(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: GOOD AFTERNOON, COUNSEL.
PLEASE BE SEATED. WELCOME. IN THE INTEREST OF TIME
AND TO HELP PROVIDE SOME GUIDANCE WE WOULD ASK YOU TO FOCUS ON AREAS WHERE THERE IS
DISAGREEMENT WITH THE SPECIAL MASTER'S REPORT. MS. OBERHOLZER. REGINA
M. OBERHOLZER: GOOD MORNING, YOUR HONOR, MAY IT PLEASE THE COURT I WOULD LIKE TO RESERVE
A FEW MINUTES FOR REBUTTAL. THE COURT: YES. REGINA M.
OBERHOLZER: CHIEF JUSTICE AS YOU RECOGNIZED THERE ARE MANY AREAS WHERE WE AGREE. I WON'T
CATALOG THEM, I WAS GOING TO BUT OBVIOUSLY YOU'VE READ OUR PAPERS AN YOU KNOW THE MAIN
AREAS WHERE WE DISAGREE. THE FIRST IS THE PROPER PROCEDURE FOR SEEKING RELIEF
IF A DEFENDANT IS A DENNIS AFFECTED DEFENDANT AND HE IS SEEKING -- IS FACING AN ENHANCED
SENTENCE AS A REPEAT OFFENDER AT A SECOND DWI AND THE STATE AND AMICI AGREE THAT THE PROPER
PROCEDURE IS A PCR IN THE ORIGINAL JURISDICTION. DESPITE THAT AGREEMENT, THERE SEEMS
TO BE MR. ZINGIS WHO DID NOT FOLLOW THAT PROCEDURE SHOULD NONETHELESS BE SENTENCED AS
A FIRST OFFENDER EVEN THOUGH HE DID NOT FILE A PCR IN COLLINGSWOOD AND IN FACT ALL THE
DOCUMENTATION BOTH AT HIS FIRST SENTENCE AN HIS SECOND SENTENCING AND AT THE SPECIAL MASTER'S
HEARINGS ESTABLISHES HE WAS NOT A DENNIS AFFECTED DEFENDANT. THE SECOND AREA
OF DISAGREEMENT IS THE PROPER AREA OF ACCESS TO A DOCUMENT REFERRED TO THROUGHOUT THE
PROCEEDING IS S 152. THAT DOCUMENT IS AN EXCEL SPREADSHEET THAT INCLUDES ALL THE ALCOTEST
SUBJECT TEST RECORDS FROM EVERY BREATHALYZER TEST, ALCOTEST GIVEN DURING THE EIGHT AND A
HALF YEAR PERIOD THAT THE ALCOTEST MACHINE WAS CALIBRATED BY SERGEANT DENNIS THAT WERE
IN USE THROUGHOUT THE STATE REGARDLESS OF WHO CALIBRATED THOSE MACHINES. THE
SPECIAL MASTER RECOMMENDED THAT THAT EXCEL SPREADSHEET COMMISSIONER OF CORRECTIONS WITH
CALIBRATION RECORDS OF MACHINES CALIBRATED BY DENNIS BE USED TO DETERMINE WHETHER A
DEFENDANT WITH A PRIOR CONVICTION FOR DWI WAS A KEN THE IN HIS AFFECTED DEFENDANT AND I
BELIEVE ALL PARTIES AGREE THAT THAT IS THE PROPER PROCEDURE BUT THE STATE FEELS VERY STRONGLY
THAT ACCESS TO THAT LIST NEEDS TO BE STRICTLY LIMITED TO AS FEW PEOPLE AS POSSIBLE BECAUSE
THERE ARE 236,000 TEST RECORDS ON THAT LIST. A LARGE NUMBER OF THEM NOT DENNIS AFFECTED,
A MAJORITY OF THEM -- A VERY LARGE NUMBER OF THEM ARE INDIVIDUALS WHO WERE NEVER CONVICTED
OF A CRIME. THAT LIST INCLUDES NOT JUST NAMES BUT PERSONAL IDENTIFYING INFORMATION AND
BASED ON THAT WHEN THIS COURT ORDERED THAT THE ALCOTEST IDENTIFICATION SYSTEM FROM WHICH
THAT SPREADSHEET WAS CREATED BE SET UP, THIS COURT ORDERED THAT THAT PERMANENT IDENTIFYING
INFORMATION INCLUDING NAMES BE REDACTED SO THAT THERE WOULD NOT BE ACCESS TO THAT INFORMATION
SO THOSE ARE THE TWO AREAS ON WHICH WE ARE MOSTLY IN DISAGREEMENT AND I'M HAPPY TO TAKE
QUESTIONS FROM THE COURT ON WHICHEVER ONE THE COURT WOULD LIKE TO ADDRESS FIRST.
THE COURT: THANK YOU. LET'S START WITH THE FIRST ONE AN TRY TO CLARIFY FOR
US, IF YOU WOULD, THE NATURE OF THE PROCESS AS YOU SEE IT. AN INDIVIDUAL IS ARRESTED
ON DWI AND THAT PERSON HAS A PRIOR CONVICTION FOR A DWI, CAN THE DEFENDANT FILE PCR AFTER
THE SECOND ARRESTED. REGINA M. OBERHOLZER: YES. CHIEF JUSTICE
RABNER: AND IN WHICH COURT, MUNICIPAL, LAW DIVISION, DOES IT MATTER WHETHER THERE WAS
AN APPEAL -- THERE WAS A TRIAL DE NOVO IN THE LAW DIVISION ON THE PRIOR CONVICTION?
WHERE DO THEY FILE. REGINA M. OBERHOLZER: IT WOULD BE IN
WHICHEVER COURT THE CONVICTION AROSE, PROBABLY IN THE MUNICIPAL COURT. THE MUNICIPAL COURT
RULES ACTUALLY SPECIFICALLY PROVIDE FOR A PCR TO BE FILED IN A MUNICIPAL COURT WHERE THE
CONVICTION AROSE IF A DEFENDANT IS FACING AN ENHANCED SENTENCE BASED ON THAT. IN KAS
AS I SAID DEE THIS COURT SPECIFICALLY RELAXED THE FIVE-YEAR TIME LIMIT FOR DOING SO IN
THESE DENNIS CASES SO IF A DEFENDANT DOESN'T LEARN THAT HE IS A DENNIS DEFENDANT UNTIL
HE IS FACING AN ENHANCED SENTENCE BASED ON THAT CONVICTION, THAT'S NOT A BAR TO HIM DOING
SO AT THAT STAGE. THE COURT: AND THEN IN THE SECOND -- I HAVE A BUNCH OF
QUESTIONS ON THIS AND YOU'RE HELPING US. REGINA M. OBERHOLZER: IT'S COMPLICATED.
THE COURT: IN THE SECOND CASE, IS IT PUT ON HOLD AS TO SENTENCING UNTIL
THE OUTCOME OF THE PCR MATTER IN THE OTHER COURT IS RESOLVED. REGINA M.
OBERHOLZER: YES, THAT WAS ALSO ADDRESSED IN CAST AS I SAID DEE CASSIDY. THE
COURT: CAN AN INDIVIDUAL GET ASSIGNED COUNSEL AS TO THE FIRST CONVICTION. REGINA
M. OBERHOLZER: I DON'T BELIEVE THAT WAS ADDRESSED BUT I WOULD THINK SO. THE COURT:
WHY NOT PROCEED IN THE ONGOING SECOND COURT CASE. I AM TRYING TO FIGURE OUT WHAT IS
THE MOST SENSIBLE WAY FOR THIS TO TAKE PLACE, WHY HAVE TWO PROCEEDINGS RATHER THAN ONE
CONSOLIDATED PROCEEDING. REGINA M. OBERHOLZER: THE RECORDS ARE MOST LIKELY,
TO THE EXTENT THEY EXIST ARE MOST LIKELY TO EXIST IN THE FIRST COURT OF JURISDICTION.
