# State v. Thomas Zingis > Supreme Court of New Jersey · August 8, 2024 URL: https://www.frixlaw.com/law-library/cases/10501173 ## Case - **Court:** Supreme Court of New Jersey - **Decided:** August 8, 2024 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10501173 ## Opinion text SYLLABUS This syllabus is not part of the Court’s opinion. 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 Court and may not summarize all portions of the opinion. State v. Thomas Zingis (A-66-21) (087132) Argued March 26, 2024 -- Decided August 8, 2024 NORIEGA, J., writing for a unanimous Court. In State v. Cassidy, 235 N.J. 482, 486 (2018), the Court addressed the consequences of then-Sergeant Marc Dennis’s certification of improperly conducted calibration checks of certain Alcotest machines “used to determine whether a driver’s blood alcohol content is above the legal limit,” which called into question over 20,000 Alcotest results. In this appeal, the Court addresses issues arising from the notification procedure required after Cassidy. In August 2018, defendant Thomas Zingis was charged with careless driving and driving while under the influence (DWI). He had a prior DWI conviction in April 2012. In December 2018, a trial was held in the municipal court and Zingis was found guilty of DWI. The State requested that Zingis be sentenced as a second offender due to his April 2012 DWI conviction. Relying on Cassidy, Zingis argued that his first conviction should be disregarded for sentencing purposes because the State failed to prove beyond a reasonable doubt that his 2012 DWI conviction was not predicated on a Dennis-calibrated Alcotest. The State responded by asserting that (1) Camden was not one of the Dennis-affected counties, and (2) Zingis’s failure to receive notice, consistent with this Court’s order in Cassidy, was proof that he was not a Dennis-affected defendant. The municipal court accepted the prosecutor’s representation and sentenced Zingis as a second DWI offender. On appeal, the Law Division also found Zingis guilty of DWI and rejected his request to be sentenced as a first-time offender. The Appellate Division affirmed Zingis’s conviction but vacated the enhanced sentence. 471 N.J. Super. 590, 608 (App. Div. 2022). The Appellate Division held that the State failed to prove beyond a reasonable doubt that Zingis’s 2012 DWI conviction was not based on an inadmissible Alcohol Influence Report (AIR). Id. at 607. The Court granted certification and remanded the matter to a Special Adjudicator for a plenary hearing on two questions: (1) which counties were affected by Dennis’s conduct, and (2) what notification was provided to defendants affected by Dennis’s conduct. 251 N.J. 502 (2022). 1 The Special Adjudicator filed a comprehensive 370-page report detailing his findings of fact and conclusions of law, which the Court summarizes. The parties largely agree with the Special Adjudicator’s findings and conclusions. Relevant to this appeal, there are two areas of disagreement: (1) the availability of Exhibit S- 152 -- a 180-page Excel Spreadsheet that sets forth solution changes and calibrations on all Alcotest Instruments in New Jersey from November 5, 2008 through June 30, 2016 -- and (2) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI. The State asks the Court to accept the Special Adjudicator’s factual findings and recommendations with two exceptions: (1) Exhibit S-152’s availability should be limited; and (2) the validity of a prior DWI should be pursued through PCR in the municipal court where the prior conviction occurred and not be litigated at sentencing for a successive DWI. The State agrees with the Special Adjudicator that prior to seeking an enhanced DWI sentence, it must inform defendants “that a prior DWI conviction it intends to” rely on “was potentially affected by Dennis’s malfeasance.” The State contends, however, that this notification obligation extends only to cases confirmed to be Dennis-affected cases, not those in which there is no known evidence that would justify overturning convictions on PCR. HELD: The Court now resolves those limited areas in which the parties could not agree regarding the implementation of the Special Adjudicator’s findings and legal conclusions: (1) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI; and (2) the appropriate availability of Exhibit S-152. 1. During the initial conference for a DWI matter, the court shall inquire whether the pending matter represents the first or subsequent DWI for a defendant. If the record reflects that the defendant has a prior conviction for DWI, the prosecutor must inform the court, defendant, and defense counsel whether it occurred between the critical dates of November 5, 2008 and April 2016. If so, the court must then schedule a discovery conference for the State to fulfill its obligation and provide to the defendant and counsel, as well as the court, discovery indicating whether the defendant is a Dennis-affected defendant. The prosecutor will accomplish this by using the summons number from the earlier offense to search Exhibit S-152, which will be redacted to include only non-personal identifying information. Once the corresponding entry is located within Exhibit S-152, the prosecutor is to “copy and paste” that row of data into a new document. The AIR number from that entry must then be compared against the Dennis Calibration Repository, which shall be made publicly available by placing it on a State website and shall also be summarized in a Dennis AIR Summary sheet. If the State determines that the defendant’s prior offense involved a Dennis-affected Alcotest Instrument that produced an evidential BAC reading, corroborated by Exhibit S-152 and the Dennis AIR Summary sheet, 2 judges should afford the defendant a reasonable amount of time to decide whether to challenge the prior conviction. If the defendant wishes to challenge that earlier conviction, the defendant shall do so by filing for PCR in the jurisdiction of the previous conviction. If the defendant, after being made aware of the existence of a Dennis-affected matter, chooses to proceed without challenging the earlier conviction, the court will inquire on the record that the defendant’s decision is knowing and voluntary, and the matter may proceed in the usual course. The Court calls on judges to resolve PCRs and related new matters as expeditiously as possible. The Court provides detailed guidance on all of these points. (pp. 18-23) 2. With regard to Exhibit S-152, the Court adopts a process that balances the State’s concerns for privacy with defendants’ due process need for notification. Once a summons number is cross-referenced in Exhibit S-152, it shall be provided to the defendant and defense counsel in discovery. Through that process, the defendant and counsel can see the date and location of offense, summons number, and the defendant’s name. The prosecutor must then use the summons number to search Exhibit S-152. Therefore, Exhibit S-152 in its newly redacted form, excluding all personal identifiers, must be publicly released on the State’s website. The prior disposition, along with the complete row of data from Exhibit S-152 and the Dennis AIR Summary sheet, together will be deemed proof beyond a reasonable doubt of whether a defendant’s prior DWI conviction is a Dennis-affected matter. (pp. 23-25) 3. The Court adopts the remainder of the Special Adjudicator’s findings, which are supported by substantial credible evidence in the record. (p. 25) AFFIRMED and REMANDED. CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE join in JUSTICE NORIEGA’s opinion. 3 SUPREME COURT OF NEW JERSEY A-66 September Term 2021 087132 State of New Jersey, Plaintiff-Appellant, v. Thomas Zingis, Defendant-Respondent. On certification to the Superior Court, Appellate Division, whose opinion is reported at 471 N.J. Super. 590 (App. Div. 2022). Remanded Special Adjudicator Report July 28, 2022 September 15, 2023 Argued Decided March 26, 2024 August 8, 2024 Regina M. Oberholzer, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; Regina M. Oberholzer and Robyn B. Mitchell, Deputy Attorney General, of counsel and on the briefs). Michael B. Cooke argued the cause for respondent (Michael B. Cooke and The Hernandez Law Firm, attorneys; Michael B. Cooke and Steven Hernandez, on the briefs). Michael R. Noveck, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of 1 New Jersey (Jennifer Sellitti, Public Defender, attorney; Michael R. Noveck, of counsel and on the brief). Jeffrey Evan Gold argued the cause for amicus curiae New Jersey State Bar Association (Timothy F. McGoughran, President, New Jersey State Bar Association, attorneys; Timothy F. McGoughran, of counsel, and Jeffrey Evan Gold, on the brief). JUSTICE NORIEGA delivered the opinion of the Court. This case calls upon this Court to revisit the consequences that remain from then-Sergeant Marc Dennis’s certification of improperly conducted calibration checks of certain Alcotest machines “used to determine whether a driver’s blood alcohol content is above the legal limit,” which called into question over 20,000 Alcotest results. State v. Cassidy, 235 N.J. 482, 486 (2018). Specifically, defendant Thomas Zingis’s matter illuminates a flaw in the notification procedure required after our Cassidy decision. All parties to this matter have made significant efforts to reach consensus in order to arrive at a fair resolution. With the comprehensive and extraordinary work the Special Adjudicator performed in this case, there remain only two issues on which the parties still have lasting concerns. We now resolve those issues. 2 I. We briefly highlight the following facts from the record. We rely heavily on Special Adjudicator’s comprehensive report for the full details of the present case and those events predating it. A. On August 27, 2018, a Berkeley Township patrolman stopped defendant Thomas Zingis for driving his motorcycle erratically. During the traffic stop, the patrolman became suspicious that Zingis was under the influence and asked him to perform a field sobriety test. Based on his observations, the patrolman concluded Zingis was under the influence of alcohol and arrested him. Zingis was charged with careless driving and driving while under the influence (DWI), contrary to N.J.S.A. 39:4-50. Notably, he had a prior DWI conviction in April 2012 from Collingswood in Camden County. In December 2018, a trial was held in the municipal court and Zingis was found guilty of DWI. The State requested that Zingis be sentenced as a second offender, pursuant to N.J.S.A. 39:4-50(a)(2), due to his April 2012 DWI conviction. Zingis opposed the State’s sentencing recommendation. Relying on our decision in Cassidy, Zingis argued that his first conviction should be disregarded for sentencing purposes because the State failed to prove beyond a reasonable doubt that his 2012 DWI conviction was not 3 predicated on a Dennis-calibrated Alcotest. The State responded by asserting that (1) Camden was not one of the Dennis-affected counties, and (2) Zingis’s failure to receive notice, consistent with this Court’s order in Cassidy, was proof that he was not a Dennis-affected defendant. The municipal court accepted the prosecutor’s representation and sentenced Zingis as a second DWI offender pursuant to N.J.S.A. 39:4-50. Zingis successfully moved to stay his sentence pending his appeal to the Law Division. B. In October 2020, Zingis appealed to the Law Division. Following a trial de novo, the Law Division also found Zingis guilty of DWI and rejected his request to be sentenced as a first-time offender. Relying on the Special Adjudicator’s report in Cassidy, the trial judge found that Dennis’s misfeasance was limited to Middlesex, Monmouth, Ocean, Somerset, and Union Counties. The trial judge also viewed the State’s failure to notify Zingis of his status as a Dennis-affected defendant to be outcome determinative. C. Zingis appealed his conviction and sentence to the Appellate Division. In a published opinion, the court rejected the State’s two arguments that (1) 4 Zingis’s prior conviction was not tainted because his name did not appear on the Attorney General’s list of Dennis-affected defendants, and (2) Dennis’s misconduct did not affect any DWI convictions in Camden County. State v. Zingis, 471 N.J. Super. 590, 606 (App. Div. 2022). The court determined that both the municipal court and the Law Division erred in accepting the prosecutor’s assertion and ultimately affirmed the conviction but vacated the enhanced sentence. Id. at 608. The Appellate Division held that the State failed to prove beyond a reasonable doubt that Zingis’s 2012 DWI conviction was not based on an inadmissible Alcohol Influence Report (AIR). Id. at 607. In doing so, the court found that the record did not contain “evidence with respect to how the Attorney General’s list . . . was compiled and whether it definitively includes all DWI convictions tainted by Dennis’s malfeasance.” Id. at 606. Moreover, the court noted that the record lacked support for the prosecutor’s assertions and in some instances undermined the State’s proffer that all Dennis-affected defendants had been notified. Id. at 606-07. The Appellate Division reasoned that in future cases the State may meet its burden to prove beyond a reasonable doubt that a DWI defendant was not convicted in the first instance based on a faulty AIR with a “more robust record.” Id. at 607. Accordingly, the appellate 5 court remanded to the municipal court to resentence Zingis as a first-time offender. Id. at 608. The State moved for reconsideration, arguing for the first time that Cassidy imposes an obligation on defendants to seek post-conviction relief (PCR) for any DWI conviction defendants believed to be tainted by an inadmissible AIR, while relieving the State from any burden to prove that a prior DWI conviction was not tainted when seeking a sentencing enhancement. The Appellate Division considered and rejected both arguments. In its order and statement of reasons, the appellate court found that a defendant’s failure to seek PCR should not insulate a prior conviction from scrutiny if the State later aims to rely on it. The court found that the State’s position had no support under Cassidy, particularly its argument that it had no obligation to prove whether a prior DWI conviction was premised upon tainted evidence. The court also held that the State’s argument that defendants could easily search the publicly available Alcotest Inquiry System (AIS) contradicted its representation to the Law Division court that proving a prior conviction was not tainted by Dennis would be “almost impossible.” D. We granted the State’s