FREEHOLD, NJ — The top judge in Monmouth County Superior Court has overturned a 2017 Holmdel Municipal Court guilty verdict in a DWI case based on her review of Holmdel police procedures at the arrest.

Defendant Nedal Elfar of Middletown was found not guilty on all counts by Superior Court Assignment Judge Lisa P. Thornton in an opinion decided Aug. 3, said his attorney Albert Mollo of Red Bank. All charges against Elfar were dismissed, Thornton ruled.

And another ruling by Thornton on Monday afternoon will permit more records of Holmdel stops by one officer involved in the Elfar case to be made public, Mollo said.

Mollo said that the decision is "indicative of a societal trend for more transparency, not less" in interactions between the public and police.

“What happened in this case was wrong, pure and simple. Now, after six years, it has been made right,” Mollo said.

The Monmouth County Prosecutor's office spokesperson said the office had no comment on the ruling.

Acting Chief of Police Frank Allocco responded in a statement Tuesday: “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.”

Mollo has represented Elfar since 2016 when the original DWI arrest took place.

Elfar was stopped and arrested by Holmdel Police Officers Matthew Menosky and Michael Sasso on July 4, 2016 on motor vehicle charges.

There were two Municipal Court convictions, after appeal, on the same matter and it was finally appealed to Monmouth County Superior Court, resulting in the ruling Aug. 3.

Thornton ruled on several issues relating to the arrest, including:

Meanwhile, Thornton on Monday afternoon opened the way for Elfar's lawyers to see 28 videos of other Holmdel stops by Menosky. She reversed a denial by Holmdel Township of a request by Elfar's lawyers of body-cam videos made by Menosky of 28 other stops, Mollo said. Mollo and a civil attorney retained by Elfar, Justin D. Santagata, requested the videos under the Open Public Records Act but the request was denied by the town, he said.

Those videos will now be available for review by Mollo and Santagata, Mollo said.

Regarding Elfar's arrest, Thornton recounted the events of July 4, 2016 when Elfar was stopped at about 2:55 a.m. by Holmdel Officers Menosky and Sasso on Route 520 in Holmdel.

According to the summary of the facts of the arrest, Menosky and Sasso were traveling on Route 520 in a marked patrol vehicle when they "initiated the traffic stop of defendant for speeding and failing to disengage his high beams." Sasso, who was wearing a motor vehicle recorder microphone, approached the driver’s side of Elfar's car and engaged him in conversation. Menosky approached the passenger side, and from the exterior, made observations of the vehicle’s interior using his flashlight. Sasso was a recent Police Academy graduate and was being trained by Menosky.

Sasso asked for Elfar's credentials and inquired if had been “drinking,” the court papers said.

Thornton's ruling responded to the facts of the case:

"While both officers testified at trial that they immediately detected a strong smell of “burnt marijuana,” "the State failed to prove this fact by a preponderance of the evidence at the suppression hearing," Thornton's ruling said.

"In the first instance, Menosky was an experienced officer at the time of this incident and was aware the strong smell of marijuana is a basis to remove defendant from his vehicle. Even Sasso, who was an officer for only a short period of time admitted he was aware that the strong smell of marijuana established probable cause. However, defendant was not removed from his vehicle until after the prescription pill bottle was observed, seized, opened and sniffed. In addition, within the first few minutes of the encounter, Sasso did not ask defendant if he had been smoking marijuana, he asked if he had been drinking - fact that does not support the State’s contention that burnt marijuana was detected within the first few seconds of the encounter," Thornton ruled.

"More importantly, Menosky admitted in his own words, 'if I see something in plain view I’m going to retrieve it, one way or the other.'

"Finally, a very small amount of marijuana was found in the prescription bottle that was tucked away in the back seat. Considering all the aforementioned facts together, the weight of the credible evidence does not support the fact that the officers detected the smell of burnt marijuana prior to seizing the pill bottle from the back seat. Consequently, they had no probable cause to search the vehicle and seize the prescription bottles in the car or the trunk," Thornton's ruling said.

According to the statement of findings by Thornton, she ruled the "search and seizure of the vehicle and evidence obtained, including pill bottles containing marijuana and paraphernalia are suppressed."

"Likewise, the State failed to prove a valid exemption to the warrant requirement. The weight of the credible evidence does not support the prescription pill bottle was seized pursuant to the plain view doctrine. Without more, nothing about a prescription bottle would indicate it is an instrument of criminal activity or contraband.

