STATE OF NEW JERSEY VS. ALBERT ZAYAT (009-03-17, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 31, 2018
• Docket: A-5194-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5194-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT ZAYAT,

Defendant-Appellant. ___________________________

Argued May 24, 2018 – Decided July 31, 2018

Before Judges Simonelli and Haas.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-03-17.

Kevin T. Conway argued the cause for appellant.

Ian C. Kennedy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Dennis Calo, Acting Bergen County Prosecutor, attorney; Michael R. Philips, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Following the denial of his motion to suppress the results

of a blood sample, defendant Albert Zayat pled guilty to driving

while intoxicated (DWI), N.J.S.A. 39:4-50. He was sentenced to a

nine-month driver's license suspension, and ordered to participate

in the Intoxicated Driver Resource Center Program for a period of

twenty-four hours and install an ignition interlock device for the

period of suspension and six additional months after the suspension

ended. The court also imposed the appropriate fines, assessments,

surcharges, and costs.

On appeal, defendant raises the following argument:

[POINT I]

Based on the Fourth Amendment of the United States Constitution and [Art. I, ¶ 7] of the New Jersey Constitution, the results of the blood sample in this case must be suppressed.

We reject this argument and affirm.

I.

We derive the following facts from the evidence adduced at

the motion hearing. At approximately 8:00 p.m. on December 30,

2015, River Edge Police Officer Joseph Sanfilippo responded to the

scene of a motor vehicle accident on Kinderkamack Road. When he

arrived, defendant was standing outside a black sports utility

vehicle (SUV) and bleeding from a hand laceration. Sanfilippo saw

that the SUV had sustained significant front-end damage from

2 A-5194-16T2 striking a parked vehicle in the rear on the east side of

Kinderkamack Road. Both vehicles were facing north and were

partially on the sidewalk. Behind the two vehicles, Sanfilippo

saw a second vehicle on the lawn of a house that had rear-end

damage. He determined that the SUV had struck the first vehicle,

propelling it onto a lawn, and the SUV continued forward, striking

the second vehicle. The other two vehicles were unoccupied, and

defendant was the only person involved in the accident.

Sanfilippo spoke with defendant, who was unable to provide

information about what happened. Defendant asked Sanfilippo about

the parked car being struck and looked confused when the officer

said he struck them. Sanfilippo had to explain to defendant what

happened. While speaking with defendant, Sanfilippo "smelled an

odor of alcohol coming from him[,]" and saw that defendant was

"swaying back and forth, slightly slurring his words[,]" "seemed

incoherent in what he was saying[,]" and had bloodshot eyes.

Sanfilippo did not conduct field sobriety tests due to defendant's

condition and because an ambulance was on route to the scene.

Defendant admitted to Sanfilippo that he had been at a

restaurant in Hackensack where he consumed one to two beers. Based

on Sanfilippo's observations of defendant and the accident scene,

his smell of the odor of alcohol, and defendant's admission to

3 A-5194-16T2 consuming alcohol, he determined defendant was impaired due to

intoxication from the consumption of alcohol.

Emergency Medical Technician Joseph Schlossberg testified

that he responded to the accident scene and saw that defendant was

coherent and responsive, but there was a smell of alcohol on his

breath. The ambulance transported defendant to Hackensack

University Medical Center (HUMC), followed by Sanfilippo.

Schlossberg testified there was a smell of alcohol in the ambulance

during the transport that was not there before Schlossberg arrived

at the accident scene.

Defendant arrived at HUMC at approximately 8:40 p.m.

Emergency room (ER) triage nurse Krystyna Koryzma saw defendant

in the triage area, took his information, and learned he had been

in a motor vehicle accident and had a laceration to his right

hand.