petition for certification and motion to stay. 251 N.J. 502 (2022). We remanded the matter to retired Appellate Division Judge 6 Robert A. Fall as a Special Adjudicator for a plenary hearing to consider and decide two questions: (1) which counties were affected by Dennis’s conduct, and (2) what notification was provided to defendants affected by Dennis’s conduct. Ibid. We instructed that the Special Adjudicator had the discretion to address any other relevant issues. We invited the Office of the Public Defender (OPD) to participate as amicus curiae. Ibid. The Special Adjudicator granted the New Jersey State Bar Association’s (NJSBA) motion to appear as amicus curiae. After briefing and plenary hearings, the Special Adjudicator filed a comprehensive 370-page report detailing his findings of fact and conclusions of law. Expanding on the two questions in the order from this Court, the Special Adjudicator divided the issues further and concluded, in summary, the following: (1) the State did not identify all individuals who were requested to provide breath samples on Alcotest instruments calibrated by Dennis during the relevant time period; (2) the classification of those defendants entitled to notification of the Court’s decision in Cassidy is limited to those who were requested to provide breath samples on an Alcotest instrument calibrated by Dennis that resulted in the reporting of an evidential blood alcohol content (BAC) reading; 7 (3) the State did not fully provide the ordered notification to all defendants affected by the Court’s decision in Cassidy; (4) there are solutions available that should be implemented to better assure the proper identification of those individuals who have provided breath samples on Alcotest instruments calibrated by Dennis and to provide those individuals with additional notification: (a) the use of the proposed “Dennis Calibration Repository,” in conjunction with Exhibit S-152, is the best available method of determining whether an individual was requested to provide breath samples on an Alcotest instrument calibrated by Dennis and an evidential BAC was obtained; (b) where an enhanced sentence is sought for a DWI conviction on the basis of a prior DWI conviction, the State should be required to provide discovery to defendant and counsel regarding the applicability of a Dennis-affected matter; (c) where a defendant files an application seeking PCR based on the Court’s ruling in Cassidy contending he is a Dennis-affected defendant, discovery should be provided from Exhibit-152 and Exhibit-28, under a protective order, regarding that original conviction; (d) the State’s recommendations regarding additional notification to those individuals identified as Dennis-affected defendants, who have been omitted from several of the spreadsheets produced, are persuasive and should be accomplished. 8 II. With the case before us once more, the parties largely agree with the Special Adjudicator’s findings and conclusions. Relevant to this appeal, there are two areas of disagreement: (1) the availability of Exhibit S-152 1 and (2) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI. A. The State asks this Court to accept the Special Adjudicator’s factual findings and recommendations with the following exceptions: (1) Exhibit S- 152’s availability should be limited; and (2) any suggestion that the validity of a prior DWI may be litigated at sentencing for a successive DWI should be rejected. Instead, the State contends that such a challenge must be pursued through PCR in the municipal court where the prior conviction occurred. First, with respect to the availability of Exhibit S-152, the State objects to the Special Adjudicator’s recommendation that the document be released publicly subject to a protective order as determined by the Court. The State asserts that privacy concerns would remain in the face of such an order. 1 Exhibit S-152 is an Excel Spreadsheet that sets forth solution changes and calibrations on all Alcotest Instruments in New Jersey from November 5, 2008 through June 30, 2016. It contains 236,664 subject test records and comprises 25,180 pages. 9 Namely, the State contends that Exhibit S-152 contains sensitive identifying information of those who are confirmed not to be a Dennis-affected defendant, contrary to this Court’s requirement in State v. Chun, 194 N.J. 54 (2008), that sensitive information be redacted in the public AIS. The State argues further that merely subjecting Exhibit S-152 to a protective order would still expose the document to significantly more individuals than currently have access, which the State asserts stands at around twenty-five people across the state. The State argues access to Exhibit S-152 should be limited to “County Prosecutors’ Municipal Prosecutor Liaisons -- or another designated Assistant Prosecutor in the County Prosecutors’ Offices” -- and not extended to municipal prosecutors, defendants, defense counsel, or the general public. Second, the State agrees with the Special Adjudicator that prior to seeking an enhanced DWI sentence, it must inform defendants “that a prior DWI conviction it intends to” rely on “was potentially affected by Dennis’s malfeasance.” The State contends, however, that this notification obligation extends only to cases confirmed to be Dennis-affected cases, not those in which there is no known evidence that would justify overturning convictions on PCR. The State avers that its notification obligation may be satisfied using the Dennis Calibration Repository and a certification from the Municipal 10 Prosecutor Liaison or the assigned Assistant Prosecutor who maintains Exhibit S-152 for each county, as an officer of the court. The State disagrees with the Special Adjudicator’s report to the extent that the report recommends that the validity of a prior DWI conviction should be litigated at sentencing on a subsequent DWI conviction. The State asserts that any such challenge can proceed only by filing a petition for PCR in the court in which the prior conviction occurred. It further contends that if a defendant first becomes aware of grounds to challenge the validity of a prior DWI in a subsequent DWI case, the second DWI case should be stayed pending the PCR process. According to the State, this Court acknowledged this procedure in Cassidy and thus, it should be adopted here. B. Zingis asks us to affirm the Appellate Division’s judgment that he should be sentenced as a first-time offender. He asserts that the State must prove beyond a reasonable doubt that prior DWI convictions being used to impose enhanced penalties or otherwise relied upon in subsequent cases are not Dennis-affected cases. He argues that the State failed to prove beyond a reasonable doubt that his prior DWI conviction was not a Dennis-affected conviction. Zingis further contends that nothing in Cassidy, or any other source cited by the State, limits defendants’ relief to PCR applications. 11 C. Amicus curiae the New Jersey State Bar Association (NJSBA) agrees with the Special Adjudicator’s proposed solution of using the Dennis Calibration Repository and Exhibit S-152 to identify Dennis-affected defendants and argues that in discovery, the State must disclose “whether or not Dennis was involved in any predicate DWI related offense that occurred during Dennis’s tenure.” NJSBA asserts that, to the extent the Special Adjudicator recommends that an individual must file for PCR prior to obtaining any access to the documents, Cassidy does not require the filing of a PCR application “to get notice that Dennis was involved.” It contends that such a requirement would result in unnecessary PCR applications. NJSBA requests that this Court reject the State’s proposed modifications to the Special Adjudicator’s recommendation of subjecting Exhibit S-152 to a protective order. It contends that (1) Exhibit S-152 should be accessible to defense counsel to allow independent review and that, to account for the State’s privacy concerns, an online version could be subject to a protective order through implementing a “click through certification”; and (2) AIS is not a solution to quickly confirm whether Dennis was involved. It also asks that the Court make a partially redacted version of Exhibit S-152 publicly available 12 -- removing Name, Driver License Number, Issuing State-- to end the Cassidy notice issue. 2 D. Amicus curiae OPD disagrees with the State that the State may satisfy its notification obligation with a certification by the prosecutor. It argues instead that the State should be required to provide the actual data contained in Exhibit S-152 pertinent to a defendant facing an enhanced sentence or other collateral penalties based on a prior DWI conviction with an arrest date between November 5, 2008 and April 9, 2016. OPD proposes that the State use this data to make a prima facie showing that the prior matter was not adjudicated based on an Alcotest reading from a Dennis-calibrated machine, and failure to make this showing should result in waiver of any sentencing enhancement. As to the issue of PCR, OPD agrees with the State that any challenge to a Dennis- affected conviction must be made through PCR in the court where the prior 2 After oral argument, NJSBA drew the Court’s attention to the United States Supreme Court’s decision in Erlinger v. United States, 602 U.S. ___, 144 S. Ct. 1840 (2024), in which the Court held that whether a defendant’s prior convictions were “committed on occasions different from one another” for purposes of 18 U.S.C. § 924(e)(1) must be decided by a unanimous jury, not by a judge at sentencing. See 144 S. Ct. at 1851-52. Erlinger did not hold that the existence of a prior conviction must be found by a unanimous jury, and it is thus not relevant to our disposition here. 13 conviction occurred. OPD also submits that Zingis should be sentenced as a first-time offender because the prosecutor’s assertions about notice and affected counties in this case were incorrect. III. A. The Law Division reviews municipal court judgments de novo. R. 3:23- 8(a)(2). Appellate courts “focus[] on whether there is ‘sufficient credible evidence . . . in the record’ to support the [Law Division’s] findings.” State v. Robertson, 228 N.J. 138, 148 (2017) (omission in original) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, legal rulings are reviewed de novo and not afforded any deference. Ibid. Likewise, when faced with an appeal dealing with a special adjudicator’s report, the Court owes no deference to a special adjudicator’s legal conclusions but will generally defer to a special adjudicator’s credibility findings regarding the testimony of expert witnesses. Cassidy, 235 N.J. at 491. “The Court also accepts the fact findings of a special [adjudicator] to the extent they are supported by ‘substantial credible evidence in the record.’” Ibid. (quoting Chun, 194 N.J. at 93). B. Rule 7:10-2 governs PCR in municipal court and dictates that any petition for PCR that is not based upon correcting an illegal sentence “shall not 14 be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked.” R. 7:10- 2(b)(2). But we note that, in Cassidy, we lifted the stay on pending cases and relaxed Rule 7:10-2(b)(2)’s five-year time bar given that “the State waited approximately a year to notify the [defendants affected by a Dennis-calibrated Alcotest].” 235 N.J. at 498. IV. We resolve the limited areas in which the parties could not agree regarding the implementation of the Special Adjudicator’s findings and legal conclusions. We begin with a brief review of the Special Adjudicator’s two conclusions over which the parties have remaining concerns: (1) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI; and (2) the appropriate availability of Exhibit S-152. First, the Special Adjudicator concluded that when the State seeks an enhanced DWI sentence premised upon a prior DWI conviction that is potentially open to challenge as a Dennis-affected case, “the State has the obligation to provide a defendant . . . information and documentation, prior to imposing any sentence, whether the DWI conviction did, or did not, involve an evidential BAC reading obtained from breath samples provided on an Alcotest 15 Instrument calibrated by Sergeant Dennis.” The Special Adjudicator also found that “an Alcotest Instrument reporting an ‘Error Message’ and, consequently, no BAC reading, has nothing to do with the fact that Sergeant Dennis calibrated a particular Alcotest Instrument, which is only relevant when an evidential BAC reading was produced.” Thus, the Special Adjudicator concluded that “an AIR producing a ‘Test Result’ that the ‘Subject Refused’ can be admissible in evidence during a Refusal prosecution.” The Special Adjudicator held that in order to determine whether a defendant is a Dennis-affected defendant, the State should use the Dennis Calibration Repository in conjunction with Exhibit S-152, and that sentencing should not proceed until the State provides the Dennis Calibration Repository and Exhibit S-152 to the defendant, counsel, and the court. The Special Adjudicator also found that this burden applies equally to circumstances in which a defendant files an application for PCR based on the Court’s ruling in Cassidy. To facilitate the exchange of discovery where there is the possibility of a Dennis-affected prior DWI, the Special Adjudicator outlined a procedure relying on Zingis’s case as an example: First, conducting a search of [Exhibit S-152] discloses, on Row 75536, that Thomas Zingis was arrested on January 13, 2012 (Column A), in the Borough of Collingswood (Column S), in Camden County, and 16 charged with DWI. . . . Mr. Zingis provided breath samples on Alcotest Instrument ARUM-0042 (Column B), located at the Collingswood Police Station (Column D), calibrated on October 13, 2011 (Column C), which resulted in an evidential BAC reading of 0.178 (Column U). Turning to [the Dennis Calibration Repository], a review of same discloses that Alcotest Instrument ARUM-0042 is not an Instrument that was calibrated by Sergeant Dennis. Second, due to sensitive personal information contained within Exhibit S-152, the Special Adjudicator concluded it should be subject to a protective order, available “for access by municipal courts, Superior Courts, Prosecutors, Public Defenders, Defense Counsel and unrepresented Cassidy-affected defendants when either postconviction relief or enhanced sentencing is sought.” Regarding the notification issues that have arisen repeatedly in this matter since Dennis’s misfeasance was discovered in 2015, the parties have all acknowledged the ineffectiveness of identifying new addresses and seeking out individuals who have heretofore been unidentifiable. 