STATE OF NEW JERSEY v. GREGORY EZEKIAN, JR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2423-07T42423-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY EZEKIAN, JR.,

Defendant-Appellant.

________________________________________________________________

 

Argued October 28, 2008 - Decided

Before Judges Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 03-07R-T04.

Jeffrey S. Katz argued the cause for appellant.

Eric M. Mark, Assistant Prosecutor, argued the cause for respondent (Wayne J. Forrest, Somerset County Prosecutor, attorney; Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Gregory Ezekian, Jr. appeals from a judgment of conviction entered on December 10, 2007 in which he was convicted after de novo review of driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to report an accident, N.J.S.A. 39:4-130; and leaving the scene of an accident, N.J.S.A. 39:4-129. Defendant was sentenced to the same fines and penalties imposed by the municipal court: one-year suspension of driving privileges, twelve to forty-eight hours participation in the IDRC program, and aggregate fines amounting to $5,824.

The charges against defendant arose from a one-vehicle accident on Route 78 East reported to the police on August 21, 2006, at 1:55 a.m. New Jersey State Troopers Schlatter and Burrell responded to the accident. The troopers noticed a damaged guardrail and discovered a vehicle down an embankment approximately 200 feet from the damaged guardrail. Schlatter testified that the vehicle was an SUV that "was unrecognizable" and "looked like it rolled over a few times." The troopers did not see anyone in the vehicle. They learned that defendant was the owner of the vehicle after checking the registration.

A search was immediately conducted by the troopers and Bernards Township Police for occupants of the vehicle. A trooper noticed some blood near the passenger side of the vehicle which led the search party to more blood by a guardrail that separated the interstate from Affinity Credit Union. More blood was discovered on the door and doorknob to Affinity Credit Union's parking garage. The search, aided by canines and a helicopter, focused on the area around the accident and Affinity Credit Union. The search was called off at approximately 4:00 a.m. The occupants of the SUV could not be located.

At approximately 5:45 a.m., Bernards Township Patrolman Chris Hurst returned to the scene of the accident to continue searching in a construction area near the scene. He noticed a black Cadillac driving into the construction area as he was driving out. The Cadillac caught Hurst's attention because "it didn't seem to fit in the area with the construction site."

After a few minutes, the Cadillac left the site. Hurst confirmed it was the same Cadillac he observed previously. He followed it and stopped the vehicle after a license plate check verified that the Cadillac was registered to defendant's father, Gregory Ezekian, Sr., at defendant's address. As Hurst approached the passenger side of the Cadillac, he noticed defendant lying down in the back seat with "numerous cuts, scrapes, [and] injuries" and clothing that was "torn, mussed, dirty, and appeared to have dried blood on it."

Gregory Ezekian, Sr. informed Hurst that "his son was injured and that he was taking him to Somerset Medical Center." Hurst contacted EMS and the New Jersey State Police. A few moments later, Troopers Schlatter and Burrell arrived. Defendant was already in the ambulance being treated for his injuries when Schlatter got into the ambulance to question him. In the ambulance, Schlatter immediately noticed that defendant "looked like he was...in a car accident" because he had an "air bag burn on his head...cuts and scrapes on his hands." Defendant's clothes were "mussed, ripped" and "his body was dirty, scraped." Schlatter also detected the odor of alcohol and observed that defendant had "watery, glassy eyes." Schlatter read defendant his Miranda rights, which defendant acknowledged. Defendant told Schlatter that he wasn't sure if he was driving the vehicle and did not know what happened. Defendant did not have any difficulty understanding Schlatter's questions.

Schlatter read Miranda rights to defendant again at the hospital and asked him what happened. Defendant did not respond to Schlatter's questions. At 6:50 a.m., Tammy Cobane, RN, drew defendant's blood at Schlatter's request. Defendant's blood was submitted to the State Police laboratory for analysis. The certified laboratory report indicated that defendant's blood contained ethyl alcohol in the amount of 0.106 Wt/Vol%.

On January 16, 2007, a trial was conducted in Bernards Township Municipal Court. The municipal court found that defendant was the driver of the vehicle involved in a serious one-car accident and guilty per se of driving while under the influence because his blood alcohol level was over 0.10. The court found defendant guilty on all charges, imposed fines of $5,824, court cost of $132, and suspended defendant's driver's license for one year.

