NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3439-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER R. HAAS,
Defendant-Appellant. ____________________________
Submitted February 5, 2019 – Decided July 3, 2019
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-02- 0206.
Albert P. Mollo, attorney for appellant.
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Christopher R. Haas appeals from his convictions, after a non-
jury trial in the Law Division, for driving while intoxicated (DWI), N.J.S.A.
39:4-50; possession of a controlled dangerous substance (CDS) in a car, N.J.S.A.
39:4-49.1; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A 39:4-97;
and failure to maintain a lane, N.J.S.A. 39:4-88(b). The court sentenced
defendant to a 180-day custodial jail term, suspended his driving privileges for
twelve years, and imposed applicable fines and costs.
Defendant raises the following points on appeal:
POINT I APPELLANT WAS DENIED A SPEEDY TRIAL.
POINT II APPELLANT WAS SUBJECTED TO DOUBLE JEOPARDY.
POINT III THE CRIMINAL AND MOTOR VEHICLE CHARGES SHOULD HAVE BEEN JOINED FOR TRIAL.
POINT IV THE MOTOR VEHICLE OFFENSES SHOULD HAVE BEEN REMANDED TO MUNICIPAL COURT.
POINT V APPELLANT IS NOT GUILTY OF DRIVING UNDER THE INFLUENCE OF DRUGS AS A MATTER OF LAW.
A-3439-16T4 2 POINT VI APPELLANT IS NOT GUILTY OF RECKLESS DRIVING AS A MATTER OF LAW.
POINT VII APPELLANT IS NOT GUILTY OF CARELESS DRIVING AS A MATTER OF LAW.
POINT VIII APPELLANT IS NOT GUILTY OF FAILURE TO MAINTAIN LANE AS A MATTER OF LAW.
POINT IX APPELLANT IS NOT GUILTY OF POSSESSION OF CDS IN A MOTOR VEHICLE AS A MATTER OF LAW.
After reviewing the record in light of the contentions on appeal and the
applicable law, we reject defendant's speedy trial and double jeopardy
arguments, and further conclude that all of defendant's convictions are supported
by sufficient, credible evidence in the trial record, with the exception of
defendant's conviction for possession of a CDS in a car. Accordingly, we affirm
in part, reverse in part, and remand for further proceedings consistent with this
opinion.
I.
We discuss with greater detail than typical the case's procedural history
as it is relevant to the issues raised on appeal. On August 8, 2014, just after
A-3439-16T4 3 midnight, R.G.1 was driving behind defendant on a one-lane road in Monroe
Township when he saw defendant repeatedly swerving back and forth across the
double-yellow line. R.G. passed defendant and while waiting at a traffic light
approximately a quarter-mile down the road, "heard a boom," and "saw [a]
flash." He called 911 shortly thereafter and returned to the scene where he
observed that defendant had driven his vehicle into a utility pole, causing the
power lines to fall.
Monroe Township Police Officer Daniel Mosakowski, an eight-year
veteran of the Monroe Township Police Department, responded to the scene. At
trial, Mosakowski testified that he was certified to conduct field sobriety tests
and had made between fifty and seventy DWI arrests over the course of hi s
fifteen-year career. Mosakowski stated that when he arrived on the scene, he
observed defendant's car in the woods. He contacted emergency medical
personnel, who evaluated defendant and noted he had minor abrasions on his
forearm and forehead.
During Mosakowski's on-scene investigation, he spoke with defendant
and observed that he had a slurred and slow speech pattern, was staggering and
swaying, and his hand and feet movements were uncoordinated. Mosakowski
1 We use initials to protect the privacy of the witness. A-3439-16T4 4 conducted three field sobriety tests – the Horizontal Gaze Nystagmus (HGN),
the walk-and-turn, and the one-leg-stand – all recorded by the motor-vehicle
recorder (MVR) in his police vehicle.
During the HGN test, defendant closed his eyes, failed to follow
instructions, and according to Mosakowski, appeared to fall asleep. While
performing the walk-and-turn test, defendant was unable to stand and stay in the
starting position, and during the one-leg-stand test, he repeatedly failed to
maintain his balance, requiring him to "keep putting his foot down." Defendant
admitted to Mosakowski that he had ingested more than the recommended dose
of Sudafed.
After defendant failed to complete satisfactorily any of the field sobriety
tests, he was arrested for DWI. An officer searched defendant and recovered a
container attached to defendant's key chain that held two yellow pills.
Mosakowski testified that he and another officer noticed that the pills were
marked with a "10 and 36" on one side and what "look[ed] like a V" on the other
side. After the court overruled defendant's counsel's hearsay objection,
Mosakowski testified that they inputted the identifying information in a "pill
identifier" program, which revealed that the pills were Vicodin – a combination
of acetaminophen and hydrocodone.