3 Therefore, the Special Adjudicator held that it will be incumbent upon the State to identify these 3 The Special Adjudicator noted in his findings that “the State has expressed a willingness to mail the second post-Cassidy notification letter to the addresses secured by the AOC for some of those potentially affected defendants who had been omitted from Exhibit S-90 (also Exhibit S-148), and consequently omitted from both Exhibits S-91 and S-83.” We agree with the Special Adjudicator’s conclusion that this should be accomplished and that the State should proceed with notifying this omitted group of individuals. 17 individuals when they face collateral consequences from a potentially Dennis- affected conviction. Be it in municipal court or in the Law Division, a collateral consequence that stems from a prior DWI conviction during the period of Dennis’s misfeasance raises responsibilities and burdens that the Special Adjudicator concluded the State must now address. To give effect to those conclusions, we adopt the following measures. A. We order that in any case in which the State seeks an enhanced sentence based on a prior DWI conviction with an arrest date between November 5, 2008 and April 9, 2016, the State must inform the court, defendant, and defense counsel whether defendant’s prior DWI conviction involved a Dennis- calibrated Alcotest. The State shall rely upon a combination of the publicly accessible Exhibit S-152 and the Dennis Calibration Repository. As discussed more thoroughly below, the State must provide all defendants with a prior DWI during the effective dates the row of Exhibit S-152 that corresponds to that defendant’s prior arrest. Given the fallibility of the notification procedures post-Cassidy, the parties will now be entitled to discovery, which is already readily available and capable of unearthing the procedural irregularities caused by Dennis’s misfeasance. Such transparency and safeguards will both (1) allow the State to prove beyond a reasonable doubt 18 whether a defendant is an affected defendant, permitting them to confidently discharge their duty in seeking sentencing enhancements when permitted by law, and (2) enable defendants to defend against such claims. By statute, municipal prosecutors must review a defendant’s prior driving history in order to determine whether a DWI represents their first or subsequent offense before recommending whether enhancements may apply. N.J.S.A. 2B:25-5.1. Thus, the municipal prosecutor will be able to identify whether a defendant’s prior record reflects a DWI conviction during the relevant timeframe for a Dennis review. We now order that during the initial conference for a DWI matter, the court shall inquire whether the pending matter represents the first or subsequent DWI for a defendant. If the record reflects that the defendant has a prior conviction for DWI, the prosecutor must inform the court, defendant, and defense counsel whether it occurred between the critical dates of November 5, 2008 and April 2016, information readily available to the State in the defendant’s abstract. If so, we now order that the court must then schedule a discovery conference for the State to fulfill its obligation and provide to the defendant and counsel, as well as the court, discovery indicating whether the defendant is a Dennis-affected defendant. 19 The prosecutor will accomplish this by using the summons number from the earlier offense to search Exhibit S-152. 4 As described below, that document will be redacted to include only non-personal identifying information. Once the corresponding entry is located within Exhibit S-152, the prosecutor is to “copy and paste” that row of data into a new document. 5 The AIR number from that entry must then be compared against the Dennis Calibration Repository. The Dennis Calibration Repository is currently a virtual folder containing a portable document format (PDF) file of every AIR in which Dennis was the calibrating officer. There are 1,046 files contained in this virtual folder, each representing one AIR and labeled accordingly. The repository shall be made publicly available by placing it on a State website. Additionally, for ease of reference and use in exchanging discovery, the Dennis Calibration Repository shall be summarized in a Dennis AIR Summary 4 Every municipal court is equipped with access to a defendant’s prior court history, including the ability to obtain the summons number for a prior disposition. Upon appointment, municipal prosecutors receive access to the Person Case Search and Manage (PCSAM) system, permitting them to search a defendant’s prior court history, which would allow them to access the summons number for use in conjunction with Exhibit S-152. 5 The Excel spreadsheet program, like most other spreadsheet applications, permits one row of data to be highlighted entirely and, by using the “copy” feature, the entire row of data can be saved and “pasted” into a new document (either a new Excel spreadsheet or a Word document) that allows for the information to be isolated and printed individually, without any remaining reference to the other entries on the spreadsheet. 20 sheet, which shall be created as follows: the State shall compile a document -- in as few pages as possible, preferably in multiple columns, and in a readable font -- that contains a sequential, alphanumeric list of the 1,046 file names, including only the instrument number (for example, “ARWA-0188”). This Dennis AIR Summary document is to be certified as accurate, and certified copies will be distributed to each municipality for use by the municipal prosecutor. Once the cross-reference has been completed, the State can identify whether an AIR from Exhibit S-152 is a match with an AIR from the Dennis AIR Summary sheet or not. The State must also provide a copy of the Dennis AIR Summary sheet for the defendant and defense counsel to verify whether the number is or is not listed. If it is determined that the defendant’s prior DWI conviction did not involve a Dennis-calibrated Alcotest, the defendant and defense counsel are still provided their copy of the one row of complete data from Exhibit S-152, along with the Dennis AIR Summary sheets, and the confirming prior disposition revealing the summons number for the defendant’s prior DWI conviction. The matter then proceeds in the normal course, and the defendant may face enhanced sentencing based on the prior DWI. 21 If the State determines that the defendant’s prior offense involved a Dennis-affected Alcotest Instrument that produced an evidential BAC reading, corroborated by Exhibit S-152 and the Dennis AIR Summary sheet, judges should afford the defendant a reasonable amount of time to decide whether to challenge the prior conviction. If the defendant wishes to challenge that earlier conviction, the defendant shall do so by filing for PCR in the jurisdiction of the previous conviction. A copy of the motion must be provided to the court for the subsequent DWI. Upon receiving the copy of the motion for PCR, the court for the subsequent DWI matter shall stay the disposition of the matter, unless the defendant elects to enter a guilty or both parties consent to a trial, irrespective of the filing of the PCR. All pretrial procedures in the subsequent DWI matter, including timely production of discovery and participation in case management conferences as directed by the court, shall continue during the pendency of the PCR. The goal is to have the subsequent case trial ready when the PCR is resolved. If the defendant, after being made aware of the existence of a Dennis- affected matter, chooses to proceed without challenging the earlier conviction, the court will inquire on the record that the defendant’s decision is knowing and voluntary, and the matter may proceed in the usual course. 22 Because of the serious public safety concerns that DWI charges present, we call on judges to resolve PCRs and related new matters as expeditiously as possible. B. Exhibit S-152 contains the following columns of information: arrest date, time, and location, Alcotest serial number and calibration date, as well as the Alcotest test result, case number, and summons. The document as presently constituted also contains the following unredacted personal identifying information: the subject’s first name, middle initial, age, gender, weight, height, and driver’s license issuing state. The State seeks a protective order and access granted only to certain stakeholders, including all municipal courts and superior courts, municipal liaisons, and an assistant prosecutor in each county who will coordinate with municipalities in order to provide defendants and counsel with the relevant discovery. The following process balances the State’s concerns for privacy with defendants’ due process need for notification. As discussed previously, municipal prosecutors must review a defendant’s driving abstract in every case. Armed with the date of the offense and the defendant’s name, the prosecutor -- with the assistance of the municipal court -- can then locate the summons number for any prior DWI. 23 Once a summons number is identified, the disposition for that offense must be preserved; once it is cross-referenced in Exhibit S-152, it shall be provided to the defendant and defense counsel in discovery. Through that process, the defendant and counsel can see the date and location of offense, summons number, and the defendant’s name. The prosecutor must then use the summons number to search Exhibit S-152. 6 Therefore, Exhibit S-152 in its newly redacted form, excluding all personal identifiers, must be publicly released on the State’s website. 7 By itself, without personal identifying information, the data in Exhibit S-152 is ineffective; in combination with other pieces of information possessed by the municipal prosecutor and defense counsel, however, the document becomes serviceable. Using Exhibit S-152 in this way retains the subjects’ privacy while serving as a valuable tool. 8 The 6 Most word processing applications, as well as spreadsheet applications, contain a “find” feature that would permit the person searching for information to search, in moments, an entire document for a given term. Inputting the summons number into the “find” or “search” dialog box would produce the data set sought. 7 Defense counsel will also have an independent means of obtaining the same information through the Municipal Court Case Search (MCCS), should they find an independent evaluation of the evidence necessary. 8 Despite the lengths to which the State, the Special Adjudicator, and this Court go to secure the personal identifying information of the defendants in these matters, it is worth noting that this information is a matter of public record and attainable by anyone who chooses to seek it out. Nonetheless, 24 prosecutor must now provide the prior disposition, along with the complete row of data from Exhibit S-152, and the Dennis AIR Summary sheet in discovery, which together will be deemed proof beyond a reasonable doubt of whether a defendant’s prior DWI conviction is a Dennis-affected matter. V. We take a moment to commend the parties for their valuable participation and willingness to reach consensus where possible. Additionally, such consensus could not have been possible without the extraordinary efforts of the Special Adjudicator, whose exceptional report was critical to the resolution of this matter. Because the remainder of his findings are supported by substantial credible evidence in the record, we adopt them. In the present matter, we affirm the judgment of the Appellate Division as to vacating the sentence. We remand the matter to the municipal court to afford Zingis the benefit of the discovery process outlined herein, and the matter may then proceed consistent with this opinion. CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and FASCIALE join in JUSTICE NORIEGA’s opinion. risking possible embarrassment or encroaching on a defendant’s privacy is not the goal, and we therefore adopt these measures to assure that those privacy concerns are honored. 25 APPENDIX SUPREME COURT OF NEW JERSEY C-653 September Term 2021 087132 State of New Jersey, Plaintiff-Movant, v. Thomas Zingis, Defendant-Respondent. REPORT OF FINDINGS OF FACT & CONCLUSIONS OF REMAND COURT On Remand from the Supreme Court Findings and Conclusions Submitted of New Jersey: to Supreme Court: July 28, 2022 September 15, 2023 Thomas R. Clark, Deputy Attorney General, and Rosina A. Rachuba, Deputy Attorney General, appeared on behalf of Plaintiff-Appellant State of New Jersey (Matthew J. Platkin, Attorney General, attorney). Michael B. Cooke and Steven W. Hernandez appeared on behalf of Defendant-Respondent Thomas Zingis. Sharon A. Balsamo (New Jersey State Bar Association), Jeffrey Evan Gold and Michael V. Troso (Helmer, Conley & Kasselman, P.A.) and John Menzel appeared on behalf of amicus curiae New Jersey State Bar Association. Michael R. Noveck, Assistant Deputy Public Defender, appeared on behalf of amicus curiae The Office of the Public Defender (Joseph E. Krakora, Public Defender). 1 FALL, J.A.D. (retired and temporarily assigned on recall) SPECIAL MASTER TABLE OF CONTENTS Page I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. BACKGOUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . 29 IV. WITNESSES; TESTIMONY AND ASSESSMENT OF CREDIBILITY 43 A. State’s Witnesses: 1. William Donahue, Jr. . . . . . . . . . . . 43 2. William Gronikowski. . . . . . . . . . . 55 3. Robyn Mitchell . . . . . . . . . . . . . . . 57 4. Steven Symogyi . . . . . . . . . . . . . . 114 5. Charles Prather. . . . . . . . . . . . . . . 123 6. Thomas J. Snyder . . . . . . . . . . . . . 128 7. Kevin W. Alcott. . . . . . . . . . . . . . 157 8. Barbara Nolasco. . . . . . . . . . . . . . . 222 9. Monica do Outeiro. . . . . . . . . . . . . 229 10. Suzanne Musto. . . . . . . . . . . . . . . 238 11. Tracey Mannix. . . . . . . . . . . . . . . 241 2 12. Brian Gillet . . . . . . . . . . . . . . . . . 245 13. Donna Prestia . . . . . . . . . . . . . . . 252 B. Witness on Behalf of Amicus New Jersey State Bar Association 257 1. John J. Dell’Aquilo . . . . . . . . . . . V. ISSUES AND ARGUMENTS PRESENTED . . . . . . . . . . . . . . 276 VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW . . . . . . 286 APPENDIX I - EXHIBITS. . . . . . . . . . . . 370 APPENDIX II - TRANSCRIPTS . . . . . . . 