STATE OF NEW JERSEY v. BRETT H. McCLOSKEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6360-08T46360-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRETT H. McCLOSKEY,

Defendant-Appellant.

_______________________________

 

Argued March 23, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. 111-08.

John Menzel argued the cause for appellant.

Alexis R. Agre, Assistant County Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant Brett H. McCloskey appeals from his conviction, after a trial de novo in the Law Division, for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). As a consequence of his conviction, defendant's driving privileges were suspended for three months, applicable fines and costs were imposed, and he was ordered to attend twelve hours of education at the Intoxicated Driver Resource Center (IDRC).

On appeal, defendant seeks reversal of his conviction arguing:

POINT ONE

THE COURTS BELOW SHOULD HAVE ADMITTED THE OPINION OF DEFENDANT'S EXPERT PHARMACOLOGIST THAT DEFENDANT WAS SUFFERING A HYPOGLYCEMIC EPISODE RATHER THAN THE INFLUENCE OF ALCOHOL BECAUSE, IN CONTEXT, THE OPINION WAS GIVEN WITH A REASONABLE DEGREE OF SCIENTIFIC PROBABILITY.

POINT TWO

THE COURTS BELOW ERRED IN EXCLUDING THE DATA LOG REGARDING DEFENDANT'S GLUCOSE LEVELS AND, AS A RESULT, SIGNIFICANTLY UNDERMINED THE FACTUAL BASIS FOR THE EXPERT PHARMACOLOGIST'S OPINION THAT DEFENDANT WAS SUFFERING A HYPOGLYCEMIC EPISODE RATHER THAN THE INFLUENCE OF ALCOHOL.

After reviewing the record and the applicable law, we conclude the Law Division judgment is firmly supported by sufficient credible evidence, and the contentions set forth by defendant lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We, therefore, affirm with only these brief comments.

We summarize the facts relevant to our review. On March 18, 2006, at approximately 12:26 a.m., State Trooper Paul Grasso was patrolling eastbound Route 70 in Woodland Township. About six car lengths ahead, Grasso noticed a white Nissan wagon cross over the center and fog lanes on a "couple of occasions." Believing the driver was falling asleep or intoxicated, Grasso activated the patrol car's overhead lights to conduct a motor vehicle stop. Defendant did not respond. After following defendant for approximately one-half mile, Grasso activated the siren. Defendant pulled over.

As Grasso approached, he smelled alcohol emanating from the vehicle's open window. Grasso asked for defendant's driving credentials and noticed defendant's eyes were bloodshot and watery, his eyelids were heavy, his movements were slow, and he appeared "disoriented," as he fumbled to retrieve his documents.

Believing defendant had been drinking, Grasso asked him to exit his vehicle. Grasso then requested that defendant perform three field sobriety tests: recite the alphabet from "A" to "L", perform a one-legged stand, and complete a full walk-and-turn. Grasso inquired whether defendant suffered any physical conditions that would impede his performance. Defendant responded he was diabetic but believed he could perform the tests.

At trial, Grasso testified he had been trained to observe signs of alcohol impairment and had administered field sobriety tests 70 to 80 times in his career. Grasso discussed his assessment of defendant's unsatisfactory attempts to accomplish the physical sobriety tests. When reciting the alphabet, defendant was swaying, his speech was "slow, slurred, and labored," and he repeated the letter "L". Defendant could not complete the one-legged stand, as he lost his balance after two seconds and fell immediately during a second try. Finally, while attempting the walk-and-turn, defendant fell after three steps.

Grasso arrested defendant for driving while intoxicated and, along with backup Trooper Thomas J. Welch, proceeded to secure defendant's car. In the vehicle, Welch discovered defendant's insulin and a small amount of marijuana. Welch asked defendant if he was feeling sick and defendant replied, "No, not right now." Defendant told the troopers he tested his sugar level two to two-and-a-half hours ago. Welch told defendant that if he started going into shock to let the troopers know. Defendant responded, "I will."

During the ride to the barracks, Grasso noted the interior of the squad car smelled like alcohol. After arriving, defendant declined medical assistance for his diabetes and denied he consumed any alcohol, stating he "ate corned beef, potatoes, cabbage, bread, and dip for St. Patrick's Day." Defendant submitted to a breath test, administered using the Alcotest 7110 MK III-C system (Alcotest); his blood alcohol concentration (BAC) was reported as .18 percent.

Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50(a)(1)(ii), failure to maintain lanes, N.J.S.A. 39:4-88, and possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1. On June 19, 2007, he entered a conditional guilty plea to DWI, reserving the right to vacate his plea following the Supreme Court's opinion in State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); the remaining motor vehicle offenses were dismissed.

The municipal court judge accepted defendant's plea and imposed a seven-month license revocation, twelve hours in IDRC, applicable fines, and court costs. The municipal court judge stayed imposition of the sentence pending the Chun decision.

Relying on the Court's opinion in Chun, defendant moved to reopen the matter. The municipal court judge granted the motion on the limited issue of whether the Alcotest was properly administered. When the testing officers failed to appear at the hearing, the court excluded the Alcotest results and noted defendant could not be found guilty of a per se violation. N.J.S.A. 39:4-50(a)(1)(ii). On the adjourned trial date, testimony was presented regarding physical and observational evidence of defendant's intoxication. The State offered Grasso's testimony along with the in-dash video recorded on the date of the incident. Defendant presented Anne-Marie Caron, his girlfriend of twenty years, and the expert testimony of physician Francis Gengo, D.O.

