STATE OF NEW JERSEY v. RAFFAELLO FERRUCCI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0472-08T40472-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAFFAELLO FERRUCCI,

Defendant-Appellant.

__________________________________

 

Argued December 2, 2009 - Decided

Before Judges Cuff, Payne and Waugh.

On Appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-069.

Damiano M. Fracasso argued the cause for appellant.

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

PER CURIAM

Defendant Raffaello Ferrucci appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. We affirm.

I.

On August 10, 2006, at approximately 10:52 p.m., Officer David Turner of the Mount Olive Township Police Department was driving an unmarked police vehicle in the vicinity of the Budd Lake Firehouse. While driving through the parking lot, Turner noticed a white Mercedes traveling westbound on Route 46. The vehicle was in the left lane, but going noticeably below the posted speed limit of fifty miles per hour. Turner proceeded to follow the vehicle.

After leaving the parking lot and driving onto Route 46, Turner observed three cars pull into the right lane to pass the white Mercedes. As Turner moved behind it, the white Mercedes rapidly accelerated, reaching speeds in excess of sixty miles per hour. Turner activated his lights and effectuated a stop of the vehicle at a part of Route 46 where the shoulder is wide and the ground is relatively flat.

Turner approached the vehicle and asked the driver, who was eventually identified as Ferrucci, to produce his driving credentials. Ferrucci was unable to produce any of those documents, stating that he did not know where they were. Turner observed Ferrucci's face to be a little flushed. He detected a strong odor of alcohol emanating from inside the Mercedes. When questioned as to whether he had been drinking, Ferrucci responded that he had consumed a few beers.

Officer Joseph Abrusci arrived at the scene as backup for Turner. When Abrusci approached Ferrucci's vehicle, he observed alcoholic beverage containers in the rear of the vehicle and also detected a strong odor of alcohol. As Ferrucci spoke with Turner, Abrusci noted that his speech was slow and slurred. Turner, however, had not noticed anything unusual about Ferrucci's speech.

Ferrucci was asked to exit the vehicle and perform field sobriety tests. Turner observed that Ferrucci appeared to have forgotten where the ignition key was located in the vehicle. He hesitated before turning off the headlights and shutting down the car. While exiting the vehicle, Ferrucci appeared to be swaying and unsteady. Abrusci made similar observations.

Before administering the tests, Turner asked Ferrucci if he had any medical problems that might affect his performance of the field sobriety tests. Ferrucci replied in the negative.

The first test was the horizontal gaze nystagmus (HGN), which Ferrucci performed correctly, although Abrusci observed that he was swaying during the process. Turner explained and demonstrated the second test, the walk-and-turn test. Ferrucci was unable to maintain the starting position during the instructions. He also raised his arms to maintain his balance, missed a heel-to-toe step, went off the line three times, stopped twice to steady himself, and turned incorrectly.

Ferrucci was then asked to perform the one-leg-stand test, which was also explained and demonstrated for him. He attempted to stand with his leg raised for a period of thirty seconds, during which he counted to only fifteen. He lowered his foot at the count of thirteen, and swayed and hopped throughout the test. Abrusci also noted Ferrucci's balance problems during both tests.

Based on his observations before and during the stop, and while administering the test, Turner placed Ferrucci under arrest for driving while under the influence in violation of N.J.S.A. 39:4-50(a). Turner detected the odor of alcohol in his patrol vehicle once he put Ferrucci inside of it. At the police station, Ferrucci told Turner that he had had a foot injury that sometimes bothered him, but stated that it was "not hurting" at that time.

At 11:46 p.m., Ferrucci consented to provide breath samples. The samples provided by Ferrucci resulted in an Alcotest reading of 0.06 percent blood alcohol content, which is below the legal limit of 0.08 percent. Consequently, there was no "per se" violation of N.J.S.A. 39:4-50(a).

After that test was administered, Ferrucci disclosed to Turner that he had been prescribed an antidepressant drug, Wellbutrin, in the amount of 300 milligrams per day. Ferrucci reported that he had taken his most recent dose at noon that day, approximately twelve hours earlier. Ferrucci was advised of his Miranda rights, signed a Miranda form, and invoked his right to remain silent. As a consequence, no Drug Recognition Examination was conducted.

Ferrucci was charged with driving while intoxicated, contrary to N.J.S.A. 39:4-50, and other offenses not relevant to this appeal. He appeared in the Mount Olive Municipal Court on December 4, 2006, for a preliminary hearing. The trial started on February 26, 2007, and continued on October 22, 2007, and February 11, 2008. At the end of the trial, Ferrucci moved to dismiss the charges, arguing that the State had failed to prove its case beyond a reasonable doubt. The motion was denied.

The municipal court judge found Ferrucci guilty of driving while under the influence of alcohol and Wellbutrin. He imposed a fine of $300, $33 court costs, $200 surcharge, $50 VCCB, $75 Safe Neighborhood, twelve hours at the Intoxicated Driver Resource Center, and suspended Ferrucci's driving privileges for seven months. The judge stayed the sentence pending appeal to the Law Division.

