NOT FOR PUBLICATION WITHOUT THE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-1144-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RIGOBERTO BRUNO,
Defendant-Appellant.
________________________
Submitted April 20, 2021 – Decided June 29, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.
18-008.
Albert P. Mollo, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Maura K. Tully,
Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
Charged with numerous driving infractions, defendant Rigoberto Bruno
admitted he drank eight twelve-ounce cans of beer over a five-hour period and
conditionally pleaded guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-
50, after the municipal court conducted a N.J.R.E. 104 hearing and rejected
defendant's argument that the Alcotest results, showing defendant's blood
alcohol level was 0.17 percent, 1 was inadmissible because defendant had not
been observed for the twenty-minute period before providing a breath sample
for the Alcotest, see State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825
(2008), and the State had not provided in discovery videotape recordings from
the processing room in police headquarters where the twenty-minute observation
had taken place.
Defendant's first municipal appeal resulted in the Law Division judge's
remand order directing the municipal court judge to procure the "testimony from
[Eatontown Special Police] Officer James Rolly regarding the alleged
destruction of the surveillance videos . . . and the police department's evidence[-
]retention procedures" for video-surveillance footage. Rolly was assigned to the
Records Bureau and testified his "role [was] to assimilate all the records that
1
The Alcohol Influence Report (AIR) was not provided in the appellate record.
During the plea proceedings, the municipal court judge mentioned only one
reading, ostensibly the same for both samples.
2 A-1144-19
would correspond with the case[] and mail them out to the defense attorney."
The remand order also required the municipal court judge to "reconsider the
[N.J.R.E.] 104 hearing decision" and "articulate whether . . . an adverse
inference is being utilized and why when considering the reasons the
surveillance videos were destroyed and what impact the destruction has on the
totality of the circumstances [(sic)]."
The municipal court judge considered Rolly's testimony at the remand
hearing, applied an adverse inference when evaluating the testimony relating to
the procedures that preceded the Alcotest and, nevertheless, found the officers—
the arresting officer and the Alcotest operator—followed proper procedures,
including the twenty-minute pre-test observation of defendant; the judge
concluded the State had met its burden to establish the admissibility of the test
results.
Following a trial de novo in the Law Division, the judge, adhering to Rule
3:23-8(a)(2), made independent findings of fact, giving "due regard to the
municipal [court] judge's opportunity to view the witnesses and assess
credibility," and reviewed the municipal court judge's conclusions of law de
novo, see State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003), based on
the record from the municipal court, see State v. States, 44 N.J. 285, 293 (1965).
3 A-1144-19
The Law Division judge determined "the State . . . met its burden of proving that
[d]efendant was observed for the required twenty-minute period, and . . . the
Alcotest results were properly admitted"; the judge found defendant guilty of
DWI.
Defendant appeals his conviction, arguing:
THE STATE'S FAILURE TO PRESERVE AND
PRODUCE VIDEO EVIDENCE CONSTITUTES A
STEIN[2] VIOLATION[.]
A. Dismissal [I]s Warranted[.]
B. The Alcotest Reading Should [B]e
Suppressed[.]
1. The Observation Period Was Not
[Twenty] Minutes[.]
2. There Was No Observation During
the Testing Process[.]
3. Credibility Determinations Weigh in
Favor of Appellant[.]
On appeal, we "consider 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), and determine "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record," State v. Johnson,
2
State v. Stein, 225 N.J. 582 (2016).
4 A-1144-19
42 N.J. 146, 162 (1964); see also State v. Locurto, 157 N.J. 463, 471 (1999); but
our review of legal determinations is plenary, see State v. Handy, 206 N.J. 39,
45 (2011). Under that lens, we affirm.
We reject defendant's argument that credibility determinations weighed in
his favor. Where, as here, the municipal court and Law Division judges made
concurrent findings, "[u]nder the two-court rule, appellate courts ordinarily
should not undertake to alter concurrent findings of facts and credibility
determinations made by two lower courts absent a very obvious and exceptional
showing of error." Locurto, 157 N.J. at 474. "Therefore, appellate review of
the factual and credibility findings of the municipal court and the Law Division
'is exceedingly narrow.'" State v. Reece, 222 N.J. 154, 167 (2015) (quoting
Locurto, 157 N.J. at 470). Unless there is an obvious and exceptional showing
of error, we will not disturb the Law Division's findings when the municipal
court and Law Division "have entered concurrent judgments on purely factual
issues." Ibid. (quoting Locurto, 157 N.J. at 474).
