STATE OF NEW JERSEY v. SANJAY K. DAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6237-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANJAY K. DAS,

Defendant-Appellant.

Argued telephonically October 3, 2013 Decided October 15, 2013

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 02-2012.

Rohit K. Mallick argued the cause for appellant (Kaufman Dolowich & Voluck, L.L.P., attorneys; Mr. Mallick, on the brief).

Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet and Matthew P. Tallia, on the brief).

PER CURIAM

Following a municipal court trial and a trial de novo in the Law Division, defendant Sanjay K. Das was convicted by the Law Division judge of failure to maintain lane, N.J.S.A. 39:4-88(b). He appeals that conviction. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The case arose from a serious motor vehicle collision which occurred on Route 535 near Stults Road in South Brunswick at approximately 5:15 a.m. on April 16, 2011. The State alleges that defendant, who was operating his automobile on Route 535 in the northbound left lane, crossed over the double yellow line, causing a collision with a tractor trailer travelling in the opposite direction on the southbound side of the road. Defendant suffered severe personal injury, and his vehicle sustained significant damage, as a result of the collision with the tractor trailer. Following a police investigation, on May 14, 2011, defendant was issued a summons for unsafe lane change, N.J.S.A. 39:4-88(a).1

The only witness to testify at the municipal court trial was Patrolman Michael Hallman, a five-year veteran of the South Brunswick Police Department, who was the first officer to respond to the accident scene. The court also conducted a N.J.R.E. 104 hearing to determine whether Hallman could qualify as an expert in determining the point of impact where the collision between the two vehicles occurred. Over defendant's objection, the municipal judge ruled that Hallman could testify as an expert, consistent with the limitations of his level one crash certification. Hallman was not offered by the State, nor did he qualify, as an expert in accident reconstruction. The judge concluded:

[The] testimony is admissible to the extent that it helps the [c]ourt in understanding where the point of impact between the vehicles occurred, and I will give it the appropriate weight to the extent that that information is helpful in deciding whether prior to the collision [] defendant was operating his vehicle in violation of N.J.S.A. 39:4-88.

Hallman testified, during the N.J.R.E. 104 hearing and the ensuing trial, that some three years earlier he completed a two-week course and became certified as a level one crash investigator. The purpose of the course was to identify the point of impact when a collision occurs. This is done through the examination of physical evidence, such as skid marks, yaw marks, gouges, scrapes, and debris fields. Since becoming certified, Hallman had investigated some fifty to seventy-five accidents.

At the accident scene, Hallman spoke with defendant, who was initially pinned inside his vehicle. Defendant informed Hallman that he had been returning from Connecticut to his East Windsor home, and that he had been driving for five hours and was tired.

Hallman then made physical observations of the vehicles involved in the collision, and the accident scene. Hallman observed that the tractor trailer was in the southbound lane, and that its driver's side rear axle was dislodged. Defendant's vehicle had also come to rest in the southbound lane, facing the same direction as the truck. The driver's side of defendant's automobile had sustained heavy damage, and its door was sheared off. Hallman described the debris field as large, covering both directions of travel. Hallman next examined the roadway, and observed physical damage in the form of gouge marks located approximately forty to fifty feet behind the truck in the left southbound lane. This finding was significant because, upon impact, metal from the bottom of defendant's vehicle dug into the roadway, creating the gouge mark at the point of impact. Thus, Hallman concluded, while heading northbound, defendant's vehicle had crossed over the double yellow line and struck the rear of the tractor trailer in the southbound lane of travel.

On December 29, 2011, the municipal court judge found defendant guilty of the failure to maintain lane charge. The judge concluded:

I find under the totality of the circumstances the [o]fficer's testimony was credible, that he observed the conditions he testified to at trial, that the markings on the roadway and the point of impact demonstrated that the defendant veered outside of his lane of travel over the double yellow lines and into the tractor trailer's lane of travel.

On sentencing, the judge reviewed the defendant's driver's abstract, noted his persistent offender status, and imposed the maximum fine of $206 plus $33 court costs.

On de novo review, the Law Division judge agreed with the municipal judge's credibility assessments. See State v. Johnson, 42 N.J. 146, 157 (1964) (noting that a reviewing court should give "due, although not necessarily controlling, regard" to the municipal judge's credibility determinations). The Law Division judge stated that he was

persuaded by the State v. Labrutto2 rationale, that a trooper in that case was able to testify as a lay witness regarding the point of impact of two vehicles in an automobile accident. [The officer] [d]idn't have to be an expert, didn't have to have an enormous amount of technical training and levels one, two or more of the [c]rash courses or of the accident courses. He could testify as to what he observed in that case. And he was able to testify even though in that case it was determined that average jurors could readily determine a point of impact from an officer's description of the physical evidence even if he didn't testify as an expert. So his expertise wasn't even necessary, but the court [in Labrutto] found that a testifying officer who has training and substantial experience investigating accidents and, although he doesn't even witness the accident, can testify as to how the accident occurred based on his notes and observations on the physical aspects of the accident scene and can base his opinion on that.

