Muted audio, 'inconsistencies' from police led judge to overturn Holmdel weed DWI




  • In US
  • 2022-08-12 10:10:45Z
  • By App.com | Asbury Park Press
 

A Superior Court judge has ruled in favor of a Middletown man convicted twice in the same case of driving while under the influence of marijuana, highlighting that two Holmdel police officers muted the audio of a mobile camera during the 2016 stop.

Superior Court Judge Lisa Thornton, the assignment judge and chief judicial officer for Monmouth County, was the third trial judge to hear the case of Nedal Elfar of Middletown.

The two prior judges were Mary Casey and Thomas Smith, both municipal court judges who sided with police. The two convictions were each appealed.

Thornton found that the police officers involved in Elfar's arrest did not have enough evidence to search Elfar's vehicle or to establish probable cause for the charges. And Elfar did not appear intoxicated in the mobile video, she said.

"Multiple inconsistencies in the officers' testimony create reasonable doubt regarding whether the defendant was in fact impaired," Thornton wrote.

More:Trooper was acquitted of botching DWI test results. So why is he going to jail?

Elfar was driving on Route 520 in Holmdel shortly before 3 a.m. on July 4, 2016, when Officers Michael Sasso, a trainee two months out of the police academy, and Matthew Menosky stopped him for speeding and misuse of high beams.

Both the officers said they smelled burnt marijuana, which gives police probable cause to search a vehicle. Thornton ultimately ruled that the police failed to mention that in the recording of the investigation of Elfar, diminishing the weight of their testimony.

Menosky spotted a prescription container in the back of the vehicle and asked defendant if he could "see it," Thornton said. But the defendant was not provided with a consent to search form and was not advised that he had a right to refuse it.

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They eventually arrested Elfar after finding a small amount of the drug in a prescription container in the back of his vehicle.

Elfar told the officers the last time he smoked marijuana was at 2 o'clock the previous day, but did not say whether it was p.m. or a.m. He also told them he had marijuana in a backpack in the back of the vehicle.

But Elfar showed no signs of intoxication in the video recording despite the officers' testimony that he did, Thornton ruled.

And Menosky, despite being a drug recognition expert, did not perform a drug influence evaluation and did not take blood or urine samples after field testing Elfar.

One of the issues in the judge's ruling was that the officers shut off the audio of their mobile video recorder for 15 seconds during the investigation to discuss "strategy," which was a violation of Holmdel Police Department policy.

Menosky waivered in his testimony about why they decided to turn off the audio.

"His recollection of the facts did little to assist the state in carrying their burden of proof," Thornton wrote.

Defense attorney Albert Mollo contended that the audio recordings must be preserved because they are essentially verbal notes, and shutting off the audio denied his client the right to confront his accusers.

The unheard conversation possibly involved evidence that favored the defendant, Mollo contended.

Acting Holmdel Police Chief Frank Allocco issued a statement in response to the ruling:

"This case solely involves a defendant's appeal of his DWI conviction from 2016, and not any civil claims alleging any wrongdoing by the Holmdel Township Police Department. The Holmdel Township Police Department maintains that its officers acted lawfully and professionally at all times relevant to the DWI arrest. The judge ultimately found the defendant not guilty of DWI and related offenses, and this matter is now closed by virtue of the judge's decision."

The Monmouth County Prosecutor's Office, which tried the case, referred questions to Holmdel.

Ken Serrano covers crime, breaking news, local issues and investigations. Reach him at 732-643-4029 or at kserrano@gannettnj.com.

This article originally appeared on Asbury Park Press: Holmdel NJ DWI: Cops shutting off stop audio issue in judge's ruling

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