State v. Thomas Zingis

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 -- Revised November 7, 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 Alcotest serial 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 Calibration Repository Summary. 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

2

Dennis Calibration Repository Summary, 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

Calibration Repository Summary, 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 Revised

July 28, 2022 September 15, 2023 November 7, 2024

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,” 1 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.

1

Exhibit DB/OPD – 28.

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 2 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.

2

Exhibit S-152 is an Excel Spreadsheet that the State provided to the Special

Adjudicator and parties containing certain information with respect to all

Alcotest Instruments used 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. 3

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

3

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. 4 Therefore, the Special

Adjudicator held that it will be incumbent upon the State to identify these

4

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. 5 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. 6

The Alcotest serial 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 Alcotest serial number

and labeled accordingly. The repository shall be made publicly available by

placing it on a State website.

5

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.

6

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

Additionally, for ease of reference and use in exchanging discovery, the

Dennis Calibration Repository shall be summarized in a Dennis Calibration

Repository Summary, 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 the instrument serial number (for example,

“ARWA-0188”), machine location, and dates of calibration. This Dennis

Calibration Repository Summary 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 Alcotest serial number from Exhibit S-152 is a match with an

Alcotest serial number from the Dennis Calibration Repository Summary or

not. The State must also provide a copy of the Dennis Calibration Repository

Summary 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 Calibration Repository Summary, and

the confirming prior disposition revealing the summons number for the

21

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.

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 Calibration Repository

Summary, 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,

22

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.

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 information, organized by columns,

pertaining to all Alcotests utilized in New Jersey from November 5, 2008

through June 30, 2016: (1) arrest date; (2) arrest time; (3) arrest location;

(4) Alcotest instrument serial number; (5) immediately preceding calibration

date; (6) location of test; (7) subject’s (a) last name, (b) first name, (c) middle

initial, (d) date of birth, (e) age, (f) gender, (g) weight, (h) height, (i) driver’s

license number, and (j) license issuing state; (8) summons number; (9) “final

error” (referring to any errors in the test administration, such as subject refusal

or control test failure); and (10) “end result” (i.e., any resulting blood alcohol

content (BAC) reading). 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

23

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.

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. 7 Exhibit S-152 shall be redacted to

exclude the following columns of personal identifying information: (7)(a) last

name; (7)(b) first name; (7)(c) middle initial; (7)(d) date of birth;

(7)(i) driver’s license number; and (7)(j) license issuing state. Exhibit S-152,

7

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.

24

in its newly redacted form, must be publicly released on the State’s website. 8

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. 9 The prosecutor must now provide the prior

disposition, along with the complete row of data from Exhibit S-152, and the

Dennis Calibration Repository Summary 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

8

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.

9

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,

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

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.

26

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 Technology Bureau. He replaced Mr.

Donahue upon his retirement.

Toward the end of 2022, SFC Alcott requested Mr. Gronikowski to

produce a report that had been previously created by Mr. Donahue. Exhibit S -

43 is an email chain between SFC Alcott and Mr. Gronikowski on December

28, 2022. Specifically, SFC Alcott forwarded Mr. Gronikowski the Excel

Spreadsheet contained in Exhibit S-92, requesting it be updated to include all

Alcotest Instrument Records in the State from December 1, 2005 to December

31, 2017, which was requested by the Attorney General’s Office.5 Mr.

5

Exhibit S-92 is the Excel Spreadsheet created by Mr. Donahue, containing

all Solution Changes and Calibrations performed on all Alcotest Instruments

from November 1, 2008, through January 9, 2016.

55

Gronikowski testified he located the report, and altered the range of dates

requested, increasing the date range by one month on each side of the range,

produced a query of the Alcotest Inquiry System database, ---

see Exhibit S-45,

exported the results onto an Excel Spreadsheet, and emailed it to SFC Alcott

on that same date. To generate the query, Mr. Gronikowski used a software

program called “Quest” from a product called “Toad,” which was similar to

“PLL SQL,” the software used to produce Exhibit S-92.