Sanfilippo testified that he asked defendant for his consent

to a blood draw and to sign a consent form, and advised him of his

right to refuse. Defendant refused and said he did not want his

blood drawn. The ER nurse who eventually drew defendant's blood

was not present at the time of this exchange. Sanfilippo made no

further attempts to have defendant consent to a blood draw, and

did not threaten him in any way if he refused to consent. He also

did not advise the ER nurse who eventually drew defendant's blood

4 A-5194-16T2 that defendant refused to consent to a blood draw, or direct that

nurse to draw defendant's blood for police use.

Defendant was moved from the triage area into another area

of the ER at 9:10 p.m. Koryzma testified it was HUMC's protocol

to insert an IV line in ER patients in case the patient needed a

CT scan or IV medications or fluids. It was also HUMC's practice

to draw blood on all ER patients immediately after inserting the

IV line, and testing for alcohol was part of the normal blood draw

process for patients involved in motor vehicle accidents

regardless of whether the patient appeared intoxicated.

According to Koryzma, at 9:24 p.m., a doctor ordered blood

work on defendant, and at approximately 9:45 p.m., ER nurse

Tsamchoe Siphur inserted an IV line in defendant. Defendant's

blood was drawn. Although HUMC's records do not indicate who drew

the blood or when it was drawn, Koryzma testified that based on

her practice and experience, she believed Siphur drew defendant's

blood. The blood test results returned at 10:03 p.m. indicated

defendant had a blood alcohol content (BAC) of 0.177%.

Defendant began complaining of chest pain and was placed on

a cardiac monitor. At approximately 11:00 p.m., a doctor ordered

blood work on defendant, and a CT scan of defendant's head and

chest, EKGs, and a chest x-ray. Defendant's BAC did not change.

5 A-5194-16T2 The doctor recommended that defendant remain overnight in the

hospital for further treatment.

Sanfilippo testified that he saw an ER nurse attempt to draw

blood from defendant and heard defendant say to her, "no, we don't

have to do that[,]" and indicated he wanted to leave the hospital.

Sanfilippo then advised defendant he was under arrest for DWI and

he would transport defendant to police headquarters if he left the

hospital. Sanfillipo testified that he intended to perform an

Alcotest on defendant at headquarters and did not advise or

threaten him that he would be incarcerated if he left HUMC.

According to Sanfilippo, defendant decided to remain at HUMC.

The ER nurse then drew defendant's blood. Defendant did not ask

her to stop or indicate the blood was being drawn without his

consent. Prior to his leaving HUMC, defendant was moved to a

cardiac section. The next morning, defendant left HUMC against

medical advice.

Defendant's ex-wife, Donna Zayat, with whom he still resided,

testified that defendant phoned her and said he was at the hospital

and had a car accident. She became "frantic on the phone[,]"

"proceeded to be in a panic[,]" and asked defendant "my God, are

you okay[?]" Defendant said, "I have a cut on my hand, I'm

fine[,]" and told her "to calm down." She immediately drove to

HUMC. She was panicked when she got there. She went into the ER

6 A-5194-16T2 and saw defendant in the corridor with "just a bloody finger." He

told her, "calm down, I'm fine." When she saw that defendant was

not receiving any treatment, she mentioned he had an aortic

aneurysm.

According to Donna, a nurse came over, put a tourniquet on

defendant's arm, and said she had to take blood. Defendant said,

"I don't want my blood taken, I'm fine. I just really want to get

out of here." A police officer was there, but she did not recall

his name and was not present when he asked if defendant would

consent to a blood test. The nurse then spoke to the police

officer, but Donna did not hear their conversation. The officer

then told defendant "if you don't let her take your blood, I'm

taking you with me, you're under arrest." Defendant then consented

to the blood draw. Donna admitted that the nurse and police

officer did not say defendant's blood was being drawn for the

officer's purpose. Defendant then had and EKG and CT scan.