Caron testified defendant was diagnosed with diabetes seventeen years before, and she had seen him intoxicated once before his diagnosis. In her opinion, defendant did not seem drunk on the incident video. She likened his behavior to a diabetic episode she had witnessed nine to ten years earlier.

Dr. Gengo, an Associate Professor of Neurology and Pharmacy at the Buffalo School of Medicine and Pharmacy and the Director of Clinical Research at the Dent Neurological Institute in Buffalo, New York, was qualified as an "expert in pharmacology with the knowledge of the effects of diabetes." Dr. Gengo performed a record review and opined defendant was a "brittle, type one diabetic." It is noted the municipal court judge excluded any testimony based on defendant's "recorded results after he tested his blood sugar level using a One-Touch DMS Pro 3 home glucose monitoring machine."

Dr. Gengo viewed the incident recorded by the video and stated the behaviors were symptomatic of diabetes, as they demonstrated defendant's higher brain functions were intact while his lower brain functions were impaired. Based on his review of the evidence, Dr. Gengo opined defendant was hypoglycemic, not intoxicated. However, on cross-examination, Dr. Gengo conceded the physical traits and behavior defendant exhibited were not exclusive to hypoglycemia and also could result from alcohol consumption.

The municipal court judge credited Grasso's observational evidence and rejected Dr. Gengo's opinion because it was not based on a "reasonable degree of medical certainty or probability." Noting this was defendant's first offense, the municipal court judge suspended his driving privileges for three months, mandated attendance of twelve hours at IDRC, and required payment of fines and costs.

Defendant appealed and trial de novo before the Law Division was held on June 26, 2009. The trial judge found the municipal court's record contained sufficiently credible evidence that defendant was driving his vehicle while intoxicated, convicted him of DWI, and imposed the same sentence, as did the municipal court judge. See State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003) (noting that a violation of the DWI statute may be proved by evidence of defendant's physical condition), aff'd, 180 N.J. 45 (2004). Sentence was stayed pending this appeal.

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)). It is improper for the Appellate Division to weigh the evidence, assess credibility of witnesses, or make conclusions about the evidence as if a court of first instance. State v. Locurto, 157 N.J. 463, 471-72 (1999). 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.'" State v. Johnson, 42 N.J. 146, 162 (1964). See also State v. Elders, 192 N.J. 224, 243 (2007); Oliveri, supra, 336 N.J. Super. at 251. When we conclude 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. Johnson, supra, 42 N.J. at 162; see also State v. Avena, 281 N.J. Super. 327, 333 (1995).

We reject defendant's argument that the court erred in excluding Dr. Gengo's opinions drawn from review of defendant's home monitoring blood sugar results. The court found Dr. Gengo neither tested defendant's ability to operate his One Touch machine or the actual accuracy of the machine results. Therefore, the judge concluded insufficient scientifically reliable foundation was provided, making the evidence sufficiently speculative to warrant exclusion. See N.J.R.E. 703.

Appellate review of a trial judge's determinations as to the admissibility of evidence is "deferential and limited to whether there has been an abuse of discretion." State v. Fortin, 178 N.J. 540, 591 (2004). Based upon the court's findings, we find no abuse of discretion here.

We also reject defendant's contentions that Dr. Gengo's testimony cast sufficient doubt on defendant's guilt. In essence, defendant challenges the court's factfinding and credibility assessments as insufficient to sustain a conviction. We disagree.

The Law Division judge noted defendant made no mention of difficulties relating to his medical condition and actually declined medical assistance. Although defendant's expert opined defendant's physical condition resulted from hypoglycemia, he did not certify that opinion within a reasonable degree of medical certainty, and conceded defendant's behaviors also could result from alcohol consumption. Therefore, the court rejected Dr. Gengo's expert opinion, finding his testimony "ambivalent."

Expert medical testimony must be "couched in terms of medical certainty or probability; opinions as to possibility are inadmissible." State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988) (citing Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980)), certif. denied, 114 N.J. 525 (1989). Moreover, a trial judge is "free to reject any testimony, in whole or in part, that he or she does not find credible, including the testimony of an expert." State v. Cryan, 363 N.J. Super. 442, 457 (App. Div. 2003). In examining a court's credibility assessments, we note

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.

[Locurto, supra, 157 N.J. at 474.]

The credibility assessment made by the Law Division that Dr. Gengo's expert opinion was insufficient to undermine Grasso's testimony, as bolstered by the video of events and defendant's admission of alcohol consumption, is unassailable. Accordingly, the record contains sufficient credible evidence to uphold the findings of guilt made by the Law Division. Johnson, supra, 42 N.J. at 162.

 
Affirmed.

Contrary to the statements made to police, defendant later admitted drinking during the St. Patrick's Day festivities. During an interview with a treating physician, defendant admitted he had consumed beer and a shot of Jameson whiskey prior to his arrest.

(continued)

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A-6360-08T4

July 26, 2010