On August 15, 2008, Judge John B. Dangler held a trial de novo. One of the issues presented at that time was the propriety of Abrusci's testimony as it related to his opinion on the role Wellbutrin played in enhancing the effect of the alcohol consumed by Ferrucci. Judge Dangler declined to consider that evidence.

Let me first start with the issue that [Ferrucci] was under the influence of both alcohol and the antidepressant drug that he admitted taking, Wellbutrin.

The problem I have, and there was no expert I find that could clearly tell the Court, . . . [effects of the drug] ten-and-a-half hours after he had taken Wellbutrin. Was it even still in his system? Was there so small amount remaining in his system that it was causing the effects it did? These would -- these kinds of statements would have to come from an expert after probably some detailed analysis of blood and so forth to see what was still in . . . [Ferrucci's] system.

The Court went to the Physician's Desk Reference, and these are -- I would accept the fact that this is a book that the Court could take judicial notice of. It's a well-established book that's used . . . by physicians, and it's a reference guide . . . . It does speak in the -- and I'm referring just for the record to the document that was marked J-2 about alcohol, and it . . . indicates the consumption of alcohol during the treatment . . . should be minimized or avoided. It doesn't really say that if you take one of these coupled with alcohol, you're going to have such and such an effect. It was just a warning. There's an indication patient should be advised that the consumption of alcohol, again, should be minimized, avoided is spelled somewhere else.

So from the State's position here, the State took the position, well, since he didn't have at least a .08 or a .10, that his reactions to the tests, the observations the officers made had to be alcohol and something else. And that's why I started the dialogue on this matter today with putting aside Wellbutrin, could someone be found to be operating under the influence without reaching that level based upon the observations. [The defense attorney] said yes[,] when they're very strong observations. He feels on behalf of his client those observations were not present.

So for the Court today, again, I have carefully looked over all of the papers that were submitted. I'm troubled a little bit by the Municipal Court introducing Wellbutrin and making various findings associated with that without really hav[ing] a true expert, a physician, someone who has expertise in the pharmacological area that could say this drug does this with alcohol. I think all of us know most every prescription medication has . . . a warning about avoiding alcohol or to refrain from alcohol. We know some of them tell you to stay out of the sun, things of that sort.

But he had taken this at noontime, and, again, I don't know because there's no indication in the record, there was no testimony provided by anybody [on whether he had] to take it again that evening, how long this will stay in your system, had he had any food to eat.

. . . [T]his Court can take notice that we've had many, many cases where when there's been no food consumed, alcohol goes into one's system very quickly. Also, body size and so forth can . . . have a bearing on . . . how quickly alcohol is absorbed in the system.

So as I look at this case today, I find the Wellbutrin part of it really should not be entering into the Court's decision on whether or not Mr. Ferrucci was operating under the influence.

Judge Dangler's conclusion was consistent with the Supreme Court's holding in State v. Bealor, 187 N.J. 574, 576 (2006) (quoting State v. Smith, 58 N.J. 202, 213 (1971)) that,

although evidentially competent lay observations of the fact of intoxication are always admissible, lay opinion in respect of the cause of intoxication other than from alcohol consumption is not admissible because, unlike alcohol intoxication, "[n]o such general awareness exists as yet with regard to the signs and symptoms of the condition described as being 'high' on marihuana."

Certainly, there is no such "general awareness" of the effects of Wellbutrin.

Nevertheless, Judge Dangler found Ferrucci guilty of violating N.J.S.A. 39:4-50 with respect to his consumption of alcohol. In reaching his decision, Judge Dangler specifically relied on the testimony given by Turner and Abrusci with respect to their observations of Ferrucci before and during the stop, including observations while the field sobriety tests were being administered. He explained his reasons as follows:

[T]he Municipal Judge in this case did give great weight to the testimony of the officers. I'll just cite for the record . . . that this Court, as a de novo court here, has to make its own findings of fact, rulings on the evidence. I have to give, although not necessarily controlling, regard to the Municipal Court's opportunity to weigh the credibility of the witnesses by observing their demeanor and reactions. State v. Johnson, [ 42 N.J. 146 (1964)] . . . .

I did find in this case and do find that both Officers Turner and Abrusci were clearly credible in their -- they did not know this defendant certainly, but they were credible in their observations. Officer Abrusci testified he had twenty-seven years of experience as a police officer. He's had approximately 1,000 DWI arrests. I don't disagree. That's an extreme lot for one single officer. He may have been a backup in some of those. It's not clear. But I accept the fact that with twenty-seven years of being an officer on the road, he's had a great deal of experiences in making observations of people he found to be under the influence.

Officer Turner had been an officer for seven years. His experience was not as vast, but, again, he was found by the Municipal Judge to be credible.