The police obtained defendant's HUMC records pursuant to a

Dyal1 subpoena.2 Defendant filed a motion to suppress his blood

1 State v. Dyal, 97 N.J. 229 (1984). 2 Sanfilippo was not questioned about his affidavit in support of the subpoena, and the affidavit was not admitted into evidence. Accordingly, we decline to consider the affidavit, which defendant included in his appendix, as well as all references to it in his merits brief. See N.J. Div. of Youth & Family Servs. v. M.M., 189

7 A-5194-16T2 test results. He argued Sanfilippo lacked probable cause to arrest

him for DWI, his blood was drawn without his consent at

Sanfilippo's request for investigative purposes, not for medical

reasons, and he was coerced into submitting to the blood draw by

Snafilippo's threat to arrest him if he did not comply.

Following a hearing, the Municipal Court judge denied the

motion. The judge found Sanfilippo and Koryzma credible, and also

found Sanfilippo's testimony about what occurred in the ER more

credible than Donna's testimony. The judge determined Sanfilippo

had probable cause to arrest defendant for DWI, and the officer

did not direct the ER nurse draw defendant's blood for

investigative purposes or coerce defendant into consenting to the

blood draw by threatening him with arrest if he did not consent.

The judge found defendant guilty of DWI and imposed the sentence

noted supra. Defendant then entered a conditional plea to DWI,

reserving his right to appeal the denial of his motion.3

On appeal to the Law Division, Judge James J. Guida denied

defendant's motion to suppress and imposed the same sentence. In

a comprehensive June 20, 2017 written opinion, the judge found

N.J. 261, 278 (2007); Soc'y Hill Condo Ass'n v. Socy' Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). 3 Defendant had also been charged with careless driving, N.J.S.A. 39:4-97. That charge was held in abeyance and is not part of this appeal.

8 A-5194-16T2 Sanfilippo's testimony credible, and concluded he had probable

cause to arrest defendant for DWI based on his observations at the

scene of the accident, his training and experience in DWI

detection, and the totality of the circumstances.

Citing State v. Ravotto, 169 N.J. 227 (2001), Judge Guida

acknowledged a warrant is required for the police to obtain a

blood sample from a defendant. However, citing on State v. Burns,

159 N.J. Super. 539, 544 (App. Div. 1978), the judge noted:

when a hospital employee obtains a blood sample in the course of administering medical care, "consent is not required to the taking of a blood sample, but the taking of such sample must be done in a medically acceptable manner and environment and without force or violence or the threat of same."

Citing Dyal, 97 N.J. at 240, the judge noted:

When a blood sample of a potential or actual DWI defendant is taken by medical personnel solely for medical purposes, the State is entitled to obtain those medical records by subpoena. . . . It is proper for the [S]tate to obtain a defendant's BAC test results from a healthcare provider as long as the police show a reasonable basis, based on objective facts known by them at the time of the event or discovered within a reasonable time thereafter, that the operator was intoxicated.

Judge Guida reviewed the evidence and found that defendant's

blood was drawn for medical purposes at the direction of treating

physicians, not law enforcement for investigative purposes. The

9 A-5194-16T2 judge found defendant was not coerced into consenting to the blood

draw under threat of arrest if he did not consent. Rather, the

judge found it more believable and probable that Sanfilippo advised

defendant he would be arrested and transported to police

headquarters if he left the hospital, not if he refused to submit

to the blood draw.

Judge Guida determined that defendant's situation differed

from Ravotto, in that defendant was not physically restrained, the

blood sample was obtained in connection with medical treatment and

not for investigative purposes, and defendant did not continue to

object after initially telling the ER nurse that he did not want

his blood drawn. The judge noted that defendant submitted to the

blood draw and remained in the hospital for several hours,

consented to treatment and further testing, and left the hospital

against medical advice after Sanfilippo left the hospital,

assuring he would not be transported to police headquarters or

detained.

Lastly, Judge Guida found that unlike in Ravotto, there was

no doubt that defendant's blood was drawn for medical purposes

independent of the law enforcement request, satisfying the

"independent source" doctrine, even if there was a Fourth Amendment

violation. This appeal followed.

10 A-5194-16T2 II.

On appeal, defendant argues Judge Guida erred in denying his

motion to suppress because Sanfilippo lacked probable cause to

arrest him for DWI. We disagree.

