STATE OF NEW JERSEY v. JOHN J. GRIGIONI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2985-08T42985-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN J. GRIGIONI,

Defendant-Appellant.

_______________________________

 

Argued October 20, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-048.

John Menzel argued the cause for appellant.

Erin Wisloff, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John J. Grigioni appeals from his convictions in the municipal court and again on appeal in the Law Division, after a trial de novo, of driving while intoxicated (DWI), N.J.S.A. 39:4-50; speeding, N.J.S.A. 39:4-98; possession of marijuana, N.J.S.A. 2C:35-10a(4); and possession of drug paraphernalia, N.J.S.A. 2C:36-2. We affirm.

According to the State's proofs, on November 23, 2007, around 11:35 a.m., defendant was traveling south on Interstate 287 in Hanover Township when Trooper Edward Schmalz observed him speeding. The trooper was on aggressive driver detail in the area and his stationary laser readings recorded defendant's vehicle traveling eighty-five miles an hour in a fifty-five mile per hour zone. Consequently, the trooper pursued defendant's vehicle and directed it to stop as it exited Route 287 South onto Route 24.

When Trooper Schmalz approached the vehicle and asked for defendant's driver's credentials, he detected the odor of burnt marijuana emanating from the vehicle. He also observed that defendant's eyes were "bloodshot, glassy" and that his movements and speech were slow and "lethargic." When the trooper questioned defendant about the odor, defendant initially said the car belonged to his wife, who may have smoked in the vehicle. Upon further questioning, however, defendant admitted smoking marijuana earlier that morning. When asked if he had any marijuana on him, defendant turned over the remnants of an unlit, but partially burnt, marijuana cigarette.

Based on his observations and defendant's admission, and because no back-up was in close proximity, Trooper Schmalz ordered defendant to exit the car and placed him under arrest for possession of marijuana and driving under the influence. He was then transported to the State Police barracks in Netcong for further testing. In addition to the burnt cigarette, a subsequent search of defendant's vehicle uncovered rolling papers and a small quantity of raw marijuana. At the police station, defendant gave a urine sample that ultimately tested positive for marijuana, as did the substances found in his car.

Around 1:00 p.m., Trooper James Harrison conducted a Drug Recognition Examination (DRE) on defendant, which consisted of an interview, examination of defendant's eyes, and both horizontal and vertical gaze nystagmus tests. The DRE was conducted in the presence of Troopers Schmalz and Craig Roushinko. In addition, Trooper Harrison performed psycho-physical or so-called "field sobriety" tests, including the Romberg balance test, the walk-and-turn test, the one-leg stand test, and the finger-to-nose test. During the Romberg test, defendant estimated the passage of thirty seconds in twenty-seven seconds and showed signs of eyelid tremors, which is an indication of cannabis abuse, but did not "sway back and forth." On the walk-and-turn test, defendant initially "stepped off the line . . . and then fell against the wall," "raised his arms

. . . contrary to [ ] instructions . . . and [ ] counted out of sync with his first four steps[,]" but recovered to complete the turn and walked back to the starting point successfully. During the first phase of the one-leg stand test, defendant raised his arms, started to sway immediately, and put his foot down at number 28, all contrary to instructions. During the second phase, defendant also swayed and raised his arms immediately, using his arms for balance and eventually leaning against the wall several times in the course of thirty seconds, again contrary to Trooper Harrison's instructions. Finally, defendant correctly touched the tip of his finger to his nose only three out of six times.

According to Trooper Harrison, no single test or physical observation is conclusive as to marijuana intoxication. Rather "[i]t's a totality of the circumstances . . . brought together." Based thereon, Harrison concluded, as had Trooper Schmalz, that defendant was under the influence of marijuana and was unable to operate a motor vehicle safely. Trooper Roushinko, who witnessed the evaluation, concurred in this finding.

The municipal court judge found the testimony of Troopers Schmalz and Harrison "extremely credible" and sufficient to support the DWI charge as well as the drug and motor vehicle charges. On the former, defendant was sentenced to fines, court costs, seven months loss of driver's license, and twelve hours in the Intoxicated Driver Resource Center (IDRC). He was assessed fines and costs for speeding, and fines and costs as well as a concurrent six-month driver's license suspension on the possession of marijuana conviction, into which the possession of drug paraphernalia offense was merged.

On the trial de novo, the transcript of the municipal court proceeding contained many indiscernible passages. Yet, despite having to "spend considerable time with the transcript," the Law Division judge found the record "adequate and sufficiently clear" to complete its de novo review. Based thereon, the court concluded:

looking at the combination of the credibility findings made by the Municipal Judge, the items that were placed in evidence . . . the lab tests and so forth, with the totality of the circumstances, this Court finds that the decision made by the Municipal Court was appropriate. . . . I find today the evidence is clearly beyond a reasonable doubt, and I once again find this defendant guilty of the offenses to which he was charged[.]