400 I. INTRODUCTION This report primarily deals with consideration of the following questions remanded to me by the Order of the Supreme Court entered on July 28, 2022: (1) Which counties had convictions affected by the conduct of Marc W. Dennis, a coordinator in the New Jersey State Police’s Alcohol Drug Testing Unit, as described in State v. Cassidy, 235 N.J. 482 (2018), and (2) What notification was provided to defendants affected by Dennis’s conduct? [State v. Zingis, 251 N.J. 502, 503 (2022).] The Court also permitted me discretion to consider other questions deemed relevant to the issues posited. In order to provide the Court with answers to those questions, that Order appointed me as Special Master to 3 conduct a plenary hearing, to consider applications for leave to participate as amicus, and to make findings of fact on the submitted questions. The Court specifically invited the Office of the Public Defender to participate as an amicus party. II. BACKGROUND In 2008, the Court found that blood-alcohol content (BAC) breath test results obtained from drivers suspected of driving under the influence of alcohol, analyzed by law enforcement’s proper use of the Alcotest 7110 MKIII-C instrument, were admissible in drunk-driving cases to establish a defendant’s guilt or innocence. State v. Chun, 194 N.J. 54, 65 (2008). In Chun, the Court also required that Alcotest instruments be recalibrated semi- annually to help ensure accurate measurements of breath samples. Id. at 153. On November 5, 2008, New Jersey State Police Trooper II Marc W. Dennis was duly certified as a Breath Test Coordinator/Instructor, authorized to perform calibrations on Alcotest 7110 MKIII-C instruments in the State of New Jersey. See Exhibits S-7, S-163 and S-164. Thereafter, he began calibrating Alcotest Instruments at various locations, primarily in Monmouth, Middlesex, Union, Somerset and Ocean Counties. At some point, Dennis was promoted to the rank of Sergeant.” 4 On October 8, 2015, Sergeant First Class (SFC) Thomas J. Snyder, discovered that Dennis had recalibrated Alcotest Instruments located in the City of Asbury Park, the City of Long Branch, and in Marlboro Township without following the “Calibration Check Procedure for Alcotest 7110.” At that time, SFC Snyder was the Alcotest Program Manager and supervised the Alcohol Drug Testing Unit. Specifically, SFC Snyder concluded Dennis knowingly had not been checking the simulator solution temperatures with a NIST-traceable thermometer prior to beginning the recalibration procedure, which was a required step in recalibrating an Alcotest Instrument. As a result of an internal investigation, Sergeant Dennis was precluded from performing further recalibrations of Alcotest Instruments after October 8, 2015, and the matter was referred for investigation to the Division of Criminal Justice within the Office of the Attorney General. See Exhibits S-1, S-37 and S-38. As a result of that investigation, on September 19, 2016, criminal charges were filed by the Division of Criminal Justice against Sergeant Dennis, charging him with third-degree Tampering with Public Records, contrary to N.J.S.A. 2C:28-7, and fourth-degree Falsifying or Tampering with Records, contrary to N.J.S.A 2C:21-4. See Exhibit S-32. 5 Prior to the filing of those criminal charges, in November or December 2015, the Prosecutor’s Supervision and Training Bureau (the “Bureau”) within the Division of Criminal Justice was assigned to identify those individual s who had been requested to provide breath samples on Alcotest Instruments that had been calibrated by Sergeant Marc Dennis. See T3, pp. 128-29 (testimony of Deputy Attorney General (DAG) Robyn Mitchell). At that time, DAG Mitchell was Deputy Chief of the Bureau. When assigned that task, she contacted the Alcohol Drug Testing Unit (ADTU) of the New Jersey State Police, and was advised the ADTU did not maintain copies of the calibration documents from its coordinators, but information concerning the identity of those individuals performing calibrations of Alcotest Instruments could be obtained by the Information Technology Bureau of the State Police accessing the Alcotest Inquiry System database. See T3, pp. 130- 31. In State v. Chun, 194 N.J. 54, 153, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L.Ed 2d 41 (2008), the Supreme Court required the State to create and maintain a centralized Alcotest statewide database. In State v. Chun, 215 N.J. 489, 491 (2013), the Court determined that the Alcotest Inquiry System database was in full compliance with its order of March 17, 2008. 6 William Donahue, Jr., retired since November 2021, worked for the New Jersey State Police for approximately thirty (30) years. His last position was Supervising Management Improvement Specialist, serving his last four years as Unit Head of the Programming Unit of the State Police’s Information Technology Bureau. In 2011, Mr. Donahue wrote the design requirements for the Alcotest Inquiry System database, which contains information extracted from each of the approximately six hundred Alcotest Instruments used throughout New Jersey, which information, presently, is periodically downloaded, through phone-line servers, into that database, which is maintained by the Office of Forensic Sciences of the New Jersey State Police, located in West Trenton, New Jersey. There are two types of accounts that can access information from the Alcotest Inquiry System database. The first is a “public account,” where members of the public can access information through utilization of three different search types. The first is a “Subject Table Search,” which would only return “Subject” data, used to find information concerning the administration of a breath-sample test to a particular individual. The second is a “Certification Table Search,” which returns certification data specific as to a particular Alcotest Instrument, as to when it was last calibrated, when the last solution change took place, and the name of the coordinator who performed 7 the work. The third type of public search that can be conducted is an “Activity Query,” which is a combination search that would reveal any activity on a particular Alcotest Instrument, whether it was a blood-alcohol test or calibration performed on that Instrument. A fee is charged to the member of the public for each search requested. The second account type is an “Administrator Account,” which is private, based on access granted to law enforcement personnel by the Office of Forensic Sciences of the New Jersey State Police, and there is no fee charged for such access. At the request of the Prosecutor’s Supervision and Training Bureau, Division of Criminal Justice, Mr. Donahue conducted a query, or search, of the Alcotest Inquiry System database for the names of subjects who had been asked to provide breath samples in Driving While Intoxicated cases on Alcotest Instruments that had been calibrated by Sergeant Marc Dennis.1 N.J.S.A. 39:4-50.2(a), commonly known as the Implied Consent Statute, provides that any person operating a motor vehicle on any public road, street or highway or quasi-public area in New Jersey is deemed to have given 1 Although Mr. Donahue could not specifically recall conducting that query, it is clear he did so because, at that time, he was the only person in the Programming Unit of the IT Bureau of the NJSP authorized to conduct such a query. 8 consent to the taking of breath samples for the purpose of making chemical tests to determine the content of alcohol in that person’s blood, as long as a police officer has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the Driving While Intoxicated statute, N.J.S.A. 39:4-50, or N.J.S.A. 39:4-50.14, that latter statute prohibiting a person, who is under the legal age (21) to purchase alcoholic beverages, from operating a motor vehicle with a blood-alcohol concentration (BAC) of 0.01% or more, but less than 0.08%. Exhibit S-90 is the resulting Excel Spreadsheet created by Mr. Donahue, after conducting a query of the Alcotest Inquiry System database, and is entitled “Spreadsheet Received from NJSP__27,833 Subject Records,” purportedly containing the names of all 27,833 potentially-affected individuals who had been requested to provide breath samples for chemical analysis on Alcotest Instruments that had been calibrated by Sergeant Marc Dennis . Exhibit S-90 was, thereafter, delivered to the Division of Criminal Justice within the Attorney General’s Office. The tool utilized to create that Excel Spreadsheet is called “PL/SQL Developer,” a product developed by Oracle, a technology provider company. However, that Excel Spreadsheet does not reflect the name of the Operator who calibrated the Alcotest Instrument, reflected on each Subject Row of an attempted breath-sample test in Column B 9 of Exhibit S-90. Moreover, an address for the Subjects listed on each Row are not obtainable from a query of the Alcotest Inquiry System database. Upon receiving Exhibit S-90 from Mr. Donahue’s office on a compact disc, DAG Mitchell downloaded its contents onto her work computer. Her task was to review Exhibit S-90, and determine those individuals who were potentially affected by the failure of Sergeant Dennis to properly recalibrate Alcotest Instruments. The Division of Criminal Justice determined that only those individuals listed on Exhibit S-90 who had been requested to provide breath samples that resulted in the Alcotest Instrument calculating and reporting a Blood-Alcohol Content (BAC) reading had been potentially affected by the malfeasance of Sergeant Dennis. 2 The basis for that conclusion was that, because no BAC reading had been obtained, any conviction for Driving While Intoxicated could not have been based thereon. Upon being entered into evidence, a BAC reading of 0.08%, or higher, constitutes what is known as a per se violation of N.J.S.A. 39:4-50. See State v. Lentini, 240 N.J. Super. 330, 331-32 (App. Div. 1990), certif. denied, 127 N.J. 553 (1991); State v. Foley, 370 N.J. Super. 341, 358 (Law Div. 2003). 2 It should be noted that conclusion was reached in 2016, prior to the Court's decision in Cassidy. 10 Accordingly, based on that determination, DAG Mitchell deleted those Subject Rows from S-90, where no BAC reading had been reported in Column U of the Spreadsheet, and she created Exhibit S-91, a new Excel Spreadsheet entitled “Spreadsheet all counties_wo refusals and error msgs_20,667,” purportedly representing the 20,667 individuals who were potentially affected by the misconduct of Sergeant Marc Dennis, namely, they had provided breath samples on an Alcotest Instrument that had been calibrated by Dennis and a BAC reading had been reported by that Alcotest Instrument in Column U of Exhibit S-90. Thus, this procedure resulted in the State contending that the number of attempted breath tests affected by the misfeasance of Sergeant Dennis was reduced from 27,833, by 7,166, to 20,667. DAG Mitchell then reorganized the information contained on Exhibit S- 91 by creating five (5) separate Excel Spreadsheets, one for each of the main Counties (Middlesex, Monmouth, Ocean, Somerset and Union), containing those subject individuals who had provided breath samples that resulted in the reporting of BAC readings on Alcotest Instruments located in each of those Counties. DAG Mitchell then electronically placed each of those Excels Spreadsheets on a separate Thumb Drive and provided those Thumb Drives to Elie Honig, Director of the Division of Criminal Justice. 11 Director Honig then sent a letter, dated September 19, 2016, to Hon. Glenn A. Grant, Administrative Director of the Courts, see Exhibit S-81A, informing Judge Grant that earlier that day, the Division of Criminal Justice had filed criminal charges against Sergeant Marc Dennis, outlining those charges, and stating, in pertinent part: The State recognizes that – regardless of scientific necessity – use of the NIST-traceable thermometer is a required procedure that was adopted by the Supreme Court in State v. Chun. The State therefore anticipates that additional legal challenges may be filed regarding the results of any Alcotest instrument that had been calibrated in the past by Dennis. As a coordinator for over seven years, Dennis calibrated Alcotest instruments in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. The State has identified 20,667 individuals who provided evidential breath samples on those instruments. The attached thumb drive contains a county-by-county listing of these cases. This listing includes personal identifying information and accordingly should be handled confidentially. Given potential legal challenges and the underlying scientific nature of any potential challenges, the State respectfully requests that the Supreme Court issue a Notice to the Bar and appoint a Special Master to handle any litigation arising from the circumstances set forth in this letter. The State believes that appointment of a Special Master will best serve the ends of efficiency and uniformity in addressing these potential cases. 12 Each Excel Spreadsheet contained on the Thumb Drives provided by Director Honig to Judge Grant has been separately marked into evidence, as follows: Exhibit S-81B, Excel Spreadsheet entitled, “Middlesex_Indiv Defts wo refusals and error messages,” containing 4,963 Subject Rows of individuals and 21 Columns, or Fields, of information on 318 pages. Exhibit S-81C, Excel Spreadsheet entitled, “Monmouth_IndivDefts wo refusals and error messages,” containing 9,402 Subject Rows of individuals and 21 Columns, or Fields, of information on 603 pages. Exhibit S-81D, Excel Spreadsheet entitled, “Ocean_IndivDefs wo refusals and error messages,” containing 289 Subject Rows of individuals and 21 Columns, or Fields, of information, on 28 pages. Exhibit S-81E, Excel Spreadsheet entitled, “Somerset_Individual Defts wo refusals and error messages,” containing 1,207 Subject Rows of individuals and 21 Columns, or Fields, of information on 78 pages. Exhibit S-81F, Excel Spreadsheet entitled, “Union_Indviduals Defts wo refusals and error messages,” containing 4,806 Subject Rows of individuals and 21 Columns, or Fields of information on 309 pages. As noted, none of these Excel Spreadsheets delivered to Judge Grant contained addresses of the individuals identified on each Row. On September 22, 2016, DAG Mitchell sent an email to Assistant Prosecutors in Middlesex, Monmouth, Ocean, Somerset, and Union Counties, confirming a conference call with them earlier that day concerning defendants 13 potentially-affected by the conduct of Sergeant Dennis, notifying them that Director Honig had requested, in the September 19, 2016 correspondence to Judge Grant, that a Special Master be appointed to handle any litigation arising from the conduct of Sergeant Dennis. Prior to the appointment of a Special Master, DAG Mitchell suggested the following actions be taken: 1. Any case that is pre-trial or pending sentencing: seek stays whenever appropriate based upon your discretion. 