THE COURT: BUT THEY CAN EASILY BE UNDERSTOOD BY JUDGES WHO HANDLE THESE
KINDS MUCH MATTERS REGARDLESS OF WHERE THEY ARISE. REGINA M. OBERHOLZER:
THESE AREN'T SIMPLE STRAIGHTFORWARD WAS IT A DENNIS CASE OR WAS IT NOT A DENNIS CASE.
JUSTICE WAINER APTER: THAT WAS MY QUESTION ACTUALLY, SO CAN I ASK THAT.
ARE YOU SUGGESTING THAT THE DEFENDANT HAS TO FILE A PCR TO FIGURE OUT IF IT
WAS A DENNIS CASE OR NOT OR I THOUGHT YOU HAD ACTUALLY COME TO THE POSITION THAT THE SECOND
JUDGE IN THE SECOND MATTER UPON WHICH THE PERSON COULD RECEIVE THE ENHANCED SENTENCE CAN
PRESIDE OVER THE DISCOVERY PROCESS SUCH THAT THE DEFENDANT FINDS OUT WHETHER THEY ACTUALLY
-- WHETHER THE ORIGINAL CONVICTION WAS BASED ON A CALIBRATION FROM A DENNIS -- SORRY,
WAS BASED ON A BAC READING FROM AN INSTRUMENT THAT HAD BEEN CALIBRATED BY SERGEANT DENNIS
AN THE PCR WOULD NOT BE NECESSARY TO FIGURE OUT IS IT A DENNIS CASE OR NOT, IT WOULD ONLY
BE NECESSARY IF IT IS A DENNIS CASE AN THE DEFENDANT THEN WANTS TO MOVE TO HAVE THAT
CONVICTION VACATED BECAUSE IT IS A BAC LEVEL THAT ORIGINAL NAD FROM A DENNIS KAL BRAID
MACHINE. REGINA M. OBERHOLZER: THERE ARE TWO QUESTIONS, WAS THE BAC IN THE
FIRST CASE A DENNIS CASE SO IF THE PERSON WAS TESTED ON AN AL AL MACHINE THAT RESULTED
IN AN EVIDENTIAL BAC SO ACTUALLY ENDED UP WITH A BAC RESULT AND THE PERSON WOULD BE ON
THAT LIST EVEN IF THE BAC IS ZERO AND THEY COULD BE CONVICTED WITH A ZERO BAC IF THEY WERE
CONVICTED OF DRUGS, FOR EXAMPLE. THE COURT: SAY THAT AGAIN. REGINA
M. OBERHOLZER: SO SOMEBODY COULD HAVE A BAC OF ZERO AND STILL BE CONVICTED OF DWI IF THEY
WERE UNDER THE INFLUENCE OF NARCOTICS. IN THAT CASE, THE FACT THAT THEY HAD A BAC ON A
DENNIS CALIBRATED MACHINE IS NOT ACTUALLY GOING TO HAVE AFFECTED THE OUTCOME OF THEIR
CONVICTION. THEY COULD, ALSO, IN MANY OF THESE CASES, THE BAC RESULTS MAY HAVE
BEEN SUPPRESSED FOR SOME REASON. MY UNDERSTANDING IS THAT IN SOMETHING LIKE A
THIRD OF THESE PCRS THAT HAVE BEEN LITIGATED SO FAR THE BAC RESULTS DID NOT COME IN.
JUSTICE WAINER APTER: DID NOT COME IN ORIGINALLY YOU MEAN. REGINA
M. OBERHOLZER: RIGHT. SO ABOUT 1200 OF THESE CASES WERE LITIGATED AN CONSOLIDATED
PROCEEDINGS IN THE FIVE MAIN COUNTIES WHERE DENNIS WAS CALIBRATING THESE MACHINES AND IN
ABOUT A THIRD OF THEM, MY UNDERSTANDING IS THE BAC NEVER ACTUALLY CAME IN AND SO IN THOSE
PCRS THOSE DEFENDANTS DIDN'T GET RELEASED BECAUSE THE BAC RESULTS DIDN'T AFFECT THE OUTCOME
OF THE PROCEEDINGS. JUSTICE WAINER APTER: COULD YOU GO BACK TO MY QUESTION
ARE YOU SUGGESTINGING YOU HAVE TO FILE A PCR TO FIND OUT IF THEY ARE A DENNIS CASE?
REGINA M. OBERHOLZER: NO. JUSTICE WAINER APTER: OKAY.
REGINA M. OBERHOLZER: WHAT WE SUGGEST IS THAT IN THE FIRST INSTANCE IF SOMEBODY IS FACING
AN ENHANCED SENTENCE AS A RESULT OF A PRIOR DWI THAT OCCURRED DURING THAT EIGHT AND A HALF
YEAR TIME FRAME, THE S-152 WOULD BE CHECKED TO DETERMINE THE ALCOTEST SERIAL NUMBER AND
THEN THAT WOULD BE CROSS REFERENCED AGAINST THE CALIBRATION REPOSITORY TO SEE IF SERGEANT
DENNIS CALIBRATED THAT MACHINE AT THAT TIME. IF SO, THAT INFORMATION AND THE
CALIBRATION RECORDS WOULD BE PROVIDED TO THE DEFENSE. THEY COULD THEN SEEK A STAY AND
FILE A PCR IF THEY WANTED TO, I WOULD THINK THEY WOULD, BUT THEY MAY KNOW THAT THE AL
AL RESULTS WEREN'T ADMITTED AND THEN THEY WOULD KNOW THAT THEY DIDN'T HAVE ANY REASON
TO. THEY COULD SEEK A PCR IN THE COURT WHERE THE CONVICTION WAS ENTERED AND CHALLENGE
THAT CONVICTION. THE COURT: YOU SAID THERE WERE TWO QUESTIONS AN YOU ANSWERED
THE FIRST QUESTION. REGINA M. OBERHOLZER: THAT'S THE SECOND STAGE TO FILE
THE PCR, FIRST THERE IS A DETERMINATION IN THE SENTENCING COURT AS TO WHETHER THEY WERE
A DENNIS DEFENDANT AN THEN THE SECOND STEP IS IF THEY ARE THEY CAN FILE A PCR.
CHIEF JUSTICE RABNER: HYPOTHETICALLY YOU ARE ARRESTED IN NEW BRUNSWICK ON A DWI, IT'S
YOUR SECOND ARREST, YOU HAVE A PRIOR CONVICTION ALSO IN NEW BRUNSWICK, YOU SHOW UP IN
NEW BRUNSWICK MUNICIPAL COURT ON THE SECOND CASE AN THE JUDGE THEN AT SOME POINT SENDS
YOU DOWN THE HAUL HALL TO ANOTHER JUDGE IN NEW BRUNSWICK TO HANDLE THE PCR AFTER WHICH
IT COMES BACK TO THE FIRST COURTROOM. IS THAT THE MOST SENSIBLE APPROACH OR
PERHAPS ANOTHER WAY TO ASK THE QUESTION IS WOULD THE STATE OR THE DEFENSE BE HARMED IF
WE HAD A CONSOLIDATED PROCEEDING AND IF SO, HOW? REGINA M. OBERHOLZER:
WELL, EVEN AFTER THE PCR IS GRANTED, THE STATE STILL HAS THE OPTION OF CHARGING AGAIN.
THEY DON'T HAVE TO DISMISS THOSE CHARGES, THEY CAN STILL SEEK AN OBSERVATION ONLY
CONVICTION. THERE IS STILL THE OPTION OF PLEADING THAT DOWN. JUSTICE PIERRE-LOUIS:
WITH REGARD TO THE FIRST. REGINA M. OBERHOLZER: WITH REGARD TO THE FIRST.