The court imposed the same sanctions as did the municipal court judge.

On appeal, defendant argues:

I. this court should reverse the findings below because the trial court considered DRE ["drug recognition examination"] and opinion evidence that was not competent to establish that defendant was under influence of marijuana.

(A) defendant's normal driving, normal appearance, and calm demeanor in the face of an aggressive trooper's inquisition and rash determination to arrest demonstrated sobriety, not the influence of marijuana.

(B) ADMISSION OF DRE EVIDENCE WAS PLAIN ERROR AND THIS COURT SHOULD EXCLUDE THE EVIDENCE AND REMAND THE CASE.

II. DEFENDANT'S CONVICTIONS SHOULD BE VACATED, AND THE MATTER REMANDED, BECAUSE THE SUBSTANTIALLY UNINTELLIGIBLE AND DEFECTIVE RECORD NOW BEFORE THE COURT PREJUDICES HIS RIGHT TO A FULL AND FAIR REVIEW.

We find no merit in either of these contentions.

(I)

The function of the Law Division on an appeal from municipal court is not to search the record for error by the municipal court, not to decide if there was sufficient credible evidence to support the municipal court conviction, but to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid.; see also Avena, supra, 281 N.J. Super. at 333.

Just as the Law Division does when conducting a de novo review, we "defer to [the] trial court['s] credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Indeed, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Id. at 474.

In his challenge to the sufficiency of evidence on appeal, defendant contends the court wrongly considered DRE and opinion evidence that lacked a proper scientific basis. We disagree. The aggregate of the observations of defendant's driving, demeanor and physical appearance by Trooper Schmalz, those of Trooper Harrison of defendant's performance on field sobriety testing, and the chemical tests indicating defendant's possession and use of marijuana separate and apart from the DRE evidence was more than sufficient to sustain the findings of guilt. See Johnson, supra, 42 N.J. at 166.

N.J.S.A. 39:4-50(a) provides in pertinent part that, "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug" shall be subject to certain escalating penalties. There is no requirement "that the particular narcotic be identified[,]" State v. Tamburro, 68 N.J. 414, 421 (1975), nor does the statute define the "quantum of narcotics . . . required in order to violate its prohibition." State v. Bealor, 187 N.J. 574, 589 (2006). The statute only requires the state to prove beyond a reasonable doubt defendant was "under the influence" of an illicit drug while operating a motor vehicle. Ibid.

To prove whether a defendant was under the influence of marijuana, the State must show:

beyond a reasonable doubt that, at the time of his arrest, defendant suffered from "a substantial deterioration or diminution of the mental faculties or physical capabilities[,]" or was in a drug induced state that "so affect[ed his] judgment or control . . . as to make it improper for him to drive on the highway[,]" or whether defendant was under the effect of a drug that "so alter[ed] his . . . normal physical coordination and mental faculties as to render [defendant] a danger to himself as well as to other persons on the highway."

[Bealor, supra, 187 N.J. at 590 (internal citations omitted).]

In Bealor, supra, the Court rejected "the notion that a conviction for driving under the influence of a narcotic, hallucinogen or habit-producing drug must be based exclusively on proofs of 'the subject's conduct, physical and mental condition and the symptoms displayed' together with 'a qualified expert . . . determin[ing] that he or she is 'under the influence' of a narcotic.'" 187 N.J. at 591 (quoting Tamburro, 68 N.J. at 421. On the contrary, in Tamburro, the Court acknowledged:

[t]he thrust of the Motor Vehicle Act is safety on the highway. The particular section is addressed to the evil of operating a motor vehicle while one's physical coordination or mental faculties are substantially diminished by "intoxicating liquor, narcotic, hallucinogenic or habit-producing drug." Competency to operate a motor vehicle safely is the critical question.

[Id. at 422.]

Thus, "determining whether [a] defendant was under the influence of marijuana [is] not 'beyond the ken of the average [finder of fact.]'" Bealor, supra, 187 N.J. at 591 (quoting DeHanes v. Rothman, 158 N.J. 90, 100 (1999)). Even absent expert proof, "competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant's consumption of . . . drugs [at] the time of . . . arrest, constitute proofs sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt[.]" Bealor, supra, 187 N.J. at 577.

