STATE OF NEW JERSEY v. DAVINDER S. MANANI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6047-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVINDER S. MANANI,

Defendant-Appellant.

_____________________________

December 23, 2010

 

Submitted: December 8, 2010 - Decided:

 

Before Judges Fisher and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-092.

 

Trautmann & Associates, L.L.C., attorneys for appellant (Gregg D. Trautmann and Robert T. Trautmann, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50; speeding, N.J.S.A. 39:4-98; possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1; and possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Contrary to the statutory requirements of N.J.S.A. 2C:35-19c, the State produced on the first day of trial a September 18, 2008 laboratory certificate that confirmed marijuana was found in defendant's car. As a result, defendant was denied his opportunity to cross-examine the technician who prepared the report. We reverse defendant's convictions for possession of marijuana, but affirm his convictions for driving while intoxicated and speeding based on the numerous observations of two troopers.

On August 23, 2008, at approximately 9:30 a.m., Trooper Nicholas Mastrella (Trooper Mastrella) conducted laser surveillance and observed defendant driving a white Chrysler 103 miles per hour on Route 80. The speed limit was sixty-five miles per hour. Trooper Mastrella followed the car, pulled it over, approached it, detected a strong odor of air fresheners, observed defendant's speech was slurred, and noticed that his eyes were bloodshot, watery and glassy. Defendant denied drinking alcohol the previous night.

While defendant sat in his car, Trooper Mastrella asked him to recite the alphabet from the letter "D" to "V," perform a dexterity test by counting on his fingers from one to four and then from four to one, and count from sixty-four to thirty-six. Defendant recited the alphabet quickly, slurred the letters, stopped in the middle, and then continued up to the letter "Z." He could not count on his fingers from one to four and then four to one. Defendant attempted to count from sixty-four to thirty-six, but skipped number sixty, repeated numbers fifty-two to fifty twice, and stopped counting at thirty.

Trooper Mastrella asked defendant to exit the car and conducted field sobriety tests. He asked defendant to walk heel-to-toe nine steps forward while counting out loud, turn and walk back in the same manner. Trooper Mastrella instructed defendant to keep his hands at his side while he walked. Defendant walked nine steps, forgot to count, asked what to do next, continued nine more steps, turned, and returned half the distance. He did not walk heel-to-toe and failed to keep his hands by his side. Then Trooper Mastrella asked him to raise one leg six inches off the ground, keep his hands to his side, and count until instructed to stop. Defendant counted incorrectly and did not keep his foot six inches off the ground or his hands by his side. Defendant failed all three tests.

Trooper Mastrella arrested defendant for driving while intoxicated,1 handcuffed him, and searched the car. He removed a small plastic bag located in the center console that contained a "greenish, brown vegetative substance." Trooper Mastrella read defendant his Miranda2 warnings at the scene and at the police barracks. At the barracks, Trooper Mastrella asked him if he had smoked marijuana and defendant stated that "Indian people don't smoke." Trooper Mastrella then called Trooper Robert Harrison (Trooper Harrison) and requested that he examine defendant.

Trooper Harrison testified for the State as a drug recognition expert. Trooper Harrison examined defendant at 11:45 a.m., conducted psycho-physical tests, an HGN test, a Romberg test, a walk-and-turn test, a one leg stand test, and a finger-to-nose test. He also obtained defendant's blood pressure, pulse and temperature. Defendant admitted to Trooper Harrison that he smoked a marijuana cigarette at 12:00 a.m. and drank two to three Corona beers the previous night. Defendant failed the tests administered by Trooper Harrison.

The Romberg test required defendant to stand with toes and heels together, arch his back, lower his head, close his eyes, and estimate the passage of thirty seconds. Defendant performed the test quickly, and the trooper observed that defendant swayed from side to side. Defendant started the walk-and-turn and one leg tests prematurely, raised his arms for balance, performed an about-face instead of using small steps to turn around, and missed his heel-to-toe several times. He lost his balance several times and counted quickly during the one leg test. He performed the finger-to-nose test slowly, as if he was thinking about each move. The trooper observed eyelid tremors when defendant closed his eyes and performed the Romberg and finger-to-nose tests. He also observed red conjunctiva and, under direct light, rebound dilation of both pupils indicators that someone inhaled marijuana. After Trooper Harrison completed the examination, he concluded that defendant was under the influence of cannabis and unable to drive a motor vehicle safely.

