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State v. Grigioni

November 13, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN J. GRIGIONI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-048.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2009

Before Judges Parrillo and Lihotz.

Defendant John J. Grigioni appeals from his convictions in the municipal court and again on appeal in the Law Division, after a trial de novo, of driving while intoxicated (DWI), N.J.S.A. 39:4-50; speeding, N.J.S.A. 39:4-98; possession of marijuana, N.J.S.A. 2C:35-10a(4); and possession of drug paraphernalia, N.J.S.A. 2C:36-2. We affirm.

According to the State's proofs, on November 23, 2007, around 11:35 a.m., defendant was traveling south on Interstate 287 in Hanover Township when Trooper Edward Schmalz observed him speeding. The trooper was on aggressive driver detail in the area and his stationary laser readings recorded defendant's vehicle traveling eighty-five miles an hour in a fifty-five mile per hour zone. Consequently, the trooper pursued defendant's vehicle and directed it to stop as it exited Route 287 South onto Route 24.

When Trooper Schmalz approached the vehicle and asked for defendant's driver's credentials, he detected the odor of burnt marijuana emanating from the vehicle. He also observed that defendant's eyes were "bloodshot, glassy" and that his movements and speech were slow and "lethargic." When the trooper questioned defendant about the odor, defendant initially said the car belonged to his wife, who may have smoked in the vehicle. Upon further questioning, however, defendant admitted smoking marijuana earlier that morning. When asked if he had any marijuana on him, defendant turned over the remnants of an unlit, but partially burnt, marijuana cigarette.

Based on his observations and defendant's admission, and because no back-up was in close proximity, Trooper Schmalz ordered defendant to exit the car and placed him under arrest for possession of marijuana and driving under the influence. He was then transported to the State Police barracks in Netcong for further testing. In addition to the burnt cigarette, a subsequent search of defendant's vehicle uncovered rolling papers and a small quantity of raw marijuana. At the police station, defendant gave a urine sample that ultimately tested positive for marijuana, as did the substances found in his car.

Around 1:00 p.m., Trooper James Harrison conducted a Drug Recognition Examination (DRE) on defendant, which consisted of an interview, examination of defendant's eyes, and both horizontal and vertical gaze nystagmus tests.*fn1 The DRE was conducted in the presence of Troopers Schmalz and Craig Roushinko. In addition,*fn2 Trooper Harrison performed psychophysical or so-called "field sobriety" tests, including the Romberg balance test,*fn3 the walk-and-turn test, the one-leg stand test, and the finger-to-nose test. During the Romberg test, defendant estimated the passage of thirty seconds in twenty-seven seconds and showed signs of eyelid tremors, which is an indication of cannabis abuse, but did not "sway back and forth." On the walk-and-turn test, defendant initially "stepped off the line... and then fell against the wall," "raised his arms... contrary to [ ] instructions... and [ ] counted out of sync with his first four steps[,]" but recovered to complete the turn and walked back to the starting point successfully. During the first phase of the one-leg stand test, defendant raised his arms, started to sway immediately, and put his foot down at number 28, all contrary to instructions. During the second phase, defendant also swayed and raised his arms immediately, using his arms for balance and eventually leaning against the wall several times in the course of thirty seconds, again contrary to Trooper Harrison's instructions. Finally, defendant correctly touched the tip of his finger to his nose only three out of six times.

According to Trooper Harrison, no single test or physical observation is conclusive as to marijuana intoxication. Rather "[i]t's a totality of the circumstances... brought together." Based thereon, Harrison concluded, as had Trooper Schmalz, that defendant was under the influence of marijuana and was unable to operate a motor vehicle safely. Trooper Roushinko, who witnessed the evaluation, concurred in this finding.

The municipal court judge found the testimony of Troopers Schmalz and Harrison "extremely credible" and sufficient to support the DWI charge as well as the drug and motor vehicle charges. On the former, defendant was sentenced to fines, court costs, seven months loss of driver's license, and twelve hours in the Intoxicated Driver Resource Center (IDRC). He was assessed fines and costs for speeding, and fines and costs as well as a concurrent six-month driver's license suspension on the possession of marijuana conviction, into which the possession of drug paraphernalia offense was merged.

On the trial de novo, the transcript of the municipal court proceeding contained many indiscernible passages. Yet, despite having to "spend considerable time with the transcript," the Law Division judge found the record "adequate and sufficiently clear" to complete its de novo review. Based thereon, the court concluded: looking at the combination of the credibility findings made by the Municipal Judge, the items that were placed in evidence... the lab tests and so forth, with the totality of the circumstances, this Court finds that the decision made by the Municipal Court was appropriate.... I find today the evidence is clearly beyond a reasonable doubt, and I once again find this defendant guilty of the offenses to which he was charged[.]

The court imposed the same sanctions as did the ...


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