STATE OF NEW JERSEY v. BRUCE ZOPPY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4177-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE ZOPPY,

Defendant-Appellant.

____________________________________

April 15, 2014

 

Argued April 1, 2014 Decided

 

Before Judges Hayden and Lisa.

 

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 39-12-12.

 

Richard J. Kapner argued the cause for appellant.

 

Shaina Brenner, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Daniel P. Bajger, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Bruce Zoppy, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while under the influence of a narcotic, hallucinogenic or habit-producing drug, N.J.S.A. 39:4-50(a). Defendant was sentenced to an eight-month loss of driving privileges, a $400 fine, a $50 Violent Crime Compensation Board penalty, a $75 Safe Neighborhood Fund Assessment, a $200 DWI surcharge, $39 in court costs, and twelve hours at the Intoxicated Driver's Resource Center.

Defendant argues on appeal that (1) the State failed to prove beyond a reasonable doubt the element of operation, (2) the State failed to prove beyond a reasonable doubt that defendant was intoxicated at the time of the accident, and (3) the Law Division judge improperly utilized a form of retrograde extrapolation to find the defendant impaired hours earlier than any evidence allowed.1 We reject defendant's arguments and affirm.

Shortly after midnight on December 30, 2011, New Jersey State Trooper Dominick Sappio responded to a report of an accident in Stillwater Township. Ambulance and fire personnel had arrived at the scene before Sappio. When Sappio arrived, he learned that a one-vehicle accident had occurred. The vehicle left the roadway and flipped over several times end-to-end, sustaining significant damage and coming to rest on its roof. The airbags had deployed. The roadway was a two-lane local road, constructed of oil and stone. Weather conditions were clear and dry.

When Sappio arrived, defendant was standing on the side of the road speaking to ambulance personnel. Sappio heard the conversation, in which defendant apparently was under the impression that the ambulance personnel worked for a tow truck company. Defendant was imploring the ambulance personnel to simply flip his vehicle over so he could drive it home.

Defendant refused medical attention and insisted he was not injured. He was acting in an angry and belligerent manner because the ambulance personnel were offering medical assistance rather than flipping his car over for him, as he wanted.

Sappio described his observations of defendant at the scene. Defendant was not speaking in an "ordinary" manner, but was yelling. Sappio described defendant's manner of speaking as "fine" but "possibly [with] a slight slurring of the words." He said defendant was swaying while walking, and exhibited a "difficult ability to walk."

At the accident scene, Sappio asked defendant what happened, and he said he just ran off the side of the road. Later, at the State Police Barracks, defendant said he swerved to avoid girls going to a prom.

Based upon the manner in which the accident occurred and his observations of defendant, Sappio suspected that defendant was under the influence of alcohol. Sappio acknowledged that he did not detect any odor of alcohol on defendant's breath, but he said that, in his experience, sometimes an odor of alcohol is not readily apparent, for various reasons, even if someone has been drinking alcohol.

Sappio asked defendant if he had any injuries. Defendant referred to some prior back injuries, for which he previously had back surgery and was taking prescription medicine.

When Sappio asked defendant if he would be able to perform standard field sobriety tests, defendant said he could. Defendant continued to act in a belligerent manner, and Sappio had to escort him to the front of his troop car, where Sappio intended to administer the tests. The first test was a walk-and-turn test, which Sappio demonstrated in its entirety. He then asked defendant if he could perform the test, and defendant responded affirmatively. However, defendant was unable to perform the test, prompting Sappio to terminate it "for safety concerns," because defendant "was about to fall over."

Sappio then arrested defendant for driving under the influence and placed him in the back of his troop car to transport him to the Augusta Barracks. During the transport, defendant acted out, yelling, screaming, and kicking.

At the barracks, defendant was cooperative at times, and at other times uncooperative, belligerent, and noncompliant. At one point, he kicked a trooper who was assisting in escorting defendant to a location within the barracks.

Two Alcotest tests were administered, each yielding a zero percent blood alcohol content reading. The final reading was obtained at 1:16 a.m. Based upon those results, Sappio concluded that defendant was not under the influence of alcohol. However, based upon defendant's behavior throughout the incident, Sappio continued to be of the opinion that defendant was under the influence of a substance causing the observed behavior. He called Trooper Patrick Wynn, a drug recognition expert (DRE), who was stationed at the Washington Barracks, to come and perform an evaluation of defendant.

Wynn arrived at the Augusta Barracks at about 2:45 a.m., when he began his evaluation of defendant. In his testimony, Wynn described in detail his training as a DRE. He received his initial DRE certification in March 2006. Under the program, recertification is required every two years. Wynn produced his current DRE certification card, which was placed in evidence.

Wynn proceeded to conduct the multi-faceted evaluation, which took just over one hour, concluding at about 3:50 a.m. During the course of the evaluation, he obtained a urine sample from defendant, which was sent to the State Police Laboratory for analysis.

When the evaluation began, Wynn described defendant's demeanor, sitting with his head back, leaning against the wall. He exhibited droopy eyelids, periodically opening his eyes and leaning forward. Wynn took defendant's vital signs (blood pressure, pulse, and body temperature), all of which were below the normal range.

He examined defendant's eyes and pupils to assess whether "the pupils were not fixed and dilated, to the extent that meaning one may be constricted and one dilated more than 2 centimeters, at which point a medical condition, or a head trauma would possibly be indicated and the evaluation would be terminated at that time." Wynn was satisfied that defendant's "pupils upon my initial observation were equal, and he was able to follow the stimulus at that point." He therefore continued with his evaluation.

He performed the horizontal gaze nystagmus test and the vertical gaze nystagmus test. These tests yielded positive results, suggesting the possibility that defendant was under the influence of a central nervous system depressant.

Wynn performed various attention tests and psycho-physical tests. Defendant's performance resulted in further indication that he was under the influence of either a central nervous system depressant or a narcotic analgesic. Testing of defendant's eyes in a dark room revealed that, when exposed to a light instrument, defendant's pupils did not react normally, further indicating the possibility that he was under the influence of a narcotic analgesic.

Wynn asked defendant whether he was taking any medications. Defendant responded that he was taking Percocet for his back. When asked how much he was taking, defendant said three to five pills, three times a day.

Wynn had conducted approximately seventy-five drug recognition evaluations prior to this one. Based upon his training and experience, and his testing of defendant, he opined that "[b]ased on the entirety of the exam, and everything that I observed from my first interaction with [defendant], all the psychophysical tests, the physiological signs and symptoms that I observed, I concluded that at the time of the evaluation, the subject was under the influence of a . . . central nervous system depressant, and a narcotic analgesic." Wynn prepared a report setting forth his findings and conclusion.

Under cross-examination, Wynn candidly acknowledged that he could only render an opinion about defendant's condition as of the conclusion of his evaluation at about 3:50 a.m., and that he could not render any opinion about defendant's condition at the time of the accident, around midnight. On re-direct examination, Wynn stated that for the two categories of drugs he described, depending upon the amount ingested, the drugs could continue to affect an individual for up to twenty-four hours.

Min Tang, the forensic scientist at the New Jersey State Police Laboratory who analyzed defendant's urine sample, also testified for the State. She explained that when analyzing urine for the presence of drugs, the laboratory does not quantify the substance, if found, although a minimum threshold amount must be in the sample in order to register a positive reading. Defendant's sample was positive for Oxycodone (Percocet) and Zolpidem (Ambien). Oxycodone is a pain killer and a central nervous system depressant drug, which means it is a sedative. Common side effects of Oxycodone are drowsiness, confusion, and dizziness. Zolpidem is a sleeping drug, used for insomnia. It is also a depressant drug, and its side effects include drowsiness, dizziness, fatigue, and anxiety. The manufacturers' warnings accompanying these drugs caution against driving while taking them.

Defendant did not testify and presented no witnesses on his behalf. The municipal judge found all three of the State's witnesses "extremely credible." He concluded that defendant, "when he was driving this motor vehicle, was under the influence of drugs. Prescription drugs, but nonetheless, under the influence." He found defendant guilty and imposed sentence.

Defendant appealed to the Law Division. The matter came before Judge Peter Conforti for de novo review. Defendant first argued that operation had not been proven, an argument that Judge Conforti summarily rejected. Defendant then argued that the State failed to carry its burden of proving beyond a reasonable doubt that defendant was under the influence of drugs at the time of operation. The thrust of his argument was two-fold. First, defendant contended that the symptoms and behavior he exhibited after the crash were consistent with a concussion, which was at least as likely the cause of defendant's behavior and symptoms as drug ingestion. Second, defendant argued that Wynn's testimony, even if accepted by the court, could only establish that defendant was under the influence of drugs at 3:50 a.m., nearly four hours after the accident. Likewise, because the urine sample was drawn during Wynn's evaluation, the results of the analysis of that sample could not relate back to midnight.

