NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0754-20 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEJANDRO CRUZ-JUAREZ, Defendant-Appellant. ___________________________ Submitted September 16, 2021 – Decided October 4, 2021 Before Judges Fuentes, Gilson, and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 20- 11. Hugo Villalobos, attorney for appellant. Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Lauren E. Bland, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Alejandro Cruz-Juarez appeals from the October 7, 2020 Law Division order convicting him after a trial de novo of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and driving with an expired driver's license, N.J.S.A. 39:3-10(a). The Law Division judge imposed the same penalties as the municipal court judge, including a two-year loss of license and other mandatory fines and penalties for a second DWI offense. On appeal, defendant challenges only the DWI conviction, raising the following points for our consideration: POINT I THE OFFICER LACKED REASONABLE ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP AFTER FOLLOWING THE DEFENDANT ON A HUNCH. POINT II THE DETENTION, STOP AND SEARCH WAS VOID UNDER N.J. [CONST. ART. I], PAR[A]. 7. POINT III INDEPENDENTLY THERE WAS NO PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT PROBABLE CAUSE EXISTED TO ARREST THE DEFENDANT FOR DRIVING WHILE INTOXICATED, (DWI). A-0754-20 2 POINT IV THE ALCOTEST RESULTS WERE NOT RELIABLE AS THE STATE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE ALCOTEST INSTRUMENT WAS IN GOOD WORKING ORDER, INSPECTED ACCORDING TO PROCEDURE, THE OPERATOR WAS CERTIFIED AND THE TEST WAS ADMINISTERED ACCORDING TO PROCEDURE. Leading Questions To An Alcotest Operator Who Was Reading From An Unidentified Hearsay Document Operator Entered The Wrong Time In The Alcotest The [Twenty-]Minute Observation Of Defendant Was Not Performed And The Alleged Synchronization And Delay Of Time Were Speculation The Two[-]Minute Lockout Violation Showed The Alcotest Was Not In Good Working Order And Operator Error Mouthpiece Proper Use Was Planted Via Leading Questions POINT V THE DEFENDANT DID NOT GET A FAIR TRIAL BECAUSE THE PROCEDURAL FAILINGS IN THIS TRIAL ESTABLISHED THAT THE "CUMULATIVE IMPACT OF THE ERRORS WAS NOT HARMLESS." A-0754-20 3 A. In Violation Of The Defendant's Due Process The Judge Failed To Wait For All The Evidence To Be In Before He Blurted Out Findings Of Fact And Used Evidence That Was Not Provided In The Requested Discovery Contrary To Discovery Demanded, Ordered And Filed Motion In Limine. B. The Court Erred In Entering The Results Of The Air Report In Evidence Over Defendant's Objection, . . . Before The Foundational Documents Were Offered In Evidence, Before Completing Direct, Before Cross-Examination Of The Alcotest Operator, Before Expert …
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