THIS COURT RELAXED THE RESTRICTION ON GUILTY PLEAS AN DWIS IN DENNIS CASES AN THE
LEGISLATURE HAS JUST PASSED AN AMENDMENT ALLOWING FOR GUILTY PLEA NEGOTIATIONS IN DWIS,
AS WELL SO THERE COULD STILL BE A CONVICTION ON THAT ULTIMATELY SO THERE COULD BE A
CONSOLIDATED PROCEEDING, I SOES IN THE SAME JURISDICTION, BUT IT WOULD HAVE TO ALLOW FOR
THE STATE TO STILL SEEK A CONVICTION BEFORE SENTENCING SFLFRMTHS WHATEVER THE APPROPRIATE
PROCEEDINGS IN BOTH COURTS, I AM ASKING WITH AN EYE TOWARD FESHS IN LIGHT OF THE VOLUME
OF CASES THAT WE FACE, IS EITHER SIDE HARMED BY A CONSOLIDATED PROCEEDING THAT WOULD ALLOW
WHAT WOULD TAKE PLACE IN BIFURCATED COURTROOMS TO TAKE PLACE IN JUST ONE? HAD.
REGINA M. OBERHOLZER: AS LONG AS THE STATE IS STILL ALLOWED TO SEEK -- YOU KNOW, IS GIVEN
TIME TO GET THE RECORDS FROM THE OTHER JURISDICTION. I MEAN, IF TWEER OAE DEALING
WITH TWO KOUPT TEASE NOT JUST TWO MUNICIPALITIES IN THE SAME COUNTY BUT TWO COUNTIES.
THE COURT: OF COURSE. REGINA M. OBERHOLZER: AND HAS TIME TO
GET THAT INFORMATION AND THE MUNICIPALITY OF THE ORIGINAL JURISDICTION IS GIVEN THE
OPPORTUNITY TO PURSUE REPROSECUTING THAT CASE BEFORE A SENTENCING DECISION IS MADE AND
THAT'S A PRIMARY CONCERN. THE COURT: YOU'RE THINKING PROSECUTOR ONE MAY
NOT WANT TO TRAVEL TO A DIFFERENT COUNTY. REGINA M. OBERHOLZER: PROSECUTOR
NO. 1 MAY NOT WANT A DIFFERENT JURISDICTION MAKING THE DECISION IN WHAT HAPPENS IN THAT
CASE OR MAY NOT WANT A JUDGE IN ANOTHER COUNTY MAKING THE DECISION ABOUT WHETHER TO ACCEPT
THAT GUILTY PLEA. THE COURT: WHY SHOULD THAT MATTER. REGINA M.
OBERHOLZER: I DON'T KNOW. I MEAN WE COULD -- YOU KNOW, AS LONG AS IT IS NOT A QUESTION
OF THE JUDGE IN THE SENTENCING COURT SAYING YOU'RE A DENNIS DEFENDANT, THE BAC SHOULD
HAVE BEEN THROWN OUT WE'RE THROWING IT OUT AN WE'RE SENTENCING YOU AS A FIRST OFFENDER
WHICH IS ESSENTIALLY WHAT THE APPELLATE DIVISION DID HERE. JUSTICE MICHAEL
NORIEGA: BUT A COURT COULD COME TO THE THAT CONCLUSION. I MEAN, A MUNICIPAL JUDGE COULD
REACH THAT DECISION. REGINA M. OBERHOLZER: IF A JUDGE REACHES THAT
DECISION, THE MUNICIPAL PROSECUTOR STILL HAS THE OPTION OF PURSUING THE CHARGES AGAIN.
JUSTICE MICHAEL NORIEGA: OF COURSE, WITHOUT THE BAC. REGINA M.
OBERHOLZER: RIGHT, BUT THE SENTENCING JUDGE MAKES THAT DECISION AND IMPOSES SENTENCE AS
A FIRST OFFENDER WITHOUT GIFK THE INITIAL PROSECUTOR THE OPTION THAT'S WHAT WE'RE
TALKING ABOUT SGLFRMENT YOU'RE TALKING ABOUT GUILTY PLEA CASES NOT ABOUT TRIALS BASED ON
A BAC. REGINA M. OBERHOLZER: EITHER IF THE CHARGES ARE THROWN OUT THE PROSECUTOR
STILL HAS THE OPTION OF RETRYING THE CASE. THE COURT: SO HELP ME, I MAY
BE OFF BASE ANNUAL OAE CORRECT ME. YOU'RE CHARGED WITH A CRIME, THE STATE IS GIVEN ITS
BURDEN TO COME FORWARD, THE PROSECUTION COMES FORWARD WITH ITS CASE AN IT LOSES IT BASES
ITS CASE ENTIRELY ON A BAC, CAN IT THEN COME BACK AND SAY JUDGE I WANT TO DO IT BASED
ON OBSERVATION, CAN IT GET A SEPARATE TRIAL WITHOUT RUNNING INTO DOUBLE JEOPARDY ISSUES?
REGINA M. OBERHOLZER: IN A DISCOVERED EVIDENCE CASE.
JUSTICE WAINER APTER: IN THIS CASE WOULDN'T THE PROSECUTION HAVE WON, NOT LOST THE FIRST
TIME BECAUSE IF THE PERSON LOST THE FIRST TIME AND THE PERSON IS IS ACQUITTED.
REGINA M. OBERHOLZER: IF WE WON. JUSTICE WAINER APTER: THEN A COURT DECIDED
THAT A PIECE OF THE EVIDENCE THAT WENT INTO THE PROSECUTION'S WIN WAS INADMISSIBLE SO
CAN THE PROSECUTOR THEN TRY THE PERSON AGAIN WITHOUT THAT ADMISSIBLE EVIDENCE.
REGINA M. OBERHOLZER: YES. CHIEF JUSTICE RABNER: SO LET'S MAKE IT SIMPLER.
FORGET ABOUT DENNIS, YOU HAVE A TRIAL, IT TAKES PLACE IN MUNICIPAL KOFRT 1 AND THE STATE
PUTS IN ALL THE EVIDENCE IT CHOOSES TO PUT IN AND THE APPELLATE KWIGS SAYS REVERSEDED,
DOES IT GET TO HAVE A SECOND TRIAL ON ENTIRELY DIFFERENT EVIDENCE THAT IF SELECTED NOT
TO PROCEED THE FIRST TIME. REGINA M. OBERHOLZER: IF THE COURT FOUND THE
EVIDENCE WE PRESENTED WAS INSUFFICIENT WE WOULD NOT BE ABLE TO PROCEED BUT IF THE COURT
FOUND SOME OF OUR EVIDENCE SHOULD HAVE BEEN SUPPRESSED THIS COURT WOULD REMAND FOR A NEW
TRIAL WITHOUT THE SUPPRESSED VIOLENCE. JUSTICE WAINER APTER: OR IF THE COURT
FOUND THERE HAD BEEN A BRAID DEE VIOLATION YOU WOULD -- REGINA M. OBERHOLZER:
YES, WITHOUT THE INADMISSIBLE EVIDENCE SFLFRMENTS AND IF YOUR WHOLE CASE IS BASED ON A
BAC, LET'S IMAGINE THIS WORLD IS CONDENSED AND FOR SOME REASON THE BAC IS THROWN OUT,
YOU GET TO GO BACK AND RETRY THE CASE ON OBSERVATIONAL EVIDENCE? REGINA
M. OBERHOLZER: WELL. THE COURT: PREDENNIS. REGINA M. OBERHOLZER:
SOME OF THESE CASES MAY HAVE HAD OBSERVATIONAL EVIDENCE WE DOPE KNOW. THE
COURT: MY QUESTION IS ON DOUBLE JEOPARDY GROUNDS CAN YOU TRY A CASE ON THIS SET OF EVIDENCE
AND THEN IF IT'S TOSSED FOR WHATEVER REASON, THE BAC WAS FLAWED, YOU CAN TRY THE CASE
ON AN ENTIRELY DIFFERENT GROUND THE SECOND TIME? REGINA M. OBERHOLZER:
WE CAN TRY THE CASE WITH WHATEVER EVIDENCE WE HAVE AVAILABLE AN IN SOME OF THESE CASES
BOTH OBSERVATIONAL AN BAC EVIDENCE MAY HAVE BEEN ADMITTED; THAT'S ONE OF THE THINGS I'M
SAYING WE DON'T KNOW WHAT OTHER EVIDENCE MAY HAVE BEEN ADMITTED. JUSTICE
PATTERSON: ARE YOU SAYING ILTHS THE OAE KWIFL LENT OF THE APPELLATE DIVISION'S DISPOSITION
OF A CRIMINAL MATTER BY REVERSING THE CONVICTION AN SENDING THE CASE BACK FOR A NEW TRIAL.