2. Any case that is currently mid-trial should be reviewed on a case-by-case basis. The action to be taken will be fact-sensitive; you should use your discretion to take the appropriate action. 3. Any case that is on a municipal appeal or is before the Appellate Division: seek stays when appropriate based upon your discretion. 4. If you receive a motion regarding a person who falls under the universe of cases and is currently serving a prison sentence, please forward those to SDAG Rob Czepiel or myself for further review. [See Exhibit S-2.] On September 26, 2016, Eileen Cassidy, who had pled guilty to Driving While Intoxicated in Spring Lake Municipal Court on September 8, 2016, based on an evidential breath sample blood-alcohol content results on an Alcotest Instrument calibrated by Sergeant Marc Dennis, filed an application in that Court seeking to withdrawn her guilty plea. State v. Cassidy, 235 N.J. 14 482, 514-15 (2018) (Appendix, Report of Special Master, Hon. Joseph F. Lisa, P.J.A.D., Retired, on Recall). On October 4, 2016, Judge Grant advised Director Honig that he had reviewed the September 19, 2016 letter, but a request for appointment of a Special Master should be made directly to the Supreme Court. Id. at 515. On October 17, 2016, the State applied to the Supreme Court for direct certification in the Cassidy matter, and for appointment of a special master. Ibid. On April 7, 2017, the Court entered an order, granting the State’s motion in Cassidy for direct certification, and appointed Judge Lisa as Special Master, remanding the matter for Judge Lisa to consider and decide the question of whether the failure to test the simulator solutions with an NIST-traceable digital thermometer before calibrating an Alcotest instrument undermines or call into question the scientific reliability of breath tests subsequently performed on the Alcotest instrument, and to consider and decide any other questions that the Special Master, in his discretion, deemed relevant to that undertaking. State v. Cassidy, 230 N.J. 232, 233 (2017). On July 13, 2017, Special Master Judge Lisa issued an order requiring the Attorney General’s Office to apprise the court of its efforts to obtain addresses for the individuals referenced in its motion to appoint a Special 15 Master. See Exhibit S-3. DAG Mitchell had previously spoken with Steven Somogyi, Assistant Administrative Director of the Courts for Municipal Court Services as to whether the Administrative Office of the Courts (AOC) would be able to obtain addresses for the individuals listed on the Excel Spreadsheets sent to Judge Grant in Director Honig’s September 19, 2016 letter. Mr. Somogyi advised it might be possible to obtain addresses through queries of the Court’s Automated Traffic System (ATS), a computer system that stores all information automatically when a law enforcement officer issues a summons. Mr. Somogyi then provided Charles Prather, an independent computer expert who performed data analysis work for the AOC, with the Excel Spreadsheets that had been sent to Judge Grant, requesting him to query the Court’s ATS database in an attempt to match the summons numbers and other identifying information of the individuals listed on the Spreadsheets to addresses for them. On July 14, 2017, following the entry of Judge Lisa’s order, DAG Mitchell sent an email to Mr. Somogyi, asking whether the AOC had obtained the requested addresses so she could report back to Judge Lisa. See Exhibit S-18A. In undertaking that assigned task, Mr. Prather uploaded the information on the provided Spreadsheets onto the court’s recording servers and then “cleaned up” the information to prepare the requested query of the ATS 16 database. Mr. Prather discovered there were multiple Rows on the Spreadsheets where no driver’s license number, or an invalid driver’s license number, for the individual was listed on certain Rows of the Spreadsheets, and also contained some duplicate Subject records. He determined the most accurate method to match a subject to an address was matching the driver’s license number listed on the Spreadsheets to the driver’s license number listed for that individual in the ATS database. Once Mr. Prather eliminated those Rows containing no driver’s license number, or an invalid driver’s license number, as well as eliminating the duplicate entries, he extracted from the ATS database all DWI summonses that were in the ATS database from 2008 through 2017 into a separate file. He then linked the two files to determine whether there was a matching driver’s license number from the uploaded information on the Spreadsheets to a driver’s license number in the ATS database. He then also compared the arrest date and date of issuance of the summons, contained on the Spreadsheets provided, to the arrest date and date of issuance of the summons in the file he had created from the ATS database. That procedure resulted in the creation of an Excel Spreadsheet with two tabs, one with the names and addresses of individuals where the driver ’s license numbers, arrest dates, and dates of issuance of the summons matched exactly, and a second tab with the names and addresses of individuals that 17 matched driver’s license number and the arrest date and ticket issue dates within two days of each other. See Exhibit S-83. Once that Excel Spreadsheet was prepared, Mr. Prather delivered it directly to Mr. Somogyi. On August 10, 2017, Mr. Somogyi sent an email to Supervising Deputy Attorney General (SDAG) Robert Czepiel, then Bureau Chief of The Prosecutor’s Supervision and Training Bureau in the Division of Criminal Justice, transmitting Exhibit S-83, and stating, in pertinent part: Your office previously provided to Municipal Court Services electronic information on approximately 21,000 tickets you had flagged in this matter linking the Alcotest and Trooper Dennis. The information that your office provided included defendants’ first name, last name, driver’s license number and arrest date. Based on that data, staff from Municipal Court Services created a special report to match the information provided by your office with information in our ATS computer system. My office was able to match approximately 18,000 of those records (out of approximately 21,000) to a ticket in ATS (spreadsheet attached) in which all data points matched – name, license number and ticket issue date (issue date matching the arrest date). These exact matches are included on tab 1 of the attached Excel spreadsheet. The remaining records did not have an exact match. However, we were able to do some matching on a segment of those remaining cases. Specifically, on tab 2 of the attached Excel file, additional ATS records are reflected which matched first and last name and the license number. These same cases also closely match (within 2 days of the information you provided) the ticket issue date and the arrest date. As these were not exact matches, but still “likely” cases, we elected to 18 place them on a second tab of the spreadsheet for further review and research by your team. In total, there were 948 of these “near matches.” [See Exhibit 18B.] The Excel Spreadsheet in Exhibit S-83 contains 18,249 exact address-to- subject matches on Sheet 1, and 947 partial address-to-subject matches on Sheet 1, for a total of 19,196 addresses of the 20,667 individuals listed on Subject Rows contained in the Exhibit S-91 that had been sent to Administrative Director Grant on September 19, 2016, a difference of 1,471 subject rows where the AOC was unable to locate a matching address in the ATS database for those subjects listed on Exhibit S-91. The address information for each listed Subject Row is contained in columns J through O on each Sheet of Exhibit S-83. On November 2, 2017, Judge Lisa, Special Master in Cassidy, issued an Order, inter alia, granting “the State’s motion for a stay of proceedings in other courts that raise issues potentially affected by the Supreme Court ’s ultimate determination in this matter, i.e. a DWI prosecution in which a BAC reading derived from an Alcotest device calibrated by coordinator Marc Dennis[.]” See Exhibit S-98. 19 On December 6, 2017, Judge Grant issued a Notice to the Bar, stating the Supreme Court had granted certification in State v. Cassidy, and stated, in relevant part: The Alcotest machines calibrated by Sergeant Dennis during his tenure with the State police were used in over 20,000 DWI prosecutions. Although most of these cases were filed in five counties (Middlesex, Monmouth, Ocean, Somerset and Union Counties), there have been cases in twelve counties total. * * * * Additionally, on November 28,[2017]3 Judge Lisa issued a Supplemental Order (attached) providing that the burden for determining whether or not the defendant provided a breath sample on an Alcotest device calibrated by Sergeant Dennis rests with the prosecutor handling the case. The prosecutor is also required to produce and provide documentary evidence of that determination to the defendant and the court. Further, in any proceeding in any court involving a prosecution for an offense in which a prior “Dennis” DWI conviction constitutes a predicate offense that can enhance the gradation or applicable punishment in that new case, or involving a sentence emanating from such a case that has been adjudicated, the burden rests with the prosecutor to determine whether or not the defendant provided a breath sample on an Alcotest device calibrated by Sergeant Dennis in that prior DWI case, and to produce documentary evidence of that determination to the defendant and the court. 3 A full copy of Judge Lisa's Supplemental Order dated November 28, 2017 is contained in Exhibit S-100. 20 In State v. Cassidy, 235 N.J. 482, 487 (2018), the Court adopted the 198- page report of its appointed Special Master, retired Appellate Division Presiding Judge Joseph F. Lisa, and ruled that the failure to test the simulator solution of an Alcotest 7110 MKII-C instrument in the recalibration process with an NIST-traceable digital thermometer undermines the reliability of the Alcotest blood-alcohol content readings produced. Ibid. The Court elaborated, as follows: During the calibration process, simulator solutions containing varying concentrations of ethanol are used to calibrate the Alcotest and confirm the accuracy of its blood alcohol content readings. The simulator solutions are poured into calibration units, which are glass containers that house a heating component. The calibration units heat the solutions to about 34 degrees Celsius, the generally accepted temperature for human breath, creating a vapor. The vapor is a proxy for human breath. It is essential that the temperature of the solution be accurate in order for the Alcotest’s blood alcohol content readings to be correct. The Alcotest’s calibration procedure requires the test coordinator to insert a thermometer that produces NIST-traceable temperature measurements into the simulator solution used to calibrate the Alcotest and confirm that the calibration unit heated the solution to temperature within 0.2 degrees of 34 degrees Celsius. The NIST is the federal agency responsible for maintaining and promoting consistent units of measurement. When a thermometer’s temperature measurements are “traceable” to the standard measurements of the NIST, those measurements are generally accepted as accurate by the scientific community. 21 There are two other temperature probes used during the calibration procedure. Unlike the NIST- traceable thermometer, both of those probes are manufactured and calibrated by Draeger. The first is the “black key probe,” which plugs into the Alcotest device and allows the coordinator to access the calibration function. That probe is used to measure each simulator solution’s temperature during a series of control tests. The second is the “agency’s probe,” which also plugs into the Alcotest and is used to measure the temperature of the simulator solution used in the final test to confirm that the Alcotest was calibrated correctly. [Cassidy, 235 N.J. at 488-49.] After reviewing and adopting the factual findings of the Special Master, the Court concluded the “the accuracy of the temperature of the simulator solutions used to calibrate the Alcotest is critically important to the fidelity of its readings,” id. at 94, and ordered “the State to notify all affected defendants of our decision that breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible, so that they may take appropriate action[,]” relaxing the five-year time bar for making an application for post-conviction relief set forth in R. 7:10-2(b)(2). Id. at 498. On August 27, 2018, Defendant-Respondent Thomas Zingis was issued a summons in the Township of Berkeley, Ocean County, New Jersey, charging him with Driving While Intoxicated, contrary to N.J.S.A. 39:4-50(a). He was also issued a summons charging him with Careless Driving, contrary to N.J.S.A. 39:4-97. Although a blood-alcohol content reading on an Alcotest 22 Instrument was obtained from breath samples provided by Mr. Zingis, that reading was excluded by the Municipal Court Judge based on a pretrial motion. The matter was tried in Berkeley Township Municipal Court on December 18, 2019 based on observational evidence only, and the Municipal Court Judge convicted Mr. Zingis of Driving While Intoxicated, merging and dismissing the Careless Driving summons. Mr. Zingis had a prior conviction for Driving While Intoxicated in the Borough of Collingswood, Camden County, New Jersey in April 2012, and he moved for sentencing as a first-time offender, arguing “the court should disregard the 2012 conviction because the State failed to produce documentary evidence that [the 2012 conviction] was not based on an Alcotest breath sample test result rendered inadmissible by the holding in Cassidy.” Sentencing was adjourned to January 8, 2020. The Municipal Court Judge rejected defendant’s argument, based on representations by the municipal prosecutor that defendant’s 2012 conviction did not fall within the Court’s ruling in State v. Cassidy because he was not on a list on the Attorney General’s website of defendants notified by the State that their conviction for DWI were potentially affected by the conduct of Sergeant March Dennis and, thereby, the misconduct of Dennis did not affect any convictions arising from Camden County. Accordingly, the Municipal Court Judge sentenced Mr. Zingis as a second offender, imposing a two-year 23 suspension of his driver’s license, 48 hours IDRC, a $506.00 fine, $33.00 in costs, a $225.00 DWI surcharge, 3 years of an ignition interlock device, $50.00 VCCB, $75.00 SNSF, 30 days community service, and two days incarceration in the county jail, to be served in the IDRC. The sentence was stayed pending appeal to the Law Division of his conviction and sentence. On October 20, 2020, the Law Division conducted a trial de novo. The conviction of Mr. Zingis for Driving While Intoxicated was affirmed. The Law Division Judge also affirmed the sentencing of Mr. Zingis as a seco nd offender, noting that the Municipal Court Judge had appropriately taken notice of information on the State’s Judiciary website that the conviction of Mr. Zingis in 2012 for Driving While Intoxicated did not involve breath samples provided on an Alcotest Instrument calibrated by Sergeant Marc Dennis. Mr. Zingis filed a timely appeal to the Appellate Division. In State v. Zingis, 471 N.J. Super. 