce the tape of a suspected drunk driver

performing field sobriety tests” or “a tape from the

surveillance camera [at] Wayne Township Police headquarters,” or

a tape from any other police department that depicted

defendant’s appearance, behavior, and motor skills, or other

evidence or information relevant to the case. As discussed,

such tapes may have value in the prosecution and defense of a

DWI case. In this case, any video recording was relevant if it

had a tendency in reason to show defendant’s sobriety or impeach

the officers’ accounts that supported the conclusion that

defendant was under the influence.

We cannot conclude with any certainty from the record that

the video recordings sought by defendant never existed or did

not exist at the time he made his discovery requests. The

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municipal prosecutor at the January 16, 2009 pretrial conference

stated that the Wayne Township patrol cars did not have

videotaping capability, but he did not provide information

concerning whether the Pequannock Township patrol cars possessed

such a capability. Although the municipal prosecutor explained

in a March 3, 2009 letter that the Wayne Township Police and

State Police did not have videotapes of defendant, the trial

testimony of Sergeant Verdon and Officer DeLuccia raised some

questions about the operability of cameras in the Wayne Township

Police Department and State Police barracks. Moreover, the

municipal prosecutor did not state that videotapes never existed

or did not exist at the time of defendant’s discovery requests.

Additionally, in the trial de novo before the Law Division, the

prosecutor did not argue that the videotapes requested in

discovery never existed, but rather that the State had no

obligation to produce them.

Surely, defense counsel could have made a better record or

pressed with greater clarity the relief that he sought before

the municipal court. The failure to do so is partly responsible

for the confused record. We find no fault in the way the

municipal court handled the proceedings.

Nevertheless, out of an abundance of caution, we remand to

the Law Division for proceedings to determine whether any

relevant video recordings ever existed or were available at the

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time that defendant made his discovery requests. See R. 3:23-

8(a)(2) (“[T]he court may permit the record to be supplemented

for the limited purpose of correcting a legal error in the

proceedings below.”). We 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).

V.

Accordingly, we affirm in part and reverse in part the

judgment of the Appellate Division, and remand to the Law

Division to conduct proceedings consistent with this opinion.

We do not retain jurisdiction.

CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON and JUDGE CUFF (temporarily assigned),
join in JUSTICE ALBIN’s opinion.

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