REGINA M. OBERHOLZER: RIGHT. JUSTICE PATTERSON: WHICH WOULD
NOT ORDINARILY -- REGINA M. OBERHOLZER: I DON'T WANT WE WOULD BE LIMITED
IN WHAT EVIDENCE WE COULD INTRODUCE IF WE HAD COME A CROSS-OVER NEW EVIDENCE IN THE
MEANTIME I THINK WE WOULD BE ALLOWED TO ADMIT THAT AS WELL, BUT I THINK THAT -- AS LONG AS
THE STATE'S ABILITY TO MAKE THAT DECISION -- I MEAN THE REALITY IS MOST OF THESE CASES
ARE VERY OLD. JUSTICE PATTERSON: DOESN'T THAT REQUIRE A LOT OF CAREFUL
ATTENTION TO THE ACTUAL NATURE OF THE DISPOSITION ON APPEAL OF THE DENNIS-RELATED CASE?
IN OTHER WORDS, IS IT DISMISSED OR IS IT VACATED OR REVERSED AND THEN REMANDED,
WHICH WOULD NOT TYPICALLY VIOLATE DOUBLE JEOPARDY. REGINA M. OBERHOLZER:
IT SHOULD BE VAEK INDICATED AND REVERSED AS IN ANY OTHER CASE WHERE A PIECE OF EVIDENCE IS NO LONGER ADMISSIBLE BUT FIRST THE DECISION NEEDS TO BE MADE AS TO WHETHER THAT PIECE
BUT -- YES, DID THAT ANSWER YOUR QUESTION. JUSTICE PATTERSON: YES. IT JUST
SEEMS TO ME THAT THERE COULD BE DISPOSITIONS THAT WOULD CAUSE DOUBLE JEOPARDY ISSUES IF
THE STATE SAID OKAY, WE'RE GOING BACK AN RETRYING THIS PERSON. REGINA M.
OBERHOLZER: DOUBLE JEOPARDY ISSUES ARE MOSTLY GOING TO ARISE WITH A DEFENDANT ON ACQUITTAL.
JUSTICE PATTERSON: OR -- WELL, CERTAINLY IF THERE IS AN ACQUITTAL, BUT --
THE COURT: LET'S GO BACK TO THE ROADWAY WE SHOULD BE ON FOR THE MOMENT.
JUSTICE MICHAEL NORIEGA: COULD YOU GIVE US YOUR FIEM POSITION ON WHETHER OR NOT
THE MATTERS COULD ALL BE RESOLVED IN ONE COURT JUST TO BUTTON THAT UP. REGINA
M. OBERHOLZER: AGAIN, THEY COULD BE IF THE STATE WAS GIVEN THE OPPORTUNITY TO PURSUE --
TO MAKE A DETERMINATION AS TO WHETHER THEY HAD THE OPTION TO PURSUE THE CHARGES IN SOME
FORMAT AFTER A DETERMINATION BEFORE RESENTENCING ON THE -- BEFORE SENTENCING ON THE
SUBSEQUENT. JUSTICE MICHAEL NORIEGA: IT'S THE PROSECUTOR'S DECISION WHETHER OR NOT
TO PROCEED WITH A CASE UNLESS THE COURT FINDS A LEGAL BASIS TO DISMISS IT.
REGINA M. OBERHOLZER: BUT THAT'S NOT WHAT HAPPENED HERE. THE APPELLATE DIVISION
DETERMINED THAT WE HADN'T PROVEN BEYOND A REASONABLE DOUBT THAT MR. ZINGIS WAS NOT A
DENNIS DEFENDANT AND ORDERED THAT HE BE SENTENCED AS A FIRST OFFENDER. JUSTICE
MICHAEL NORIEGA: ARE YOU SAYING THAT'S NOT THE RIGHT STANDARD. REGINA M.
OBERHOLZER: IT'S NOT THE RIGHT STANDARD EVEN PROVING EXISTENCE OF A PRIOR CONVICTION
ONLY NEEDS TO BE PROVEN BY A PREPONDERANCE OF THE EVIDENCE. IF THERE HAD BEEN A PCR HEARING,
THE STATE CONCEDES THAT EVEN THOUGH NORMALLY IN PCR HEARINGS THE BURDEN IS ON THE DEFENSE
GIVEN THE UNIQUE CIRCUMSTANCES OF THESE CASES AND THE FACT THAT MALFEASANCE WAS BY A
STATE EMPLOYEE THE BURDEN ASK ON THE STATE TO ESTABLISH THAT THE DENNIS' ACTIONS DIDN'T
ADVERSELY AFFECT THE DEFENSE, BUT THAT'S AT A PCR HEARING. JUSTICE MICHAEL
NORIEGA: IN TERMS OF THE INNOCENCED SENTENCING WHOSE BURDEN IS THAT TO APPROVE BEFORE
A JUDGE CAN SENTENCE SOMEBODY TO ENHANCED SENTENCING. REGINA M.
OBERHOLZER: IT'S THE STATE'S BURDEN TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT
A DEFENDANT HAS A PRIOR CONVICTION. JUSTICE MICHAEL NORIEGA: WHERE IS THAT
STATED? WHAT IS YOUR SOURCE OF THAT? REGINA M. OBERHOLZER:
STATE V. OL VER, WHICH IS 162 N J 580 INTERPRETED 2C:1-13 D 2 LANGUAGE THAT THE PRIOR
CONVICTION NEEDS TO BE PROVEN TO THE SATISFACTION OF THE COURT AS REQUIRING PRIOR CONVICTIONS
IN THE CONTEXT OF THREE STRIKE LAWS NEED ONLY BE PROVEN BY A PREPONDERANCE OF THE EVIDENCE.
JUSTICE MICHAEL NORIEGA: WHAT WAS THE STATUTE CITATION. REGINA M.
OBERHOLZER: 2:00:1-13 D 2 AND THAT'S NOT THE THREE STRIKE CALL THAT'S JUST THE GENERAL
BURDENS. THE COURT: ON A QUESTION OF WHICH COURT IT WOULD BE HELPFUL TO
HEAR FROM ALL COUNSEL ON THIS AND WE MIGHT BENEFIT FROM THE A O C'S INPUT AS WELL.
MY MAIN QUESTION IS, IS THERE A HARM AND I HAVEN'T HEARD ONE ARTICULATED YET.
REGINA M. OBERHOLZER: WHEN CASSIDY FIRST CAME OUT THIS COURT CONSOLIDATED ALL OF THESE
CASES IN THE FIVE PRIMARY COUNTIES WITH THE EXCEPTION OF THE HANDFUL OF CASES IN THE AD
JACENT KOUPT TEASE AND AT SOME POINT JUDGE FALL DETERMINED THAT THAT WAS NO LONGER NECESSARY
AND THE CASES COULD BE TRIED BACK IN THE COUNTIES OF ORIGINAL JURISDICTION BECAUSE THERE WERE
SIMPLY NOT THAT MANY OF THEM ARISING ANYMORE AND I DON'T KNOW THAT THAT DETERMINATION
HAS LOST ITS TEETH. HE RECOMMENDED THAT THEY BE TRIED IN THE COURTS THE COUNTIES ORIGINAL
LY. THE COURT: I APPRECIATE THAT THIS BE A NEW PROCESS THAT'S WHY I AM ASKING
HOW WOULD IT HURT THE STATE, HOW WOULD IT HURT THE DEFENSE. REGINA M.
