On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2009-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Defendant Reynold Regis appeals his conviction on July 6, 2009, of driving under the influence of a controlled dangerous substance (CDS), contrary to N.J.S.A. 39:4-50, and failure to maintain a lane, contrary to N.J.S.A. 39:4-88(b). We affirm in part and reverse in part.
On August 4, 2008, at about 8:06 p.m., defendant was traveling in the right-hand lane of Route 280 in Roseland when he was stopped by a New Jersey State Trooper. Trooper Dennis Cappello was on patrol at that location and observed defendant's vehicle swerve over the fog line onto the shoulder two or three times. The trooper stopped the vehicle and approached the driver's side. He immediately detected an odor of burnt marijuana and asked defendant for his driving credentials. Defendant complied with this request.
Trooper Cappello noticed that defendant's eyes were bloodshot and watery and that he appeared extremely nervous. The trooper observed a female passenger in the vehicle, defendant's girlfriend Camilla Reynolds, and asked defendant why he smelled marijuana. Defendant replied, "I'm just driving with my girlfriend." Considering the answer unresponsive, the trooper asked defendant to exit the vehicle. The trooper again asked defendant about the marijuana, and he replied that possibly his girlfriend smoked marijuana in the car earlier that day. The trooper observed defendant swaying when he walked, using his arms for balance while standing, and fumbling with his hands. The officer directed defendant to the front of his vehicle, and the trooper administered two field sobriety tests:
the walk-and-turn test and the one-legged-stand test. Defendant failed to properly perform both tests, although this was only partially recorded on the trooper's video camera because the test was conducted in front of defendant's car.
Defendant was then placed under arrest for driving while intoxicated (DWI). The trooper admitted that he did not administer the horizontal-gaze nystagmus test to defendant because that was only used for alcohol intoxication. Having arrested defendant, the trooper searched him but found no CDS. The passenger was asked to exit the vehicle, and she was then searched with similar results. A subsequent search of the vehicle's center console revealed a small baggie of marijuana. Defendant and his girlfriend both denied ownership of it and were both arrested.
After administering Miranda*fn1 rights, the trooper transported defendant to the Totowa State Police substation. Defendant then underwent an alcohol breath test, which resulted in a zero reading. He gave a urine sample, which was secured by the trooper and marked as evidence No. 020806. The suspected CDS was also bagged and tagged under No. A020805. Defendant was released to his mother at 10:00 p.m.
At trial, in addition to the testimony of Trooper Cappello, the State called Michael Baklarz, a forensic scientist whose job is to analyze blood and urine for the presence of alcohol and drugs. Baklarz testified that the urine he tested was positive for marijuana metabolites. However, no quantitative analysis of the sample was made.
The State also called Maria Fazio Zanakis, a forensic science expert, who analyzed the vegetation contained in the plastic bag. She could not testify as to how the sample was received in her laboratory, but was familiar with the receipt of samples generally. She testified that the sample she analyzed weighed .53 grams and, based on a microscopic test and a color test, identified the sample as marijuana.
Defendant called his passenger, Camilla Reynolds, as his sole witness. She testified that the marijuana found in the vehicle belonged to her; defendant had no knowledge of it being in the vehicle; she had accepted responsibility for it; and she had pleaded guilty to a possession charge in juvenile court. At the conclusion of the case, the Roseland Municipal Court judge found defendant not guilty of possession of CDS but guilty of driving while intoxicated and failure to maintain a lane. Defendant appealed his conviction and sentence to the Law Division.
The Law Division judge who heard the case "affirmed" the judgment of the municipal court on both offenses and imposed the same penalties imposed by the municipal court. This sentence was stayed for forty-five days to permit defendant to file an appeal. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - THE LAW DIVISION JUDGE ERRED BY FAILING TO PROPERLY REVIEW THE CASE DE NOVO; THEREFORE, AFFIRMANCE OF THE DECISION OF THE MUNICIPAL COURT JUDGE WARRANTS REVERSAL BY THIS COURT.
POINT II - THE STATE FAILED TO PROVE A VIOLATION OF N.J.S.A. 39:4-50 AS IT FAILED TO SHOW, BEYOND A REASONABLE DOUBT, THAT REGIS WAS UNDER THE INFLUENCE OF DRUGS.
POINT III - THE STATE FAILED TO ESTABLISH A PROPER CHAIN OF EVIDENCE WARRANTING EXCLUSION OF THE EXPERT TESTIMONY AND REVERSAL OF REGIS' CONVICTION.
POINT IV - THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT REGIS VIOLATED N.J.S.A. 39:4-88b.
We find no merit to defendant's first point on appeal. The Law Division judge clearly found the facts de novo from the transcript of the municipal court hearing. He did not read the municipal judge's decision into the record. Rather, he made his own findings of fact, citing the transcript for each fact he found. Many of the facts he found were not mentioned in the municipal court judge's decision. Thereafter, he said:
As to discussion, the State and the appellant agree the appellant is permitted a de novo review of the record from [the] lower court pursuant to [Rule] 3:23-8(a).
De novo consideration requires [the] reviewing judge to determine the case completely anew on the record made below before the trial judge, giving due, although not controlling regard to the opportunity of the judge to judge the credibility of the witnesses. See State versus Cerefice, 335 N.J. Super. 374, at 382 (App. Div. 2000).
The reviewing court must determine, "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Citing State ...