PER CURIAM.
Defendant, Bruce Zoppy, appeals from his conviction after a trial de novo in the Law Division,
Defendant argues on appeal that (1) the State failed to prove beyond a reasonable doubt the element of operation, (2) the State failed to prove beyond a reasonable doubt that defendant was intoxicated at the time of the accident, and (3) the Law Division judge improperly utilized a form of retrograde extrapolation to find the defendant impaired hours earlier than any evidence allowed.
Shortly after midnight on December 30, 2011, New Jersey State Trooper Dominick Sappio responded to a report of an accident in Stillwater Township. Ambulance and fire personnel had arrived at the scene before Sappio. When Sappio arrived, he learned that a one-vehicle accident had occurred. The vehicle left the roadway and flipped over several times end-to-end, sustaining significant damage and coming to rest on its roof. The airbags had deployed. The roadway was a two-lane local road, constructed of oil and stone. Weather conditions were clear and dry.
When Sappio arrived, defendant was standing on the side of the road speaking to ambulance personnel. Sappio heard the conversation, in which defendant apparently was under the impression that the ambulance personnel worked for a tow truck company. Defendant was imploring the ambulance personnel to simply flip his vehicle over so he could drive it home.
Defendant refused medical attention and insisted he was not injured. He was acting in an angry and belligerent manner because the ambulance personnel were offering medical assistance rather than flipping his car over for him, as he wanted.
Sappio described his observations of defendant at the scene. Defendant was not speaking in an "ordinary" manner, but was yelling. Sappio described defendant's manner of speaking as "fine" but "possibly [with] a slight slurring of the words." He said defendant was swaying while walking, and exhibited a "difficult ability to walk."
At the accident scene, Sappio asked defendant what happened, and he said he just ran off the side of the road. Later, at the State Police Barracks, defendant said he swerved to avoid girls going to a prom.
Based upon the manner in which the accident occurred and his observations of defendant, Sappio suspected that defendant was under the influence of alcohol. Sappio acknowledged that he did not detect any odor of alcohol on defendant's breath, but he said that, in his experience, sometimes an odor of alcohol is not readily apparent, for various reasons, even if someone has been drinking alcohol.
Sappio asked defendant if he had any injuries. Defendant referred to some prior back injuries, for which he previously had back surgery and was taking prescription medicine.
When Sappio asked defendant if he would be able to perform standard field sobriety tests, defendant said he could. Defendant continued to act in a belligerent manner, and Sappio had to escort him to the front of his troop car, where Sappio intended to administer the tests. The first test was a walk-and-turn test, which Sappio demonstrated in its entirety. He then asked defendant if he could perform the test, and defendant responded affirmatively. However, defendant was unable to perform the test, prompting Sappio to terminate it "for safety concerns," because defendant "was about to fall over."
Sappio then arrested defendant for driving under the influence and placed him in the back of his troop car to transport him to the Augusta Barracks. During the transport, defendant acted out, yelling, screaming, and kicking.
At the barracks, defendant was cooperative at times, and at other times uncooperative, belligerent, and noncompliant. At one point, he kicked a trooper who was assisting in escorting defendant to a location within the barracks.
Two Alcotest tests were administered, each yielding a zero percent blood alcohol content reading. The final reading was obtained at 1:16 a.m. Based upon those results, Sappio concluded that defendant was not under the influence of alcohol. However, based upon defendant's behavior throughout the incident, Sappio continued to be of the opinion that defendant was under the influence of a substance causing the observed behavior. He called Trooper Patrick Wynn, a drug recognition expert (DRE), who was stationed at the Washington Barracks, to come and perform an evaluation of defendant.
Wynn arrived at the Augusta Barracks at about 2:45 a.m., when he began his evaluation of defendant. In his testimony, Wynn described in detail his training as a DRE. He received his initial DRE certification in March 2006. Under the program, recertification is required every two years. Wynn produced his current DRE certification card, which was placed in evidence.
Wynn proceeded to conduct the multi-faceted evaluation, which took just over one hour, concluding at about 3:50 a.m. During the course of the evaluation, he obtained a urine sample from defendant, which was sent to the State Police Laboratory for analysis.
When the evaluation began, Wynn described defendant's demeanor, sitting with his head back, leaning against the wall. He exhibited droopy eyelids, periodically opening his eyes and leaning forward. Wynn took defendant's vital signs (blood pressure, pulse, and body temperature), all of which were below the normal range.
He examined defendant's eyes and pupils to assess whether "the pupils were not fixed and dilated, to the extent that meaning one may be constricted and one dilated more than 2 centimeters, at which point a medical condition, or a head trauma would possibly be indicated and the evaluation would be terminated at that time." Wynn was satisfied that defendant's "pupils upon my initial observation were equal, and he was able to follow the stimulus at that point." He therefore continued with his evaluation.
He performed the horizontal gaze nystagmus test and the vertical gaze nystagmus test. These tests yielded positive results, suggesting the possibility that defendant was under the influence of a central nervous system depressant.
Wynn performed various attention tests and psycho-physical tests. Defendant's performance resulted in further indication that he was under the influence of either a central nervous system depressant or a narcotic analgesic. Testing of defendant's eyes in a dark room revealed that, when exposed to a light instrument, defendant's pupils did not react normally, further indicating the possibility that he was under the influence of a narcotic analgesic.
