STATE OF NEW JERSEY v. CYNTHIA SORRENTINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6252-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CYNTHIA SORRENTINO,

Defendant-Appellant.

_______________________________

March 30, 2012

 

Submitted November 30, 2011 - Decided

 

Before Judges Cuff and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 27-09-A-T-13.

 

Lowenstein Sandler, P.C., attorneys for appellant (Lawrence M. Rolnick, of counsel and on the briefs).

 

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Anthony J. Parenti, Jr., Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Cynthia Sorrentino appeals from a Law Division judgment, following a trial de novo, affirming her municipal court convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and driving while her privileges were suspended, N.J.S.A. 39:3-40.1 This was defendant's third DWI conviction within the last ten years, for which she was sentenced to 180 days in the county jail and her driving privileges were forfeited for ten years. N.J.S.A. 39:4-50(a)(3). We affirm.

According to the State's proofs adduced at the municipal court trial, the Hillsborough Township Police Department dispatch received a 9-1-1 citizen call of an erratic driver on Duke's Parkway in Bridgewater, at 3:47 p.m. on January 9, 2007. The caller provided "a specific plate" and "a specific vehicle." Patrolman Joseph Paschall responded to the call by initially driving to the area identified by the caller, but he could not locate the described vehicle. After running a motor vehicle check on the license plate, Patrolman Paschall obtained the owner's address and proceeded to a residence on Roycefield Road. There he encountered the described pick-up truck in the driveway with its motor running and defendant behind the wheel.

Patrolman Paschall asked defendant how she was doing. She responded with complaints regarding her vehicle's operation. He noted her speech was slow and slurred. Patrolman Paschall asked defendant to produce her license, insurance card and registration. Patrolman Paschall observed defendant's hand movements, which were "slow," and she was "not able to hold [her credentials], grasp them and go through them without fumbling through them." She produced an insurance card and registration but not a driver's license. A subsequent record's check revealed defendant's driving privileges had been suspended.

Patrolman Paschall asked defendant to exit the vehicle "several times" but "[i]t was almost as if she didn't understand what I was asking her at the time." He did not detect an odor of alcohol on defendant's breath and she asserted she had not had any alcohol to drink.

Once the roadway was blocked for safety and defendant was out of the car, Patrolman Paschall requested her to perform various field sobriety tests. First, he issued instructions for the horizontal gaze nystagmus test (HGN).2 In conducting each phase of the test, he noticed defendant's eyes lacked a "smooth pursuit [of the stimulus] in the left and right eye" and "were jerking." Second, she was asked to recite the alphabet beginning with the letter "D" and ending with "T." Defendant started with "A" then stopped, began again with "D" and proceeded to "Z." Patrolman Paschall noted defendant's speech was "slow and slurred." Third, defendant was asked to count backward beginning with 99 and ending with 69. In doing so, defendant missed 88, 79 through 71, and continued passed 69 to 68 when she was stopped by the officer. Next, she was asked to perform the one-leg stand and the walk-and-turn test. Defendant had difficulty following the given instructions. Before proceeding, Patrolman Paschall radioed for back-up.

Patrolman Sencher arrived and the field sobriety tests resumed. Defendant acknowledged she understood the instructions and stated she had no conditions precluding her performance. During the walk-and-turn test, defendant was observed "swaying left to right[,]" she "stepped off the line[,]" she "staggered[,]" and "had her arm raised for balance[.]" When performing the one-leg stand, defendant dropped her foot several times, miscounted, swayed left to right, and raised her arms for balance. As a result of all of these facts, Patrolman Paschall concluded defendant was intoxicated and arrested her for DWI.

At police headquarters, defendant was advised of her Miranda3 rights and given a breathalyzer test, which returned a blood alcohol concentration reading of zero. Patrolman Paschall then inquired whether defendant was taking any medications. Defendant stated she had been prescribed medications for depression and pain resulting from a prior motor vehicle accident, including Wellbutrin (300 milligrams) which she took at 6:30 a.m., two Fioricet taken at 10 a.m. and 3 p.m., Percocet (five milligrams) taken at 9 a.m. and 1 p.m. and Ambien (twelve and one-half milligrams) taken the night before.4 In a subsequent interview with a different officer, defendant admitted she took one Fioricet at 10 a.m. and one at 1 p.m. and took Zanex (one milligram).

In completing his report, Patrolman Paschall included the following additional observations of defendant's physical condition:

Her ability to walk I have that she was swaying and staggering.

 

Her ability to stand I had her as swaying and her sagging at her knees.

 

Her speech was slurred, slow and at times she was crying.

 

Her demeanor was indifferent, cooperative, polite, calm and crying.

 

Her eyes were bloodshot, watery and she had droopy lids.