The municipal court judge admitted into evidence a September 18, 2008 laboratory report that confirmed that thirty grams of marijuana were contained in the small plastic bag retrieved by Trooper Mastrella from defendant's vehicle. The judge also introduced into evidence a September 25, 2008 positive urinalysis toxicology report. Defense counsel objected to the admissibility of the September 18 report.

Defendant did not testify but called as a witness his own drug recognition expert, Herbert H. Leckie. Mr. Leckie admitted that he was not a certified drug recognition expert. Mr. Leckie testified that defendant was impaired to operate a car, but could not say what caused the impairment. He also acknowledged that defendant's field sobriety test results could indicate that one smoked marijuana, and that defendant admitted that he smoked marijuana that night.

At the conclusion of the trial, the municipal judge found defendant guilty of driving while intoxicated, speeding, possession of a controlled dangerous substance in a motor vehicle, and possession of under fifty grams of marijuana. The judge found that defendant was under the influence of marijuana, and that Troopers Mastrella and Harrison testified credibly. The municipal judge imposed the appropriate fines and penalties and sentenced defendant to an aggregate two years loss of driving privileges.

On June 26, 2009, the Law Division judge conducted a trial de novo on the record below and, like the municipal court judge, found defendant guilty of the same offenses. At the end of the one day trial, he imposed the same sentence of the municipal judge. After imposing the appropriate fines and penalties, the Law Division judge sentenced defendant to an aggregate two years loss of driving privileges.

On appeal, defendant raises the following points:

POINT I

THE FAILURE OF THE PROSECUTION TO PROVIDE THE STATE POLICE LABORATORY CERTIFICATE PRIOR TO THE START OF THE FIRST DAY OF TRIAL AND THE COURT'S OVERRULING THE DEFENSE OBJECTION TO THE ADMISSION OF THAT CERTIFICATE INTO EVIDENCE AMOUNTS TO AN ABUSE OF DISCRETION REQUIRING REVERSAL

 

POINT II

THE FAILURE OF THE PROSECUTION TO PROVIDE CHAIN OF EVIDENCE DISCOVERY PERTAINING TO THE TESTING OF EVIDENCE PRIOR TO THE START OF THE SECOND DAY OF TRIAL AND THE COURT'S OVERRULING THE DEFENSE OBJECTION TO THAT DISCOVERY VIOLATION AMOUNTS TO AN ABUSE OF DISCRETION REQUIRING REVERSAL

 

POINT III

THE JUDGMENT OF CONVICTION FOR A VIOLATION OF N.J.S.A. 39:4-50 WAS AGAINST THE WEIGHT OF EVIDENCE AND MUST BE REVERSED

 

In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8. See, e.g., State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In our review, we must likewise give deference to the findings of the trial judge that were influenced by his opportunity to hear and see the witnesses. Id. at 161. Having done so, we must then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law is de novo. Id. at 158-59.

We begin by addressing defendant s argument that he was prejudiced because the State failed to produce the September 18, 2008 laboratory report until the first day of trial, and that the judge erred by introducing it into evidence over his objection.

Laboratory certificates attesting to the composition of a controlled dangerous substance may be presented in court in lieu of the laboratory technician's live testimony. The use and admissibility of laboratory certificates are governed by N.J.S.A. 2C:35-19c, which provides that:

Whenever a party intends to proffer in a criminal or quasi-criminal proceeding, a certificate executed pursuant to this section, notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least 20 days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the grounds for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined not later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and specific grounds for that objection that the composition, quality, or quantity of the substance submitted to the laboratory for analysis will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause. (emphasis added)

A technician tested the "greenish, brown vegetative substance" found in defendant's car, determined it was marijuana, and documented the results in his September 18, 2008 laboratory report. The municipal prosecutor intended to use the lab report, but failed to produce the certificate and comply with the time constraints of the statute.

The municipal court judge scheduled the trial for October 23, 2008. The judge adjourned the October 23 trial date to January 9, 2009 because discovery was incomplete. On January 9, the municipal prosecutor produced the September 18 laboratory report of the substance found in the car,3 the judge began the trial, watched the videotape of the stop, and admitted it into evidence.

Defendant objected to the content and admissibility of the lab report. Defense counsel stated that "we've essentially begun the trial and I'm given a lab report today for what is an important piece of evidence." The municipal judge reserved decision on the objection, acknowledged the time constraints of N.J.S.A. 2C:35-19c, continued the trial because a trooper was available and ready to testify, and provided defendant the opportunity to have Mr. Leckie issue a supplemental report. No testimony was elicited about the lab report on January 9.