Judge Conforti rejected these arguments. In doing so, he gave due deference to the credibility findings of the municipal judge, and otherwise evaluated de novo the municipal court record.

As to the concussion argument, the judge reasoned:

Well, there was no evidence presented to reflect the issue of concussion. The only evidence we have is Trooper Wynn's testimony that in his view, based upon the defendant's performance on these various tests, that the defendant was not suffering from a concussion.

 

As the State notes in [its] letter, there's no competent evidence in this record to suggest a concussion.

 

[(Emphasis added).]

 

As to defendant's timing argument, the judge said as a fact-finder he possessed "the ability to draw reasonable inferences from the evidence that has been presented, in terms of the condition of the operator of the vehicle at the time of the accident." In responding to defense counsel's insistence that there was no evidence that defendant was under the influence at the time of the accident, the judge said, "I think you're forgetting the other characteristics that were exhibited by this defendant after the Troopers encountered him, after the accident occurred." The judge continued that, just as in cases involving alcohol, courts possess the ability, "if the facts are there, to draw legitimate inferences from that evidence as to what the condition was of the operator at the time of [the] accident . . . ."

The judge concluded his findings as follows:

We do have evidence of the ingestion of the Percocet, given the lab toc -- toxicology evidence. We have an individual who was at times cooperative, at other times certainly antagonistic to the State Troopers as you have noted. And there was no issue, in my judgment at least, but that he was operating the vehicle on this particular early morning of December 30, 2011.

 

And we know from the evidence, that the State's witnesses offered, what his physical and mental characteristics were. He was unable, basically, to function. He couldn't do any of the physical tests. The eye test that was done, according to the drug recognition testimony of Trooper Wynn, indicated no evidence of head trauma.

 

He did not complain of injury. He refused medical attention. There were no outward signs of injury about his person after the accident had taken place. But the individual was not able to function.

 

There were -- there was evidence in the record of him nodding off, if you will, that was observed as well in the video that the Court reviewed in terms of him being in the car, the troop vehicle.

 

And the testimony of Trooper Wynn . . ., after having engaged in all this testing of the defendant, was that he was under the influence of a central nervous [system] depressant.

 

Now, Trooper Wynn, while not qualified as an expert, still has a right to give an opinion as a lay witness, and that opinion in this instance is based not only on the . . . testimony that he offered by reason of engaging this defendant in this testing, but also by his experience with regard to these types of evaluations.

 

But apart from that, the question really is was this a person who could function. Were his mental and physical faculties so [a]ffected by reason of ingesting the controlled dangerous substance that he couldn't operate -- operate a motor vehicle, couldn't make the proper judgments with respect to that operation.

 

It is an inferential determination that the Court is making based upon the evidence that was presented during this trial.

 

The question for me is is there evidence beyond a reasonable doubt that this defendant was under the influence. Is this Court firmly convinced that this defendant was under the influence.

 

The evidence is irrefutable but that he had a controlled dangerous substance in his system as borne out by the toxicology. His admission of ingesting Percocet as has been described here. And then the physical manifestations of his ability to function, which in this instance was basically an inability to function, as well as the observations of his mental acuity, in my view, all support the conclusion that he was under the influence.

 

Defendant argues that Judge Conforti erred in his analysis. He essentially reiterates the same arguments before us as he made in the Law Division, namely that because defendant's symptoms were consistent with a concussion, the State failed to prove beyond reasonable doubt that his symptoms and behavior were occasioned by drug ingestion, and that the judge impermissibly extrapolated from Wynn's testimony to relate back four hours to the time of the accident.

The scope of appellate review of a de novo conviction by the Law Division following a municipal court appeal is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). Our review, of course, is of the findings of the Law Division, not the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). On de novo review, Judge Conforti applied the correct standard by making his own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. Locurto, supra, 157 N.J. at 473-74.

In a prosecution for driving while under the influence of drugs, competent lay observations of the "fact" of intoxication, together with additional proofs tending to demonstrate the defendant's consumption of drugs as of the time of operation, "constitute proofs 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." State v. Bealor, 187 N.J. 574, 577 (2006).