"In addition, there is no indication the label was removed from the bottle or that this observation was even made before it was seized. Finally, there were no other facts provided which could be considered to conclude the pill bottle was contraband before it was seized and searched.

"Therefore, the search and seizure of the vehicle and evidence obtained, including the pill bottles containing marijuana and paraphernalia are suppressed," the ruling said.

The ruling also discussed the condition of the defendant:

"Finally, the State failed to prove defendant was intoxicated beyond a reasonable doubt. The MVR speaks for itself and fails to support a conclusion that defendant exhibited a 'substantial deterioration...of [his] mental faculties or physical capabilities.'

"His speech was not slurred, he was able to answer all questions without difficulty, communicate with officers in a reasonable and respectful manner, and displayed excellent cognitive ability. He asked if he would be arrested; asked for leniency; expressed concern that he was being asked to sit on the ground; and admitted he had more marijuana in his trunk. He walked to the back of his vehicle without difficulty and stood for long periods of time without swaying or stumbling.

"Any irregularities on the sobriety tests were consistent with a person over the age of 35 who is not an athlete or regular practitioner of yoga or other forms of exercise that require the type of balance necessary to perfectly execute the walk and turn and one leg stand balance tests," Thornton wrote, citing legal precedent.

"More importantly. as defendant contends, no blood or urine tests were offered. ... Defendant’s admission of smoking marijuana at '2:00' the day before is insufficient to satisfy the requirement of 'additional independent proofs' of consumption at the time of defendant’s arrest sufficient to conclude defendant was intoxicated beyond a reasonable doubt," the ruling continued.

"Without the smell of burnt marijuana that would indicate defendant smoked marijuana in close proximity to the stop and any other signs of physical impairment, something more would be necessary to persuade the court that defendant is guilty beyond a reasonable doubt," Thornton said in her decision.

Regarding the microphone muted for 15 seconds, Thornton said in her findings that the court "need not reach the issue of what remedy, if any, is appropriate for the officers’ failure to follow the Holmdel Police Department’s rules regarding MVRs (motor vehicle recorders).

"Contrary to the testimony of Menosky, the Holmdel policy requires officers to 'verbally record the reason for deactivation prior to doing so.'

"It is quite possible the officers were simply discussing strategy and instruction, so needed based on Sasso’s inexperience. The court is mindful that ordinary humans make mistakes and forget procedures. However, a simple acknowledgement would have better served both officers.

"The persistent refusal to acknowledge the violation and the several accounts regarding who muted the audio and why, only support defendant’s request for an adverse inference. Consequently, the court can infer that that what was discussed when the audio was muted, in whole or in part, was not favorable to the State."

The ruling stated that there were four various reasons given for the muting by the officers at various times: "1) Menosky turned it off to discuss strategy." "2) Sasso muted the audio." " 3) Menosky had no idea the audio was muted, even though he and Sasso walked away from defendant, Menosky illuminated the switch on Sasso’s belt and asked “are you off?” and also illuminated it again and Sasso turned it back on." " 4) Menosky did not care if the audio was muted and had no reason to hide the conversation from anyone."

Both Menosky and Sasso appear to be currently with the Holmdel Police Department, based on online information.

Menosky received the "Top Cop Award of Excellence" and the "Distinguished Service Award" at the Mothers Against Drunk Driving Annual Statewide Law Enforcement Recognition Ceremony held at Rutgers University in 2018, according to the department's Facebook page. Menosky led Monmouth County police officers with the most driving while intoxicated arrests in 2017, the site said.

Mollo reacted further to the court ruling:

“This case reveals a troubling law enforcement pattern that we see happening not only in Holmdel but throughout the state. It must stop. And candidly this also raises serious and legitimate questions about the systemic injustice that we see in New Jersey municipal court system.”

“This is a matter of fundamental fairness. Every trend in society is for more transparency in policing, not less. When officers turn off videos and silence microphones it creates an unnecessary suspicion of law enforcement, risks officer safety and denies defendants access to the absolute best evidence. Unfortunately this is not uncommon throughout the state. It must stop. The rule should be simple: Put it on and leave it on.”

Mollo said that he has appeared in Holmdel and other municipal courts for nearly 20 years, "and I can say that an overwhelming majority of officers in Holmdel and throughout the state are good, honest and decent public servants," Mollo said.

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