STATE OF NEW JERSEY v. RICARDO PLUMMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4570-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO PLUMMER,

Defendant-Appellant.

________________________________________________________

A

December 17, 2012

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Docket No. 10-0110.

Katherine A. North argued the cause for appellant (Randolph H. Wolf, attorneys; Mr. Wolf and Ms. North, on the brief).

Erin Smith Wisloff, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, of counsel; Ms. Wisloff, on the brief).

PER CURIAM

At the conclusion of a municipal court trial, and after a trial de novo in the Law Division, defendant was convicted of driving while under the influence, N.J.S.A. 39:4-50(a), his second such offense.

At trial, Police Officer Paul Ottavinia testified he stopped defendant's vehicle on Route 46 in Mount Olive on April 29, 2010, because the interior of defendant's vehicle was illuminated by what the officer suspected to be a cellphone. When asked for his credentials, defendant provided an invalid registration. And, when the officer asked for an insurance card, defendant replied that he thought he had already provided it and bumped his head into the partially open window when attempting to hand the card to the officer. The officer then explained to defendant why he stopped him and, during the discussion, noted that defendant's answers and hand movements were slow and his speech somewhat slurred. After being asked to exit the vehicle, defendant advised the officer he had recently begun taking a much higher dose of Concerta to combat his attention deficit hyperactivity disorder (ADHD).

Officer Ottavinia further testified that defendant was unsteady on his feet during the field sobriety test. Officer Joseph T. Abrusci, a certified drug recognition expert (DRE), participated in the testing at the site and later performed a DRE examination. The officers testified that defendant did not perform well during the field sobriety test and appeared to be under the influence.1

Defendant testified on his own behalf, claiming his performance of the field sobriety test was impacted by his nervousness and poor coordination; he asserted that he had been taking Concerta since he was a child2 and that it had no impact on his ability to drive. Defendant now argues that the results of the field sobriety test and the way he presented on the night in question were the product of ADHD and not any of the substances described in N.J.S.A. 39:4-50(a).

Defendant was convicted in municipal court of violating N.J.S.A. 39:4-50(a), which prohibits operation of a motor vehicle "while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug." Based on the evidence adduced in municipal court, and for the reasons set forth in a written opinion, the Law Division judge also found defendant guilty.

In appealing, defendant argues:

I. THE COURT BELOW ERRED IN FINDING THAT THE STATE PROVED BEYOND A REASONABLE DOUBT THAT THE SIGNS AND SYMPTOMS THAT LED THE OFFICERS TO CONCLUDE THAT THE DEFENDANT WAS UNDER THE INFLUENCE OF A DRUG THAT PRODUCED A NARCOTIC EFFECT WERE DUE TO THE MEDICATION CONCERTA, RATHER THAN THE DEFENDANT'S ADHD. AS SUCH, THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS "UNDER THE INFLUENCE" OF CONCERTA. THE JUDGMENT BELOW MUST BE REVERSED.

II. THE TESTIMONY PRESENTED BY THE STATE AT TRIAL WAS INSUFFICIENT TO ESTABLISH THAT CONCERTA CONSTITUTED A "NARCOTIC" DRUG WITHIN THE PLAIN MEANING OF THAT TERM, THAT CONCERTA HAD "A NARCOTIC EFFECT" ON DEFENDANT, OR THAT CONCERTA CONSTITUTED A "HABIT-PRODUCING DRUG." THE JUDGMENT BELOW MUST BE REVERSED.

We find no merit in these arguments, R. 2:11-3(e)(2), and affirm, adding only the following comments.

Defendant essentially argues that the State failed to prove he was under the influence of one of the substances described in N.J.S.A. 39:4-50(a). To be sure, because defendant was not under the influence of alcohol, the State was required to show, beyond a reasonable doubt, that defendant was under the influence of a "narcotic, hallucinogenic or habit-producing drug." Ibid.

In weighing the evidence, the Law Division judge concluded that defendant provided Officer Ottavinia with the wrong documents, bumped his head against the vehicle window, had halting and slurred speech, slow hand movements and was unsteady on his feet. As a result, the judge concluded there was substantial credible evidence to support the State's position that defendant was under the influence of something that negatively affected his ability to safely operate a vehicle. In the words of the test enunciated by the Supreme Court, we conclude that the judge was entitled to find defendant was "under the influence" because the evidence found credible demonstrated "a substantial deterioration or diminution of [defendant's] mental faculties or physical capabilities." State v. Tamburro, 68 N.J. 414, 421 (1975).

The pivotal question suggested by defendant's arguments in this appeal, however, concerns whether defendant was under the influence of a "narcotic, hallucinogenic or habit-producing drug." Ibid. Our Supreme Court has held that N.J.S.A. 39:4-50(a) "does not require that the particular narcotic be identified." Tamburro, supra, 68 N.J. at 421; see also State v. Bealor, 187 N.J. 574, 589 (2006). Contrary to defendant's forceful contentions, the State was not obligated to prove that the manner in which defendant presented himself on the night in question was not the product of ADHD but only that his inability to safely operate a motor vehicle was the product of a narcotic, hallucinogen or habit-producing drug. In this regard, the State offered defendant's own statements -- in which he attributed his condition at the time of the vehicle stop to an increased dosage of Concerta3 -- as well as the testimony of Officer Abrusci, a certified DRE, who performed an examination on defendant after his arrest. Officer Abrusci opined that Concerta is "a stimulant similar to Ritalin" and that this stimulant had "a narcotic effect on the defendant" on the night in question. This combination of lay and expert testimony was sufficient to sustain the State's burden, as explained by the Court in Bealor, supra, 187 N.J. at 589-93.

Without reference to the record developed in either the municipal court or the Law Division, defendant argues to us that his outward appearance and his failure of the field sobriety test were consistent with the symptoms of ADHD -- a fact that defendant claims the State was required to disprove beyond a reasonable doubt. We reject this contention not only because it is not supported by the record but also because we are governed by the factfinder's determination, which is supported by evidence that actually is in the record, see State v. Robinson, 200 N.J. 1, 15 (2009); State v. Locurto, 157 N.J. 463, 474 (1999), that defendant was under the influence of Concerta -- as defendant himself conceded when arrested -- and that, as Officer Abrusci testified without contradiction, Concerta is a stimulant that produced a narcotic effect on defendant and was, thus, a substance falling within the parameters of N.J.S.A. 39:4-50(a).

Affirmed.

1There is no dispute that defendant was not under the influence of alcohol.

2Defendant was twenty-five years old at the time in question.

3In his statements to the officers, defendant acknowledged he had consumed Concerta on the day in question and that the higher dose his doctor had recently prescribed made him not "feel right, that it was probably too much," that he "felt like [the dosage] was too much." During the municipal court trial, defendant testified it was just poor coordination and not Concerta that affected his ability to perform the field sobriety tests. The factfinder was entitled to reject defendant's disavowal at trial of these earlier statements.