Prior to trial in municipal court, defendant moved to suppress the evidence of his blood test and the oral statements he made. That motion was denied and the matter proceeded to trial.

During the trial, the State submitted laboratory tests indicating defendant's blood alcohol level. No witness was called with respect to the taking of defendant's blood sample or the tests ascertaining the blood alcohol level.

On February 6, 2007, defendant appealed to the Superior Court, Law Division. On October 29, 2007, the matter was heard on de novo review. On December 11, 2007, the Law Division entered an order affirming the municipal court's decision.

In this appeal, defendant argues:

POINT ONE

ADMISSION OF THE LABORATORY REPORT PREPARED BY A STATE POLICE CHEMIST WITHOUT PRODUCTION OF A WITNESS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS OF CONFRONTATION AND THE PRINCIPLES ENUNCIATED IN CRAWFORD V. WASHINGTON AND HIS CONVICTION MUST BE REVERSED

POINT TWO

ADMISSION OF THE RESULTS OF THE BLOOD TEST WAS MANIFESTLY INCORRECT AND CONTRARY TO THE PRINCIPLES ENUNCIATED IN STATE V. TISCHIO AND DEFENDANT'S CONVICTION SHOULD BE REVERSED

POINT THREE

ADMISSION OF DEFENDANT'S STATEMENTS WAS CONTRARY TO THE PRINCIPLES OF MIRANDA V. ARIZONA AND DEFENDANT'S CONVICTIONS SHOULD BE REVERSED

POINT FOUR

THE STATE FAILED TO PROVE THAT DEFENDANT WAS THE OPERATOR OF THE MOTOR VEHICLE AND THE CONVICTIONS SHOULD BE REVERSED

POINT FIVE

THE MOTION TO SUPPRESS EVIDENCE SEIZED BASED UPON AN ILLEGAL SEIZURE OF THE DEFENDANT WAS NOT DECIDED AND THE MATTER SHOULD BE REMANDED FOR A HEARING

Defendant argues initially that his convictions should be reversed because admission of the blood test results violated his constitutional rights of confrontation and the principals enunciated in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Defendant contends he requested that the State produce a witness to testify about the blood test results once the interpretation of the results came into question. Defendant further argues that the State was required to produce a witness to testify about the results under Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Crawford, supra, 541, U.S. 36; State v. Kent, 391 N.J. Super. 352 (App. Div. 2007); and State v. Berezanksy, 386 N.J. Super. 84 (App. Div. 2006). Defendant maintains that the State's failure to do so violated his Sixth Amendment right of confrontation and requires reversal of his conviction.

The State argues that defendant should be barred from raising this claim on appeal because he failed to object to the admission of the results at trial. (Citing R. 1:7-2; R. 2:10-2; State v. Huff, 292 N.J. Super. 185, 193-94 (App. Div.), certif. denied, 146 N.J. 570 (1996), aff'd, 148 N.J. 78 (1997); State v. Biegenwald, 106 N.J. 13, 43-44 (1987)).

"Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The appellate court, however, may, "in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." Id. After careful consideration of the record, we conclude that the trial court erred when it did not require the State to produce a witness to testify about the blood test results. Defendant's conviction can be sustained on independent grounds, however.

When there has been an appeal to the Law Division from the municipal court, the issue on appeal to us is whether there is sufficient credible evidence present in the record to support the findings of the Law Division, which hears the matter de novo. State v. Johnson, 42 N.J. 146, 162 (1964). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence," State v. Barone, 147 N.J. 599, 615 (1998), and we defer to the trial court's credibility findings. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

In Crawford, the United States Supreme Court "declared that out-of-court declarations, no matter how reliable they may be and regardless of whether they satisfy an established exception under the hearsay rules, would not be admissible for their truth in criminal prosecutions if they are 'testimonial' in nature." Kent, supra, 391 N.J. Super. at 365 (citing Crawford, supra, 541 U.S. at 53-54). A hearsay statement is "testimonial" if "the circumstances objectively indicate that there is no such ongoing emergency, and . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis, supra, 547 U.S. at 822.