OBERHOLZER: I DON'T KNOW THERE IS ANY REASON THEY KPT BE CONSOLIDATED IN THE COUNTY --
IN THE SAME COURT, BUT I WOULD SAY IF THE COURT IS GOING TO IMPOSE A DIFFERENT BURDEN
OR CHANGE THE STANDARD FOR SENTENCING WHAT THE STATE NEEDS TO PROVE AT SENTENCING FOR
A SECOND -- FOR USING A CONVICTION AS AN ENHANCEMENT BASICALLY IMPOSE A PCR BURDEN AT
SENTENCING TO PROVE THE VALIDITY OF THE PRIOR CONVICTION THAT IF THE COURT FINDS THAT
WE DID NOT DO SO IN MR. ZINGIS' CASE THAT WE BE AA LOUD TO DO SO ON REMAND. THE
COURT: THE SUGGESTION IS ALL THE LEGAL PRINCIPLES WOULD BE THE SAME AS IF THIS WERE A
BIKE FUR INDICATED PROCEEDING. JUSTICE WAINER APTER: AND YOU WOULD STILL
WANT TO BE ABLE TO HAVE TWO OFFERINGS, ONE THAT PCR IS NOT ALWAYS GRAPTD BECAUSE IN SOME
CASES YOU SAID PCR WAS NOT GRANTED BECAUSE IT TURNS OUT THE BAC LEVEL WAS ZERO OR THE
BAC LEVEL HAD NOT BEEN ACTUALLY ADMITTED IN THE TRIAL OR THAT IF PCR IS GRANTED THAT YOU
COULD THEN RETRY WITHOUT WHICHEVER EVIDENCE WAS INADMISSIBLE BEING ADMITTED.
REGINA M. OBERHOLZER: RIGHT AND OF COURSE THE OFF RAMP OF A DENNIS AFFECTED DEFENDANT.
JUSTICE WAINER APTER: YOU SAID THEY WOULDN'T HAVE TO FILE PCR TO FILL THAT
OUT YOU ARE STIPULATING THEY COULD FIGURE THAT OUT WITHOUT FILING FOR PCR SO THEY DON'T
HAVE TO FILE FOR PCR IF THEY KNOW THEY ARE A DENNIS DEFENDANT BECAUSE OF CHECKING S-152
AND THE DENNIS REPOSIT TORE RE. REGINA M. OBERHOLZER: RIGHT NOW, IF SOMEONE
IS NOT A DENNIS DEFENDANT THERE IS NOT A DOCUMENT THAT SAYS THAT YOU GET A PAGE FROM AN
EXCEL SPREADSHEET THAT HAS 25 OF THEIR NAMES ON IT AN THE MUNICIPAL PROSECUTOR LIAISON
FOR THE COUNTY COULD VERY EASILY DO A FORM LETTER THAT SAID WE SEARCHED THE -- YOU KNOW,
S-152 AND SO AND SO WAS ES THEED ON THIS DATE ON THIS ALCOTEST NUMBER WITH A SERIAL NUMBER,
IT WAS CALIBRATED BY COORDINATOR X -- COORDINATOR NOT DENNIS, COORDINATOR DENNIS OR WE
WOULD GIVE THE COORDINATOR'S NAME OR IT WAS DENNIS ON SUCH AND SUCH A DATE AN WE WOULD
DO THE SAME FORM LETTER REGARDLESS IF IT WAS AN IF IT WAS DENNIS OBVIOUSLY WE WOULD PROVIDE
THE COORDINATION. JUSTICE PATTERSON: IS IT ALPHABETICAL. REGINA M.
OBERHOLZER: IT IS AN EXCEL SPREADSHEET SO IT CAN BE SORTED ANY WAY YOU WANT BUT IN ITS
TURPT FORM THE WAY IT WAS PROVIDED TO THE COURT IN THE ONLINE INDEX THAT WAS PROVIDED
TO THE COURT AS AN ELECTRONIC ATTACHMENT TO THE SPECIAL MASTER'S REPORT IT'S ACTUALLY
SUPPORTED ALPHABETICALLY BY SERIAL NUMBER OF THE ALCOTEST MACHINES. THE COURT:
ONE MORE QUESTION WITH RESPECT TO THE SECOND TRIAL IF THERE NEEDED TO BE ONE, DO THE
CHARGING DOCUMENTS IN THESE CASES OOSHLY LIST A BAC LEVEL IF THAT'S THE BASIS OR IS IT
A MORE GENERALIZED DESCRIPTION OF THE CRIME IN YOUR EXPERIENCE. REGINA M.
OBERHOLZER: I DON'T KNOW. THE COURT: OKAY. OTHER QUESTIONS ON
THAT FIRST POENT? DUPT TO MOVE ON TO THE EXHIBIT? REGINA M.
OBERHOLZER: YES, ACTUALLY MY LAST POINT SERVES MY FIRST POINT. ALLOWING ANYBODY WHO
THINKS THEY MIGHT HAVE BEEN A DENNIS AFFECTED DEFENDANT TO SEARCH S-152 UNDER A PROTECTIVE
ORDER YOU'RE TALKING ABOUT ANYBODY WHO THINKS THEY WERE MAYBE ARSZ FOR DWI IN THAT 8 AND A
HALF YEAR TIME PERIOD BECAUSE THEY MAY BE WRONG ABOUT THE TIME PERIOD THEY MAY BE OFF BY
SIX MONTHS OR A YOU ARE. THEY'RE GOING TO PULL UP EVEN IF THEY LOOK AT THE
PAGE THEIR NAME COMES UP THEY'RE LOOKING AT 25 TO 40 OR MORE NAMES DEPENDING ON THE SIZE OF THEIR SCREEN. NOT JUST THEIR OWN NAME AND ASSUMING THEY DON'T HAVE A NAME THAT COMES
IT'S NOT LIKE SEARCHING FOR YOUR NAME IN A DATABASE AND YOU ONLY GET YOUR PAGE RESULT
LIKE SEARCHING IN THE MUNICIPAL COURT RECORDS FOR YOUR ABSTRACT, YOU'RE GETTING THE NAMES
OF -- YOU KNOW, BECAUSE IT'S PULLING UP THE RESULTS BY ALCOTEST MACHINE IT'S THE PEOPLE
WHO WERE TESTED IN THE MUNICIPALITY WHERE YOU WERE STOPPED AT THE TIME YOU WERE STOPPED.
VERY LIKELY YOUR FRIENDS AND NEIGHBORS, YOUR KID'S KIND GART TEN TEACHER THE LOCAL LI
BRARIAN, THE PERSON WHO IS RUNNING FOR MAY OR NEXT WEEK, NO INFORMATION AS TO WHETHER THEY WERE
ACQUITTED AND IT'S KIND OF HARD TO UNSEE. YOU KNOW, WE MAY BE ABLE IF WE WERE TO PROVIDE
A PRINTOUT OF IT TO TAKE A BLACK MARKER AND BLACK OUT EVERY LINE BUT THE RELEVANT ONE
BUT IF SOMEBODY IS SEARCHING FOR THEMSELVES BEST INTENTIONS NOTWITHSTANDING THEY ARE GOING
TO SEE A LOT OF NAMES THEY KNOW BECAUSE IT'S THE ALCOTEST MACHINE MORE OFTEN THAN NOT
FOR THEIR LOCAL MUNICIPAL POLICE DEPARTMENT. AND THAT'S A LOT OF PEOPLE --
JUSTICE PATTERSON: IS IT PRACTICAL TO DO WHAT IS SOMETIMES DONE IN CIVIL LITIGATION THAT IS
HAVE AN ATTORNEY'S EYES ONLY PROTECTIVE ORDER. REGINA M. OBERHOLZER: WE'RE
AGAIN TALKING ABOUT ATTORNEYS FOR THEORETICALLY TENS OR HUNDREDS OF THOUSANDS OF PEOPLE.