Both judges' credibility findings, particularly those well explained by the
municipal court judge in his written decisions both before and after remand, are
well supported by the record. The municipal court judge, in making his
comprehensive credibility findings, considered and addressed defendant's
5 A-1144-19
present arguments, including those regarding defendant's lack of eye contact
during his testimony, defendant's use of a translator during testimony, the
officers' familiarity with courtroom testimony and defendant's failure to notice
the clock in the processing room, distinguish between the processing and
Alcotest rooms and identify the officer whom he avers left him alone during the
observation period.
The municipal court judge "assume[d], for the sake of argument, as
defense counsel suggest[ed], that the reason [defendant] did not look directly
towards the [c]ourt was due to the fact that he was using an interpreter." The
judge found "the substance of [defendant's] testimony lacked the necessary
specifics to find his version of events is what [had] occurred." The judge agreed
that defendant's use of a translator was a consideration "when determining
[defendant's] demeanor, tone and body language" and recited his experience in
communicating through translators. But the judge found defendant's "lack of
eye contact was not attributable to the fact that he was speaking through a
translator," noting defendant "was sitting at counsel table almost directly across"
from the judge's location and "[t]he translator was not positioned in such a
manner that it would not have been possible for him to make eye contact with
the [c]ourt" while utilizing the translator's services.
6 A-1144-19
The judge also acknowledged the officers were more comfortable in the
courtroom: "These are officers, you know, they come in all the time. They're a
little bit more comfortable. And yes, that's true too. The more you're in a
courtroom, the more comfortable you are." But the judge, nevertheless, found
other considerations, including eye contact, more compelling.
As to the officers' failure to constantly observe defendant for twenty
minutes, the municipal court judge, despite drawing an adverse inference against
the officers, found each officer's testimony was detailed and consistent with the
other's even though they were sequestered. The judge also found defendant's
contention that he was left alone four or five times during the observation period
was undermined by several factors, including his inability to identify which of
the officers left him alone and specify in which room he was left alone. The
judge noted that testimony established the processing and Alcotest rooms were
closely proximate, the area in headquarters was "not a labyrinth" and "there was
a large working clock in the room where [defendant] was handcuffed," described
by the judge as the "one 'familiar' thing in that environment . . . that the [Spanish-
speaking defendant] could read"; nevertheless, defendant could not tell the "hour
of the day he was allegedly left alone" or even "narrow down the time of day"
when "asked if he was left alone at [1:00, 2:00, 3:00 or 4:00]."
7 A-1144-19
To be sure, these were but some of the facts found to support what the
Law Division judge describes as "clear credibility determinations" which that
judge, giving "due, although not necessarily controlling, regard," saw "no reason
to disturb." Under our more focused review, neither do we. We discern no "very
obvious and exceptional showing of error" requiring us to overturn the Law
Division judge's credibility findings when the municipal court and Law Division
"have entered concurrent judgments on purely factual issues." Reece, 222 N.J.
at 166 (quoting Locurto, 157 N.J. at 470). To the extent not addressed, we
determine defendant's additional arguments regarding the judges' credibility
findings to be without sufficient merit to warrant further discussion. R. 2:11-
3(e)(2).
After hearing Rolly's testimony at the remand hearing, the municipal
court judge determined an adverse inference should be drawn because the State
had not preserved and provided defendant with the videotape surveillance
footage from the processing room. As the Law Division judge observed in his
written decision, Rolly provided defendant with discovery the day after he
received defense counsel's initial discovery demand which was devoid of any
specific request for video recordings. Under the then-existing Eatontown Police
Department policy, recordings were produced in discovery only if requested. As
8 A-1144-19
the Law Division judge found, that policy changed "just months" after
defendant's August 2017 arrest. That February 19, 2018 written policy
memorandum required "the video of the processing room [to be] preserved and
placed in the case file" when requested by defense counsel.
The Law Division judge also considered the municipal court judge's
observation that "the State did not act in bad faith" in failing to provide the
video, crediting Rolly's testimony that he had first become aware of the specific
request for the video recording when he received an email from the municipal
prosecutor on December 15, 2017, regarding defense counsel's subsequent
discovery request which specifically included video recordings. By that time
the processing room video of defendant's observation period had been
automatically deleted from the server after sixty days. The Law Division judge
also assessed the municipal court judge's finding that "[d]efendant failed to offer
proof to show that a specific discovery request for this video evidence was ever
sent" based on defense counsel's representation to the municipal court judge that
counsel's usual practice was to fax discovery requests, but counsel could not
provide a fax confirmation page or other proof the later discovery request was
served.
