On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-01-0029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein and Fuentes.
Defendant, Anthony Gentilello, was indicted by an Ocean County grand jury and charged with second-degree death by auto, N.J.S.A. 2C:11-5 (count one); three counts of third-degree assault by auto, N.J.S.A. 2C:12-1c(1) and (2) (counts two through four); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count five).*fn1 At a jury trial that took place in July 2004, defendant was convicted of second-degree vehicular homicide (count one), and three counts of fourth-degree assault by auto, as lesser included offenses of third-degree assault by auto.
On direct appeal, we reversed defendant's conviction and remanded the matter for a new trial. State v. Gentilello, No. A-0671-04 (App. Div. Oct. 21, 2005), certif. denied, 186 N.J. 256 (2006). One of the issues raised on appeal was whether the trial court erred by allowing two police officers to testify that defendant was under the influence of drugs. As to that specific issue, we held:
While an officer not qualified as an expert is prohibited from testifying that an individual is under the influence of drugs, [the two police officers] clarified on cross-examination that they were not offering opinions that defendant was impaired by drugs. Thus, we find no abuse of discretion by the trial court in permitting the testimony. Nevertheless, on remand, should the officers testify at the new trial, each should be instructed before they testify not to render an opinion that defendant was under the influence of drugs. [Id. at 26. (internal citation omitted) (emphasis added).]
Upon remand, the trial court considered various pretrial motions, including a motion to dismiss the indictment because the State destroyed the motor vehicles that were involved in the accident; and a motion to suppress the testimony given by the arresting police officers regarding drug intoxication.
On October 6, 2006, the trial court delivered an oral opinion from the bench addressing the pretrial issues raised. In pertinent part, the court denied defendant's motion to dismiss the indictment, but allowed defendant, at trial, to move for an adverse inference charge to the jury regarding the destruction of the vehicles; and (2) prohibited the two arresting officers from giving opinions regarding whether defendant was under the influence of drugs.
By leave granted, the State now appeals from these two rulings. Specifically, the State raises the following arguments.
THE COURT BELOW ERRED IN SUA SPONTE ALLOWING DEFENDANT TO SEEK AN ADVERSE INFERENCE TO THE JURY ARISING FROM THE STATE'S FAILURE TO PRESERVE THE MOTOR VEHICLES INVOLVED IN THE HOMICIDE.
THE COURT BELOW ERRED IN ORDERING THAT POLICE OFFICERS MAY NOT QUALIFY TO TESTIFY AS TO THE DRUG ...