SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0330-19T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIRAJ PATEL,

Defendant-Appellant.

_________________________

Submitted November 2, 2020 – Decided

Before Judges Rothstadt and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Municipal Appeal No. 44-

2013.

The Hernandez Law Firm, PC, attorneys for appellant 

(Thomas Cannavo, of counsel and on the brief).

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (Joie D. Piderit, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 23, 2020
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In this appeal, we review for the third time, defendant Miraj Patel's 

October 30, 2014 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-

50.1 In response to the first appeal, we remanded to the Law Division for a new 

trial de novo on the record of defendant's 2013 municipal court trial at which 

defendant chose not to testify.2 We directed the Law Division to address, among 

other issues, whether the State proved defendant's guilt through its 

"observational case," State v. Patel, No. A-1683-14 (App. Div. May 2, 2016)

(Patel I) (slip op. at 24–25), to conduct a Rule 104 hearing on the admissibility 

of the Alcotest results, id. at 27, and to consider whether to draw an adverse 

inference against the State as to the Alcotest due to the State "allow[ing a] video 

tape [of defendant at the police station] to be destroyed," id. at 20. 

On remand, a different Law Division judge conducted the required Rule

104 hearing on December 7, 2016, at which both the arresting officer and 

defendant testified about the administration of the Alcotest. On January 12, 

2017, the Law Division judge issued a written decision stating his reasons for 

1

 This was defendant's third conviction for the same offense. 

2

 The only testimony came from the arresting officer and defendant's expert at 

the suppression hearing, which the judge relied upon without objection when 

reaching his verdict. The municipal court judge later found the officer to be 

credible and ultimately found defendant guilty based on the Alcotest results and 

the officer's observations, which the judge never specifically identified. 
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again convicting defendant based on the Alcotest results, without ever 

addressing the observational case. In his decision, among other findings, the 

judge found that it was "obvious from [defendant's] testimony [at the Rule 104 

hearing] that [defendant was] not credible." 

After defendant's new trial in the Law Division, defendant was again 

convicted, and he appealed. In our second review, we again remanded the matter 

to the Law Division because despite our directions, the Law Division judge "did 

not address [the] part of our [earlier] decision" that instructed the judge "to 

determine, . . . whether the State's proofs adduced at the municipal court trial 

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

evidence." State v. Patel, No. A-3189-16 (App. Div. June 21, 2019) (Patel II)

(slip op. at 2). 

In remanding the matter again, we stressed the heightened need for a 

determination of the State's observational case in light of the Supreme Court's 

opinion in State v. Cassidy, 235 N.J. 482 (2018), which invalidated the Alcotest 

results "in many cases, including this one." Id. at 2–3. We also concluded that 

the issue of whether an adverse inference should be drawn was still viable 

despite the invalidity of the Alcotest results because "a security camera video 

recording of defendant's physical appearance and behavior in the stationhouse 
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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." Id. at 10.

In response to our second remand, the Law Division judge again convicted 

defendant and on August 15, 2019, issued a written decision setting forth his 

findings and conclusions of law as to the observational case against defendant. 

According to the judge, he relied upon not only the municipal court record of 

defendant's trial in 2013, but he also considered the testimony of defendant and 

the arresting officer at the Rule 104 hearing about the admissibility of the 

Alcotest that was conducted on December 7, 2016. This appeal followed,

On appeal, defendant raises the following six contentions:

POINT I

THE LAW DIVISION ERRED IN FINDING 

DEFENDANT GUILTY OF DWI BASED ON 

OBSERVATIONS. THUS, THIS COURT SHOULD 

REVERSE AND REMAND FOR JUDG[]MENT OF 

ACQUITTAL.

POINT II

THE LAW DIVISION ERRED IN REFUSING TO 

APPLY A NEGATIVE INFERENCE FROM THE

DISCOVERY VIOLATION.
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POINT III

DEFENDANT WAS ENTITLED TO A DE NOVO 

RULING ON THE OBSERVAT[I]ONAL PRONG 

BASED ON THE RECORD WHICH EXISTED UPON 

THE FILING OF THE DE NOVO APPEAL.

