STATE OF NEW JERSEY v. MICHAEL OLENOWSKI

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4666-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL OLENOWSKI,

     Defendant-Appellant.
___________________________

                    Argued October 23, 2018 – Decided November 27, 2018

                    Before Judges Fisher, Hoffman and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Municipal Appeal Nos.
                    16-013 and 10-017.

                    Michael D'Alessio, Jr. argued the cause for the
                    appellant.

                    Paula C. Jordao, Assistant Prosecutor argued the cause
                    for the respondent (Fredric M. Knapp, Morris County
                    Prosecutor, attorney; Erin Smith Wisloff, Supervising
                    Assistant Prosecutor, on the brief).

PER CURIAM
        Defendant Michael Olenowski appeals from his conviction, after a trial de

novo, for driving while intoxicated (DWI),  N.J.S.A. 39:4-50(a), on two separate

occasions in 2015. The first charge was defendant's second DWI conviction,

and the Law Division judge imposed a two-year license suspension, forty-eight

hours in the Intoxicated Driver Resource Center (IDRC) program, and

appropriate fines, costs, and penalties.       Because the second charge was

defendant's third DWI conviction, the Law Division judge imposed a ten-year

driver's license suspension, a mandatory 180-day sentence in the Morris County

Correctional Facility, and requisite fines, costs, and penalties.

        On appeal, defendant contends that the evidence was insufficient to prove

him guilty of all charges beyond a reasonable doubt. He attacks the credibility

of the State's witnesses, and promotes his own and his Drug Recognition

Expert's (DRE) credibility. He presents the following points on appeal:

              POINT I.

              DRE EVIDENCE SHOULD NOT HAVE BEEN
              ADMITTED AS EXPERT OPINION BECAUSE IT IS
              UNRELIABLE    AND    NOT    "GENERALLY
              ACCEPTED" AS REQUIRED UNDER FRYE.[1]

              A.    Standard of Review.

1
    Frye v. United States,  293 F. 1013 (D.C. Cir. 1923).



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             B.    The DEC[2] Protocol.

             C.    DRE Evidence is Subject to the Frye Standard of
                   Admissibility and the Requirement for General
                   Acceptance in a Criminal Case.

             D.    New Jersey Judicial Opinions Do Not Establish
                   That DRE Testimony Has Gained General
                   Acceptance.

             E.    DRE Opinion Is Not Reliable or Generally
                   Accepted in the Scientific Community.

             POINT II.

             THERE WAS INSUFFICIENT EVIDENCE TO FIND
             DEFENDANT GUILTY OF DRIVING UNDER THE
             INFLUENCE.

             A.    Standard of Review.

             B.    There Was Insufficient Evidence to Convict
                   Defendant on the August 17, 2015 Incident.

             C.    There Was Insufficient Evidence to Convict
                   Defendant on the February 13, 2015 Incident.

       We affirm, substantially for the reasons set forth in the comprehensive

written opinion of Judge James M. DeMarzo. There was sufficient credible

evidence in the record to support Judge DeMarzo's finding that defendant was

driving while intoxicated on both occasions.



2
    DEC stands for Drug Recognition and Classification Program.
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                                        I.

      The February 13, 2015 Incident:

      We derive the following facts from the record. At approximately 4:45

p.m. on February 13, 2015, Patrolman Peter Grawehr of the Denville Police

Department stopped defendant for failing to wear a seatbelt. Upon approaching

defendant's vehicle, Grawehr smelled the "odor of heavy alcohol."           He

administered a series of Standardized Field Sobriety Tests, beginning with the

Horizontal Gaze Nystagmus Test (HGN Test). Grawehr next attempted to

conduct the walk-and-turn test, after explaining and demonstrating the test for

defendant. During this time, defendant was "swaying side-to-side," and had to

"stop several times to maintain his balance."      After three reinstructions,

defendant complied.

      Grawehr attempted to conduct the One-Leg Stand Test but defendant

repeatedly lost his balance and "explained to [Grawehr] that he could not count

past ten one thousand," but "could count to 31,000 by counting to ten one

thousand three times." Defendant "fumbled Patrolman Grawehr's request for

registration by producing a rental agreement," and admitted to consuming one

alcoholic beverage.   Based on all of his observations, Grawehr believed

defendant was under the influence and unable to safely operate a motor vehicle.


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He was placed under arrest and transported to the Denville police station, where

Grawehr administered an Alcotest, which revealed a blood alcohol content of

0.04%. The officer discovered a "small pink plastic [z]iploc baggie[] with some

unknown residue inside." After questioning defendant about the contents of the

baggie, he asserted his Fifth Amendment privilege against self-incrimination.

Additionally, Grawehr observed defendant exhibiting erratic behavior and

acting belligerently.

      Since Grawehr felt "the level of impairment didn't match up with the

alcohol reading," he contacted Sergeant Pat McNichol, a certified DRE, who

performed a Drug Influence Evaluation (DIE) on defendant. He had difficulty

with balance, and exhibited a "circular sway." McNichol also attempted to

conduct the One-Leg Stand Test, however, when defendant "swayed while

balancing and used his arms for balance," the officer stopped the test because of

safety concerns. McNichol concluded that defendant was under the influence of

a central nervous system (CNS) depressant, a sympathetic nervous system (SNS)

stimulant, and alcohol.

      The August 17, 2015 Incident:

      On August 17, 2015, defendant drove his GMC Yukon off a road and

struck a telephone pole in Denville. At approximately 4:48 a.m., Patrolman


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David Longo investigated the accident. He approached defendant, who had

already exited his vehicle, and noted he was "having trouble keeping his

balance[,]" "his speech was slurred[,]" and he had "a lot of saliva" on his face

and chin.     After being questioned by Officer Longo about medications,

defendant responded that he was released from the hospital the night before and

prescribed Lipitor, Ambien, and another medication, but could not recall the

name.3 Defendant also stated that he injured his foot a year prior to the accident,

which affected his balance and ambulation. Longo administered a series of

Standard Field Sobriety Tests, including the HGN Test, walk-and-turn test, and

One-Leg Stand Test. Defendant had to be instructed "multiple times" before

complying with instructions. He had a "blank stare," his speech was slurred,

and he was swaying.

        Defendant was arrested for DWI. After being transported to the police

station, Longo administered an Alcotest, which showed a blood alcohol con tent

of 0.00%. No blood was drawn, and defendant refused to provide a urine

sample. Based upon defendant failing the field sobriety tests, finger-to-nose

test, his slow coordination, rapid breath, a pale complexion, and bloodshot eyes,

Longo contacted Detective Dennis Subrizi to perform a DRE on defendant.


3
    The record reflects that he was also prescribed Nexium and a beta blocker.
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After conducting a DRE, Subrizi confirmed these symptoms. He also found

defendant exhibited mood swings, as he "went from being happy to crying in all

of a matter of a couple of seconds," which he opined is "a huge indicator f or

somebody to be under [the influence] of liquor and/or drugs." He concluded

that defendant was under the influence of a CNS stimulant and depressant.

      Dr. Robert Pandina, defendant's DRE expert, testified that the DRE

protocol was flawed here because no toxicology samples were collected and

same were necessary to identify the drug and quantity consumed by defendant.

                                        II.

      Our standard of review is limited following a trial de novo in the Law

Division, conducted on the record developed in the municipal court. State v.

Clarksburg Inn,  375 N.J. Super. 624, 639 (App. Div. 2005); see also R. 3:23-

8(a)(2). In such an appeal, we "consider only the action of the Law Division

and not that of the municipal court." State v. Oliveri,  336 N.J. Super. 244, 251

(App. Div. 2001) (citation omitted).        The Law Division judge must make

independent findings of fact and conclusions of law based upon the evidentiary

record of the municipal court judge to assess the witnesses' credibility. State v.

Johnson,  42 N.J. 146, 157 (1964) (citations omitted). We focus our review on

"whether there is 'sufficient credible evidence . . . in the record' to support the


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trial court's findings." State v. Robertson,  228 N.J. 138, 148 (2017) (alteration

in original) (quoting Johnson,  42 N.J. at 162). On a legal determination, in

contrast, our review is plenary. See State v. Kuropchak,  221 N.J. 368, 383

(2015).

      We will reverse only after being "thoroughly satisfied that the finding is

clearly a mistaken one and so plainly unwarranted that the interests of justice

demand intervention and correction." Johnson,  42 N.J. at 162. "We do not

weigh the evidence, assess the credibility of witnesses, or make conclusions

about the evidence." State v. Barone,  147 N.J. 599, 615 (1997). Because neither

the appellate court nor the Law Division judge is in a good position to judge

credibility, the municipal court's credibility findings are given deference. See

State v. Locurto,  157 N.J. 463, 470-71 (1999). The rule of deference is more

compelling where, as here, both judges made concurrent findings. Id. at 474.

"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." Ibid.

(citation omitted). Therefore, appellate review of the factual and credibility

findings of the municipal court and the Law Division "is exceedingly narrow."




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State v. Reece,  222 N.J. 154, 167 (2015) (quoting State v. Locurto,  157 N.J. at
 470).

         N.J.S.A. 39:4-50(a) penalizes "operat[ing] a motor vehicle while under

the influence of intoxicating liquor, narcotic, hallucinogenic or habit -producing

drug, or operat[ing] a motor vehicle with a blood alcohol concentration of 0.08%

or more by weight of alcohol in the defendant's blood . . . ." Defendant argues

that the State failed to prove him guilty of DWI beyond a reasonable doubt

because his BAC for both incidents fell below the 0.08% limit, and DRE

evidence is unreliable without laboratory testing being performed.

                                        III.

        We first address defendant's argument raised in Point I that the Law

Division judge erred in concluding that DRE evidence was admissible here

under the Frye standard. We disagree. N.J.R.E. 702 provides for the admission

of expert testimony:

             If scientific, technical, or other specialized knowledge
             will assert the trier of fact to understand the evidence
             or to determine a fact in issue, a witness qualified as an
             expert by knowledge, skill, experience, training, or
             education may testify thereto in the form of an opinion
             or otherwise.

        Expert testimony that is scientific in nature is only admissible if the

method used by the expert has "a sufficient scientific basis to produce uniform

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and reasonably reliable results so as to contribute materially to the ascertainment

of the truth." State v. Kelly,  97 N.J. 178, 210 (1984) (citations omitted). In

State v. Bealor,  187 N.J. 574, 592-93 (2006), the Court noted that: "As part of

their required course of study, police officers must be trained in detecting drug-

induced intoxication."    When dealing with scientific evidence, this State has

adopted the Frye standard of admissibility as set forth in State v. Harvey,  151 N.J. 117, 169-70 (1997). A proponent of a newly-devised scientific technology

can prove its general acceptance in three ways:

            (1) by expert testimony as to the general acceptance,
            among those in the profession, of the premises on which
            the proffered expert witness based his or her analysis;

            (2) by authoritative scientific and legal writings
            indicating that the scientific community accepts the
            premises underlying the proffered testimony; and

            (3) by judicial opinions that indicate the expert's
            premises have gained general acceptance.

            [Harvey,  151 N.J. at 170 (quoting Kelly,  97 N.J. at
           210)].

      The judge found DRE evidence "qualifies as scientific evidence subject to

judicial gatekeeping," and stated:

            [B]ecause of the scientific background of many of the
            steps of the protocol, DRE evidence, taken as a whole,
            qualifies as being scientific enough to trigger a ruling
            under the Frye-Harvey standard. The [c]ourt agrees

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            with [d]efendant that DRE evidence is indeed
            scientific.

      As to the reliability of DRE evidence here, Judge DeMarzo found:

            Nevertheless, New Jersey's continued reliance on DRE
            evidence indicates the willingness that it still finds it to
            be generally acceptable and reliable in the scientific
            community. As previously stated, a scientific method
            can be disputed, but the evidence it procures remains
            admissible. Moreover, Dr. Pandina's disagreement of
            such acceptance cannot in itself overturn the reliability
            of certain scientific subject-matter because its
            acceptability does not turn on a unanimous or universal
            agreement. For these reasons, DRE evidence satisfies
            the three requirements outlined in Harvey.

            [Internal citations omitted.]

      These facts were significant enough to support a conclusion that

defendant's intoxication "so affected [his] judgment or control as to make it

improper for him to drive on the highways." Johnson,  42 N.J. at 165. Put

another way, defendant was under the influence because he suffered a

"substantial deterioration or diminution of the mental faculties or physical

capabilities of a person . . . ." State v. Tamburro,  68 N.J. 414, 421 (1975). A

defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes,

together with poor performance on field sobriety tests, are sufficient to sustain

a DWI conviction. State v. Bealor,  187 N.J. at 588-89. Here, Officer Grawehr

and Longo's observations of defendant, combined with his inability to

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satisfactorily perform psycho-physical tests, were more than sufficient to sustain

his DWI convictions.

      We also reject defendant's argument that the Law Division judge

improvidently relied upon DRE evidence. Further, we are satisfied that the

record contains substantial credible evidence to support the findings by the Law

Division judge that defendant was driving while under the influence of

hallucinogenic and habit-producing drugs, without regard to the Alcotest

readings. Contrary to defendant's contentions, there was ample evidence to

support his convictions based on his physical condition at the time of the stops.

As to the February 13, 2015 incident, DRE expert, McNichol, testified that

defendant "possessed slow coordination, unclear speech, stale breath, a pale

face, bloodshot eyes, reddened nasal area, and a white paste on his tongue."

      As to the August 17, 2015 incident, based upon DRE expert Subrizi's

testimony, the judge found "an abundance of evidence" to find defendant guilty

beyond a reasonable doubt based upon "[h]is physical appearance, cognitive

expressions, and multiple failed sobriety tests . . . ." The observations and

opinions of McNichol and Subrizi were sufficient to allow Judge DeMarzo to

determine beyond a reasonable doubt that defendant was guilty of driving while

intoxicated on both occasions. Accordingly, we find no basis for reversal here.


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Defendant's other arguments do not warrant further discussion.           R. 2:11-

3(e)(1)(E).

      We conclude that Judge DeMarzo's factual findings are fully supported by

the record, and in light of these facts, his legal conclusions are unassailable for

the reasons expressed in his well-reasoned opinion.

      Affirm.




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