 

Her movement of her hands were fumbling and slow and there was no odor of alcoholic beverage but I did observe her face to be flushed.

 

On cross-examination, Patrolman Paschall admitted he had not observed defendant driving her vehicle. However, he stated defendant admitted she had been driving and recited the route she took prior to arriving at her home.

Patrolman Francesco Bernardo from Bedminster Township Police Department was called to evaluate defendant based on his training as a certified drug recognition expert (DRE). He met with defendant and conducted a DRE examination, which included a series of questions regarding her medical and physical status, taking her vital signs (pulse, temperature and blood pressure), checking her vision and eyes, performing a HGN test, certain "divided attention" tests, and physical coordination tests. Defendant repeated the prescribed medications she had taken and identified her physicians. Patrolman Bernardo noticed she experienced "eyelid tremors," her estimate of time passage was incorrect evincing "her internal clock was off," she swayed "two inch[es]" from "side to side[,]" failed the physical coordination tests despite asserting she had no conditions of precluding performance, displayed bloodshot and watery eyes, had droopy eyelids, her vital blood pressure and pulse were low, her muscles were flaccid, and her eye reactions including pupil dilation were slow.

Defendant was requested to provide a urine sample and she complied. Patrolman Bernardo supervised and the sample was secured for later delivery to the State Police Laboratory for analysis. Based upon the results of the DRE examination, Patrolman Bernardo concluded defendant was "under the influence of a CNS . . . [a] central nervous system depressant."

Nirmal Sawhney, a State Police Laboratory toxicologist, performed the chemical analysis of defendant's urine sample. She concluded the sample contained oxycodone, a narcotic which was consistent with defendant's report of Percocet; butalbital, the generic name for Fioricet; and carisoprodol, a muscle relaxer, which when broken down, forms the by-product meprobamate. She explained these medications are CNS suppressants and generally include side effects such as drowsiness, lethargy, dizziness, disorientation, and confusion. She did not find Wellbutrin or Ambien.

The State introduced testimony from the township evidence custodian, John Sheridan, who related the chain of control of the urine sample; the video taken from Patrolman Paschall's dashboard recorder; the various certifications of the officers; certified copies of defendant's prior driving suspension; the DRE evaluation completed by Patrolman Bernardo; the drunk driving questionnaire prepared by Patrolman Paschall; and the lab reports by toxicologist Sawhney.

Defendant offered the expert testimony of Dr. Richard Saferstein,5 a forensic toxicologist, who did not dispute the laboratory results, but opined there was no correlation between the substances in the urine and impaired driving. The urinalysis merely shows that "within the past 48 to 72 hours of . . . taking of the urine, [the subject] ingested three drugs." Dr. Saferstein stated following his review of the evidence he concluded the results in the DRE report were more consistent with the presence of narcotic analgesics rather than a CNS depressant.

Dr. Saferstein identified the inconsistencies between the DRE findings and Patrolman Bernardo's conclusion that defendant was impaired by a CNS depressant. For example, there was no observation of vertical nystagmus or inability to converge one's pupils so that the pupils remain dilated, two signs of CNS depressant impairment. Further, defendant's vital signs, which were within normal range, would likely be depressed. Although there was some evidence consistent with Patrolman Bernardo's conclusion, Dr. Saferstein stated "there [wa]s no [basis within a] reasonable degree of scientific certainty to conclude . . . that this defendant was impaired by a [CNS] depressant as the DRE had indicated."

In a written opinion, the municipal court judge found defendant was driving while under the influence of some drug and "[t]he State has no obligation to prove the exact drug or the quantity of the drug in . . . defendant's system." Defendant was found guilty of DWI for which monetary penalties and assessments of $1364 were imposed, her driving privileges were suspended for ten years, and she was sentenced to serve 180 days in the county jail. Additionally, defendant was found guilty of driving while her privileges were revoked for which penalties and assessments were imposed of $1539, her driving privileges were revoked for two years, and she was sentenced to a concurrent thirty-day county jail sentence.

Judge Paul W. Armstrong of the Law Division reviewed the municipal court record at a hearing held on May 10, 2010. Defendant presented several legal and procedural challenges seeking to reverse her conviction for DWI. Following argument, the trial judge found defendant guilty of both the DWI and driving while suspended and imposed the same sentence and penalties as the municipal court.

On appeal, defendant generally challenges the sufficiency of the evidence for conviction and articulates specific challenges in this way:

A. IMPROPER RELIANCE ON HGN TEST.

 

B. VIOLATION OF SPEEDY TRIAL.

 

C. DRE TESTIMONY IS NOT RELIABLE.

 

The function of the Law Division in reviewing an appeal of a municipal court conviction, R. 3:23-8(a), is not to search the record for error, 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. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). In other words, the judge in a trial de novo must make 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, not the municipal court, could reasonably have been reached on sufficient credible evidence present in the record. Ibid. When we conclude the findings and conclusions of the Law Division meet this 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.