The Sixth Amendment right to confrontation extends to a DWI prosecution in municipal court because a DWI charge is a "quasi-criminal" offense. Kent, supra, 391 N.J. Super. at 366 (citing Berezanksy, supra, 386 N.J. Super. at 90 n.4; State v. Renshaw, 390 N.J. Super. 456, 463 n.4 (2007)). For example, "a State Police chemist's lab report is 'testimonial' . . . and thus must be excluded unless defendant has an opportunity to cross-examine the chemist." Kent, supra, 391 N.J. Super. at 355 (citing Berezanksy, supra, 386 N.J. Super. at 84). Moreover, "a blood test certificate issued pursuant to N.J.S.A. 2A:62A-11 is likewise 'testimonial' under Crawford." Ibid. (citing Renshaw, 390 N.J. Super. 456).

A DWI conviction under N.J.S.A. 39:4-50, however, can be sustained on independent grounds such as an arresting officer's uncontradicted field observations of intoxication. Ibid. A defendant's "slurred speech, loud and abrasive behavior, disheveled appearance, red and bloodshot eyes and strong odor of alcoholic beverage on [his or her] breath [are] sufficient to sustain a conviction for DWI." Id. at 384 (quoting State v. Cryan, 363 N.J. Super. 422, 455-56 (App. Div. 2003) (citing State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993)).

Here, the municipal court should have ordered the State to produce a witness to testify about the blood test results or excluded the results. The municipal court noted that it was "particularly impressed, from a credibility perspective, with the testimony of both the State trooper and the Township patrolmen." Schlatter's and Hurst's testimony describing defendant's "disheveled appearance . . . bloodshot eyes" and the "strong odor of alcoholic beverage" on his breath provides independent grounds for finding defendant guilty of DWI. Hurst testified that defendant had "numerous cuts, scrapes, [and] injuries" and that his clothing was "torn, mussed, dirty, and appeared to have dried blood on it." Schlatter immediately noticed when he got into the ambulance that defendant "looked like he was . . . in a car accident" because defendant had an "air bag burn on his head . . . cuts and scrapes on his hands." He also noted that defendant's clothes were "mussed, ripped" and "his body was dirty, scraped." Moreover, Schlatter detected the odor of alcohol and observed that defendant had "watery, glassy eyes." Schlatter's and Hurst's testimony is sufficient evidence to support defendant's DWI conviction. Johnson, supra, 42 N.J. at 162.

Defendant next argues that his convictions should be reversed because the municipal court's admission of the blood test results was incorrect and contrary to the principles enunciated in State v. Tischio, 107 N.J. 504 (1987). The Supreme Court held in Tischio that breathalyzer tests must be administered within a reasonable period of time after the stop. 107 N.J. at 506. We need not address this issue, however, because we have determined that defendant's conviction is affirmed on the substantial credible evidence provided in the testimony of the law enforcement officers. R. 2:11-3(e)(2).

Defendant argues that Miranda warnings were not properly administered under State v. O'Neill, 193 N.J. 148 (2007). According to defendant, his statement that "he wasn't sure . . . he might of" been driving in response to Schlatter's question, was "the product of a non-[M]irandized interrogation and should not have been admitted into evidence and [should] not [have been] relied upon to establish 'operation.'" Defendant maintains that his statements to Schlatter should be suppressed under O'Neill because Schlatter engaged in "question - first, warn - later" according to his police report. O'Neill, supra, 193 N.J. at 180-81. Defendant contends that this interrogation technique rendered Schlatter's Miranda warnings ineffective. Moreover, defendant argues that the Law Division's decision "may have been adversely affected" by the "mistaken belief that Defendant had not properly raised the issue of suppression of these statements prior to trial." Defendant maintains that his convictions should be reversed because the statements relied upon by the trial court should have been suppressed.

The State argues that the Miranda warnings were properly given and that Schlatter's testimony "was consistent with his police report, which was not introduced into evidence, but which defense counsel read into the record." The State notes that defendant waived the Miranda argument when defense counsel stated at trial that "there's only one argument really that I'm making here . . . that the blood analysis should be suppressed."