I did look over the video. Mr. Fracasso suggested when you look at it, as he would like the Court to look at it, his client did okay. He may not have been perfect, but he's sixty-eight years of age, and it wasn't clear [through all the] instructions what he was supposed to do.

I did find the instructions seemed to be clear to the Court as I observed the instructions by the officer. He had some difficulty steadying himself. He was asked to do the one-leg-stand for thirty seconds, only performing it for fifteen, and [the] officers felt his demeanor and such [showed that] he was clearly under the influence of something. And . . . smelling the alcohol, the admissions made by the defendant of having a few beers and taking prescription drugs, [they suspected] that he was under the influence. They noted the operation of the vehicle, that being the sudden acceleration, the going slow in what we call the fast lane of travel, his great deal of difficulties in being able to unlock or turn the key off . . . on the vehicle, all of that in the opinion of Officer Abrusci -- he came to the conclusion that this individual was operating clearly under the influence of alcohol and he suggested Wellbutrin.

[I]t's very clear to this Court and it was clear to the Municipal Court that Mr. Ferrucci was in no condition at that point in time to be operating that vehicle, that to continue to do so would clearly have posed a danger to himself and others if he were to operate.

Again, it's not clear to the Court what efforts both the Wellbutrin, if it had any effects to the alcohol, but it was clear to this Court, that even with a .06 reading, what I found notwithstanding Mr. Fracasso's comments, the speech did have some slurriness to it, [and there was] swaying [and] poor coordination.

[W]hen we look at all of the evidence that was presented to the Municipal Court, I find and I do find that Mr. Ferrucci was operating under the influence of intoxicating liquor. I can't make a clear finding with Wellbutrin, but I certainly find the intoxicating liquor under N.J.S.A. 39:4-50(a). And, again, certainly not the per se finding, but that was never the intention of this statute to prohibit a finding of someone operating under the influence without the use of a Breathalyzer machine.

I find that in this case beyond a reasonable doubt the State did present evidence that supported the decisions made by the Municipal Judge.

The judge imposed a three month loss of license, in addition to the same fines and penalties imposed by the municipal judge. This appeal followed.

II.

On appeal, Ferrucci raises the following issues:

I. THE STATE FAILED TO PROVE A VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT.

A. THE OPERATIVE LAW.

B. THE STATE'S BURDEN TO USE ONLY ADMISSIBLE EVIDENCE.

C. THE BURDEN IS ON THE STATE TO PROVE THEIR EVIDENCE IS ADMISSIBLE.

D. THE KELLY STANDARD FOR EXPERTS.

E. THE DEFENDANT'S PSYCHOPHYSICAL TESTS RESULTS ARE "SCIENTIFIC TESTS."

F. THE EVIDENCE PROFFERED AT TRIAL DOES NOT ESTABLISH PROOF OF GUILT BEYOND A REASONABLE DOUBT.

Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record, Rule 3:23-8(a), but the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.

The core of Ferrucci's argument is that the testimony given by the police officers concerning his performance on the walk-and-turn and the one-leg-stand field sobriety tests was improperly admitted because the State failed to establish a scientific basis for those two tests. In essence, he argues that our holding in State v. Doriguzzi, 334 N.J. Super. 530, 538-39 (App. Div. 2000), with respect to the HGN test should be extended to other field sobriety tests, such as those involved in this case. We disagree.

Proof of a defendant's physical condition of intoxication typically consists of proof through the testimony of a police officer with respect to his or her observations of the defendant. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give lay opinion testimony as to whether a defendant was under the influence of alcohol. Bealor, supra, 187 N.J. at 585 (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication."); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005).

Our review of the record confirms that Judge Dangler relied on the testimony given by Turner and Abrusci with respect to their observations of Ferrucci's conduct prior to and during the stop and while he was in their custody, a result that is clearly permitted by Bealor, supra, 187 N.J. at 585. The judge also relied upon his own review of the video marked as Exhibit J-1.

There was no "scientific" testimony of the type prohibited by Doriguzzi, supra, 334 N.J. Super. at 538-39. The conviction was based on testimony concerning Ferrucci's demeanor and the judge's own review of the video, rather than testimony by the officers as to their opinion of whether he "passed" or "failed" the tests.

Consequently, we affirm Ferrucci's conviction for violating N.J.S.A. 39:4-50.

Affirmed.

 

In State v. Doriguzzi, 334 N.J. Super. 530, 538-39 (App. Div. 2000), we held that the HGN test is a scientific test that must satisfy the standard for admissibility set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), before the results of the test can be introduced in evidence. Had Ferrucci "failed" the HGN, the result would have been inadmissible for that reason. However, Abrusci's observations about "swaying" were related to Ferrucci's general demeanor and not the "scientific" aspect of the test.

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

N.J.S.A. 39:4-50, which penalizes "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood."

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A-0472-08T4

March 3, 2010