Our review of a trial court's decision on a motion to suppress

is limited. State v. Robinson, 200 N.J. 1, 15 (2009). As our

Supreme Court has held:

Appellate review of a motion judge's factual findings in a suppression hearing is highly deferential. We are obliged to uphold the motion judge's factual findings so long as sufficient credible evidence in the record supports those findings. Those factual findings are entitled to deference because the motion judge, unlike an appellate court, has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."

[State v. Gonzales, 227 N.J. 77, 101 (2016) (citations omitted).]

We will "reverse only when the trial court's determination is so

clearly mistaken that the interests of justice demand intervention

and correction." State v. Gamble, 218 N.J. 412, 425 (2014)

(citation omitted). However, we owe no deference to the trial

court's legal conclusions or interpretations of the legal

consequences flowing from established facts, and review questions

of law de novo. State v. Watts, 223 N.J. 503, 516 (2015). Applying

11 A-5194-16T2 the above standards, we discern no reason to reverse the denial

of defendant's motion.

To make an arrest for DWI, the arresting officer need only

have "'reasonable grounds to believe' that the driver was operating

a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v.

Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (alteration in

original) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284

(App. Div. 1967)). Reasonable grounds can be based solely on the

officer's observations. See State v. Liberatore, 293 N.J. Super.

580, 589 (Law Div.) (holding that "observational evidence" may be

sufficient to prove "a defendant guilty beyond a reasonable doubt

of DWI."), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). "[A]

conviction for driving while under the influence of alcohol will

be sustained on proofs of the fact of intoxication--a defendant's

demeanor and physical appearance--coupled with proofs as to the

cause of intoxication--i.e., the smell of alcohol, an admission

of the consumption of alcohol, or a lay opinion of alcohol

intoxication." State v. Bealor, 187 N.J. 574, 588 (2006); see

also State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993)

(sustaining conviction for DWI based on proofs of defendant's

slurred speech, loud and abusive behavior, disheveled appearance,

red and bloodshot eyes, together with the strong odor of alcohol

were sufficient to sustain a DWI conviction); Moskal, 246 N.J.

12 A-5194-16T2 Super. at 20-21 (sustaining conviction for DWI based on proofs of

defendant's flushed face, "drooping and red" eyes, the strong odor

of alcohol, and an admission of drinking established probable

cause for arrest).

Here, defendant was involved in a serious accident. He was

unable to provide information about what happened and looked

confused when Sanfilippo told him he struck two parked vehicles.

Sanfilippo smelled an odor of alcohol coming from defendant, and

saw defendant swaying back and forth, slightly slurring his words

and seemed incoherent in what he was saying. Defendant also had

bloodshot eyes and admitted to consuming alcohol. We are satisfied

there was sufficient credible evidence to support Judge Guida's

finding that Sanfilippo had probable cause to arrest defendant for

DWI based on his training and experience, observational evidence,

and the totality of the circumstances.

III.

Defendant argues that Judge Guida erred in denying his motion

to suppress because his blood was drawn without his consent and

for investigative purposes, not medical reasons, and he was coerced

into submitting to the blood draw under threat of arrest if he did

not comply.

We have considered this argument in light of the record and

applicable legal principles and conclude it is without sufficient

13 A-5194-16T2 merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons Judge Guida expressed in

his cogent written opinion. We are satisfied there was ample

credible evidence supporting the judge's finding that defendant's

blood was drawn for medical purposes at the direction of treating

physicians, not law enforcement for investigative purposes, and

defendant was not coerced into submitting to the blood draw under

threat of arrest if he did not comply. Sanfilippo testified,

credibly, that he did not direct the ER nurse to draw defendant's

blood for police use or threaten defendant in any way if he refused

to consent to a blood draw. Sanfilippo merely advised defendant

he was under arrest and would be transported to police headquarters

if he left the hospital, not if he refused to submit to the blood

draw.

Affirmed.

14 A-5194-16T2