A-3439-16T4 5 Defendant was subsequently transported to the police station and
administered a breathalyzer test which indicated his blood alcohol concentration
(BAC) was 0.00%. Shortly thereafter, Freehold Township Officer Andrew
Galaydick, a certified drug recognition officer, who testified to participating in
over one hundred arrests of intoxicated drivers, and performing over thirty drug
recognition evaluations, examined defendant.
During Galaydick's evaluation, which was conducted three hours after
defendant's arrest, he noted defendant's coordination remained poor, his speech
was slurred, and he was still not able to complete the walk-and-turn test, the
one-leg-stand test, and the finger-to-nose test. He also stated that defendant
swayed, had a pulse of 68, which he described as toward the low end. Galaydick
testified that defendant had a blood pressure reading of 136/74, which reflected
a low diastolic number and high systolic number. Finally, Galaydick stated he
observed defendant's reaction to the direct-light evaluation was "slow," and that
he noticed "a white pasty residue" on his tongue, which he testified was
indicative of drug ingestion.
Based on his evaluation, combined with his experience and training,
Galaydick concluded defendant was impaired. He attributed defendant's
impairment to the ingestion of two categories of narcotics: an analgesic and a
A-3439-16T4 6 stimulant. He found defendant's symptoms characteristic of both types of drugs,
and that he had ingested them prior to operating his car. As Galaydick testified,
Sudafed, which defendant admitted to ingesting, is classified as a central
nervous system stimulant, and hydrocodone, a narcotic analgesic.
Defendant was arrested and issued summonses for the motor vehicle
offenses listed above, along with driving while his license was suspended,
N.J.S.A. 39:3-40, failure to install an ignition-interlock device, N.J.S.A. 39:4-
50.19(a), and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). In
addition, on February 17, 2015, a grand jury indicted defendant with one count
of fourth-degree operating a motor vehicle during a license suspension for a
second or subsequent DWI conviction, N.J.S.A. 2C:40-26(b) (indictable
offense).
On April 17, 2015, defendant's counsel requested discovery from the
State. In the State's May 20, 2015 response, it provided responsive documents
and advised that many of defendant's requests sought information that did not
exist, or the State had no obligation to provide. The next day the parties
appeared for a status conference. Defendant's counsel acknowledged he
received the State's correspondence but maintained he still "need[ed] more
discovery." The prosecutor represented that she provided the documents in the
A-3439-16T4 7 State's possession, and all of counsel's remaining requests were either
inapplicable, or the requested discovery did not exist.
During the May 21, 2015 conference, defendant's counsel stated he
"want[ed] this case done," as defendant has "been waiting since last August for
this case to be done," and "want[ed] a trial." In response to defendant's request,
the court explained that the DWI charge would be severed from the indictable
offense. Counsel then expressed an intention to file a motion to dismiss the
indictment based on "improper instructions given to the grand jury as to . . . the
state of culpability for [the indictable] offense." The court ordered the motion
to be filed no later than July 10, 2015, and scheduled a return date for August
11, 2015, with a trial on the indictable offense to commence on August 31, 2015.
Despite the court's direction, defendant did not file his dismissal motion
until July 24, 2015, two weeks after the court-ordered date and sought an
adjournment of the scheduled August 11, 2015 hearing date. The court granted
counsel's request, and on September 1, 2015, heard oral arguments, denied
defendant's application, and rescheduled trial on the indictable offense for
December 8, 2015.
The court presided over a jury trial with respect to the indictable offense
on December 11 and 14, 2015, and defendant was found guilty on December 14,
A-3439-16T4 8 2015. On December 29, 2015, defendant retained new counsel. On February
11, 2016, the court sentenced defendant to a 364-day jail term with a 180-day
period of parole ineligibility.
On October 26, 2016, the court issued an order requiring defendant to file
all motions to dismiss the remaining motor-vehicle charges on or before
November 30, 2016. On November 23, 2016, defendant filed a dismissal
motion, but did not file a supporting brief until December 30, 2016. Defendant’s
motion to dismiss was based on the alleged violation of his right to a speedy
trial, and his claim that a second trial would violate his right against double
jeopardy. The court heard oral arguments on January 24, 2017 and denied the
motion the same day. 2 The court also scheduled trial for the motor vehicle
charges for February 22, 2017. Thereafter, on February 1, 2017, the State sought
an adjournment of the scheduled February 22, 2017 trial date because its drug
recognition expert was unavailable as a result of the birth of his child.