Just as the Law Division does when conducting a de novo review, we defer to the municipal court judge's credibility findings, which "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). Further, we neither "weigh the evidence" nor "make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but rather give due regard to the trial court's credibility findings. Cerefice, supra, 335 N.J. Super. at 383.

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 facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

 

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

 

However, if we determine the Law Division's findings were "clearly . . . mistaken . . . and so plainly unwarranted . . . [that] the interests of justice demand intervention and correction . . . then, and only then, . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).

In questioning the weight of the State's evidence, defendant relies on the unchallenged conclusion of Dr. Saferstein based on the divergence between the symptoms of impairment by a CNS suppressant and the results of defendant's DRE test, along with his opinion that defendant's performance of the field sobriety tests "was adequate." Defendant maintains "the State provided no testimony whatsoever on . . . defendant's ability to operate a motor vehicle." We disagree.

N.J.S.A. 39:4-50(a) provides in pertinent part: "a person who operates a motor vehicle while under the influence of intoxicating . . . narcotic, hallucinogenic or habit-producing drug" shall be subject to certain escalating penalties. "[T]he State's burden of proof unquestionably is beyond a reasonable doubt." State v. Bealor, 187 N.J. 574, 586 (2006) (citing State v. Fearon, 56 N.J. 61, 62 (1970)).

To prove whether a defendant was "under the influence," the State must show "beyond a reasonable doubt that, at the time of h[er] arrest, defendant suffered from a substantial deterioration or diminution of the mental faculties or physical capabilities[.]" Id. at 590 (internal citation and quotation marks omitted). Thus, a motorist is under the influence when his or her use of drugs has caused a substantial diminution of faculties and capabilities, State v. Tamburro, 68 N.J. 414, 421 (1975), which have altered his or her coordination and mental faculties so as to make it unsafe for him or her to drive. State v. DiCarlo, 67 N.J. 321, 328 (1975). A conviction under the statute may be based upon "physical evidence . . . such as symptoms observed by the arresting police officers or failure of defendant to perform adequately on balance and coordination tests . . . ." State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986). "The statute does not require that the particular narcotic be identified." Tamburro, supra, 68 N.J. at 421. Nor does it "define the quantum of narcotics, hallucinogens or habit-producing drugs required in order to violate its prohibition." Bealor, supra, 187 N.J. at 589. "Instead, as with alcohol intoxication, the issue is simple: was the defendant under the influence of a narcotic, hallucinogen or habit-producing drug while [s]he operated a motor vehicle." Ibid. (internal quotation marks omitted).

Governed by these standards, we discern no reason to interfere with the May 19, 2010 judgment of conviction. Our review of the record confirms Judge Armstrong's evidential findings and conclusion that the State's evidence was sufficient to establish beyond a reasonable doubt that, at the time of arrest, defendant was "under the effect of a drug that 'so alter[ed her] . . . normal physical coordination and mental faculties as to render [her] a danger to h[erself] as well as to other persons on the highway.'" Id. at 590 (quoting DiCarlo, supra, 67 N.J. at 328).

Although no witness was presented who had observed defendant driving her vehicle, operation was proved by defendant's admission she had been driving and, upon returning home, had not exited the vehicle to enter her residence. Moreover, at the time of Patrolman Paschall's arrival, the vehicle's engine was still running.

"Operation may be proved by any direct or circumstantial evidence - as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). Defendant's admission and the accompanying circumstantial evidence that she was in the driver's seat with the vehicle running give rise to the inference that she had been operating the vehicle. See State v. Witter, 33 N.J. Super. 1, 5 (App. Div. 1954) (finding operation where defendant was found behind the steering wheel of his car, with the motor running and lights on). These facts prove beyond a reasonable doubt defendant had operated her vehicle to arrive at her home immediately before Patrolman Paschall encountered her. State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).

Evidence of defendant's impairment relied upon by Judge Armstrong included the police witnesses and the State's experts.

That "the trial court decided all evidence or inference conflicts in favor of [the State] has no special effect[,]" as sufficient credible evidence was in the record to sustain the court's findings and conclusions, which we must uphold. Johnson, supra, 42 N.J. at 162.

"[E]videntially competent lay observations of the fact of intoxication[,]" which would include observations of a defendant's physical condition made by an arresting police officer, is permitted. Bealor, supra, 187 N.J. at 577.