IT'S A LOT OF EYES ON A DATABASE THAT -- AN EXCEL SPREADSHEET THAT WAS CREATED FROM A
DATABASE CONTAINING PERMANENT IDENTIFYING INFORMATION FROM PEOPLE THAT WE'VE ALREADY --
WE ALREADY KNOW MANY OF THEM ARE HARD -- WE CAN'T FIND AN ADDRESS FOR TO LET THEM KNOW
THEIR INFORMATION IS GOING TO BE LOOKED AT BY MANY, MANY PEOPLE AND THIS COURT HAS ALREADY
INDICATED CONCERN FOR THAT INFORMATION BEING SEEN BY TOO MANY PEOPLE BY ORDERING THAT
THAT INFORMATION BE REDABTD FROM THE PUBLIC SAFETY DATABASE IN CHUN AND TO THE STEPT --
THE STATE ITSELF HAS A CONCERN ABOUT THAT. WE ARE NOT ALLOWING ALL THE PROSECUTORS TO
SEE IT. WE HAVE ONE DESIGNATED PERSON IN EACH KOUPT TEE WHO CHECKS THE LIST FOR THE
MUNICIPAL PROSECUTORS. WE HAVE A LIAISON IN EACH COUNTY. WE HAVE A VERY SMALL OFFICE
IN THE ATTORNEY GENERAL'S OFFICE THAT CAN CHECK IT AND I BELIEVE THERE IS ONE PERSON IN
STATE POLICE WHO HAS THE AUTHORITY TO SEARCH THE AL ALCOTEST INFORMATION SYSTEM IN A WAY
THAT THEY CAN PRODUCE S-152 OR OTHER OF THE SPREADSHEETS IN THIS CASE THAT WOULD SHOW
NAMES. JUSTICE PATTERSON: IS THAT AN EXCEL DOCUMENT, ALSO. REGINA
M. OBERHOLZER: S-IS A 2 IS AN EXCEL DOCUMENT, BUT, YOU KNOW, RIGHT NOW, AS FAR AS PEOPLE
THE STATE HAS GIVEN ACCESS TO THAT ARE UNDER OUR AUTHORITY, THERE ARE ABOUT 25 US. IT IS
NOT SOMETHING WE'RE DISSEMINATING WIDELY. WHEN THE A O C CREATED A MUCH SMALLER LIST
AN DISSEMINATED IT TO A MUNICIPAL COURT, THEY ALSO DIRECTED THAT IT NOT BE RELEASED BECAUSE
OF CONCERN ABOUT THE PERMANENT IDENTIFYING INFORMATION. SO IT'S NOT JUST NAMES OR
ADDRESS ES IT'S DRIVER LICENSE NUMBERS, DATES OF BIRTH, INFORMATION THAT CAN BE USED TO
STEAL PEOPLE'S IDENTITIES AN ALSO OTHER INFORMATION YOU MIGHT NOT WANT YOUR NEIGHBORS
SEEING ABOUT YOU LIKE YOUR WEIGHT. IT'S JUST A LOT OF INFORMATION IN ADDITION TO THE FACT
THAT YOU WERE ARRESTED FOR A CRIME YOU MIGHT NOT EVEN HAVE BEEN CONVICTED OF.
JUSTICE PATTERSON: IS THERE ANY ALTERNATIVE TO GETTING AT THAT INFORMATION IN A WAY THAT
DOES PT RAISE THOSE CONCERNS. REGINA M. OBERHOLZER: IF AN ATTORNEY DOESN'T
TRUST THE INFORMATION PROVIDED BY THE STATE THEY CAN ASK THE OO A O C WHO HAS A COPY OF THE
LIST TO CONFIRM IT. JUSTICE WAINER APTER: WHEN YOU SAY THE INFORMATION
PROVIDED BY THE STATE SO YOU'RE AGREEING YOU WOULD PROVIDE THE LINE IN S-152 THAT HAS
THE CLIENT'S NAME. REGINA M. OBERHOLZER: WE COULD DO THAT. UNFORTUNATELY
THE LINE IS 30 COLUMNS LONG SO IT'S CUMBERSOME. IT WOULD BE EASIER TO PROVIDE A SIGNED
LETTER FROM THE MUNICIPAL PROSECUTOR LIAISON IN THE COUNTY PROVIDING THE REL VAPT INFORMATION
FROM THAT, THE NAME OF THE COORDINATOR THE DATE OF THE TEST, THE MUNICIPALITY AND THE
SERIAL NUMBER, WHICH THEN COULD BE USED TO CROSS CHECK THE A I S, THAT'S ONE SEARCH R,
ONE $5 SEARCH. IT COULD BE CROSS CHECKED, YOU CAN CALL UP THE MUNICIPAL COURT, THE A
O C OR WHOEVER IN THE COURTS HAVE ACCESS TO THE LIST AN ASK THEM TO DOUBLE CHECK IT.
IT WOULDN'T HAVE TO BE SOMETHING THAT WOULD HAVE TO BE WIDELY AVAILABLE TO ANYBODY WHO
CALLED UP AND REPRESENTED TO THE COURT THAT THEY HAD A REASON TO HAVE THE LIST.
JUSTICE PATTERSON: SOMEBODY'S NAME AND THERE IS A DENNIS-RELATED CALIBRATION ON THE A
I S, THEY DON'T HAVE TO LOOK AT A SECRETARY DOCUMENT, DO THEY? THEY HAVE
THE INFORMATION THEY NEED IN ORDER TO TRY TO AFFECT SENTENCE FOR THE CURRENT --
REGINA M. OBERHOLZER: THEIR NAMES ARE NOT ON THE A I S. JUSTICE PATTERSON:
NAMES ARE NOT ON THE A I S. REGINA M. OBERHOLZER: THAT'S ONE OF THE THINGS
THIS COURT ORDERED REDACTED. THAT'S WHY THERE NEEDS TO BE ANOTHER DOCUMENT.
JUSTICE WAINER APTER: AND YOU ARE ABLE TO PROVIDE THAT FOR THE ONE INDIVIDUAL NOT JUST
ALL 236,000. REGINA M. OBERHOLZER: THIS WAS A DOCUMENT THAT THE SPECIAL
MASTER DECIDED WAS THE MOST RELIABLE TO MAKE SURE NOBODY WAS FALLING THROUGH THE CRACKS.
IF WE TRY AND CREATE A LIST OF PEOPLE WE KNOW ARE DENNIS DEFENDANTS -- JUSTICE
PATTERSON: CAN PEOPLE USE THE A I S INDEPENDENTLY TO FIEPD OUT YES, THE PRIOR OFFENSE,
LAWYER, CLIEPT, SELF REPRESENTED PERSON, WHATEVER IT MAY BE, THE PRIOR OFFENSE WAS, IN
FACT A DENNIS-RELATED CALIBRATION, THEREFORE I'VE GOT WHAT I NEED. REGINA M.
OBERHOLZER: YOU CAN IF YOU HAVE THE RIGHT INFORMATION WHICH YOU CAN GATHER FROM --
JUSTICE PATTERSON: WHAT I AM SUGING IS, WOULD THAT REDUCE THE NUMBER OF PEOPLE
WHO WOULD HAVE TO LOOK AT THE S 152 DOCUMENT. REGINA M. OBERHOLZER: IF THEY HAVE
ACCESS TO S-152 THEY'RE GOING TO USE S-152 BECAUSE IT'S EASIER AND DOESN'T COST $5.