On March 1, 2017, the parties appeared for trial. Prior to hearing
testimony, the court explained its reasons for denying defendant's motion to
dismiss based on double jeopardy and speedy trial grounds. With respect to
defendant's double jeopardy claim, the court stated that it disagreed with
2 Defendant has not provided a transcript of the January 24, 2017 hearing. A-3439-16T4 9 defendant's argument that the State was barred from prosecuting him on the DWI
charge after its successful prosecution of the indictable offense. The court
concluded that operating a motor vehicle during a period of license suspension
for a second or subsequent DWI conviction, and the DWI charge, are not the
same offenses, nor are they lesser-included offenses of each other. The court
further explained that the two charges seek "to punish two separate offenses and
vindicate two separate interests[,] [and that] [t]he fact that each offense requires
the operation of a motor vehicle is not sufficient to invoke double jeopardy."
With respect to defendant's claim that his right to a speedy trial was
violated, the court emphasized that "the bulk of the reasons [for any delay] can
be laid at the feet of [defendant's first counsel]." The court explained that
counsel failed to file a dismissal motion until July 23, 2015, despite being
ordered to do so by July 10, 2015. Further, the hearing on defendant's July 23,
2015 dismissal motion was adjourned from August 11, 2015, due to counsel's
vacation plans. The court also explained that counsel made repeated claims for
discovery but failed to "precisely and concisely identify what exactly he was
entitled to and was missing."
In addition, the court noted that once defendant retained new counsel after
the December 2015 trial, the court heard a motion to suppress on June 24, 2016,
A-3439-16T4 10 and granted the application on August 16, 2016. And, despite the court requiring
defendant to file his motion to dismiss by November 30, 2016, defendant did not
file his brief until December 30, 2016. The court explained that it heard oral
arguments on January 24, 2017, and denied the motion that day. The court
acknowledged that it granted a twenty-eight-day adjournment on February 1,
2017 due to the unavailability of the State's drug recognition expert due to the
birth of his child, but concluded that brief delay did not violate defendant's right
to a speedy trial.
The court concluded that defendant was not "unfairly prejudiced by these
delays," noting that evidence was not lost, witnesses remained available, and
that nothing changed in the circumstances underpinning the DWI prosecution.
Finally the court explained that defendant did not file a formal motion for a
speedy trial until November 2016.
At the conclusion of trial, the court determined defendant was guilty of
DWI, possession of a CDS in a car, reckless driving, careless driving, and failure
to maintain a lane. The court dismissed the possession of CDS and failure to
install an ignition-interlock device offenses, as the State failed to prove these
violations. Additionally, the court noted that defendant's driving while his
license was suspended offense "is a lesser-included charge of [the indictable
A-3439-16T4 11 offense], . . . that [defendant] has already been found guilty of and has already
served his sentence . . . ."
In concluding the State established defendant's guilt beyond a reasonable
doubt on the reckless driving, careless driving, and failure to maintain a lane
charges, the court found R.G.'s testimony to be credible. With respect to
defendant's possession of CDS in a car, the court found that "[t]estimony clearly
established that [defendant] had Vicodin pills in a fob attached to his keys." The
court explained that "[a]lthough the drugs were not chemically tested, the drugs
were readily identifiable based on their color, shape, and markings." Finally, in
finding defendant guilty of DWI, the court relied on Galaydick's credible
testimony, among other evidence, and, relying on State v. Tamburro, 68 N.J.
414, 421 (1975), stated that "[a] conviction can be based on the qualified
expert’s determination based on the subject’s conduct, physical and mental
condition, and symptoms displayed."
II.
In defendant's first point on appeal, he maintains that the trial court
violated his right to a speedy trial warranting dismissal of the motor vehicle
charges. We disagree.
A-3439-16T4 12 It is well-settled that "[t]he right to a speedy trial is guaranteed by the
Sixth Amendment to the United States Constitution and imposed on the states
by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas,
411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386
U.S. 213, 222-23 (1967)). "The constitutional right . . . attaches upon
defendant's arrest." Ibid. (alteration in the original) (quoting State v. Fulford,
349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to
promptly bring a case to trial, "[a]s a matter of fundamental fairness," the State
must avoid "excessive delay in completing a prosecution," or risk violating
"defendant's constitutional right to speedy trial." Ibid.
The four-part test to determine if a defendant's speedy-trial right has been
violated was announced in Barker v. Wingo, 407 U.S. 514, 530-33 (1972) and
adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976).
The test requires "[c]ourts [to] consider and balance the '[l]ength of delay, the
reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant.'" Tsetsekas, 411 N.J. Super. at 8 (quoting Barker, 407 U.S. at 530).
"No single factor is a necessary or sufficient condition to the finding of a
deprivation of the right to a speedy trial." Id. at 10 (citing Barker, 407 U.S. at
533). Courts are required to analyze each interrelated factor "in light of the
A-3439-16T4 13 relevant circumstances of each particular case." Ibid. We will not overturn a
trial judge's decision whether a defendant was deprived of due process on
speedy-trial grounds unless the judge's ruling was clearly erroneous. State v.
Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).
With respect to the first factor, we note that our judiciary "is, as a matter
of policy, committed to the quick and thorough resolution of DWI cases."
Tsetsekas, 411 N.J. Super. at 11 (quoting State v. Farrell, 320 N.J. Super. 425,
446 (App. Div. 1999)). Although this matter neither originated, nor resolved, in
the municipal court, we nevertheless acknowledge that "[i]n 1984, Chief Justice
Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from
the Administrative Office of the Courts, that municipal courts should attempt to
dispose of DWI cases within sixty days." Ibid. (quoting Farrell, 320 N.J. Super.
at 446-47). We have not, however, suggested that "any delay beyond the
sixty-day goal is excessive," and declined to apply a bright-line test as to when
any delay is deemed excessive. See State v. Cahill, 213 N.J. 253, 270 (2013);
Tsetsekas, 411 N.J. Super. at 11 ("There is no set length of time that fixes the
point at which delay is excessive.").
"Barker's second factor examines the length of a delay in light of the
culpability of the parties." Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407
A-3439-16T4 14 U.S. at 531). "[D]ifferent weights should be assigned to different reasons"
proffered to justify a delay. Barker, 407 U.S. at 531. Purposeful delay tactics
weigh heavily against the State. Tsetsekas, 411 N.J. Super. at 12 (citing Barker,
407 U.S. at 531). "A more neutral reason[,] such as negligence or overcro wded
courts[,] should be weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant." Barker, 407 U.S. at 531. "[A] valid
reason, such as a missing witness, should serve to justify appropriate delay."
Ibid. And, "[d]elay caused or requested by the defendant is not considered to
weigh in favor of finding a speedy trial violation." Farrell, 320 N.J. Super. at
446.
With respect to the third factor, we recognize the assertion of a right to
speedy trial by a defendant is not required, but should be given strong weight
when balancing the factors. Fulford, 349 N.J. Super. at 195. We examine
whether and how a defendant asserts the right to a speedy trial to determine
whether the state has violated the right. Cahill, 213 N.J. at 258. In this regard,
a defendant's assertion of the right to a speedy trial need not be "by way of
formal motion." State v. Smith, 131 N.J. Super. 354, 363-64 (App. Div. 1974).
We have also observed that a defendant's mere comment that he or she was
A-3439-16T4 15 "'ready for trial' and 'wanted it to occur sooner rather than later'" were sufficient
assertions of a defendant's speedy-trial right. State v. May, 362 N.J. Super. 572,
597 (App. Div. 2003). Finally, a court may also consider "the frequency and
force of the [defendant's] objections" when assessing whether the defendant
properly invoked the right. Barker, 407 U.S. at 529.
Finally, the fourth factor we consider is prejudice to a defendant caused
by delay. "[P]roof of actual trial prejudice is not 'a necessary condition
precedent to the vindication of the speedy trial guarantee.'" Tsetsekas, 411 N.J.
Super. at 13-14 (quoting Merlino, 153 N.J. Super. at 15-16). Although the delay
may not prejudice a "defendant's liberty interest or his ability to defend on the
merits[,] . . . significant prejudice may also arise when the delay causes the loss
of employment or other opportunities, humiliation, the anxiety in awaiting
disposition of the pending charges, the drain in finances incurred for payment
of counsel or expert witness fees and the 'other costs and inconveniences far in
excess of what would have been reasonable under more acceptable
circumstances.'" Id. at 13 (quoting Farrell, 320 N.J. Super. at 452) (citing
Fulford, 349 N.J. Super. at 195; State v. Dunns, 266 N.J. Super. 349, 380 (App.
Div. 1993); Merlino, 153 N.J. Super. at 15-16). The impairment of an accused's
A-3439-16T4 16 defense is considered "the most serious since it [goes] to the question of
fundamental fairness." Szima, 70 N.J. at 201.
Balancing the four Barker factors, that are "related factors to be
considered with such other circumstances as may be relevant," Szima, 70 N.J.
at 201, we do not find the court's denial of defendant's speedy-trial motion to be
clearly erroneous. As to the first and second Barker factors, we first recognize
that, on its face, the 936-day delay between defendant's arrest and the
commencement of trial on his DWI and related motor vehicle offenses, appears
inordinate. As the trial court noted, however, "[w]hile it [took] some time for
th[e] case to reach the point of resolution, the bulk of the reasons can be laid at
the feet of prior defense counsel." Further, as the trial court concluded, the delay
from defendant's arrest to his motor vehicle trial was primarily "attributable [to
defendant's counsel's] repeated requests for discovery the defendant was not
entitled to[,] and [the] failure to . . . follow the court’s briefing schedule." These
factual findings are amply supported by the record. Finally, during this time
period, the court decided, without objection, to resolve the indictable charge
before the motor vehicle charges.