POINT IV

THE LAW DIVISION ERRED IN APPLYING AN 

APPELLATE STANDARD INSTEAD OF THE 

REQUIRED DE NOVO ANALYSIS. THUS, THIS 

COURT SHOULD EXERCISE ORIGINAL 

JURISDICTION AND ACQUIT DEFENDANT OF 

DWI.

POINT V

THE LAW DIVISION ERRED IN MENTION AND 

PROBABLE CONSIDERATION [SIC] OF THE HGN 

TEST TO DETERMINE THE OBSERVATIONAL 

PRONG OF THE DWI OFFENSE.

POINT VI

GIVEN THE CUMULATIVE ERRORS IN POINTS II, 

III, IV AND V, THIS COURT SHOULD EXERCISE 

ORIGINAL JURISDICTION AND ACQUIT 

DEFENDANT OF DWI BASED ON 

OBSERVATIONS.

At the outset, we find no merit to defendant's contention in Point V that 

the Law Division judge relied upon the arresting officer's administration of the 

HGN test in determining whether the State proved its case based upon the 

officer's observations. Defendant's contention is belied by the fact that while 
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the judge's decision states that the test was performed, the judge does not 

mention it as the basis for his ultimate findings.

We reach a similar result as to Point II about the judge's decision to not 

draw an adverse inference against the State as a sanction for the discovery 

violation that arose from the destruction of the station house videotape. As 

noted in the judge's decision, he did not draw an adverse inference because 

"[n]either party [could] represent whether the video would have shown further 

indicators regarding [defendant's] intoxication [for or against]." Defendant

argues to us that the judge's failure to apply the adverse inference was contrary 

to the Court's holding in State v. Stein, 225 N.J. 582 (2016), and by not providing 

any remedy for the State's discovery violation, it was "nonsensical." We 

disagree. 

We conclude defendant's contention in this regard is without sufficient 

merit to warrant discussion on a written opinion. R. 2:11-3(e)(2). Suffice it to 

say that we continue to hew to our view of the Court's opinion in Stein and our 

decision in State v. Richardson, 452 N.J. Super. 124 (App. Div. 2017), as 

discussed in our earlier opinion, see Patel II, slip op. at 10–12, and we discern 

no abuse in the judge's discretion to not apply the adverse inference. State v. 

Marshall, 123 N.J. 1, 134 (1991) ("The choice of sanctions appropriate for 
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discovery-rule violations is left to the broad discretion of the trial court."). 

Moreover, even if an adverse inference had been drawn from destruction of the 

video, it would only have related to defendant's conduct at the police station and 

not at the scene when the officer initially observed defendant and administered 

the field sobriety tests.

However, we find merit to defendant's assertions in Point III and IV, that

the Law Division judge did not limit his consideration of the evidence to that 

adduced at the municipal court trial and failed to apply the correct standard of 

review. For those reasons, we are constrained to remand again for the judge to 

reconsider his decision under the proper standard based only upon the evidence 

adduced at the municipal court trial.

The conclusion that we reluctantly reach here is based upon clear 

principles guiding review of municipal court convictions. When a defendant 

appeals from a conviction entered in municipal court to the Law Division, that

"court makes its own findings of fact and conclusions of law but defers to the 

municipal court's credibility findings." State v. Robertson, 228 N.J. 138, 147 

(2017). The Law Division judge is required to conduct a de novo review of the 

record, giving "due regard to the municipal judge's opportunity to view the 

witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App. 
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Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). A Law Division 

judge must "determine the case completely anew on the record made in the 

[m]unicipal [c]ourt, giving due, although not necessarily controlling, regard to 

the opportunity of the magistrate to judge the credibility of the witnesses." 

Johnson, 42 N.J. at 157 (emphasis added).

This procedure is rooted in the municipal court's role as the forum for the 

presentation of evidence. It is in that court where the State must prove its case 

beyond a reasonable doubt and, if appealed, it is the record of those proceedings 

that are reviewed de novo. See Robertson, 228 N.J. at 147. In a trial de novo 

the Law Division judge must make findings of fact based upon the record made 

in the municipal court where the case was tried. State v. Ross, 189 N.J. Super. 

67, 75 (App. Div. 1983); see also State v. Loce, 267 N.J. Super. 102, 104 (Law. 