9 A-1144-19
Though the Law Division judge did not directly address defendant's
argument that the failure to provide the video required dismissal of the case, he
implicitly approved the adverse inference drawn by the municipal court judge.
Under the circumstances found by the judges, we agree an adverse inference was
the appropriate remedy for the unintentional deletion of the video recording
before defendant had an opportunity to view it. See State v. Richardson, 452
N.J. Super. 124, 137 (App. Div. 2017) ("We recognize that trial courts are vested
with the discretion to fashion an appropriate sanction for a violation of discovery
obligations."). "[N]either proof of bad faith, nor a showing that evidence is
exculpatory, is essential to demonstrate a discovery violation or to justify an
adverse inference charge." Id. at 138. "Bad faith is an essential element of a
due process violation where the evidence is potentially useful. On the other
hand, '[s]uppression of requested exculpatory evidence violates due process,
regardless of the prosecution's good faith.'" Ibid. (alteration in original)
(citations omitted) (quoting State v. Robertson, 438 N.J. Super. 47, 67 (App.
Div. 2014), decision reached on other grounds, 228 N.J. 138 (2017)).
Drawing the adverse inference well protected defendant's right to a fair
trial; the "drastic remedy" of dismissal would have been inappropriate. State v.
Clark, 347 N.J. Super. 497, 508 (App. Div. 2002). Dismissal of a charge "is the
10 A-1144-19
last resort because the public interest, the rights of victims and the integrity of
the criminal justice system are at stake." State v. Ruffin, 371 N.J. Super. 371,
384 (App. Div. 2004). We see no reason not to apply that tenet in DWI cases.
Defendant's additional argument regarding the discovery violation,
particularly the skewed contention that Rolly was instructed by the municipal
prosecutor not to "produce videos in prior DWI cases," is without sufficient
merit to warrant discussion. R. 2:11-3(e)(2).
The proofs related to the Alcotest results, accepted as credible by both
judges notwithstanding the adverse inference, established that defendant was
observed for the required twenty-minute pre-test period. Finding defendant's
testimony that he was left alone during the observation period not credible, the
judges accepted the testimony of the arresting officer and the Alcotest operator.
The Law Division judge found the Alcotest operator testified defendant
was not left alone at any time during the period, which
began at 2:05 [a.m.]. During the first ten minutes, [the
arresting officer] testified that he was "in and out of the
room," but [the Alcotest operator] was always present.
[The arresting officer] further testified that he took over
observation duties at 2:15 [a.m. 3], when [the Alcotest
operator] went into the Alcotest room to prepare for
taking the breath samples, which was close enough for
3
The Law Division judge's written decision sets this time as "2:15pm," an
obvious typographical error considering the judge found the times before and
after that time were early-morning—"a.m."—times.
11 A-1144-19
him to see if [the arresting officer] ever left [d]efendant
alone. [The arresting officer] stated that he was
positioned directly across from [d]efendant, about ten
feet away, and did not observe any Alcotest[-
]prohibited behavior, i.e.[,] burping, regurgitating, etc.
Subsequently, [the Alcotest operator] returned to tell
[the arresting officer] that his watch indicated the time
was 2:25 [a.m.], and that the twenty-minute period was
over.
The Law Division judge found that testimony "clearly demonstrates that
[d]efendant was observed for the required twenty-minute observational period."
There is no reason to disturb those findings that "could reasonably have been
reached on sufficient credible evidence present in the record." Johnson, 42 N.J.
at 162; see also Locurto, 157 N.J. at 471.
Even if the twenty-minute period was gauged by the Alcotest operator's
watch, without reference to the second hand which, as defendant argues, could
have resulted in a total time of less than twenty minutes, defendant was observed
for the additional time—"no more than a minute . . . [a] minute and a half at the
most" according to the arresting officer—it took to unlock defendant's handcuffs
and walk him took the Alcotest room. During that period the arresting officer
observed defendant up to the time he gave his first breath sample and did not
see defendant regurgitate, burp or place anything in his mouth. The Alcotest
12 A-1144-19
operator also testified defendant did not regurgitate, place anything in his mouth
or cough while in the Alcotest room prior to producing his first breath sample.