That Excel Spreadsheet created by Mr. Gronikowski is Exhibit S-116,

entitled “Records11012005_01312018[Compatibility Mode].” It contains all

Solution Changes and Calibrations performed on all Alcotest Instruments in

New Jersey from November 1, 2005 through January 31, 2018. It consists of

two (2) Sheets. Sheet 1 contains 64,999 Solution Changes and Calibrations,

and Sheet 2 contains 41,413 Solution Changes and Calibrations for a total of

106,412 during that time range. Each Sheet contains 126 Columns of

information for each Row. Column A contains the Serial Number of the

Alcotest Instrument, Column H the Calibration date and Column Q the

Solution Change Date. Columns AO through AR contain the identity of the

Coordinator performing each Solution Change and Calibration. In creating

this Spreadsheet, Mr. Gronikowski emphasized he did not alter or change

56

anything in Exhibit S-92, but simply expanded the date range. Thereafter, Mr.

Gronikowski sent an email to DAG Clark, dated January 19, 2023, stating:

Attached is an email chain from SFC Alcott, this email

contained a spreadsheet that was previously supplied to

him. I used that information to find the query that

produced it. That query was stored on our network

drive that Bill Donahue kept other AlcoTest

documentation. I then updated the query with the new

date range that was requested.

[Exhibit S-74.]

Mr. Gronikowski explained that both Sheets in Exhibit S-116 represent a

continuous record of the data requested, and two Sheets were required because

that version of Excel has a limit of 65,000 Rows per Sheet, and when that limit

is reached, Excel automatically creates a second Sheet. S-116 contains

Certification Records extracted from the Alcotest Inquiry System database.

The testimony of Mr. Gronkowski was credible, but limited to the

creation of the spreadsheet utilized to determine the identity of the ope rators

who performed Solution Changes in conjunction with the Recalibration of

Alcotest Instruments during the indicated time period.

3. Robyn Mitchell

Robyn Mitchell is a Deputy Attorney General. Since January 2023, she

has been the Acting Chief of the Supervision and Training Bureau, within the

Division of Criminal Justice (DCJ), in the Office of the Attorney General.

57

Prior to that, she was the Deputy Bureau Chief for ten (10) years. In total, she

has been employed by the DCJ for approximately twenty-three (23) years. She

was called by the State as a witness during this plenary hearing. The

testimony of DAG Mitchell in contained in T3, the March 22, 2023 Transcript,

at pages 127-162, in T4, the March 28, 2023 Transcript, at pages 13-199 and

201-230, and in T5, the April 25, 2023 Transcript, at pages 13-164.

In November or December of 2015, after learning of the allegations

against Sergeant March Dennis, DAG Mitchell was assigned to assist then-

Bureau Chief Robert Czepiel, a Supervising Deputy Attorney General

(SDAG), in identifying defendants who provided breath samples on Alcotest

Instruments that had been calibrated by Sergeant Dennis. It had been

determined that November 5, 2008 was the first date Sergeant Dennis was

authorized, as a Breath test Coordinator, to calibrated Alcotest Instruments,

and the last date he was authorized to do so was October 9, 2015. ---

See Exhibits

S-1 and S-7.

In order to accomplish that task, DAG Mitchell reached out to the

Alcohol and Drug Testing Unit (ADTU) of the New Jersey State Police

(NJSP), inquiring whether that Unit would be able to determine what Alcotest

Instruments were calibrated by Sergeant Dennis during that time period. She

was advised that although the ADTU did not maintain copies of all calibration

58

documents, representatives of the ADTU believed that the Information

Technology Bureau of the NJSP could perform a search of the Alcotest Inquiry

System database (database) and obtain that information. Accordingly, DAG

Mitchell requested the ADTU to perform that search and provided DCJ with a

list of those subjects who had been requested to provide breath samples, on

Alcotest Instruments calibrated by Sergeant Dennis from November 5, 2008

until six (6) months after October 9, 2015, since she was aware that Alcotest

Instruments are required to be recalibrated every six (6) months.

Thereafter, either later in 2015 or early 2016, DAG Mitchell received a

compact disc (CD) from the ADTU containing the results of the requested

search, an Excel Spreadsheet, listing 27,833 subjects who had been requested

to provide breath samples on Alcotest Instruments that had been calibrated by

Sergeant Dennis, during the requested time period. DAG Mitchell testified she

then downloaded the information on that CD onto her computer at work.

Exhibit S-147, marked into evidence during DAG Mitchell’s testimony, are her

handwritten notes on the CD provided to her by the ADTU.6 Exhibit S-90 and

6

Exhibit S-147 contains the date of February 8, 2023, which, as testified by

DAG Mitchell, was the date that she provided the CD to DAG Clark to verify

that the only information on that CD was the Excel Spreadsheet containing the

27,833 Subject Rows and twenty-one (21) Columns, identical to that contained

in Exhibits S-90 and S-148.

59

Exhibit S-148, entitled “5925_Spreadsheet_Final.xslx,” are identi=cal in

content, contain the same information.

DAG Mitchell testified she was aware there are over three hundred (300)

columns of data that can be retrieved from the database as to each breath test,

but was not aware as to why the Excel Spreadsheet provided by the NJSP,

contained in Exhibits S-90 and S-148, only contain 20 Columns of

information. During her direct examination, DAG Mitchell was shown Exhibit

DB-1B, which is a sample Excel Spreadsheet produced by counsel for the New

Jersey State Bar Association, extracted from a query of the Alcotest Inquiry

System database for information pertaining to a specific Alcotest Instrument.

It consists of forty-five (45) pages with three hundred and ten (310) Columns,

or Fields, of information as to each Subject Row. That Exhibit has the two

hundred and ninety (290) Columns not shown on Exhibits S-90 and S-148,

which are highlighted in “Yellow.” DAG Mitchell testified that none of the

Columns highlighted in “Yellow” were necessary for her to complete the

assigned task of identifying those subjects who had been arrested and charged

with DWI, were requested to provide breath samples on an Alcotest Instrument

that had been calibrated by Sergeant Dennis that resulted in an evidential BAC

60

reading and, thereby, were potentially affected by the misconduct of Sergeant

Dennis.7

DAG Mitchell testified upon receipt of Exhibit S-90, she reviewed

Column U (End Result), and deleted all Subject Rows where a Blood-Alcohol

Content (BAC) reading had not been reported. By way of example, she was

referred to Row 27,803, in which Column U contained “dashes,” indicating no

BAC reading had been obtained during the attempted breath test of that

individual, and she testified she deleted that Row. She explained the deletion

of that and other like Rows, as follows:

Because no breath sample, no breath test reading

was given. So there was no breath alcohol BAC

reading, then any DWI conviction could not have been

based on a reading given by an instrument. It had to be

either an observation – if there was a conviction.

[T3, p. 140, lines 11-15.]

As a result, DAG Mitchell deleted 7,166 Rows on Exhibit S-90, where

no BAC reading had been obtained, either because the Arresting Officer or

Operator, after following the procedures set forth in the Implied Consent

Statute and preparing the Alcotest Instrument, the subject refused to submit

7

Again, as noted, the determination by the Attorney General's Office, that

only attempted breath tests on Instrument resulting in a BAC reading were

potentially affected by the misconduct of Sergeant Dennis, was made prior to

the Cassidy litigation in the Supreme Court.

61

breath samples, or, during the testing procedure, the Operator concluded the

conduct of the subject warranted a conclusion the subject had refused to

provide breath samples sufficient for analysis, either circumstance resulting in

Instrument reporting the absence of a BAC reading in Column U of the

Exhibits. In each of those deleted Rows, Column T (Final Error) on Exhibit S-

90 contained various error messages, such as “Subject Refused,” “Control Test

Failed,” “Ambient Air Check Error,” “Test Terminated,” “Mouth Alcohol,”

“Control Gas Supply,” “Interference,” “Purging Error,” “Blowing Not

Allowed,” “Simulator Temperature Error,” or “Ready to Blow Expired,” as the

reason for the inability of the Alcotest Instrument, on those Subject Rows, to

produce an evidential BAC reading.

Upon completing those deletions, the resulting Excel Spreadsheet

prepared by DAG Mitchell, became Exhibit S-91, entitled “Spreadsheet all

Counties_wo refusals and error messages_20,667,” which then consisted of

20,667 Rows of subjects who provided breath samples on Alcotest Instruments

calibrated by Sergeant Dennis where an evidential BAC reading was produced

by the Instrument. DAG Mitchell testified she created the title of Exhibit S -

91. Upon further questioning, DAG Mitchell testified there is an error on one

Row contained in Exhibit S-91, where that Row should have been deleted by

her. Specifically, on Row 11523, Column T (Final Error) contains the error

62

message “Subject Refused,” and Column U on that Row does not reflect a

BAD reading being obtained. Accordingly, DAG Mitchell testified that Row

should have been deleted by her, which would result in Exhibit S-91 actually

containing 20,666 subjects, not 20,667.

Upon editing Exhibits S-90 and S-148, and thus creating Exhibit S-91,

DAG Mitchell testified she then went through the list of subjects and separated

them into those who were tested in each County. She explained, as follows:

So back then, what I did was, I would bold each

row. So, for example, the very first up on here [Exhibit

S-91], Row Number 2, it says Fair Haven Police. I

would have bolded and gone all the way down to the

end of the Fair Haven Police, down, and then I would

have gone all the way over to Column U and I opened

up another Excel Spreadsheet and I would copy and

paste it onto a spreadsheet.

[T3, page 144, line 23 to page 145, line5.]

Using that methodology, DAG Mitchell stated she created five (5)

separate Excel Spreadsheets, one for each of the five main Counties,

Middlesex, Monmouth, Ocean, Somerset and Union. She then placed each

Spreadsheet onto a Thumb Drive, and gave each Thumb Drive to the

Prosecutor’s Office in the corresponding County. Additionally, DAG Mitchell

testified that Elie Honig, then Director of the Division of Criminal Justice, sent

a letter to Judge Glenn A. Grant, Administrative Director of the Courts, dated

September 19, 2016, see Exhibit S-81A, notifying him that criminal charges

63

had been filed against Sergeant March Dennis, and 20,667 individuals had

provided evidential breath samples on Alcotest Instruments that had been

calibrated by Sergeant Dennis. That letter to Judge Grant enclosed Exhibit S-

91 and the five (5) referenced Excel Spreadsheets for those five Counties. See

Exhibits S-81B (Middlesex County); S-81C (Monmouth County); S-81D

(Ocean County); S-81E (Somerset County); and S-81F (union County).

Exhibit S-81B, entitled “Middlesex_IndivDefts wo refusals and error

messages,” extracted from Exhibit S-91, is an Excel Spreadsheet containing 30

Sheets, or Tabs. Sheet 30 contains 4,963 Rows, consisting of all individuals,

listed on Exhibit S-91, who provided breath samples on Alcotest Instruments

located in Middlesex County that resulted in the reporting of an evidential

BAC reading. It contains 21 Columns of information for each Row. The other

29 Sheets in Exhibit S-81B consist of a breakdown, or sort, of Sheet 30 into

one Sheet for each municipality or agency in Middlesex County, containing the

names, and the same 21 Columns of information, for those individuals who

provided evidential breath samples, at those locations, on Alcotest Instruments

calibrated by Sergeant Dennis.

Exhibit S-81C, entitled “Monmouth_Indiv Defts wo refusals and error

messages,” is an Excel Spreadsheet, extracted from Exhibit S-91, containing

53 Sheets, or Tabs. Sheet 53 contains 9,401 Rows, consisting of all

64

individuals, listed on Exhibit S-91, who provided breath samples on Alcotest

Instruments located in Monmouth County that resulted in the reporting of an

evidential BAC reading. It contains 21 Columns of information for each Row.

The other 52 Sheets in Exhibit S-81C consist of a breakdown, or sort, of Sheet

53 into one Sheet for each municipality or agency in Monmouth County,

containing the names, and the same 21 Columns of information, for those

individuals who provided evidential breath samples at those locations, on

Alcotest Instruments calibrated by Sergeant Dennis.

Exhibit S-81D, entitled “Ocean_Indiv Defts wo refusals and error

messages,” is an Excel Spreadsheet, extracted from Exhibit S-91, containing

13 Sheets, or Tabs. Sheet 33 contains 289 Rows, consisting of all individuals,

listed on Exhibit S-91, who provided breath samples on Alcotest Instruments

located in Ocean County that resulted in the reporting of an evidential BAC

reading. It contains 21 Columns of information for each Row. The other 12

Sheets in Exhibit S-81D consist of a breakdown, or sort, of Sheet 13 into one

Sheet for each municipality or agency in Ocean County, containing the names,

and the same 21 Columns of information, for those individuals who provided

evidential breath samples at those locations, on Alcotest Instruments calibrated

by Sergeant Dennis.

65

Exhibit S-81E, the entitled “Somerset_Indiv Defts wo refusals and error

messages,” is an Excel Spreadsheet, extracted from Exhibit S-91, containing

22 Sheets, or Tabs. Sheet 22 contains 1,207 Rows, consisting of all

individuals, listed on Exhibit S-91, who provided breath samples on Alcotest

Instruments located in Somerset County that resulted in the reporting of an

evidential BAC reading. It contains 21 Columns of information for each Row.

The other 21 Sheets in Exhibit S-81E consist of a breakdown, or sort, of Sheet

22 into one Sheet for each municipality or agency in Somerset County,

containing the names, and the same 21 Columns of information, for those

individuals who provided evidential breath samples at those locations, on

Alcotest Instruments calibrated by Sergeant Dennis. It was noted by DAG

Mitchell that Row 11523 in Exhibit S-91 was for the individual,

- -

, who was asked to provide breath samples on an Alcotest Instrument

located in Hillsborough Township and, because no evidential BAC reading

was obtained, is not contained in Exhibit S-81E.

Exhibit S-81F, entitled “Union_Individual Defts wo refusals and error

messages,” is an Excel Spreadsheet, extracted from Exhibit S-91, containing

25 Sheets, or Tabs. Sheet 25 contains 4,806 Rows, consisting of all

individuals, listed on Exhibit S-91, who provided breath samples on Alcotest

Instruments located in Union County that resulted in the reporting of an

66

evidential BAC reading. It contains 21 Columns of information for each Row.

The other 24 Sheets in Exhibit S-81F consist of a breakdown, or sort, of Sheet

25 into one Sheet for each municipality or agency in Union County, containing

the names, and the same 21 Columns of information, for those individuals who

provided evidential breath samples at those locations, on Alcotest Instruments

calibrated by Sergeant Dennis.

DAG Mitchell noted there are no addresses for the 20,666 subjects

contained on the Exhibit S-91 Excel Spreadsheet, or in the Excel Spreadsheets

contained in Exhibits S-81B through 81F. Based on discussions between DAG

Mitchell and Steven Somogyi, Assistant AOC Director for Municipal Court

Services, and pursuant to Case Management Order I, issued by Special Master

Judge Joseph F. Lisa, P.J.A.D. on July 13, 2017, in the then-pending case of

State v. Cassidy,8 the Administrative Office of the Courts (AOC) was in the

process of working on obtaining addresses for the subjects contained in

Exhibit S-91, and as contained in Exhibits S-81B through -81F, so those

subjects could be notified of the pending litigation, which could potentially

8

¶4 of that July 13, 2017 Order required the State, by July 27, 2017, to

“apprise the court of its efforts to obtain addresses for the 20,667 individuals

referenced in its motion to appoint a Special Master and will file any motion

the State deems appropriate concerning a directive as to notice to those

individuals, including a proposed form of notice.”

67

affect them. ---

See Exhibit 18A (DAG Mitchell’s email to Steven Somogyi dated

July 14, 2017).

DAG Mitchell testified that, on August 10, 2017, Steven Somogyi sent

an email to SDAG Robert Czepiel, Chief of the Supervision and Training

Bureau, within the Division of Criminal Justice, copying her, sending him

Exhibit S-83, the Excel Spreadsheet entitled “Spreadsheet from AOC_All

Addresses_Alcotest ATS Defendant Matches – full matches and partial – to

AG,” which contained two (2) sheets, as follows: Sheet 1: Full Subject-to-

Address Matches, 18,249; and Sheet 2: Partial Subject-to-Address Matches,

947, for address matches for 19,196 of the 20,666 subjects contained in

Exhibit S-91. Thus, there were 1,470 Subject Rows in Exhibit S-91 that the

AOC was unable to seek, of find, either an exact or partial matching subject-

to-address match.

After receiving Exhibit S-83, the Excel Spreadsheet with addresses for

the 19,196 subjects, DAG Mitchell testified she utilized that Spreadsheet to

create separate Excel Spreadsheets for each of the five (5) main Counties.

Exhibit S-84 contains a Spreadsheet she created, entitled “Spreadsheet from

AOC_Middlesex County Only,” which contains two (2) Sheets. Sheet 1

contains 5,012 Rows of full subject-to-address matches, and fifteen (15)

Columns of information for each Row, and Sheet 2 contains 215 Rows of

68

partial subject-to-address matches for each Row and the same 15 Columns of

information, for total subject-to-address matches of 5,227 individuals who

provided breath samples on Alcotest Instruments located in Middlesex County,

calibrated by Sergeant Dennis, resulting in evidential BAC readings.

Exhibit S-85 contains another Spreadsheet created by DAG Mitchell,

entitled “Spreadsheet from AOC_Monmouth County Only,” which also

contains two (2) Sheets. Sheet 1 contains 7,479 Rows of full subject-to-

address matches, and fifteen (15) Columns of information for each Row, and

Sheet 2 contains 432 Rows of partial subject-to-address matches for each Row

and the same 15 Columns of information, for total subject-to-address matches

of 7,911 individuals who provided breath samples on Alcotest Instruments

located in Monmouth County, calibrated by Sergeant Dennis, resulting in

evidential BAC readings.