Div. 1991) (stating the Law Division "must make original findings and rulings 

on the evidence, but [is] limited to the evidentiary record created in the 

Municipal Court"), aff'd o.b., 267 N.J. Super. 10 (App. Div. 1993). The Law 

Division "judge does not affirm or reverse what occurred in the municipal court. 

Rather, the . . . judge reviews the transcript and makes an independent 

determination of the sufficiency of the evidence presented, giving appropriate 

deference to any credibility assessments that the municipal court judge may have 
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made." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 

N.J. 45 (2004). An exception to that process exists where the record requires

that it be supplemented "for the limited purpose of correcting a legal error in the 

proceedings below." R. 3:23-8(a)(2). 

If the conviction is appealed to us, our scope of review is limited, and we 

are bound to uphold the Law Division's findings if supported by sufficient 

credible evidence in the record. See Robertson, 228 N.J. at 148; State v. Reece, 

222 N.J. 154, 166 (2015). Only if the Law Division's decision was so clearly 

mistaken or unwarranted "that the interests of justice demand intervention and 

correction," can we review the record "as if [we] were deciding the matter at 

inception and make [our] own findings and conclusions." Johnson, 42 N.J. at 

162; see also State v. Kuropchak, 221 N.J. 368, 383 (2015). But, like the Law 

Division, we are in no position to "weigh the evidence, assess the credibility of 

witnesses, or make conclusions about the evidence," and should therefore defer 

to the municipal court's credibility findings. State v. Barone, 147 N.J. 599, 615 

(1997); State v. Locurto, 157 N.J. 463, 472 (1999); State v. Cerefice, 335 N.J. 

Super. 374, 383 (App. Div. 2000). 

However, "a reviewing court owes no deference to the trial court in 

deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010). A trial 
10 A-0330-19T3

court's legal conclusions and the legal consequences that flow from established 

facts are not entitled to special deference; they are reviewed de novo. State v. 

Goodwin, 224 N.J. 102, 110 (2016).

Here, it is clear from the Law Division's judge's written decision that he 

did not follow the required procedure. At the outset, the judge stated that his 

role in conducting a de novo review was to "to determine whether the findings 

made [in the municipal court] could reasonably have been reached on sufficient 

credible evidence in the record," quoting Johnson, 42 N.J. at 162 (addressing an 

appellate court's standard of review), albeit he followed that observation by 

citing to Ross, 189 N.J. Super. at 75 (stating that a trial judge in a de novo review 

is not performing "appellate function governed by the substantial evidence rule 

but rather an independent fact-finding function in respect of defendant's guilt or 

innocence"), and acknowledged that he was "require[d as] the trier of facts to 

make his own findings of fact." The judge's reference to the "substantial 

evidence rule," State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012), 

conflated his role with ours.

Moreover, as already noted, the judge stated in the opening paragraph of 

his decision that he considered more than the evidence adduced in the municipal 

court. As the judge stated, his decision was "based upon [his review] of the 
11 A-0330-19T3

municipal court record, submissions by both parties, arguments by counsel, and 

the testimony provided by [defendant] and [the police officer] on December 7, 

2016." The judge discussed in his decision his own finding about defendant not 

being credible at the 2016 Rule 104 hearing and described the portions of 

defendant's testimony that supported his finding that defendant was not credible. 

The judge also mentioned that the officer previously testified credibly before 

the municipal court and before the Law Division at the Rule 104 hearing in 2016. 

In order to determine whether the State proved defendant's guilt beyond a 

reasonable doubt, he should not have considered defendant's testimony or made

credibility determinations about defendant from the Rule 104 hearing when 

deciding whether the State proved defendant guilty based on the 2013 trial. 

Under these circumstances, we must remand to the Law Division for 

reconsideration, which should be completed within thirty days. By remanding 

the matter, we do not mean to suggest an outcome. 

Unfortunately, we must direct another judge perform the remand 

proceedings. That is so because the judge who last decided the matter based his 

decision in part on his own improper credibility assessment from the N.J.R.E. 

104 hearing. But for that assessment, we would not be directing another judge 

to handle the remand.
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Affirmed in part; remanded in part for further proceedings consistent with 

our opinion. We do not retain jurisdiction.