We are satisfied from our review of the record that Judge Conforti applied the correct evidential standard, that his factual findings were clearly supported by competent, credible evidence in the record, and that his legal analysis was correct. The conclusion he reached was in accordance with the Bealor holding we have referenced.

The record is replete with competent evidence establishing the fact that defendant was intoxicated. Those facts, which we have outlined, began at the roadside minutes after the accident and continued over the next hours while defendant was in police custody. The additional independent evidence, consisting of the defendant's admission that he was taking large quantities of Percocet on a regular basis, along with the laboratory results and the testimony of the DRE, established his consumption of the drugs.

Further, there can be no dispute that the record supports the finding of operation. Defendant admitted more than once during this course of events that he drove the vehicle. He acknowledged it was his vehicle, and he wanted to drive it home. He was the only person present at the accident scene.

In Bealor, the Court reiterated, in the context of a drug (as opposed to alcohol) case, the rather low threshold required to establish in an observational case that a defendant was under the influence:

We have 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. Tamburro, 68 N.J. 414, 421 (1975).] We also have explained that the term "under the influence" means "a condition which so affects the judgment or control of a motor vehicle operator as to make it improper for him to drive on the highway." Ibid. (citing State v. Johnson, 42 N.J. 146, 165, 199 A.2d 809 (1964)). In the specific context of narcotic, hallucinogenic or habit-producing drug intoxication, we have held that a driver is "under the influence of a narcotic drug . . . if the drug produced a narcotic effect 'so altering his or her normal physical coordination and mental faculties as to render such person a danger to himself as well as to other persons on the highway.'" Ibid. (quoting State v. DiCarlo, 67 N.J. 321, 328, 338 A.2d 809 (1975)). The question then is whether the proofs adduced in this case are sufficient to establish 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 589-90.]

 

Applying this standard, we have no hesitancy in concluding that Judge Conforti's finding, beyond a reasonable doubt, that defendant was driving while in an intoxicated state as a result of drug ingestion, is amply supported by the record.

Affirmed.

1 The specific point headings of legal argument in defendant's brief are as follows:

POINT I

THE STANDARDS GOVERNING APPELLATE REVIEW OF THE TRIAL COURT DECISION REQUIRE THAT ITS FINDINGS OF FACT SHOULD BE REVERSED HERE WHERE THEY "OFFEND THE INTERESTS OF JUSTICE."

 

POINT II

 

THE STATE BEARS THE BURDEN OF PROOF, BEYOND A REASONABLE DOUBT, THAT ZOPPY VIOLATED N.J.S.A. 39:4-50.

 

A. The Trial Court Erred Where it Found That the State Met Its Burden of Proof That Zoppy Was Operating a Motor Vehicle.

 

B. No Alcohol Was in Zoppy's System.

 

C. The Trial Court Erred Where it Found that Zoppy's Physical Condition at 3:50 AM Was the Result of Drugs and Not Other Factors Including a Concussion.

 

D. The Trial Court Erred by Finding that the Presence of Drugs in Zoppy's Urine, Without a Determination of Concentration, Constituted a Per Se Violation Of N.J.S.A. 39:4-50.

 

E. The Trial Court Erred by Accepting the "Testing" Advanced by the State Where the Drug Influence Evaluation is Not Scientific and Carries No Scientific Weight and is Insufficient to Find a Violation of N.J.S.A. 39:4-50.

 

F. The Trial Court Erred by Finding that the State Met Its Burden of Proof that Zoppy was Under the Influence of a Narcotic Where Such Finding is Not Supported by Any Foundational Evidence Such That the State's Evidence is an Inadmissible Net Opinion.

 

 

 

 

POINT III

 

THE TRIAL COURT ERRED WHEN IT FOUND THAT THE STATE HAD PROVIDED SUFFICIENT EVIDENCE THAT ZOPPY WAS DRIVING WHILE INTOXICATED WHEN THE STATE ADMITTED THAT IT COULD NOT PROVE, AND HAD NO KNOWLEDGE OF, ZOPPY'S CONDITION AS OF THE TIME OF THE ACCIDENT.

 

POINT IV

 

THE TRIAL COURT ERRED BY IMPERMISSIBLY EXTRAPOLATING THAT ZOPPY WAS UNDER THE INFLUENCE AS THE TIME OF THE ACCIDENT.