When the trial continued on February 27, 2009, defendant renewed his objection to the admissibility of the lab report and counsel repeated that he objected to "the method of testing [and] the quality of testing [of the lab report]." More than two months after the trial began, the municipal judge overruled the objection. The Law Division judge found that "there was sufficient time for defense counsel to analyze his case." The purpose of the statute, however, was frustrated by not determining the admissibility of the lab report at least "two days before the beginning of trial."

"[N.J.S.A. 2C:35-19c] serves a legitimate purpose, i.e., 'to weed out prior to trial those cases in which there is a contest over the scientific proof and with respect to which the State will be required to produce a witness or prove why one is not necessary.'" State v. Kent, 391 N.J. Super. 352, 381 (App. Div. 2007) (quoting State v. Miller, 170 N.J. 417, 436 (2002)). Applying the tenets of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), we have determined that a State Police chemist's lab report is "testimonial" and thus must be excluded unless defendant has an opportunity to cross-examine the chemist. State v. Berezansky, 386 N.J. Super. 84, 90-91 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); see also Kent, supra, 391 N.J. Super. at 375 (defendant entitled to cross-examine a lab technician). Defendant was deprived of his statutory right to object before the trial began to the admissibility of the lab report and, if successful, have the State produce the technician for cross-examination. See Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (admission into evidence of a laboratory certificate without allowing defendant an opportunity to confront the lab technician violated the Confrontation Clause).

N.J.S.A. 2C:35-19c allows a defendant to invoke his right to confront a lab technician when the "composition, quality, or quantity of the substance submitted to the laboratory for analysis will be contested at trial." The Supreme Court in Melendez-Diaz found that such notice and demand statutes are constitutional and explained that "[t]here is no conceivable reason why [a defendant] cannot similarly be compelled to exercise his Confrontation Clause rights before trial." Melendez-Diaz, supra, 557 U.S. at __, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331. In other words, the Confrontation Clause problem may be avoided only by the utilization of a statute that authorizes a pretrial determination regarding the use of a laboratory certificate. An expansive view -- or disregard -- of the statute's time frame generates the very problems the statute otherwise avoids.

The time limitations in N.J.S.A. 2C:35-19c "shall not be relaxed except upon a showing of good cause." From the record on appeal, we discern no basis to relax the time limitations contained within the statute. Therefore, we reverse the convictions for possession of marijuana.

Next, defendant argues that his conviction for driving while intoxicated was against the weight of the evidence and should be reversed. We disagree.

The Court has "described generally the term 'under the influence' as 'a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs.'" State v. Bealor, 187 N.J. 574, 589 (2006) (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)). 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 Tamburro, supra, 68 N.J. at 422, the Court acknowledged that:

[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.

 

After giving due deference to the credibility findings made by the municipal court, the Law Division judge found that:

[D]efendant was at the very least impaired in his operation of the vehicle. We have the extremely high rate of speed, in excess of 100 miles per hour, and I believe the speed limit was 65. We have . . . defendant doing extremely poorly on all the field sobriety tests. There's no doubt in my mind of how he performed. We do have statements made by . . . defendant [that] he had consumed a few beers, and he says he did have a joint of marijuana approximately midnight before.

 

. . . .

 

. . . [w]e had testimony from the trooper. He made a number of observations.

 

. . . .

 

. . . [Trooper] Harrison . . . who had some [twenty-one] or more years of experience . . . testifie[d] [that] . . . defendant was operating under the influence of marijuana.

 

Mr. Lecky . . . admit[ted] that . . . defendant was certainly impaired. . . he indicated that the evidence of the bloodshot, watery, droopy eyelids could be another indicator of being under the influence specifically of marijuana[,] as well as the slurred speech.

 

Defendant argues that "the weight of the evidence could not be more adverse" to Trooper Harrison's opinion that he was under the influence at the time he was driving his car. We disagree. 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. "[D]etermining 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)).

Given our standard of review, we are satisfied that the record contains sufficient credible evidence from the Law Division judge that defendant is guilty of driving while intoxicated beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Defendant's slurred speech, bloodshot, watery and glassy eyes, his admission that he consumed three beers and smoked one joint the night before, and his poor performance on the field sobriety tests, were sufficient reliable indicia that he operated a motor vehicle while under the influence.

Affirmed in part and reversed in part.

1 At trial, the parties stipulated that the results of the Alcotest were zero.

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

3 The municipal prosecutor timely produced the September 25, 2008 positive urine analysis report.