We do not ordinarily consider arguments waived before the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). If we consider defendant's Miranda argument, however, we would find that it lacks merit because there is sufficient credible evidence in the record - Schlatter's testimony, which the trial court found credible - to support the finding that the Miranda warnings were properly given.

Unlike the facts in O'Neill, Trooper Schlatter did not engage in a custodial interrogation of defendant before reading Miranda warnings to him. O'Neill, supra, 193 N.J. 180-81. Schlatter testified that he read Miranda rights to defendant before questioning him in the ambulance, and defendant acknowledged those rights. Schlatter then asked defendant what happened and whether he was the driver of the crashed vehicle. Defendant replied that "he wasn't sure, he might of" been. There is nothing in the record that supports defendant's assertion that Schlatter engaged in the "question first, warn later" technique.

Defense counsel did not move Schlatter's police report into evidence, nor could he have done so because it was hearsay. Defense counsel read from the police report while questioning Schlatter during cross-examination, and Schlatter's testimony was consistent with his report when he repeatedly asserted at trial that the first thing he did was "read [defendant's] rights as per Miranda." We have carefully considered the record and find nothing to contradict this testimony.

Defendant next argues that the State failed to prove that he was the operator of the crashed SUV. He maintains that the Law Division erred when it established that defendant was the driver based on "statements elicited by Trooper Schlatter" and "proof of operation arising from proof of ownership." Defendant further argues that the Law Division erred by discounting the inference that defendant was the passenger because blood droplets were only on the vehicle's passenger side. He claims that the trial court improperly speculated that there could have been a number of explanations for why blood was on the passenger side without the "benefit of expert testimony on the subject of 'blood splatter.'"

We have carefully considered the record and we are satisfied that there is sufficient credible evidence from which to infer that defendant was the driver of the crashed SUV at the time. Defendant was found in the back seat of his father's car attempting to escape the scene of the accident. Defendant "looked like he was . . . in a car accident," and had an "air bag burn on his head . . . cuts and crapes on his hands." His clothes were "mussed, ripped" and "his body was dirty, scraped." Although defendant said he wasn't sure whether he was driving the vehicle, the municipal court noted that defendant knew he was in an accident, called his father and tried to "sneak away." We are satisfied that the Law Division properly found that the State proved beyond a reasonable doubt that defendant was the driver of the crashed vehicle.

Finally, defendant argues that the evidence he sought to suppress was seized illegally, but that the municipal court did not decide that issue, and the matter should be remanded for a hearing. Defendant contends that Officer Hurst did not have any reason to stop his father's car and detain him until the State Police arrived. He maintains that "it was this illegal seizure and subsequent statements and blood work drawn" that violated "his Fourth Amendment and State Constitutional rights."

Defendant waived this argument in municipal court just as he waived the Miranda argument when defense counsel stated, "there's only one argument really that I'm making here . . . that the blood analysis should be suppressed." Nothing in the record indicates that defendant moved to suppress evidence because of an illegal seizure.

Even if we were to consider this argument, it lacks merit. "An investigatory stop or detention is constitutional only 'if it is based on 'specific and articulable facts which, taken together with rational reference from those facts,' give rise to a reasonable suspicion of criminal activity.'" State v. Elders, 192 N.J. 224, 247 (2007) (citing State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). "An investigative detention that is premised on less than reasonable and articulable suspicion is an 'unlawful seizure,' and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule." Ibid. (citing Rodriquez, supra, 172 N.J. at 132-33).

Here, Hurst had reasonable and articulable suspicion that criminal activity was occurring because (1) the Cadillac was near the scene of the accident and seemed out of place entering the construction site; and (2) a check of the Cadillac's registration showed that it was registered to the father of the owner of the crashed SUV at the same address. Once Hurst stopped the Cadillac, his reasonable suspicions were confirmed as he discovered defendant, injured in the back seat, attempting to flee from the scene of the accident.

In our careful consideration of the record, we find nothing to support defendant's argument that he was illegally seized.

Affirmed.

 

IDRC refers to the Intoxicated Driver's Resource Center.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-2423-07T4

January 5, 2009