Here, Patrolman Paschall observed defendant's ability to walk was accompanied by "swaying and staggering" and reported when she stood still, she was "sagging at her knees" while swaying. He noted defendant's "speech was slurred, slow and at times she was crying." Further, she displayed an inability to comprehend simple instructions, appeared confused and at times her responses were out of context. Physically, her face appeared flushed, "[h]er eyes were bloodshot, watery and she had droopy lids." Finally, impaired coordination was evinced by defendant's "fumbling and slow" hand movements and the numerous deviations identified in defendant's inability to follow directions and perform field sobriety tests.

Patrolman Bernardo's expert testimony detailing the results of DRE testing confirmed Patrolman Paschall's observations, providing further evidential support of defendant's intoxication. Also, his expert opinion of the testing results evinced that defendant's coordination and mental faculties were so impaired as to make it unsafe for her to drive. DiCarlo, supra, 67 N.J. at 328. He noted the physical signs of bloodshot, watery eyes and droopy eyelids, accompanied by slurred, slow speech, poor coordination and concentration. A check of defendant's pulse rate and blood pressure confirmed they were low, and there was disconnection in her eye movements. Additionally, Judge Armstrong relied on the detailed description of defendant's physical impairments as noted by Patrolman Bernardo to reach his expert opinion of impairment by a CNS depressant.

Finally, the State offered "additional independent proofs tending to demonstrate defendant's consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the . . . arrest, . . . sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt and, thereby, to sustain a conviction under N.J.S.A. 39:4-50." Bealor, supra, 187 N.J. at 577. Defendant's use of CNS depressant drugs was confirmed by her admission of ingestion of several medications and the toxicology evidence presented by Sawhney. Sawhney explained the effects of the various substances defendant used, one of which was classified as a narcotic.

Dr. Saferstein's challenge to the uncontroverted evidence of drug use suggesting the time of ingestion was not confirmed is belied by defendant's admissions. Also, that Judge Armstrong rejected Dr. Saferstein's opinion based on his findings that the DRE test results were divergent from CNS depressant use is not a basis for reversal. The trial judge fully explained his factual findings underpinning his legal conclusions. See R. 1:7-4 (requiring trial court to specify findings of fact and conclusions of law in all nonjury trials).

We reject defendant's challenge to the sufficiency of the State's evidence. We conclude, as did Judge Armstrong, that the State's direct and circumstantial evidence proved the elements of the DWI offense beyond a reasonable doubt.

Defendant next maintains the trial court erred in permitting Patrolmen Paschall and Bernardo to testify regarding HGN test results. We reject this contention.

The police officers each admitted the test results were considered when concluding defendant had been driving while under the influence. In State v. Doriguzzi, 334 N.J. Super.530, 538-39 (App. Div. 2000), we examined one feature of the DRE protocol, namely the HGN test, and found it did not meet the Frye6 standard of admissibility. Here, while HGN testing results may have been discussed, they played no part in Judge Armstrong's determination. The trial judge relied on the remaining DRE evaluation evidence, defendant's admissions, and the testimonial, documentary and circumstantial evidence we have discussed above, to support his finding that the State proved, beyond a reasonable doubt, defendant's intoxication and impairment thereby supporting her conviction of DWI.

In a related claim, defendant asserts the trial court committed reversible error in relying on the DRE evidence, claiming it lacks general acceptance in the scientific community. The argument is not supported by record citations or authority. Further, we note that but for the objection to the HGN testimony, defendant did not raise this objection during the municipal court or before the Law Division. Nevertheless, the assertion is easily rejected as the Supreme Court has recognized police officers in this State who "successfully complet[e] the Basic Course for Police Officers authorized by the Police Training Commission[,]" are "eligible to qualify as experts on [drug] intoxication under N.J.R.E. 702." Bealor, 187 N.J. at 592.

Finally, we reject defendant's claimed constitutional violation citing the State's failure to promptly bring this case to trial. See State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) ("The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and imposed on the states by the Due Process Clause of the Fourteenth Amendment."). See also Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972) (announcing a four-part test to determine when a delay infringes upon a defendant's due process rights); State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976) (adopting Wingo's test).

We conclude Judge Armstrong fully evaluated the facts presented in this matter and rejected defendant's asserted claims of prejudice by the delay, some of which were caused by defendant's conduct. We will not interfere in the trial court's denial of defendant's motion, substantially for the reasons set forth in Judge Armstrong's opinion.

Affirmed.

1 Defendant was also charged with and acquitted of being under the influence of a controlled dangerous substance, N.J.S.A. 2C:35-10b.

2 Patrolman Paschall was certified in HGN procedures by the Morris County Police Academy and his certification was introduced into evidence.

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

4 There is some discrepancy in the exact times the medications were taken, but the record is consistent that the Percocet and Fioricet were taken in the midmorning and early afternoon.

5 Dr. Saferstein is not a medical doctor. The record did not reveal the specialty of his doctorate degree.

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