Additionally, the ninety-eight-day delay from defendant's November 23,
2016 formal request for a speedy trial to the March 1, 2017 trial was fully
A-3439-16T4 17 justified. The court's adjournment of the February 22, 2017 trial date was
validly explained by the unavailability of the State's drug recognition expert on
the scheduled February 2017 trial date. Under these circumstances, we decline
to weigh the first and second Barker factors in defendant's favor.
With respect to the third Barker factor, we note that defendant never
brought a formal speedy trial motion with respect to the indictable offense. As
noted, defendant only brought his speedy trial motion with respect to the motor
vehicle charges on November 23, 2016, and the trial was conducted less than
three and one-half months later.
Defendant claims, however, that his counsel's comments at the May 21,
2015 proceeding where he stated that "[defendant] has been waiting since last
August for this case to be done," and that they "want[ed] a trial," invoked his
speedy trial rights. After being advised, however, that the indictable offense
and motor vehicle charges would be severed, defendant did not request a trial
on the motor vehicle charges until November 2016. To the extent defendant's
May 21, 2015 comments asserted his right to a speedy trial on all the outstanding
charges, and not simply the indictable offense, we note that immediately after
making those comments, he requested additional discovery from the State.
A-3439-16T4 18 Accordingly, it is clear that defendant was not prepared to try either the
indictable offense or motor vehicle charges at that time.
Finally, as to the fourth Barker factor, we find that except for pre-verdict
anxiety, stress and personal inconvenience, and the cost of air travel and
transportation caused by the adjournment, the lack of significant prejudice
suffered by defendant militates against dismissal of this case. As the court
recognized, defendant was not subject to pretrial incarceration and his defense
was "absolutely not" impaired. Accordingly, measured against the four Barker
factors, we conclude there was no violation of defendant's constitutional speedy-
trial right.
Defendant's reliance on Cahill to support his contention that his right to a
speedy trial was violated is misplaced, as the facts in Cahill are distinguishable.
In Cahill, the defendant was arrested for DWI and charged with various motor
vehicle violations. Cahill, 213 N.J. at 257. A few months later, a grand jury
indicted the defendant with assault by auto, and the defendant pled guilty. Ibid.
The defendant's motor vehicle charges were subsequently remanded to
municipal court. Id. at 259. Sixteen months after the defendant was sentenced
for the indictable offense, he received a trial notice for his motor vehicle
A-3439-16T4 19 charges. Ibid. The scheduled trial date was twenty-nine months after his arrest.
Ibid.
The Cahill court conducted the four-part Barker test and concluded that
the defendant's right to a speedy trial was violated by the twenty-nine-month
delay between his arrest and his trial. Cahill, 213 N.J. at 275. In balancing the
Barker factors, the Court noted that "the State offer[ed] no justification for the
delay," such as "a conflict of interest requiring recusal of the judge." Id. at 273.
Further, the Court noted that "[a]ll necessary witnesses were available." Id. at
273.
In Cahill, defendant's actions did not cause any delay. Here, however, as
the court concluded, defendant's counsel's discovery requests and failure to
follow the briefing schedule contributed to the delay in resolution of the motor
vehicle charges. Once defendant formally asserted his right to a speedy trial,
the court concluded the trial less than three and one-half months later.
Additionally, as noted, the brief delay caused by the February 22, 2017
adjournment was a result of the expert witness's unavailability, and was entirely
justified. Accordingly, Cahill does not support defendant's assertion that he was
denied a speedy trial.
A-3439-16T4 20 III.
We also disagree with defendant's second point on appeal, that his second
trial for his motor vehicle charges subjected him to double jeopardy.
Specifically, defendant contends that his indictable offense and DWI charge
involve a common statutory element and were proven by "much of the same
evidence." We reject this argument because the act of driving with a suspended
license is not the same offense as defendant's DWI conviction, and the same
evidence used to establish defendant’s indictable offense was not necessary to
prove his DWI charge.
The Fifth Amendment's double jeopardy clause "provides that no person
shall 'be subject for the same offense to be twice put in jeopardy of life or limb.'"
State v. Miles, 229 N.J. 83, 92 (2017) (quoting U.S. Const. amend. V).
Similarly, under the New Jersey Constitution, "No person shall, after acquittal,
be tried for the same offense." N.J. Const. art. I, ¶ 11; see Miles, 229 N.J. at 92
("This Court has consistently interpreted the State Constitution's
double-jeopardy protection as coextensive with the guarantee of the federal
Constitution."). The double jeopardy clause "protects against (1) 'a second
prosecution for the same offense after acquittal,' (2) 'a second prosecution for
the same offense after conviction,' and (3) 'multiple punishments for the same
A-3439-16T4 21 offense.'" Miles, 229 N.J. at 92 (quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969)). "Common to all three protections is the concept of 'same
offense.'" Ibid. Thus, courts evaluating a double jeopardy claim must ask
"whether the second prosecution is for the same offense involved in the first."
Id. at 93 (quoting State v. Yoskowitz, 116 N.J. 679, 689 (1989)).
"Double jeopardy analysis involves consideration of one of two prongs:
(1) the 'same offense' test, which focuses upon the statutory elements of a crime
rather than proofs proffered for conviction; or (2), alternatively, the 'same
evidence' test, which focuses upon whether the same evidence used to prove the
first offense is necessary to prove the second offense." State v. Hand, 416 N.J.
Super. 622, 627 (App. Div. 2010) (citing State v. De Luca, 108 N.J. 98, 107
(1987)).3
N.J.S.A. 2C:40-26(b) states that it "shall be a crime of the fourth-degree
to operate a motor vehicle during the period of license suspension . . . ." The
3 In Miles, our Supreme Court followed the United States Supreme Court's elimination of the "same evidence" test in United States v. Dixon, 509 U.S. 688 (1993), and adopted the "same elements" test as the "sole double jeopardy analysis." Miles, 229 N.J. at 96. However, the "new singular same elements standard" applies "prospectively to offenses committed after the date of th[e] [Miles] opinion." Id. at 99. Accordingly, as defendant was arrested in August 2014, we use both the "same elements" test and the "same evidence" test in our analysis of defendant's double jeopardy claim. A-3439-16T4 22 plain wording of the statute establishes its intent to impose penalties for the act
of driving with a suspended license. It is not the prior DWI convictions that are
being revisited or enhanced with an additional penalty. Instead, the Legislature
has mandated that when a person with more than two DWI convictions drives a
vehicle while his or her license is suspended, that new and separate act of driving
with a suspended license is a fourth-degree crime subject to penalties. As we
have previously recognized, the violation of N.J.S.A. 2C:40-26(b) constitutes a
new and separate crime from the predicate DWI convictions. See State v.
Carrigan, 428 N.J. Super. 609, 620-21 (App. Div. 2012) (holding that a
conviction under N.J.S.A. 2C:40-26(b) does not violate ex post facto
constitutional principles). Accordingly, there is no double jeopardy violation
under the "same elements" test.
Additionally, we do not find a double jeopardy violation based on the
"same evidence" test. We first note that defendant has failed to provide a
transcript of the trial on the indictable offense. We nevertheless note that the
only proofs necessary for the State to establish defendant's guilt on the indictable
offense was that defendant was driving or operating a motor vehicle, and that
his license had been suspended for a second violation of DWI. The evidence
necessary to prove defendant’s DWI charge included not only that he was
A-3439-16T4 23 driving, but that he was "under the influence of intoxicating liquor, narcotic,
hallucinogenic or habit-producing drug." N.J.S.A. 39:4-50. In this regard,
evidence of defendant’s previous DWIs, which was relevant at his trial on the
indictable offense, was unnecessary to establish his guilt on the DWI charge.
Further, the testimony of Galaydick and Mosakowski regarding their evaluations
of defendant, was relevant only to defendant's DWI charge. Accordingly, the
"same evidence" used to establish the indictable offense was not necessary to
IV.
Next, defendant argues that the court committed error by severing the
indictable charge from his motor vehicle charges. In the alternative, defendant
asserts that the court erred because it failed to remand the motor vehicle charges
to the municipal court. We disagree.
Pursuant to Rule 3:15-3(a)(1), "the court shall join any pending
non-indictable complaint for trial with a criminal offense based on the same
conduct or arising from the same episode." However, "if for any reason it
appears that a defendant or the State is prejudiced by the joinder required by
paragraph (a), the court may decline to join or may grant other appropriate
relief." R. 3:15-3(b).
A-3439-16T4 24 We note that defendant's first counsel failed to object to the severance of
the indictable offense from the motor vehicle charges prior to either trial.
Rather, defendant's new counsel only asserted that the indictable offense and
motor vehicle charges should have been tried together at the March 8, 2017
sentencing hearing, after the second trial. As the court explained, "it [would
have been] prejudicial for the jury to hear on the [N.J.S.A. 2C:]40-26 [charge]
that [defendant] also was intoxicated." The court explained "it would be more
unfair to [defendant] if the jury would hear that, not only did he violate the
[c]ourt order not to drive after a second DWI, but that he drove while drunk."
Accordingly, we conclude the court properly exercised its discretion under Rule
3:15-3(b), in ordering a severance. Indeed, defendant conceded, at the March 8,
2017 hearing and in his merits brief, that it would be fundamentally prejudicial
to defendant if the jury heard during the trial on the indictable offense that
defendant was intoxicated while driving.