Although that testimony establishes that defendant was observed while in
the Alcotest room, we reject defendant's argument that observation during the
testing procedure is required. Chun pointedly requires operators to "wait twenty
minutes before collecting a sample" to avoid a contaminated reading. 194 N.J.
at 79. "[T]he operator must observe the test subject for the required twenty-
minute period of time to ensure that no alcohol has entered the person's mouth
while he or she is awaiting the start of the testing sequence." Ibid. (emphasis
added). "With respect to this critical twenty-minute period, the key concern of
the Court in Chun was to ensure that the test subject did not ingest, regurgitate
or place anything in his or her mouth that could affect the reliability of the test."
State v. Ugrovics, 410 N.J. Super. 482, 489 (App. Div. 2009).
We reject defendant's argument that State v. Filson, 409 N.J. Super. 246
(Law Div. 2009)—a Law Division case and not, as defendant states in his merits
brief, an Appellate Division decision—requires proof of observation during the
Alcotest procedure. The court in Filson considered the Chun Court's mandate
that an Alcotest operator
wait twenty minutes before collecting a sample to avoid
overestimated readings due to residual effects of mouth
13 A-1144-19
alcohol. The software is programmed to prohibit
operation of the device before the passage of twenty
minutes from the time entered as the time of the arrest.
Moreover, the operator must observe the test subject for
the required twenty-minute period of time to ensure that
no alcohol has entered the person's mouth while he or
she is awaiting the start of the testing sequence. In
addition, if the arrestee swallows anything or
regurgitates, or if the operator notices chewing gum or
tobacco in the person's mouth, the operator is required
to begin counting the twenty-minute period anew.
[194 N.J. at 79; see also 409 N.J. Super. at 255-56.]
The Filson court determined that the Court adopted the "protocol that [an
officer] must observe the testing subject for twenty minutes before starting the
test, and then during the testing, must assure that the subject does not burp or
regurgitate or otherwise contaminate the breath sample." 4 409 N.J. Super. at
255.
4
In his merits brief, defendant adds a word to a portion of the quote: "must
observe the testing subject for twenty minutes before starting the test, and then
during the testing, and must assure that the subject does not burp or regurgitate
or otherwise contaminate the breath sample." The underscored word is not part
of the court's opinion. We are not persuaded to adopt defendant's position
because of his addition of "and," which we choose to characterize as a
typographical error and not a conscious attempt to sway the court with an added
word that he contends changes the meaning of the sentence. We do check source
quotes.
14 A-1144-19
In implementing the twenty-minute observation period, the Chun Court
recognized that the Alcotest is not subject to operator influences and observed
the few tasks required of an Alcotest operator
now consist[] of observing the subject to ensure that
twenty minutes has passed and to be certain that the
subject has neither swallowed nor regurgitated any
substances during that time that would influence the
test results; inputting and verifying the accuracy of the
identifying information needed to start the sequence;
changing the control solution if the machine alerts him
to do so; attaching a new mouthpiece; reading the
instructions about how to blow into the machine;
observing the LED screen and following its prompts;
and observing the subject to ensure that he or she
actually provides a sample. There are no meters to
read, no dials to turn, and if the machine detects an
error, the error is reported and no test results are
derived. The operators are not able to alter or affect the
software that governs the performance of the device and
cannot fix the machine should a repair be needed.
[194 N.J. at 140.]
We discern no difference between Chun's holding that the twenty-minute
observation period applies only to the pre-test period and the Filson court's
reading of the Court's decision.
Even if defendant's reading of Filson is correct, we disagree that the State
must prove continued observation during the testing period and adhere to our
holding in Ugrovics. As Judge Fuentes observed in Ugrovics, the Chun Court's
15 A-1144-19
recognition of the "lesser role" played by an Alcotest operator than that played
by the operators of prior tests that measured intoxication resulted in the State's
burden at trial to "establish, by clear and convincing evidence, that, during the
twenty-minute period immediately preceding the administration of the test, the
test subject did not ingest, regurgitate or place anything in his or her mouth that
may compromise the reliability of the test results." 410 N.J. Super. at 489-90
(footnote omitted); see also Chun, 194 N.J. at 140. That mandate did not extend
to the testing period.
As the Law Division judge concluded, the State met that burden and
established that the Alcotest operator "ensure[d] that the procedures leading to
the actual taking of the test [were] strictly followed." Ugrovics, 410 N.J. Super.
at 490.
Affirmed.
16 A-1144-19
STATE OF NEW JERSEY VS. RIGOBERTO BRUNO (18-008, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion