STATE OF NEW JERSEY v. GARY H. CONDIT

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2080-18T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

GARY H. CONDIT,

     Defendant-Appellant.
_________________________

                   Submitted January 23, 2020 – Decided February 10, 2020

                   Before Judges Koblitz and Whipple.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Municipal Appeal No. 18-
                   013.

                   Daniel W. Heinkel, attorney for appellant.

                   Fredric M. Knapp, Morris County Prosecutor, attorney
                   for respondent (Paula Cristina Jordao, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      After a trial de novo on the record in Superior Court, defendant Gary H.

Condit appeals from December 3, 2018 convictions of possession of a controlled

dangerous substance (CDS),  N.J.S.A. 2C:35-10(a)(4); possession of drug

paraphernalia,  N.J.S.A. 2C:36-2; reckless driving,  N.J.S.A. 39:4-96; careless

driving,  N.J.S.A. 39:4-97; operation of a motor vehicle while in possession of

CDS,  N.J.S.A. 39:4-49.1; driving while intoxicated (DWI),  N.J.S.A. 39:4-50,

for the second time; unsafe lane change,  N.J.S.A. 39:4-88(b); refusal to provide

breath samples,  N.J.S.A. 39:4-50.2; and failure to keep right,  N.J.S.A. 39:4-82.

Penalties other than incarceration were imposed pursuant to statute. Defendant

raises various evidentiary issues and maintains the evidence was insufficient for

a finding of guilt on many of the charges. We affirm substantially for the reasons

expressed in the detailed ten-page written statement of reasons attached to Judge

Michael E. Hubner's December 3, 2018 order of conviction.

      The trial testimony reveals the following facts. On May 18, 2017, at

approximately 12:30 a.m., Lieutenant Jeffrey Tucker of the Denville Police

Department was traveling east on Route 46 when he saw a commercial van drift

over the double yellow line, into Tucker's eastbound lane of traffic, before




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returning to its westbound lane. 1    Fearing for his safety and that of other

motorists, Tucker made a U-turn to drive behind the van. He saw the van drift

from the left lane into the right lane, then back into the left lane of the west-

bound lanes, without using a signal. Tucker activated his emergency lights,

pulled the van over and approached the van. The driver's side window was

down, defendant was seated behind the wheel, and Tucker immediately detected

the smell of raw marijuana. Defendant explained to Tucker that he was swerving

because he was trying to avoid potholes. Tucker testified that the stretch of road

did not have noticeable potholes.

      Tucker noticed defendant's license indicated that an interlock device 2 was

required and one was not installed in the van. Defendant stated that the interlock

device was only required in his personal vehicle. He said he was allowed by

court order to drive a work van without the device.         Tucker testified that

defendant's speech was slow and slightly slurred.

      Tucker asked defendant to step out of the car. Defendant explained to

Tucker that he had worked a considerable amount of hours that week and the


1
  Defendant submitted a DVD of the recording from Tucker's dash camera,
which was entered into evidence at trial.
 2 See N.J.S.A. 39:4-50.17(a)(1) regarding the requirement of interlock devices
after a DWI conviction.
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                                        3
week before.       Defendant worked full-time as an operations manager and

designer at a florist. He testified that the florist owns the commercial van he

was driving that night and that other employees drive it also.

         Tucker smelled the odor of burnt marijuana coming from defendant as he

was speaking with him. Defendant denied he had smoked any marijuana and

denied that marijuana was present in the van. Defendant said someone else had

driven the van earlier that day. Tucker then conducted a series of field sobriety

tests.

         The first test conducted was the Horizontal Gaze Nystagmus (HGN) test.

Tucker asked defendant to stand with his feet together, arms down at his side

and to follow Tucker's finger. While he was administering the test, Tucker

observed that defendant was swaying slightly side-to-side and his eyes were

bloodshot.

         The second test was the walk-and-turn test. During the instructional phase

of the test, Tucker asked whether defendant was suffering from any injuries that

would prevent him from performing the test. Defendant responded that he was

involved in a motor vehicle accident several years prior and his injuries would

likely affect his ability to perform the test. Tucker testified that he took this




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information into consideration and then proceeded to administer the test on a

slightly inclined surface.

        During the instructional phase of the test, defendant was asked to stand

with his right foot in front of his left and with his arms down by his side.

Defendant did not follow instructions and was swaying slightly. During the test,

defendant raised his arms for balance, did not touch heel to toe on each

consecutive step, leaned significantly to the side, took an extra step, and nearly

fell.

        The final test conducted was the one-leg-stand test in which defendant

was instructed to raise his foot approximately six inches off the ground, point

his toe straight out and look down at his toe while keeping his arms at his sides

and count "one one thousand two one thousand" out loud until instructed to stop.

Defendant started the test before he was instructed to do so. He attempted the

test twice, both times only reaching the count of one before putting his foot

down.

        After conducting the field sobriety tests, Tucker searched the van and

found a cigar box, wedged between the driver's seat and the center console area,

which contained a small bag of raw marijuana, an e-cigarette device with a




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concentrate cartridge, and two unsmoked marijuana "blunts."3 Tucker then

arrested defendant for possession of marijuana and driving while intoxicated.

The small bag of raw marijuana and two blunts tested positive for marijuana at

the State Police Laboratory.

      Upon arrival at the police station, Tucker set up the Alcotest and began

the required twenty-minute observation period of defendant.            Defendant

belched, so Tucker reset the clock back to begin a new twenty-minute

observation period. Tucker testified that after defendant's second belch, he

advised defendant that if he continued to belch it would be considered a refusal.

After defendant belched two more times, Tucker stopped the test and charged

defendant with refusal to provide a breath sample.

      Defendant testified and denied he was under the influence or knew of the

marijuana in the van. He said he belched because he was "extremely nervous"

and could not control his "bodily function." On cross-examination, defendant

admitted to being familiar with the smell of both raw and burnt marijuana.


3
   "A blunt is an inexpensive cigar, typically a 'Philly Blunts' brand cigar, that
has been split open and emptied of tobacco. Marijuana is substituted for the
removed tobacco, and the exterior tobacco leaf of each cigar is used to rewrap
the new contents." State v. Eckel,  185 N.J. 523, 525 n.1 (2006) (quoting
National Institute on Drug Abuse, Assessing Drug Abuse Within and Across
Communities, http://www.drugabuse.gov/DESPR/Assessing/AppendixH1.html
(last visited Nov. 30, 2005)).
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Defendant raises the following issues on appeal:

      I.  DEFENDANT'S CONVICTION FOR DRIVING
      WHILE INTOXICATED SHOULD BE REVERSED.

      A.    CHALLENGED EVIDENTIARY RULINGS:

      1.  LT. TUCKERS TESTIMONY IDENTIFYING A
      LIQUID   CONCENTRATE    CARTRIDGE    AS
      MARIJUANA IS INADMISSIBLE.

      a)  DE NOVO REVIEW IS THE CORRECT
      STANDARD OF REVIEW. (Not raised below)

      b)  LT. TUCKER'S TESTIMONY IDENTIFYING
      THE    CONCENTRATE     CARTRIDGE    AS
      MARIJUANA IS INADMISSIBLE HEARSAY.

      c)  LT. TUCKER'S TESTIMONY IS EXCLUDED
      BY N.J.R.E. 403. (Not raised below)

      2.  LT. TUCKER'S OPINION THAT DEFENDANT
      WAS UNDER THE INFLUENCE OF MARIJUANA
      SHOULD BE EXCLUDED FROM EVIDENCE.

      a)  THE TRIAL COURT'S RULING THAT
      RETROACTIVELY QUALIFIED LT. TUCKER IS
      AN ABUSE OF DISCRETION. (Not raised below)

      i)   EVEN IF THE TRIAL COURT'S RULING IS
      AFFIRMED, THE "EXPERT" OPINION SHOULD
      STILL BE STRICKEN BECAUSE IT IS A NET
      OPINION. (Not raised below)




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             b)   UNDER STATE V. BEALOR,[4] LT. TUCKER'S
             LAY OPINION ON MARIJUANA INTOXICATION
             IS INADMISSIBLE.