Here, Trooper Schmalz's observations of defendant's driving behavior, his demeanor and physical appearance when stopped, his admission of having smoked marijuana, and the sensory and physical evidence of its recent use at the scene, led Schmalz to believe defendant was driving under the influence of a narcotic. Not only were these observations corroborated by subsequent chemical testing, but as well by the knowledgeable impressions of Trooper Harrison, who had specific training and qualifications in the area of drug recognition and enforcement, and who administered defendant a battery of psycho-motor coordination tests, on which his performance was substandard. We are satisfied that the aggregate of these proofs was "sufficient for a rational trier of fact . . . to reasonably have found that defendant was guilty beyond a reasonable doubt of the offense[ ] of driving under the influence of marijuana

. . . ." Bealor, supra, 187 N.J. at 592 (citation omitted).

Nevertheless, defendant contends that it was reversible error for the court to have relied on the DRE evidence, because it lacks general acceptance in the scientific community, citing State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000). He specifically points to the protocol's inclusion of:

a medical history and examination, an eye exam including [horizontal gaze nystagmus] and vertical gaze nystagmus [tests], and a battery of psychophysical testing with very specific clues, including references to eyelid tremors, blood pressure, pulse, body temperature, and the condition of the tongue.

We disagree.

Doriguzzi dealt with only one feature of the protocol, namely the horizontal gaze nystagmus test (HGN), which we found to be a scientific test that must meet the Frye standard of admissibility. 334 N.J. Super. at 538-39. There, we emphasized that:

what is being sought here by the State is admission of HGN testing as an element of proof to permit the factfinder to conclude that failure of the HGN test, in combination with the failure of coordination tests, sufficiently proves defendant's guilt of driving under the influence of alcohol.

[Id. at 546.]

Thus, Doriguzzi does not encompass the relationship of other factors to intoxication. In fact, the defendant in Dorigazzi was given both the "walk and turn" and "one-legged stand" test at the scene of the arrest, as well as "[a]dditional sobriety coordination tests" after transport to the police station. Id. at 534-35. Admission of these test results was not challenged.

While horizontal and vertical gaze nystagmus testing may not yet meet the Frye standard, id. at 546-47, it appears the results of that testing were not relied upon here. While at trial, Trooper Harrison acknowledged performing both tests on defendant, he did not include the results of that testing in his written evaluation, nor was he called upon to answer questions regarding the results of those tests. The DRE evaluation states only that defendant's eyes "were measured" in various lights and that his reaction to light was "slow." In contrast, a nystagmus test looks to cause "involuntary jerking of the eye." Doriguzzi, supra, 334 N.J. Super. at 534.

Regardless, any reliance thereon would have been harmless error because ample other evidence allowed for a finding, beyond a reasonable doubt, of defendant's intoxication and, thereby, for a conviction of DWI. As noted, the competent proofs include Trooper Schmalz's observations of defendant's speeding, demeanor and appearance; the results of chemical testing; the physical evidence itself; defendant's admissions; and Trooper Harrison's trained observations of defendant throughout administration of the field sobriety testing.

(II)

Lastly, defendant argues the transcript of the municipal court proceeding was so incomplete as to preclude a fair de novo review. The Law Division judge found otherwise:

this court was able to adequately . . . make a determination as to the municipal trial. There were . . . some lines where there might be an objection, some indiscernible comment made. They'd pick up a few words. The whole sentence isn't complete. But I did find when I would see the responding question or answer made by . . . whether it be an attorney or the Judge, I could determine from that exactly what the issue was, and I could see . . . what the finding was.

Our review of the record accords with that of the Law Division judge. Although littered with "indiscernables," the transcript nevertheless allows for a full and fair review of the proceeding and the evidence adduced therein. Indeed, defendant fails to explain what portions are missing or why the missing portions are material to a fair determination of the charges. Lacking any demonstration of prejudice, we are satisfied the record allowed for a fair de novo review and the competent evidence of record supports defendant's convictions.

 
Affirmed.

The results of both these tests, however, were not included in the trooper's report.

As part of the DRE, Trooper Harrison performed an examination of defendant's vital signs. Defendant's blood pressure registered higher than the normal range as did his heart rate. The trooper also observed "red conjunctivitis" in both of defendant's eyes and a "white film" on defendant's tongue. According to Harrison, defendant's blood pressure, high pulse, conjunctivitis, and white film on the tongue are all indicators of marijuana ingestion. As noted, defendant provided a urine sample that tested positive for a marijuana metabolite.

According to Trooper Harrison, the Romberg balance test asks the subject to:

stand with his heels together and his toes together (Indiscernible) stands (Indiscernible) to his sides. The subject is asked to arch his back as far back as he feels comfortable . . . and then to lower his, his head, close his eyes, and as he closes his eyes he's asked to make (Indiscernible) of 30 seconds inside his head. Once that 30 seconds is passed, [the subject] is to open his eyes, raise his, his head forward and say stop.

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

(continued)

(continued)

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A-2985-08T4

November 13, 2009