The Law Division judge noted that Hallman had investigated numerous accidents, had received training in the area of making impact determinations, and testified to the physical evidence that he personally observed, which demonstrated beyond a reasonable doubt that defendant had veered outside his lane and struck the tractor trailer in the oncoming lane of traffic. This appeal followed.

The scope of our review is limited. It requires us to assess whether there was sufficient credible evidence in the record to uphold the Law Division's findings. Johnson, supra, 42 N.J. at 162. We must determine whether the findings of the Law Division could reasonably have been reached on sufficient credible evidence present in the record. Id. at 162. [I]t is improper for [us] to engage in an independent assessment of the evidence as if [we] were the court of first instance. State v. Locurto, 157 N.J. 463, 471 (1999). Notwithstanding the foregoing, our review of the legal conclusions that flow from established facts is plenary. See State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

Before the municipal court, the Law Division, and this court, defendant has continued to challenge the admissibility of Hallman's testimony on several grounds. First, defendant argues that Hallman lacked sufficient expertise, since he had only completed the level one crash investigation course, and was thus unqualified to testify as to the point of impact between the two vehicles where, as here, he did not personally observe the accident, and where his conclusions were based on insufficient physical data. Next, defendant contends that Hallman's testimony constituted an impermissible net opinion, as it was not based on sufficient facts, data, or generally accepted scientific methodologies. Finally, relying on State v. McLean, 205 N.J. 438 (2011), defendant argues that Hallman's testimony constituted improper lay opinion testimony. We disagree.

In McLean, the Supreme Court addressed the permissible scope of lay opinion testimony. This, the Court concluded, occurs when an officer sets forth what he or she perceives through one or more of the senses, and is a fact-based recitation by a witness with first-hand knowledge. It does not convey information about what the officer believed, thought, or suspected. Id. at 460. The Court held that the police officer's testimony that defendant was engaging in hand-to-hand drug transactions was inadmissible lay opinion testimony, both because it was an expression of a belief in defendant's guilt, and because it presumed to give an opinion on matters that were not beyond the understanding of the jury. Id. at 463.

Importantly, however, the Supreme Court in McLean cited with approval examples of permissible lay opinions, including its prior ruling in State v. Labrutto, supra, 114 N.J. at 199-200. In Labrutto the Court permitted an investigating police officer, not qualified as an expert, to offer a lay opinion about the point of impact between vehicles involved in a collision, even though they had come to rest before the officer arrived on the scene. Id. at 197-99. The Court concluded that this lay opinion testimony was proper because it was based on, and supported by, the officer's personal perception and observations of the accident scene, areas of damage to the vehicles, skid marks, and damage to the grassy shoulder. Id. at 197-98.

Here, the Law Division judge properly admitted Hallman's testimony as lay opinion under N.J.R.E.701, which states:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

To be admissible, lay opinion must be based on the perception of the witness and provide evidence that will assist the fact finder in performing its function. McLean, supra, 205 N.J.at 456. Here, Hallman's testimony assisted the court in its determination of the pivotal issue, i.e., the point of impact between the two vehicles and whether it was outside defendant's lane of travel. Ultimately, the admissibility of lay opinion rests within the discretion of the trial court. LaBrutto, supra, 114 N.J.at 197. Here the judge did not abuse his discretion, as Hallman's testimony was clearly based on his own personal observations of the accident scene, including the location of the vehicles, the debris field, the damage to the vehicles, and the gouge marks on the southbound side of the roadway.

Defendant's additional appellate contentions are without sufficient merit to warrant extended discussion in a written opinion. R.2:11-3(e)(2). Defendant argues that the police accident report constituted inadmissible hearsay evidence and was improperly admitted at trial. However the record reveals that the accident report was not admitted in evidence; rather it was merely marked for identification and used for the permissible purpose of refreshing the officer's recollection. N.J.R.E.612. As to defendant's argument that he was prejudiced by the State's failure to disclose Hallman's expert credentials in pre-trial discovery, we have admitted Hallman's testimony as proper lay, rather than expert, opinion. In any event, defendant was twice afforded, and declined, the opportunity to adjourn the trial so as to more fully prepare to meet Hallman's testimony.

1 The charge was subsequently amended upon oral motion of the prosecutor during the municipal court trial to N.J.S.A. 39:4-88(b).

2 State v. Labrutto, 114 N.J. 187 (1989).