590, 594 (App. Div. 2022), an opinion issued on Aril 25, 2022, the court affirmed the order of the Law Division, convicting defendant of DWI. However, because the State did not prove beyond a reasonable doubt that the 2012 conviction of Mr. Zingis for DWI was not based on Alcotest breath sample test results rendered inadmissible by the Court’s holding in State v. Cassidy, the court vacated his sentence as a second offender, and remanded the matter to the Law Division for resentencing Mr. 24 Zingis as a first offender. The court found there was reasonable doubt with respect to whether defendant’s 2012 DWI conviction was based on false calibration records executed by Sergeant March Dennis, stating in pertinent part: The record contains no evidence with respect to how the Attorney General’s list was compiled and whether it definitively includes all DWI convictions tainted by Dennis’s malfeasance. A notice issued by the judiciary raises doubt about the comprehensive nature of the list. The judiciary’s Cassidy website, of which we take judicial notice, N.J.R.E. 201, states that although “notices have been sent to all [defendants] eligible” who have a prior DWI conviction reviewed under Cassidy, “[y]ou may be eligible even if you did not get a notice . . . .” New Jersey Courts: Cassidy DWI Cases, https.//www.njcourts.gov/courts/ mcs/Cassidy.html (last visited Apr. 8, 2022). This is an acknowledgement by the judiciary that the list of defendants who received a Cassidy notice from the State is not definitive. Moreover, two Notices to the Bar issued by the Acting Administrative Director of the Courts, of which we take judicial notice, cast doubt on the proposition that Dennis’s misconduct did not affect any DWI conviction arising from Camden County. In a December 6, 2017 Notice to the Bar, the Acting Director stated with respect to cases affected by Dennis’s falsification of records, that “[a]lthough most of these cases were filed in five counties (Middlesex, Monmouth, Ocean, Somerset and Union Counties), there have been cases in twelve counties total.” Notice to the Bar, “Orders by Judge Lisa as Special Master in State v. Eileen Cassidy Staying Certain Alcotest- Related DWI Cases” (Dec. 6, 2017) (emphasis added). In addition, in a July 22, 2021 Notice to the Bar, the 25 Acting Director stated that more than 13,000 DWI convictions were eligible for review under Cassidy, “with most of those cases in four counties (Middlesex, Monmouth, Somerset, Union).” Notice to the Bar and Public, “Review of DWI Convictions Involving Not Properly Calibrated Equipment (State v. Cassidy) - Website to Facilitate Submission of Requests to Review a DWI Conviction” (July 22, 2021) (emphasis added). These notices acknowledge that Dennis’s misconduct affected DWI convictions in counties beyond Middlesex, Monmouth, Ocean, Somerset, and Union Counties, which are those most commonly associated with his malfeasance. [Zingis, 471 N.J. Super. at 606-07. (Emphases in original.] In its opinion, the Appellate Division panel noted it did “not foreclose the possibility that a more robust record in a future case may establish beyond a reasonably doubt that the State had identified every DWI conviction possibly tainted by Dennis’s misconduct, provided notice to the defendant in each of those cases, and compiled a record of such notification.” Id. at 607. The court then concluded: We note that when followed, the approach in place under Judge Lisa’s supplemental order [entered as Special master in Cassidy on November 28, 2017] provided definitive proof that a prior DWI conviction was not affected by Dennis’s misconduct. While this approach may be less convenient and efficient for the State than reliance on a list of defendants provided Cassidy notice, the definite nature of which has not been proven, the burden of Dennis’s malfeasance as a law enforcement officer falls on the State. Where the State seeks to impose an enhanced sentence, it cannot 26 escape on the grounds of convenience and expediency its obligation to prove that the prior conviction on which that enhanced sentence is predicated was not tainted by the previously established misconduct of a police officer. [Ibid.] Judge Lisa’s November 28, 2017 Order noted that the only definitive way to determine whether or not Sergeant Dennis calibrated an Alcotest Instrument used to take breath samples from a defendant is to obtain the relevant calibration documents for that particular Alcotest Instrument, which should be turned over to the defendant by the State in discovery. Zingis, 471 N.J. Super. at 597. Following the court’s decision in Zingis, the State filed an application for a stay and a motion for reconsideration in the Appellate Division. The Appellate Division considered the State’s motion for reconsideration and entered an order on May 26, 2022, found no reason to alter its April 25, 2022 opinion, and denied the State’s motion in an order entered on May 26, 2022. In a separate order, entered on that same date, the Appellate Division denied the State’s motion for a stay. The State then filed an application for emergent relief in the Supreme Court, seeking a stay. On June 1, 2022, the Supreme Court entered an order temporarily staying the Appellate Division’s opinion pending further order of 27 the Court, and set forth requirements for the filing of the State’s motion for a stay and its petition for certification and briefs, and the defendant’s responses thereto. On July 28, 2022, the Court issued an opinion and order in State v. Zingis, 251 N.J. 502 (2022), granting the State’s petition for certification and its motion for a stay and provided, as follows: It is further ORDERED that the matter is remanded to a Special Master for a plenary hearing to consider and decide the following questions, along with any other questions that the Special Master, in his discretion, deems relevant to the undertaking: (1) Which counties had convictions affected by the conduct of Marc W. Dennis, a coordinator in the New Jersey State Police’s Alcohol Drug Testing Unit, as described in State v. Cassidy, 235 N.J. 482 (2018), and (2) What notification was provided to defendants affected by Dennis’s conduct? It is further ORDERED that the Honorable Robert A. Fall, retired Judge of the Appellate Division, is appointed to serve as the Special Master, with his consent. The Special Master shall have discretion over the remand proceedings and, in addition to submissions from the parties, shall consider applications for leave to participate as amicus. The Court invites the Office of the Public Defender to participate as an amicus party. It is further ORDERED that, subject to any rulings by the Special Master regarding the proofs to be submitted on remand, defendant and the State shall each present evidence in support of their respective positions. In developing evidence relevant to the questions presented, the parties should seek responsive 28 information from the Office of the Attorney General and the Administrative Office of the Courts. It is further ORDERED that, after the record is developed, the Special Master shall make findings of fact and expeditiously complete and submit a written report of his findings to the Court. It is further ORDERED that, upon the filing of the Special Master’s report on remand, the Clerk of the Court shall establish a supplemental briefing schedule on appeal and shall schedule the matter for oral argument on the record as developed by the Special Master and supplemental briefing. [Zingis, 251 N.J at 503-04.] III. PROCEDURAL HISTORY Following the Court’s July 28, 2022 Order, on August 1, 2022, notice was sent to all counsel of record, along with a copy of my June 21, 2019 Initial Report to the Court, as Special Master in State v. Cassidy, see Exhibit S-31, scheduling a case management conference before this court on August 29, 2022. Robyn S. Mitchell, Deputy Attorney General, counsel for plaintiff- appellant, State of New Jersey, Michael B. Cooke, Esq., counsel for defendant- respondent, Joseph J. Russo, First Assistant Public Defender, and Steven Somogyi, Assistant Director of the Administrative Office of the Courts, for Municipal Court Services, participated in the case management conference, resulting in issuance of a case management order dated August 31, 2022, which provided, as follows: 29 1. The New Jersey Public Defender shall advise the Special Master on or before September 30, 2022, whether his Office will accept the invitation of the New Jersey Supreme Court to participate as an amicus party in this matter; 2. All applications for participation as an amicus party in this matter, on notice to counsel of record at the addresses listed herein, shall be filed by September 30, 2022, with the Special Master, at: Superior Court of New Jersey, Appellate Division, Monmouth Park Corporate Center, 185 State Highway 36, Suite 1, West Long Branch, New Jersey 07764, with an electronic copy to . Within five (5) business days thereafter, counsel of record shall advise the Special Master of any objection or assent to such an application, and the Special master will decide any such application thereafter; 3. The Office of Attorney General shall provide to the Special Master and counsel a copy of the notice and list of 20,667 potentially affected defendants, sent to the Administrative Office Courts following Marc Dennis being criminally charged, referenced in State v. Cassidy, 235 N.J. at 486-87, by not later than September 16, 2022, which notice and list shall be deemed confidential and shall not be disseminated to or shared with anyone or any entity, except counsel of record and the parties, pending further Order. Counsel for the State shall also prepare and file with the Special Master, with copies to counsel of record, by September 16, 2022, a certification outlining the manner in which the referenced 20,667 potentially-affected defendants were identified and compiled; 4. The copy of the referenced Special Master’s Initial Report to the New Jersey Supreme Court provided to counsel shall not be disseminated or shared with anyone or any entity, except counsel of record and the parties, pending further Order; 30 5. Following receipt and review of the aforesaid list of 20,667 potentially affected defendants, the referenced certification, and the aforesaid Initial Report, counsel shall file with the Special Master, with copies to all counsel of record, any further discovery requests by not later than September 30, 2022, with any objections thereto filed with the Special Master and served upon counsel of record by October 7, 2022, after which the Special Master shall issue, if necessary, a Discovery Order; 6. Counsel are encouraged to exchange documentation relevant to the task of the Special Master as delineated in the Order of the Supreme Court entered in this matter on July 27, 2022 and to stipulate to any documents exchanged; 7. The goal of the Special Master is to conduct the plenary hearing set forth in the Court’s July 27, 2022 Order sometime in November 2022, and to issue a Report to the Court promptly thereafter; and 8. The following contact information shall be utilized in performance of the requirements set forth in this Order: Robert A. Fall, J.A.D., Special Master Superior Court of New Jersey, Appellate Division Monmouth Park Corporate Center Suite 1, 185 State Route 36, West Long Branch, New Jersey Telephone: 848-448-0899 email: Michael B. Cooke, Esq. 25-F Main Street Toms River, New Jersey 08753 Telephone: 732-244-1936 email: mike@attorneycooke.com 31 Robyn Mitchell, Esq. Deputy Attorney General 25 Market Street PO Box 085 Trenton, New Jersey 08625 Telephone: 609-376-2398 (office) 609-422-6320 (cell) email: mitchellr@njdcj.org Joseph J. Russo, Esq. First Assistant Public Defender 25 Market Street PO Box 850 Trenton, New Jersey 08625-0850 Telephone: 609-984-0094 email: Joseph.Russo@opd.nj.gov [See Exhibit A.] On September 16, 2022, DAG Mitchell sent the court and all counsel, the following: a copy of the letter, dated September 19, 2016, from Elie Hong, Director of the Division of Criminal Justice, to the Honorable Glenn A. Grant, Administrative Director of the Courts, see Exhibits S-32 and S-81A; DAG Mitchell’s certification, dated September 22, 2022, setting forth the procedures utilized by the State to identify defendants potentially affected by the Court ’s decision in Cassidy, see Exhibit S-27; and the Excel Spreadsheets attached to the September 19, 2016 letter, containing the State’s listing of the defendants potentially-affected by the Court’s decision in Cassidy, see Exhibits S-91 and S-81B through 81F. 32 On September 30, 2022, the Public Defender’s Office filed and served a Motion to Participate as Amicus Curiae. See Exhibit B. Also on September 30, 2022, defendant-respondent filed and served his First Combined Discovery Demands. See Exhibit C. On October 6, 2022, the State filed and served a request for an extension, to October 21, 2002, to file its reply to the d iscovery demands, which was granted. See Exhibit D. On October 12, 2022, the New Jersey State Bar Association (NJSBA) filed and served a Motion for Leave to Appear as Amicus Curiae. See Exhibit E. On October 21, 2022, the State filed and served, (1) a letter, opposing in part, the discovery demands; (2) a letter concerning the Public Defender’s motion to appear as amicus curiae; and (3) a letter concerning the motion by NJSBA to appear as amicus curiae. See Exhibit F. Also on October 21, 2022, the NJSBA filed and served, a brief in reply to the State’s opposition to the discovery demands and concerning its application to appear as amicus curiae. See Exhibit G. On October 27, 2022, the Public Defender filed and served a response to the State’s October 21, 2022 letters. See Exbibit H. On December 5, 2022, I issued an Order, granting the application of the Public Defender and NJSBA to appear as amicus curiae, scheduling