Wynn asked defendant whether he was taking any medications. Defendant responded that he was taking Percocet for his back. When asked how much he was taking, defendant said three to five pills, three times a day.
Wynn had conducted approximately seventy-five drug recognition evaluations prior to this one. Based upon his training and experience, and his testing of defendant, he opined that "[b]ased on the entirety of the exam, and everything that I observed from my first interaction with [defendant], all the psychophysical tests, the physiological signs and symptoms that I observed, I concluded that at the time of the evaluation, the subject was under the influence of a. . . central nervous system depressant, and a narcotic analgesic." Wynn prepared a report setting forth his findings and conclusion.
Under cross-examination, Wynn candidly acknowledged that he could only render an opinion about defendant's condition as of the conclusion of his evaluation at about 3:50 a.m., and that he could not render any opinion about defendant's condition at the time of the accident, around midnight. On re-direct examination, Wynn stated that for the two categories of drugs he described, depending upon the amount ingested, the drugs could continue to affect an individual for up to twenty-four hours.
Min Tang, the forensic scientist at the New Jersey State Police Laboratory who analyzed defendant's urine sample, also testified for the State. She explained that when analyzing urine for the presence of drugs, the laboratory does not quantify the substance, if found, although a minimum threshold amount must be in the sample in order to register a positive reading. Defendant's sample was positive for Oxycodone (Percocet) and Zolpidem (Ambien). Oxycodone is a pain killer and a central nervous system depressant drug, which means it is a sedative. Common side effects of Oxycodone are drowsiness, confusion, and dizziness. Zolpidem is a sleeping drug, used for insomnia. It is also a depressant drug, and its side effects include drowsiness, dizziness, fatigue, and anxiety. The manufacturers' warnings accompanying these drugs caution against driving while taking them.
Defendant did not testify and presented no witnesses on his behalf. The municipal judge found all three of the State's witnesses "extremely credible." He concluded that defendant, "when he was driving this motor vehicle, was under the influence of drugs. Prescription drugs, but nonetheless, under the influence." He found defendant guilty and imposed sentence.
Defendant appealed to the Law Division. The matter came before Judge Peter Conforti for de novo review. Defendant first argued that operation had not been proven, an argument that Judge Conforti summarily rejected. Defendant then argued that the State failed to carry its burden of proving beyond a reasonable doubt that defendant was under the influence of drugs at the time of operation. The thrust of his argument was two-fold. First, defendant contended that the symptoms and behavior he exhibited after the crash were consistent with a concussion, which was at least as likely the cause of defendant's behavior and symptoms as drug ingestion. Second, defendant argued that Wynn's testimony, even if accepted by the court, could only establish that defendant was under the influence of drugs at 3:50 a.m., nearly four hours after the accident. Likewise, because the urine sample was drawn during Wynn's evaluation, the results of the analysis of that sample could not relate back to midnight.
Judge Conforti rejected these arguments. In doing so, he gave due deference to the credibility findings of the municipal judge, and otherwise evaluated de novo the municipal court record.
As to the concussion argument, the judge reasoned:
As to defendant's timing argument, the judge said as a fact-finder he possessed "the ability to draw reasonable inferences from the evidence that has been presented, in terms of the condition of the operator of the vehicle at the time of the accident." In responding to defense counsel's insistence that there was no evidence that defendant was under the influence at the time of the accident, the judge said, "I think you're forgetting the other characteristics that were exhibited by this defendant after the Troopers encountered him, after the accident occurred." The judge continued that, just as in cases involving alcohol, courts possess the ability, "if the facts are there, to draw legitimate inferences from that evidence as to what the condition was of the operator at the time of [the] accident...."
The judge concluded his findings as follows:
Defendant argues that Judge Conforti erred in his analysis. He essentially reiterates the same arguments before us as he made in the Law Division, namely that because defendant's symptoms were consistent with a concussion, the State failed to prove beyond reasonable doubt that his symptoms and behavior were occasioned by drug ingestion, and that the judge impermissibly extrapolated from Wynn's testimony to relate back four hours to the time of the accident.
The scope of appellate review of a de novo conviction by the Law Division following a municipal court appeal is "exceedingly narrow."
In a prosecution for driving while under the influence of drugs, competent lay observations of the "fact" of intoxication, together with additional proofs tending to demonstrate the defendant's consumption of drugs as of the time of operation, "constitute proofs sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt and, thereby, to sustain a conviction under
We are satisfied from our review of the record that Judge Conforti applied the correct evidential standard, that his factual findings were clearly supported by competent, credible evidence in the record, and that his legal analysis was correct. The conclusion he reached was in accordance with the
The record is replete with competent evidence establishing the fact that defendant was intoxicated. Those facts, which we have outlined, began at the roadside minutes after the accident and continued over the next hours while defendant was in police custody. The additional independent evidence, consisting of the defendant's admission that he was taking large quantities of Percocet on a regular basis, along with the laboratory results and the testimony of the DRE, established his consumption of the drugs.
Further, there can be no dispute that the record supports the finding of operation. Defendant admitted more than once during this course of events that he drove the vehicle. He acknowledged it was his vehicle, and he wanted to drive it home. He was the only person present at the accident scene.
In
Applying this standard, we have no hesitancy in concluding that Judge Conforti's finding, beyond a reasonable doubt, that defendant was driving while in an intoxicated state as a result of drug ingestion, is amply supported by the record.
Affirmed.