JUSTICE MICHAEL NORIEGA: FOR EXAMPLE, THE MUNICIPAL PROSECUTOR'S OFFICE.
REGINA M. OBERHOLZER: THE DIFFICULTY WITH THAT IS THEY'RE STILL NOT
JUST ONE NAME ON THE LIST. IT'S NOT LIKE RUNNING A SEARCH THROUGH THE MUNICIPAL COURT
DATABASE FOR THE NAME. IF YOU SEARCH FOR THE NAME YOU GET A WHOLE LIST OF NAMES SO YOU'RE
NOT PROTECTING THE PERMANENT INFORMATION OF EVERYBODY ELSE ON THAT PAGE. IF SOMEBODY
HAD A SPECIAL NEED, IF THEY PETITIONED THE COURT TO HAVE A SPECIAL NEED TO PRESENT A
REASON, THERE HAS BEEN A LOT OF SPECULATION ABOUT WHAT THAT REASON MIGHT BE, NO ONE HAS
COME UP WITH ONE THAT CONVINCES ME YET BUT IF SOMEBODY CAME UP WITH A NEED THAT WAS UNIQUE
THAT THEY COULD CONVINCE A TRIAL COURT THAT THEY NEEDED ACCESS TO THE LIST, THERE COULD
CERTAINLY BE EXCEPTIONS TO THAT, BUT GIVEN THE WAY THE LIST IS COMPILED AND THE AMOUNT
OF INFORMATION ON THAT LIST, I JUST HAVE CONCERNS ABOUT THE NUMBER OF PEOPLE WHO ARE ON
THAT LIST ON WHO DON'T KNOW THAT THAT INFORMATION IS BEING PUT OUT THERE TO PEOPLE WHO
MAY HAVE REASON TO SEE ONE PERSON'S NAME ON THE LIST, BUT DON'T HAVE REASON TO SEE ALL
THE OTHER NAMES ON THAT LIST. JUSTICE MICHAEL NORIEGA: ANYONE ON THAT LIST
WHO HAS BEEN CHARGED WITH DUI THAT INFORMATION EXISTS PUBLICLY. REGINA M.
OBERHOLZER: YES, BUT YOU HAVE TO KNOW HOW TO SEARCH FOR IT. YOU'RE NOT GOING TO
ACCIDENTALLY COME ACROSS IT SEFRPG INFORM SOMEONE ELSE. JUSTICE WAINER APTER: AND
SOME PEOPLE WERE NOT CHARGED. REGINA M. OBERHOLZER: YES, YOU MAY HAVE BEEN
ARRESTED AND NOT NECESSARILY CHARGED IF YOU COME BACK WITH A BAC AND THERE AREN'T INDICATIONS
OF DRUG USE AS WELL AND THERE ARE CERTAINLY A LOT OF PEOPLE WHO WERE ACQUITTED, A LARGE
NUMBER OF PEOPLE ON THE LIST BASED ON THE LIST OF JUST DENNIS DEFENDANTS THAT THE A O
C THEN RAN THE ACQUITTAL RATE WAS SOMETHING LIKE 32 PERCENT FROM THAT LIST SO IT'S A LARGE
NUMBER OF PEOPLE WHO -- AND THAT INFORMATION IS NOWHERE ON S-152 OR IN THE A I S SO...
JUSTICE MICHAEL NORIEGA: IS THERE ANY REASON TO BE CONCERNED ABOUT ATTORNEYS
OR MUNICIPAL PROSECUTORS TO MISUSE THAT INFORMATION? IS THERE ANY
GENUINE BASIS TO FEAR THAT? REGINA M. OBERHOLZER: IT IS NOT THAT THEY WILL
GO OUT AND PUBLICIZE IT, BUT IT'S A LOT OF PEOPLE AND A LOT -- BECAUSE OF THE NUMBER OF
PEOPLE WHO MAY HAVE REASON TO ACCESS THE LIST, IT'S A LOT OF PEOPLE'S EYES ON PERMANENT
INFORMATION THAT IS SUPPOSED TO BE KEPT PRIVATE AND WHEN THAT MANY PEOPLE ARE SEEING IT
THE PRIVACY ORDERED BY THIS COURT IN CHUN BECOMES ELUSIVE EVEN IF 1 PERCENT OF THE PEOPLE
ON THE LIST WANT TO LOOK AT IT THAT'S STILL 2,000 PEOPLE SEEING THAT, UP, MY NEXT DOOR
NAIB WAS NEIGHBOR WAS ARRESTED FOR DWI. JUSTICE PATTERSON: I MAY BE OVER
CONFIDENT IN TECHNOLOGY BUT WHAT PREVENS S-152 IN ITS CURRENT FORMAT TO BE REVISED SO
THAT SOME SOMEONE COULD PUT IN A NAME AND GET ONLY THE NAME? DO YOU SEE
WHAT I AM SAYING? REGINA M. OBERHOLZER: I HAVE NO IDEA.
JUSTICE PATTERSON: IF A I CAN CHANGE THE WORLD WHY COULDN'T -- REGINA M.
OBERHOLZER: THAT WOULD CERTAINLY ALLEVIATE A LOT OF CONCERNS. THE LIST AS IT KURPTLY
EXISTS IS NOT SOMETHING WE WOULD BE KFK HAVING... JUSTICE PIERRE-LOUIS:
IT IT DOES SEEM LIKE GIVEN IT IS AN EXCEL SPREADSHEET THAT A DATABASE COULD BE
GENERATED FROM THAT EXCEL SPREADSHEET DAUS ALL OF THE NECESSARY INFORMATION AN PERT NEPT
INFORMATION IS ALREADY CATEGORIZED SO THAT IS NOT SOMETHING THAT COULD BE REDONE DO YOU
THINK IT'S COST PROHIBITIVE TO CREATE SUCH A DATABASE THAT WOULD ALLOW SOMEONE TO SEARCH
SPECIFICALLY FOR THEIR NAME SIMILAR TO HOW THEY WOULD SEARCH MUNICIPAL COURT RECORDS AN
ONLY GET THEIR NAME. REGINA M. OBERHOLZER: THAT WASN'T EX SPLOERD AT ALL
IN FRONT OF THE SPECIAL MASTER. L THERE WAS NO DISCUSSION ABOUT THE COST. THERE WAS
CONCERN, I KNOW THAT THIS WAS ALL DMREENED FROM THE A I S WHICH IS A DATABASE THAT IS
MAY TAKENED BY THE SEARCH FEE BUT OF COURSE THIS INFORMATION CAN'T BE SEARCHED BY NAME
AND THAT IS ONE OF THE DOWN FALLS FOR -- IT CAN'T BE SEARCHED BY NAME AND BECAUSE IT IS
PUBLIC FACING WE DON'T WAPT IT -- IT IS COURT ORDERED THAT IT NOT BE. JUSTICE
PATTERSON: I UNDERSTAND IT DOESN'T RESOLVE ALL ISSUES BECAUSE SOMEBODY IS DONE WITH MY
NAME BUT I WOULD LIKE TO CHECK OUT ALL MY NEIGHBORS AN THE SIX PEOPLE UP HERE THAT I
WORK WITH AN ALL OF THIS AUDIENCE IT COULD BE ABUSED. REGINA M. OBERHOLZER:
ONCE YOU SEARCH BY NAME WHAT YOU FET UNLIKE WHEN YOU SEARCH THE MUNICIPAL COURT LIKE THE
ECOURTS WEBSITE WHICH IS PUBLICLY SEARCHABLE WEBSITE AT LEAST WHEN YOU SEARCH THERE YOU
SEE THE RESULTS, YOU SEE THAT IT WAS AN ACQUITTAL OR A GUILT OR YOU KNOW, WHICH IS --
AND YOU DOPE GET DRIVER LICENSE NUMBER I DON'T BELIEVE ON THAT PAGE SFLFRMENTS COULD THE
SPED SHEET BE REVISED THE TECHNOLOGY THAT IS BEYOND BY SKILL TO REDACT ALL BUT THE 20,000
OR SO NAMES OUT OF THE 236,000. REGINA M. OBERHOLZER: THAT'S WHAT WE STARTED
WITH AND THROUGH HUMAN ERROR OR COMPUTER ERROR IT WAS NOT A COMPLETELY ACCURATE LIST SO
THERE WERE 436 PEOPLE WHO SHUPT HAVE BEEN -- NOT PEOPLE, THEY ARE SUBJECT TEST RECORDS
SO SOME PEOPLE WERE TESTED TWO OR THREE TIMES BECAUSE OF ERRORS WITH MACHINES AND THEY HAD
TO BE TESTED MORE THAN ONCE AN THERE WERE 29 SUBJECTS' TEST RECORDS THAT WERE OMITTED
WHICH WERE ACTUALLY ONLY 23 PEOPLE, WHICH OUT OF 20,000 ISN'T BAD, BUT IT WAS BOTH OVER
INCLUSIVE AND UNDER INCLUSIVE AND THAT'S WHY THE SPECIAL MASTER RECOMMENDED THIS SO THAT
THERE WOULD BE NO QUESTION THAT IF YOUR NAME DIDN'T APPEAR THERE YOU JUST DCHT HAVE AN
ALCOTEST AND YOU KNOW IF YOU'RE DENNIS OR NOT DENNIS YOU GET A DEFINITIVE YES OR NO, THIS
IS THE ALCOTEST MACHINE YOU WERE TESTED ON WE CAN CHECK THE CALIBRATION RECORDS AND FIND
OUT DID DENNIS CALIBRATE THE MACHINE OR NOT. JUSTICE WAINER APTER: YOUR
POINT IS THAT THE DONE HUE DOCUMENT WAS ORIGINALLY 1. REGINA M.