oral argument on the discovery requests and scheduling a second case management conference, for December 22, 2022. See Exhibit I. On December 20, 2022, 33 Mr. Gold, on behalf of the NJSBA, sent an email to the court and all counsel, outlining the Bar’s position on the discovery issues. See Exhibit J. Oral argument on the discovery issues, and a second case management conference, were conducted on December 22, 2022. On December 27, 2022, the court issued an Order for Discovery and Second Case Management, and Scheduling Plenary Hearing. See Exhibit K. That Order adjudicated all outstanding discovery requests, requiring them to be satisfied and provided to the court and all counsel by January 17, 2023, and scheduled the plenary hearing to commence on January 31, 2023, to continue on consecutive days until completed. Paragraph 3 of that Order permitted the Public Defender and the NJSBA to file and serve, via email, any additional requests for discovery, by January 4, 2023, with any responses thereto to be filed and served by January 9, 2023. On January 3, 2023, Mr. Noveck, on behalf of the Office of Public Defender, submitted five (5) requests for discovery, see Exhibit L, as did the NJSBA, see Exhibit M. On that same date, the State filed and served a request for the court to reconsider that portion of the December 27, 2022 Order for Discovery, requiring the State to identify individuals within the NJSP, presently employed or retired, who might provide testimony concerning creation of the Alcotest Inquiry System database. See Exhibit N. 34 By letter dated January 9, 2023, the State submitted opposition to the applications of the Public Defender and NJSBA for additional discovery. See Exhibit O. In an email dated January 9, 2023, Mr. Noveck filed and served a reply to the State’s letter brief. See Exhibit P. On January 10, 2023, the NJSBA filed and served a letter brief in opposition to the State’s motion for reconsideration, and a response to the State’s opposition for additional discovery. See Exhibit Q. In letter briefs, and a certification, dated January 12, 2023, the State requested the court review the work records of Sergeant Dennis, ordered to be produced by the December 27, 2023 Order, in camera, and requested an extension of time to produce same. See Exhibit R. On January 16, 2023, the NJSBA filed and served a letter brief addressing the State’s opposition to additional discovery and concerning the ordered work records of Sergeant Dennis. See Exhibit S. On January 17, 2023, the court issued a letter opinion and Order determining the discovery issues raised by counsel, setting discovery deadlines, and adjourning commencement of the plenary hearing to February 15, 2023. See Exhibit T. The Order granted, in part, the application of the State for reconsideration of the December 27, 2022 Order, directing the State 35 to identify individuals within the Office of Forensic Sciences (OFS), the Information Technology Bureau (ITB), and the Alcohol Drug Testing Unit (ADTU) of the NJSP, and within the Attorney General’s Office, presently employed or retired, who will be able to provide testimony concerning the method employed to create the list of defendants potentially affected by the Court’s decision in Cassidy, as well as producing representatives of the AOC to provide testimony concerning the method it utilized to determine addresses of those potentially-affected defendants identified in Exhibit S-91. The Order further required the State to identify and provide testimony from witnesses concerning how the list of 18,827 cases impacted by the Court’s decision in Cassidy, as contained in the June 21, 2019 Initial Report by the Special Master in Cassidy, see Exhibit S-31, was created, and to provide testimony concerning the notification letters sent to all Cassidy-affected defendants. The Order also required summaries of testimony of witnesses to be presented be supplied to the court and all counsel at least seven (7) days prior to commencement of the plenary hearing. Additionally, the Order required the State to provide, in discovery, all available digital information and spreadsheets pertaining to the 27,833 records noted in DAG Mitchell’s September 16, 2022 certification. All other discovery requests were denied. The Order further directed that the work records of Sergeant Dennis, ordered to be produced, be first reviewed by the 36 court, in camera, with the court, thereafter, to provide counsel with a letter opinion concerning same. All additional discovery was to be produced by February 3, 2023. Following the State’s submission of the work records of Sergeant Dennis, and the court’s in camera review of same, on January 19, 2023, the court issued a letter opinion and order, noting that the records supplied are not “work records” that would indicate day-to-day assignments, or work history of Sergeant Dennis, but were, rather, in the nature of “personnel performance” records, which the court deemed irrelevant to the issues presented. See Exhibit U. On February 6, 2023, Michael B. Cooke, Esq., counsel for defendant- respondent, filed and served a motion for additional discovery, which the court denied, on that date, as being out-of-time. See Exhibit V. On February 6, 2023, the State provided its list of witnesses and summaries of proposed testimony. See Exhibit W. During the course of this matter, the State provided the court and counsel with voluminous discovery, both in the form of eleven (11) password- protected Thumb Drives, and attachments to various emails. The discovery produced, as well as the exhibits produced during the hearings constitute more than 250,000 pages, and have been placed on a SharePoint site that is available 37 to the Court, the parties, and all counsel of record. Many of the exhibits contain personal and confidential information and should be protected from public scrutiny. On February 8, 2023, Michael Noveck, Assistant Deputy Public Defender, requested an adjournment of the plenary hearing, scheduled to commence on February 15, 2023, for a period of two to four weeks to allow review of the voluminous discovery provided. As a result, the court scheduled and conducted a conference call with all counsel, arranged by Sharon Balsamo, Esq., General Counsel for the NJSBA, on February 10, 2023. Prior thereto, Jeffrey Evan Gold, Esq., counsel for the NJSBA, filed and served a response to the adjournment request, joining in same. See Exhibit X. DAG Clark, on behalf of the State, also submitted a letter, dated February 9, 2023, outlining the State’s position. See Exhibit Y. After conducting the conference call, the court rescheduled the plenary hearing to commence on March 15, 2023. On February 13, 2023, the NJSBA sought access to the non-public portion of the Alcotest Inquiry System database, and provided the court with a proposed protective order. See Exhibit Z. On that date, the State filed and served written objections to that request, followed by a detailed letter-brief on February 21, 2023. See Exhibit AA. On February 22, 2023, the NJSBA filed a response to the State’s objections. See Exhibit AB. 38 On February 21, 2023, counsel for the AOC requested the court enter a protective order to safeguard the personal information and documentation provided by the AOC during this proceeding. See Exhibit AE. On February 22, 2023, the court entered a Protective Order, directing that all documentation provided in discovery concerning the personal information of litigants, counsel and potentially-affected defendants shall be deemed confidential, and shall not be disseminated beyond counsel of record without permission of the court. See Exhibit AF. On February 22, 2023, Mr. Noveck, on behalf of the Public Defender, the NJSBA, and Defendant-Respondent, filed and served a letter-brief in support of its position that the State should be required to provide written, sworn statements from proposed witnesses, William Donahue, William Gronikowski, and Charles Prather, prior to their testimony and commencement of the plenary hearing. See Exhibit AC. On that same date, the NJSBA filed and served its support of the Public Defender’s request. See Exhibit AD. On February 27, 2023, the State filed and served a request, pursuant to N.J.R.E. 807, concerning admission into evidence documents provided in discovery that constitute Public Records, Reports and Findings in accordan ce with N.J.R.E. 803(c)(8). See Exhibit AG. That request was granted. 39 On February 28, 2023, the State filed and served a letter-brief concerning the positions of the NJSBA, the Public Defender, and Defendant - Respondent that the State’s witnesses, Donahue, Gronikowski, and Prather be deemed experts. See Exhibit AH. On February 28, 2023, the Public Defender and NJSBA filed and served their arguments in support of access to the non-public portion of the Alcotest Inquiry System database. See Exhibits AI and AJ. On March 1, 2023, the State filed and served a letter-brief in further opposition to the proposed protective order submitted by the NJSBA, seeking access to the non-public portion of the Alcotest Inquiry System database. See Exhibit AK. On that same date, the NJSBA filed and served additional argument in support of that proposed protective order. See Exhibit AL. On March 2, 2023, the court issued a written opinion and Order, requiring the State to provide written, sworn statements from witnesses, William Donahue, William Gronikowski, and Charles Prather, and reserving on the request for access to the non-pubic portion of the Alcotest Inquiry System database until conclusion of the testimony of witnesses Donahue and Gronikowski. See Exhibit AM. 40 On March 3, 2023, the State submitted a summary of the testimony to be provided by Deputy Attorney Robyn Mitchell, and Sergeant First Class Kevin Alcott of the NJSP. See Exhibit AO. On March 29, 2023, this court issued a letter opinion and order, denying the applications of the NJSBA, Office of Public Defender, and Defendant- Respondent for access to the private portion of the Alcotest Inquiry System database, but requiring the State to arrange for the Alcotest Inquiry System database to be queried, and provide the court and all counsel and Excel Spreadsheet that sets forth solution changes and calibrations on all Alcotest Instruments in New Jersey from November 5, 2008 through June 30, 2016. See Exhibit AS.4 As noted, throughout the course of the procedural history of this matter, the State, counsel for Defendant-Respondent, and counsel for Amici Curiae, the NJSBA and Office of Public Defender, submitted voluminous exhibits, and I prepared and periodically provided all counsel with copies of Exhibit Lists, assigning designated exhibit numbers to each exhibit for ease of reference during the plenary hearing. Those assigned “Exhibit Numbers” are referenced throughout this court’s Report to the Supreme Court, with the prefix 4 The ordered Excel Spreadsheet was provided and has been marked into evidence as Exhibit S-152, and consists of 236,664 subject test records, containing 25,180 pages. 41 designation of “S” for the State’s exhibits, “DB” for the NJSBA’s exhibits, “DPD” for the Office of Public Defender’s exhibits, “DZ” for those submitted of behalf of Defendant-Respondent, Thomas Zingis, and “DB/DPD” or joint exhibits submitted by the NJSBA and Public Defender. Exhibits not marked during the plenary hearing, but constituting references in the Procedural History of this Report have been alphabetically marked. All Exhibits are listed in Appendix I of this Report. Commencement of the plenary hearing was adjourned to March 20, 2023, and a “technology test” concerning the various electronic exhibits to be displayed to the witnesses, the court, and all counsel was conducted at the Middlesex County Courthouse on March 14, 2023. The plenary hearing was conducted at the Middlesex County Courthouse on the following ten (10) dates: March 20, 21, 22, and 28, 2023; April 25, 26, and 27, 2023; and June 12, 13, and 14, 2023. The transcripts of those hearings are contained in Appendix II of this Report. The court received testimony from fourteen (14) witnesses which is summarized and discussed herein. On July 17, 2023, all counsel filed and served Proposed Findings of Fact and Conclusions of Law. See Exhibits AO, AP, AQ, and AR. 42 IV. WITNESSES; TESTIMONY AND ASSESSMENT A. State’s Witnesses 1. William Donahue, Jr. William Donahue, Jr., was called as a witness by the State. Mr. Donahue, who retired in November 2021, worked for the New Jersey State Police for approximately thirty (30) years. His position prior to retirement, which he held for four (4) years, was Supervising Management Improvement Specialist, as Head of the Programming Unit of the State Police’s Information Technology Bureau. He spent his entire career with the State Police working in the information technology area. His testimony in contained in T1, the March 20, 2023, Transcript, on pages 11-139. The Court’s decision in State v. Chun, 194 N.J. 54, 153, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), required the State to provide a central repository of data from all Alcotest Instruments in New Jersey. Mr. Donahue verified that the Alcotest Inquiry System database was created through collaboration with Drager, the manufacturer of the Alcotest 7110 MKIII-C used in New Jersey; Ayoka Systems, a third-party software developer contracted by Drager; the Office of Forensic Sciences, the Alcohol Drug Testing Unit (ADTU) and the Information Technology Bureau of the New Jersey State Police; and NICUSA, Inc., a company that provides software 43 and technology services to governmental agencies. As noted, the State has been determined to be in full compliance “with this Court’s Order of March 17, 2008, in all respects.” State v. Chun, 215 N.J. 489, 491 (2013). Mr. Donahue noted Ayoka created the software that communicates between the servers in West Trenton and the individual Alcotest Instruments and transfers the data retrieved into the database. In 2011, Mr. Donahue wrote the design requirements for the Alcotest Inquiry System database used by the public, which he described as a web application whereby members of the public can register, receive an account number, and make various inquiries of the Alcotest database. As noted infra., Mr. Donahue explained there are two types of accounts relating to access to that database. The first is a “Public Account,” and a fee is charged for the data extracted. The second is an “Administrative Account,” which is private, access to which must be granted by the Office of Forensic Sciences of the New Jersey State Police, and there is no fee charged. Mr. Donahue stated the Alcotest Inquiry System database