Defendant improperly relies on State v. Muniz, 118 N.J. 319 (1990) to
support his contention that the court was required to join his indictable offense
and motor vehicle charges in a single trial. In Muniz, our Supreme Court held
that "lesser-included motor vehicle offenses, if supported by evidence in the
record, should be joined in the prosecution of the [New Jersey] Code [of
A-3439-16T4 25 Criminal Justice] offense of death by auto . . . ." Id. at 332. Here, however,
defendant’s DWI charge is not a lesser-included offense of driving with a
suspended license for a second DWI conviction.
We also disagree with defendant's argument that the court should have
remanded the motor vehicle charges to municipal court. As the court correctly
noted at the March 8, 2017 hearing, our Supreme Court has not made any ruling
mandating that motor vehicle charges only be heard in municipal court. Further,
the record before us does not demonstrate that after the first trial, defendant's
counsel sought to remand the motor vehicle charges to municipal court.
Accordingly, the court's exercise of jurisdiction over the second trial on
defendant's motor vehicle charges was proper and not an abuse of its discretion.
Defendant next maintains that the court committed error in failing to
dismiss the DWI, reckless driving, careless driving, and failure to maintain a
lane charges as a matter of law. We are not persuaded by any of defendant's
arguments.
The court found R.G. to be a credible witness, and based on his testimony
that defendant was swerving back and forth between lanes, concluded defendant
was guilty of reckless driving, careless driving, and failure to maintain his lane.
A-3439-16T4 26 With respect to the DWI charge, the court relied on the testimony of
Mosakowski and Galaydick. As noted, Mosakowski testified that defendant
exhibited slurred speech, was uncoordinated, and failed to satisfactorily
complete the three field sobriety tests conducted. Galaydick further testified
that he concluded defendant was impaired based on his poor coordination,
slurred speech, abnormal blood pressure results, and various other test results.
In addition, the court reviewed the MVR, which was played at trial, and showed
defendant failing to satisfactorily complete the three field sobriety tests
conducted by Mosakowski. As the court correctly noted, "the focus is on the
effect the substance has on the physical coordination and/or mental faculties as
opposed to the exact identification of the substance." See Tamburro, 68 N.J. at
421 ("It is enough if, from the subject's conduct, physical and mental condition
and the symptoms displayed, a qualified expert can determine that he or she is
'under the influence' of a narcotic."). In sum, the court’s findings of guilt beyond
a reasonable doubt as to these charges are supported by sufficient, credible
evidence in the trial record.
A-3439-16T4 27 VI.
Finally, defendant claims that the trial court committed error in denying
his request to dismiss the possession of CDS in a motor vehicle charge. We
agree.
Pursuant to N.J.S.A. 39:4-49.1,
No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance . . . or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician . . . .
[(Emphasis added).]
The elements of this offense must be established beyond a reasonable doubt.
State v. Bealor, 187 N.J. 574, 586 (2006) ("We have repeatedly made clear that,
in motor vehicle violation cases, the State's burden of proof unquestionably is
beyond a reasonable doubt.").
Hearsay is a statement "other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove the truth of the matte r
asserted." State v. Byrd, 198 N.J. 319, 336 n.5 (2009) (citing N.J.R.E. 801(c)).
Hearsay is inadmissible at trial "unless specifically exempted by an evidence
rule or other law." Ibid. (citing N.J.R.E. 802). However, "if evidence is not
offered for the truth of the matter asserted, the evidence is not hearsay and no
A-3439-16T4 28 exception to the hearsay rule is necessary to introduce that evidence at trial. "
State v. Long, 173 N.J.138, 152 (2002).
Mosakowski testified at trial that another officer discovered the pills in a
container attached to defendant's keys. He stated that, thereafter, "[they] took
the markings on the pills[,] . . . put [them] into a program called '[p]ill
[i]dentifier,'" and identified the pills as Vicodin. Upon cross-examination,
Mosakowski was unable to describe in detail the particular pill identifier website
used, whether it was created and maintained by a pharmaceutical company, or
"state-sponsored."
As noted, defendant's counsel objected to the pill identifier testimony,
asserting it was hearsay. The State argued that the testimony was not offered to
prove the truth of the matter asserted, but rather, to demonstrate the effect on
Mosakowski's decision to charge defendant with possession of CDS in a car.
The court overruled defendant's counsel's objection, admitted the testimony
regarding the results of the pill identifier program, and relied upon this
testimony, as well as Galaydick's testimony, to find defendant guilty of
possession of Vicodin.
After a thorough review of the record, we conclude Mosakowski's
testimony that he identified defendant’s pills as Vicodin based on a visual
A-3439-16T4 29 comparison of pills depicted on a pill identifier program from an unidentified
website is inadmissible hearsay, as it was intended to establish the truth of the
matter asserted – that the pills were Vicodin, a CDS. We find no exception to
the hearsay rule that would permit Mosakowski to testify regarding the contents
of the pill identifier program.