             B.  THERE IS INSUFFICIENT EVIDENCE TO
             PROVE   DRIVING   WHILE   INTOXICATED
             BEYOND A REASONABLE DOUBT.

             1.  DE NOVO REVIEW IS THE CORRECT
             STANDARD OF REVIEW. (Not raised below)

             2.  THE STATE'S PROOFS ARE INSUFFICIENT
             TO PROVE DRIVING WHILE INTOXICATED
             BEYOND A REASONABLE DOUBT.

             3.    THE STATE'S PROOFS ARE LEGALLY
             INSUFFICIENT EVEN IF THE SUBSTANTIAL
             EVIDENCE STANDARD OF REVIEW IS APPLIED.
             (Not raised below)

             II. DEFENDANT'S   CONVICTION   FOR
             REFUSAL TO PROVIDE A BREATH SAMPLE
             MUST BE REVERSED.

             A.  DE NOVO REVIEW IS THE CORRECT
             STANDARD OF REVIEW. (Not raised below)

             B.  THE STATE'S PROOFS ARE INSUFFICIENT
             TO PROVE THE OFFENSE BEYOND A
             REASONABLE DOUBT.

             1.    APPLICABLE LAW.

             2.  THE STATE FAILED TO PROVE THE
             "REFUSAL" ELEMENT OF THE OFFENSE
             BEYOND A REASONABLE DOUBT.

4
     187 N.J. 574 (2006).
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3.  THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT THE ARRESTING
OFFICER HAD PROBABLE CAUSE TO ARREST
DEFENDANT     FOR     DRIVING    WHILE
INTOXICATED.

III. DEFENDANT'S CONVICTIONS RELATING
TO UNLAWLFUL POSSESSION OF MARIJUANA
MUST BE REVERSED.

A.   CHALLENGED EVIDENTIARY RULINGS:

1.   LT. TUCKER'S TESTIMONY THAT THE
VEHICLE OPERATED BY DEFENDANT WAS HIS
"PRIMARY" VEHICLE SHOULD BE EXCLUDED
FROM EVIDENCE.

a)  DE NOVO REVIEW IS THE CORRECT
STANDARD OF REVIEW. (Not raised below).

b)  LT. TUCKER'S TESTIMONY IS NOT BASED
ON PERSONAL KNOWLEDGE.

2.  THE   TRIAL    COURT  IMPROPERLY
PERMITTED THE STATE TO QUESTION
DEFENDANT ABOUT HIS FAMILIARITY WITH
THE SMELL OF RAW MARIJUANA DURING
CROSS-EXAMINATION.

B.  THERE IS INSUFFICIENT EVIDENCE TO
PROVE    ACTUAL     OR   CONSTRUCTIVE
POSSESSION OF MARIJUANA.

1.  DE NOVO REVIEW IS THE CORRECT
STANDARD OF REVIEW. (Not raised below)

2.  THE STATE'S PROOFS DO NOT PROVE
POSSESSION BEYOND A REASONABLE DOUBT.

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                   9
            IV. DEFENDANT'S     CONVICTION     FOR
            RECKLESS DRIVING MUST BE REVERSED.

      Our review of a de novo conviction by the Law Division is limited to the

issue of whether the court's findings "could reasonably have been reached on

sufficient credible evidence present in the record." State v. Johnson,  42 N.J.
 146, 162 (1964). We are "not permitted to 'weigh the evidence, assess the

credibility of witnesses, or make conclusions about the evidence.'" State v.

Locurto,  157 N.J. 463, 472 (1999) (quoting State v. Barone,  147 N.J. 599, 615

(1997)). We review the legal rulings of the trial court de novo.           State v.

Robertson,  228 N.J. 138, 148 (2017). "It is well-settled that the trial judge

'giv[es] due, although not necessarily controlling, regard to the opportunity of

the' municipal court judge to assess 'the credibility of the witnesses.'" Ibid.

(alteration in original) (quoting Johnson,  42 N.J. at 157). "[A]ppellate 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,  157 N.J. at 474.

      "[A] trial court's evidentiary rulings are 'entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment.'"

State v. Brown,  170 N.J. 138, 147 (2001) (quoting State v. Marrero,  148 N.J.
 469, 484 (1997)).