Exhibit S-86 contains a Spreadsheet DAG Mitchell created from the

information contained in Exhibit S-83, entitled “Spreadsheet from

AOC_Ocean County Only,” which contains two (2) Sheets. Sheet 1 contains

299 Rows of full subject-to-address matches, and fifteen (15) Columns of

information for each Row, and Sheet 2 contains 27 Rows of partial subject -to-

address matches for each Row and the same 15 Columns of information, for

total subject-to-address matches of 326 individuals who provided breath

69

samples on Alcotest Instruments located in Ocean County, calibrated by

Sergeant Dennis, resulting in evidential BAC readings.

Exhibit S-87 contains another Spreadsheet DAG Mitchell created, also

from the information contained in Exhibit S-83, entitled “Spreadsheet from

AOC_Somerset County Only,” which contains two (2) Sheets. Sheet 1

contains 877 Rows of full subject-to-address matches, and fifteen (15)

Columns of information for each Row, and Sheet 2 contains 52 Rows of partial

subject-to-address matches for each Row and the same 15 Columns of

information, for total subject-to-address matches of 929 individuals who

provided breath samples on Alcotest Instruments located in Somerset County,

calibrated by Sergeant Dennis, resulting in evidential BAC readings.

Exhibit S-88 contains a Spreadsheet DAG Mitchell created from the

information contained in Exhibit S-83, entitled “Spreadsheet from AOC_Union

County Only,” which contains two (2) Sheets. Sheet 1 contains 4,464 Rows of

full subject-to-address matches, and fifteen (15) Columns of information for

each Row, and Sheet 2 contains 216 Rows of partial subject-to-address

matches for each Row and the same 15 Columns of information, for total

subject-to-address matches of 4,680 individuals who provided breath samples

on Alcotest Instruments located in Union County, calibrated by Sergeant

Dennis, resulting in evidential BAC readings.

70

After creating these five separate Excel Spreadsheets, DAG Mitchell

sent them to each respective County Prosecutors. Specifically, Exhibit S-24A

is a copy of an email, dated September 26, 2017, from DAG Mitchell to

Assistant Ocean County Prosecutor Kim Pascarella, attaching the Excel

Spreadsheet in Exhibit S-86, and stating:

Please use the names and addresses contained in this

spreadsheet to mail to these individuals the “Sgt.

Dennis notice letter” that I sent to you yesterday via

email. These notice letters should be mailed to these

individuals no later than December 15, 2017. Please

keep any of the letters that might be returned to you so

that we can show that we did attempt to notify said

individuals, should the issue arise.

Exhibit S-24B is a copy of an email, also dated September 26, 2017,

from DAG Mitchell to Somerset County Assistant Prosecutor Anthony Parenti,

attaching the Excel Spreadsheet in Exhibit S-87, containing the same language

quoted above in Exhibit S-24A.

Exhibit S-24C is a copy of a series of emails, also dated September 26,

2017, between DAG Mitchell, Assistant Monmouth County Prosecutor Monica

do Outeiro, and Jill Lake, an Information Technology employee with DCJ,

attaching the Excel Spreadsheet in Exhibit S-85, containing the same language

set forth in Exhibit S-24A.

71

DAG Mitchell testified that although she was unable to locate copies of

the similar emails she sent to the Middlesex County and the Union County

Prosecutors’ Office, she had no doubt they were also sent.

Exhibit S-80 contains a copy of the referenced form letter sent by DAG

Mitchell, signed by SDAG Robert Czepiel, Jr., Deputy Chief of the

Prosecutors Supervision and Training Bureau, to the Office of the County

Prosecutors in each of the five principal Counties. It is dated “December 4,

2018,” but DAG Mitchell testified that date was a typographical error and

should have been “December 4, 2017.” The letter, addressed “To Whom It

May Concern,” referencing “Notice regarding your DWI case,” states as

follows:

Court records indicate that you were arrested for

and/or convicted of drunk driving sometime between

2008 and 2016. This letter is to inform you that it is

possible there may have been an issue in the

proceedings in your DWI case.

Specifically, it has been alleged that on or about

October 6, 2015, and on or about October 6, 2015, New

Jersey State Police Sergeant Marc Dennis, a former

coordinator in the Alcohol Drug Testing Unit,

calibrated the Alcotest 7110 MKIII-C (“Alco

This text is long and has been trimmed here. Open the source document for the complete record.