In this regard, we note that Mosakowski was not qualified as an expert
witness with particular expertise in recognizing CDS. See State v. Frost, 242
N.J. Super. 601, 615 (App. Div. 1990) ("[A]n expert witness must possess the
minimal technical training and knowledge essential to the expression of a
meaningful and reliable opinion."). Nor was Mosakowski's testimony
permissible lay opinion testimony under N.J.R.E. 701. See Neno v. Clinton, 167
N.J. 573, 585 (2001) ("A lay witness's opinion cannot rely on the inadequate
support of inadmissible hearsay without the benefit of an exception."); Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 701
(2018) ("[L]ay opinion testimony may not cross into the realm of expert
testimony."). Rather, the court permitted Mosakowski to combine his
admissible percipient observations regarding the pills (i.e., that another officer
discovered the pills, which were yellow and had markings) with the substantive
out of court statements contained in the pill identifier program.
A-3439-16T4 30 The court also relied on Galaydick's expert testimony, in which he
testified that he identified defendant's pills by comparing the pills' "markings"
with an unidentified "drug identification bible," and by relying on Mosakowski's
representation that he identified the pills as Vicodin.
"[E]xpert testimony depends on a witness's 'specialized knowledge' to
address matters outside a juror's understanding." State v. Hyman, 451 N.J.
Super. 429, 443 (App. Div. 2017). Accordingly, the admission of expert
testimony involves the following requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that such an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[Id. at 443-44 (quoting State v. Kelly, 97 N.J. 178, 208 (1984) and discussing N.J.R.E. 702).]
Additionally, N.J.R.E. 703, which "addresses the foundation for expert
testimony," requires that expert opinions be grounded in:
facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject.
[Townsend v. Pierre, 221 N.J. 36, 53 (2015).]
A-3439-16T4 31 N.J.R.E. 703 requires "the hearsay [to] be of the type usually relied on by
experts in the field to reach 'conclusions of the type offered by the witness.'"
State v. Torres, 183 N.J. 554, 576 (2005) (quoting State v. Pasterick, 285 N.J.
Super. 607, 620-21 (App. Div. 1995)). Further, while N.J.R.E. 703 permits a
testifying expert to refer to a hearsay statement "for the purpose of apprising the
jury of the basis for his opinion," Konop v. Rosen, 425 N.J. Super. 391, 406
(App. Div. 2012) (quoting Agha v. Feiner, 198 N.J. 50, 63 (2009)), "[t]he
'hearsay is not admissible substantively as establishing the truth of the
statement.'" Ibid. (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480
(App. Div. 2002)).
"The corollary of [Rule 703] is the net opinion rule, which forbids the
admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data." Polzo v. Cnty of Essex, 196 N.J. 569, 583 (2008)
(quoting State v. Townsend, 186 N.J. 473, 494 (2006)). Essentially, "[a]n expert
must '"give the why and wherefore" that supports the opinion, "rather than a
mere conclusion."'" Borough of Saddle River v. 66 East Allendale, LLC, 216
N.J. 115, 144 (2013) (quoting Polzo, 196 N.J. at 583). In this regard, expert
witnesses must "be able to identify the factual bases for their conclusions,
explain their methodology, and demonstrate that both the factual bases and the
A-3439-16T4 32 methodology are reliable." Townsend, 221 N.J. at 55 (quoting Landrigan v.
Celotex Corp., 127 N.J. 404, 417 (1992)).
Here, unlike his testimony regarding defendant's impairment, Galaydick's
testimony regarding the identification of defendant's pills as Vicodin had no
proper foundation, as he failed to provide the "why and wherefore" supporting
his conclusion.4 Specifically, Galaydick failed to detail which particular drug
identification bible he used, explain satisfactorily how he used it to identify the
pills, and establish whether it was a reliable source to identify drugs.
Accordingly, Galaydick's testimony regarding his identification of the pills as
Vicodin is inadmissible.
Without further confirmatory proof of the pills' chemical composition,
Mosakowski's and Galaydick's testimony regarding his use of the pill identifier
program and drug identification bible, as the sole evidence that defendant
possessed CDS in a car, is insufficient to establish the pills' classification as
CDS beyond a reasonable doubt. Accordingly, we reverse the court's finding
that defendant is guilty of possession of CDS in a motor vehicle.
4 We have independently reviewed the March 1, 2017 trial transcript and conclude that Galaydick's testimony regarding defendant's impairment is properly derived from his personal observations of defendant, and not solely his identification of the Vicodin from Mosakowski's representation or the drug identification bible. See Townsend, 221 N.J. at 53. A-3439-16T4 33 Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-3439-16T4 34