contains information extracted from each of the approximately 600 Alcotest Instruments used through the State, and is downloaded weekly through dedicated phone-line servers into the database, which is centrally maintained by the Office of Forensic Sciences located at the New Jersey State Police 44 Headquarters in West Trenton. Upon successfully downloading the data from an Alcotest Instrument, the data in that Alcotest Instrument is deleted so that it will not be replicated during the next weekly download. Mr. Donahue further explained the Alcotest Inquiry System database contains two groupings of information: (1) Alcotest Subject Records; and (2) Alcotest Instrument Certification records. There are three different search types that can be conducted to extract information from the database. The first is a “Subject Table” search, which would only return subject data. This search would be used to find information concerning the administration of breath - sample testing on an Alcotest Instrument to a particular individual. The second is a “Certification Table” search, which returns certification data, specific to the Alcotest Instrument searched, as to when it was last calibrated, when the solution changes took place, and the name of the State Police Coordinator who performed the work. The third type of search is an “Activity Query,” which is a combination inquiry that would look at both Tables and reveal any activity on a specific Alcotest Instrument, whether it was a Blood- Alcohol Content (BAC) test conducted, or calibration work performed, and it would combine that query into the results for that specific request. During his testimony, Mr. Donahue was shown a copy of Exhibit S-90, the Excel Spreadsheet entitled “Spreadsheet Received from NJSP_27,833 45 subject records.xlsx.” This Spreadsheet, which was identified by Mr. Donahue as a product of the State Police’s Information Technology Bureau, is the result of a search of the Alcotest Inquiry System database. It purportedly contains the names of all subject breath tests, 27,833 in number, that were potentially affected by the Supreme Court’s decision in State v. Cassidy, 235 N.J. 482 (2018), because the individuals listed therein had been requested to provide breath samples on Alcotest Instruments, in DWI prosecutions, on Alcotest Instruments calibrated by Sergeant Marc Dennis. Mr. Donahue testified the Excel Spreadsheet contained in Exhibit S-90 “looks like the spreadsheet that I had created,” noting that in 2015 or 2016 when it was created, he would have been the only employee of the New Jersey State Police authorized to query the database and create same. However, he could not recall why the Spreadsheet contained in Exhibit S-90 was created, and noted that it does not contain a Column providing the identity of the State Police Operator who calibrated the Alcotest Instruments designated in Column B. Sheet 2 of Exhibit S-90 contains the “SQL Statement,” which is the computer code for the requested search, or “query,” of the database. Mr. Donahue testified the tool used to create the search is called “PL/QQL Developer,” a product developed by Oracle, a technology-provider company. 46 “SQL” stands for “Structured Query Language” and is a domain-specific language in programming, designed for managing data stored in a database. See Beaulieu, Alan (April 2009), Mary E. Treseler (ed.) Learning SQL (2nd ed). Sebastopel, CA, USA: O’Reilly. ISBN978-0-596-52083-0. Mr. Donahue explained a “query” is a basic program that requests the database to return anything that matches the criteria placed in the query. A “table” is where the data is located and, within the table, there are “Columns” or “Fields,” which are the individual data information for that specific table. In other words, a “table” is where the information is located, and a “query” contains the terms utilized to extract that information, putting that information in another form, such as on an Excel Spreadsheet, which is essentially a “report” of the requested information. He stated Sheet 1 of Exhibit S-90 is the “Report,” the results of that search, containing the subject data, for each row, in twenty-one (21) Columns, also knowns as “Fields” of information, alphabetically- designated as A through U, as follows: Column (Field) Information Displayed A Arrest Date B Serial Number, Alcotest Instrument C Calibration Date D Location of Alcotest Instrument E Subject’s Last Name F Subject’s First Name G Subject’s Middle Initial H Subject’s Date of Birth 47 I Subject’s Age J Subject’s Gender K Subject’s Weight L Subject’s Height M Driver’s License Number N Issuing State of License O Case Number P Summons Number Q Arrest Date R Arrest Time S Arrest Location Code T Final Error (if any) U End Result (BAC reading, if any) Although there are 21 Columns in this Spreadsheet, Columns “A” and “Q” contain the same information, the “Arrest Date.” Mr. Donahue acknowledged that a query of the database can provide up to 310 Columns, or Fields, of information concerning each attempt to provide breath samples on a specific Alcotest Instrument, and the individual conducting the search designates, in the SQL query, which Columns, or Fields, of information are requested. Mr. Donahue testified that in a Public Search, the information contained in Columns E through N, the personal identification information as to each subject, could not be retrieved or accessed. As noted, all Exhibits have been provided during the discovery, almost all electronically on Thumb Drives or as attachments to emails. During the 48 plenary hearing, all electronic exhibits were displayed to each witness, all counsel, and to the court, on computer screens. Mr. Donahue testified that during his career, he worked with Lieutenant Thomas Snyder, an officer in the Alcohol Drug Testing Unit (ADTU) of the State Police on various requests for information from the database. Mr. Donahue identified Exhibit S-78 in evidence, an email dated January 18, 2019, from Lieutenant Snyder to DAG Robyn Mitchell, referencing the request by Lieutenant Snyder for Mr. Donahue to query the Alcotest Inquiry System database and provide an Excel Spreadsheet of all solution changes on all Alcotest Instruments in New Jersey that occurred between November 1, 2008 and January 9, 2016. That requested Excel Spreadsheet, identified by Mr. Donahue, is Exhibit S-92, an Excel Spreadsheet entitled “20190124 Cert Tests Recs 11-1-08 thru 1-9-16-CD Order,” and contains all solution changes performed on all Alcotest Instruments in New Jersey, between those two d ates, and consists of 22,819 pages containing 68,450 solution change records, by date of solution change and calibration dates on each Alcotest Instrument, with 310 Columns, or Fields, of information as to each row. Notably, Columns AS through AV contain the full name and badge number of the Operator performing the solution change and calibration on each of the 68,450 Rows. A 49 line-by-line search of Exhibit S-92 reveals that Sergeant Marc Dennis completed calibrations on 1,111 Alcotest Instruments during that time period. Mr. Donahue explained that the Excel Spreadsheet in Exhibit S-92 displays, on each of the 68,450 Rows, on Columns A, B and C, the start time, the date of the solution change for that specific test record, and the calibration date. A solution change is performed prior to every calibration. He noted that Columns C and L contain the same information, as do Columns B and U. He further explained that the method of determining whether Sergeant Dennis performed a calibration listed on Exhibit S-92 is to highlight Column AS, “Operator Last Name,” and then perform a “Sort and Filter” function on that Column by typing in the name “Dennis,” which will reveal information that he completed the calibrations on 1,111 Alcotest Instruments. By way of example, Row 66024 shows that Sergeant Dennis performed the calibration on Alcotest Instrument ARWC-0187, located at the Cranford Township Police Station, on October 9, 2015 and, Row 66025 shows, on that same date, he performed the calibration on Alcotest Instrument ARWC-0010, located at the Kenilworth Police Station. On Cross-examination, Mr. Gold showed Mr. Donahue Exhibit DB-1A, which is a printout of the results of an Activity Query search Mr. Gold conducted of the Alcotest Inquiry System database concerning Alcotest 50 Instrument ARXA-0037, located in Wall Township Police Station, which shows 24 Rows relating to subjects tested on that Instrument, with all 310 Columns, or Fields, of available information, consisting of 45 pages. The purpose was to show the breadth of information that is available, beyond that contained on Exhibit S-90, when conducting a search pertaining to the breath samples provided by a subject on a particular Alcotest Instrument. Exhibit DB-1B contains the results of that same search and was taped page-to-page, with those Columns highlighted in “Yellow” to show the additional information available from such a search. Mr. Gold also showed Mr. Donahue Exhibit DB-1C, which is the printed-out results of a Subject Table search Mr. Gold conducted of the Alcotest Inquiry System database concerning the testing of 24 subjects on Alcotest Instrument ARAJ-0074, located at the Fair Haven Police Station. That Exhibit contains 21 Columns, or Fields, of information. Mr. Donahue acknowledged the results of the searches in Exhibits DB-1A, DB-1B and DB-1C do not display the identity of the Operator who performed the calibration of the Instrument, only the Operator who performed the breath test because they were searches of the Subject Table. Mr. Donahue explained a search of the Certification Table would be necessary to obtain the identity of the Operator who performed the calibration of the Alcotest Instrument. 51 When I asked Mr. Donahue whether the identity of the Operator could be extracted from a search of the database if I knew that a particular subject was arrested and requested to provide a breath sample on an Alcotest Instrument on a particular date, he stated: Judge, I know you get the record by the date. You can’t query the subject’s information. But if you specify a date range, it will let you know that the test was given. I know you can return one or the other using the queries that are provided to the public. [T1, page 88, lines 8-12.] Thereafter the following colloquy ensued between myself and Mr. Donahue: THE COURT: What I’m contemplating is this and the question I have is this, if you know, Mr. Zingis was arrested and blew into a machine within the time frame, between 2008 and 2016 someplace in Camden County. And if he filed an application for post-conviction relief, and if the Court wanted to get the record of who calibrated the machine that he blew into, would they be able to extract that information? THE WITNESS: I’m Sure. THE COURT: Okay. All right. So if any person -- any defendant wanted to – counsel wanted to know and the Court authorized it, they could ask the State to produce an Alcotest calibration record for a machine within that time period in any municipality in the State. THE WITNESS: Yes, there’s a query there for the public, there’s a third query called the activity query, that would provide you information from both the 52 subject table and the certification table in the range that you’ve requested. Then there probably would have to be some manual comparison by the requester to try to match things up. THE COURT: All right. But the information could be extracted from the database? THE WITNESS: And it’s provided. Sure it’s provided. [T1, page 88, line 8 to page 89, line 15.] During cross-examination by Mr. Noveck, Mr. Donahue testified further that he believes he created the SQL Statement contained on the second-listed tab of S-90, which resulted in the Excel Spreadsheet contained on the first - listed tab of Exhibit S-90. He noted this was a search of the Subject Table of the database and did not contain the identity of the Operator who performed the calibration of the Alcotest Instrument on which the test was given. He explained that the query reflected in the SQL Statement on Tab 2 of Exhibit S- 90 requested the records for each Alcotest Instrument within the specified date range of November 14, 2008 through May 1, 2016. He noted there were 19 Alcotest Instrument serial numbers listed in the SQL Statement in Tab 2, but there were more than 19 Alcotest Instrument serial numbers listed in the SQL Results in Tab 1. Mr. Donahue testified it appears that the query shown on the “SQL Statement” in Tab 2 does not match the information contained in the “SQL Results” tab of the Exhibit S-90 Spreadsheet. During cross-examination 53 of Mr. Donahue, Mr. Noveck created Exhibit DPD-1 as a Word formatted document, having extracted it from Tab 2, the “SQL Statement” of Exhibit S- 90. The Query requested in that Exhibit contains all 310 available Columns of information, the specified date range of retrieval, and 19 Alcotest Serial Numbers to search. Mr. Noveck confirmed with Mr. Donahue that he believed the Excel Spreadsheet contained in Exhibit S-90 was created from a query he ran of the Alcotest Inquiry System Subject Table. See T1, p. 124, lines 20-24. However, Mr. Donahue was unable to explain why the SQL Statement on Tab 2 of Exhibit S-90 requested 310 Columns and 21 were returned on the Excel Spreadsheet on Tab 1 thereof, or why a query of 19 Alcotest Instruments was requested in the SQL Statement, yet more than 19 were listed on the Excel Spreadsheet. The court finds the testimony of Mr. Donahue to be credible, although it was clear he did not recall the reason for the requested query, or specifically conducting the query resulting in creation of the Excel Spreadsheet contained in Exhibit S-90. However, he testified he was the only employee in the IT Unit who would have been authorized to conduct that requested query of the Alcotest Inquiry System database. Accordingly, the court concludes Mr. Donahue conducted the query and produced the Excel Spreadsheet contained in Exhibit S-90. 54 However, based on the testimony and evidence submitted during the plenary hearing, it is clear that the SQL Statement concerning that query, contained on Tab 2 of Exhibit S-90, was flawed, which will be discussed in some detail infra. 2. William Gronikowski William Gronikowski was presented by the State as a witness. His testimony is contained in T1, the March 20, 2023, Transcript, on pages 140 - 173. He has been employed by the New Jersey State Police for approximately twenty-five (25) years, and is currently the Supervisor of Information Technology in the Information and Techn [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10501173. Public record. Not legal advice.