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                                        10
      Defendant argues that the Law Division erred by "retroactively

qualifying" Tucker as an expert witness. Defendant argues that this was an

abuse of discretion because it violated his due process right to discovery of the

State's evidence. Citing to Rule 7:7-7(b)(11), defendant states he is entitled to:

1) the identity of the expert; 2) the expert's qualifications; 3) the subject matter

of the expert's testimony; and 4) a copy of the expert's report or statement of

opinion with supporting facts and reasons. Defendant asserts that "[t]he State's

failure to identify the expert witness or expert opinion in discovery precludes

the expert's testimony."

      At the time of trial, the State did not attempt to qualify Tucker as an expert

witness. The argument was made by the State on appeal to the Law Division,

which found that Tucker could have been and should be regarded as an expert

because he meets the requirements under N.J.R.E. 702. N.J.R.E. 702 states that

"a witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise." The Law

Division concluded that Tucker’s twenty-year experience as a police officer

dealing with individuals under the influence of marijuana, his three-year

experience as an evidence officer smelling raw marijuana, and his “significant

amount of training” related to individuals under the influence of marijuana


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establishes his expert qualification. Our Supreme Court has stated that "[i]n

view of their training, police officers in this State are eligible to qualify as

experts on marijuana intoxication under N.J.R.E. 702." Bealor,  187 N.J. at 592.

Any discovery violation does not meet the reversible error standard. See State

v. Macon,  57 N.J. 325, 338 (1971) (When reviewing for error, "the question" is

whether under "all the circumstances there was a reasonable doubt as to whether

the error denied a fair trial and a fair decision on the merits."); Rule 2:10-2 ("Any

error or omission shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust result . . . .") .

      Furthermore, defendant argues for the first time before us that, even if this

court affirms the Law Division's qualification of Tucker as an expert, his opinion

should still be stricken because it is a net opinion and improperly characterizes

defendant's guilt of driving while intoxicated. Defendant cites to Townsend v.

Pierre,  221 N.J. 36, 53 (2015) and N.J.R.E. 703 for the proposition that an

expert's opinion must be based on facts or data. Tucker explained in great detail

the observations that led him to conclude that defendant was intoxicated. Tucker

related his observations of defendant's driving, his appearance, and his

performance on the field sobriety tests.




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      Pursuant to  N.J.S.A. 39:4-50(a), a "driving while intoxicated" violation

occurs when "operat[ing] a motor vehicle while under the influence of

intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug." Our

Supreme Court has "repeatedly made clear that, in motor vehicle violation cases, the

State's burden of proof unquestionably is beyond a reasonable doubt." Bealor,  187 N.J. at 586 (citing State v. Fearon,  56 N.J. 61, 62 (1970)).

      Defendant argues that the State's proofs of intoxication are legally

insufficient under Bealor because there are no independent proofs as to the cause

of intoxication, such as a urine sample, blood sample, admission of use, or

evidence of burnt marijuana or paraphernalia. While the State in Bealor proved

the presence of marijuana through a urine sample, the Court in Bealor found that

"fact testimony in respect of defendant's erratic and dangerous driving, his

slurred and slow speech, his 'bloodshot and glassy' eyes, his droopy eyelids, his

'pale and flushed' face, his 'fumbl[ing] around the center console and his

glovebox searching for all his credentials,' [and] the smell of burnt marijuana on

defendant," was enough to prove intoxication. Id. at 590 (first alteration in

original). The Supreme Court in Bealor expressly found that expert testimony

regarding the cause of intoxication is not required. Id. at 591.




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      As the Law Division found, Tucker's observations of defendant's driving,

the odor of raw marijuana and burnt marijuana on his person, bloodshot eyes,

his slow and slurred speech, swaying, and inability to satisfactorily perform the

field sobriety tests are sufficient proofs to establish intoxication beyond a

reasonable doubt.

      We affirm based on our discussion above as well as Judge Hubner's well-

reasoned statement of reasons. Any issues not covered are deemed without

sufficient merit to require written discussion. R. 2:11-3(e)(2).

      Affirmed.




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