OBERHOLZER: YES. SO THAT'S WHY HE IS NOT RECOMMENDING USING THAT WITH THE AMENDMENT OF
TAKING UP THE ONES THAT DIDN'T BELONG THERE AND ADDING THE ONES THAT DO. SO, I MEAN --
YES, WE COULD GO BACK TO USING THAT DOCUMENT;ING THAT WAS THE STATE'S ORIGINAL PROPOSAL,
BUT WE DON'T OBJECT TO THIS ONE SO LONG AS IT'S NOT.... THE COURT: THE
SPECIAL MASTER WAS ORDERING DISCLOSURE OF THE DENNIS CALIBRATION REPOSITORY AND S-152,
CAN S-152 BE REDABTD AND DISCLOSED ALONG WITH THE REPOSITORY TO ADDRESS THE CONCERNS.
REGINA M. OBERHOLZER: ONCE WE REDACT S-152 IT'S NO MORE USEFUL THAN THE
AA I S EXCEPT IT'S FREE TO SEARCH. JUSTICE WAINER APTER: SOMEONE KUPT SEARCH
FOR THEIR NAME BECAUSE YOU HAD TAKEN THE NAME. REGINA M. OBERHOLZER: THEY
COULDN'T COMPARE THEIR DRIVER LICENSE NUMBER, DATE OF BIRTH, THE INFORMATION TO MAKE SURE
THAT YOU NEED TO MAKE SURE THIS JOE SMITH IS YOU AN NOT THE JOE SMITH THAT LIVES IN THE
NEXT KOUPT TEE OR WHATEVER. JUSTICE MICHAEL NORIEGA: COULDN'T YOU DO IT
BY DATE RANGE OF THE DATES WHERE SOMEBODY WAS ARRESTED AND WITH THAT LIMITED INFORMATION
GET THE STATE TO VERIFY WHICH ONE IS ACCURATE, IF AT ALL? OEB. JUSTICE MICHAEL
NORIEGA: BECAUSE THEN YOU'RE JUST FINDING THE DATES, I KNOW THERE IS ONE DAY OR TWO DAY
WINDOW ON EITHER SIDE DEPENDING ON HUMAN ERROR OR TIME CHANGE FROM DAY TO NIGHT BUT SOMEONE
CAN SAY THESE ARE THE DATES I WAS ARRESTED FROM S-152 MY DATES ARE HERE AND THEN IF YOU
LOOK AT THE A I S TO FIND THE RIGHT CALIBRATION REPORT IS THERE, AS WELL AND NOW THE STATE
CAN VERIFY IS THIS ME OR NOT SO NOW THE NAMES DON'T HAVE TO BE REVEALED AND THERE IS SOME
ADDITIONAL MECHANISM WHERE A PERSON CAN SEARCH ON THEIR OWN AND BE ABLE TO SAY DEFINITIVE
LY I'VE SEEN THAT THERE IS AN ENTRY IN HERE THAT MIGHT BE MINE. REGINA M.
OBERHOLZER: SO LOOK WITHOUT THE NAMES. JUSTICE MICHAEL NORIEGA: RIGHT.
REGINA M. OBERHOLZER: A LOT OF PEOPLE DON'T KNOW WHERE THEY WERE TESTED.
JUSTICE WAINER APTER: OR WHEN. REGINA M. OBERHOLZER: YOU'RE
TALKING ABOUT CASES THAT GO BACK FROM 2008 TO 2016. JUSTICE MICHAEL NORIEGA:
THIS ALL BEGINS BECAUSE THE STATE IS SAYING IT NEEDS TO BE ENHANCED BECAUSE OF THE ARREST
THAT TOOK PLACE ON SUCH AND SUCH DATE AN A SENTENCE THAT WILL HAPPEN AS A RESULT.
REGINA M. OBERHOLZER: WE DO KNOW WHERE THEY WERE ARRESTED BUT WHERE THEY WERE ARRESTED
IS NOT NECESSARILY WHERE THEY WERE TESTED. JUSTICE MICHAEL NORIEGA: THE
DATE IS GOING TO BE THERE. REGINA M. OBERHOLZER: THE DATE SHOULD BE THERE.
THE COURT: ANY QUESTIONS ANYONE? ANYTHING YOU WANT TO ADD.
REGINA M. OBERHOLZER: JUST ONE TANK GENERAL SHL POINT, THE SPECIAL MASTER
ISSUED A PROTECTIVE ORDER, ON THE PERSONAL IDENTIFYING INFORMATION OF LITIGANTS COUNSEL
AND POTENTIALLY AFFECTED LITIGANTS IN THIS CASE, THE ORDER IS UNCLEAR AS TO THE TERMS
OF THE EXPIRATION AND NOT ENTIRELY CLEAR THAT POTENTIALLY AFFECTED DEFENDANTS INCLUDED
EVERYBODY IN S-152 RATHER THAN JUST DENNIS DEFENDANTS. SO I WOULD JUST REQUEST
RESPECTFULLY REQUEST THAT THE COURT ISSUE AN ORDER EXTENDING THE PROTECTIVE ORDER UNTIL
THIS COURT DETERMINES THE LEVEL OF ACCESS TO THAT INFORMATION AND MAKE IT CLEAR THAT IT
COVERS EVERYBODY IN S-152. THE COURT: THANK YOU. REGINA M.
OBERHOLZER: AND I ASK THAT YOU RESTORE THE APPELLATE DIVISION, REINSTATE THE DEFENDANT'S
SENTENCE AS A SECOND OFFENDER AND ADOPT THE RECOMMENDATIONS OF THE SPECIAL MASTER WITH
MODIFICATIONS TO PROTECT THE PERMANENT IDENTIFYING INFORMATION OF THE 236,000 PLUS
PEOPLE IN S-152 AND SET A PROCEDURE TO CLARIFY THAT PCR IS THE PROPER NAME FOR SEEKING
RELIEF IN THESE CASES. THE COURT: THANK YOU, COUNSEL,