On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-09-1757.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012 --
Before Judges Fuentes, Graves and Koblitz.
Defendant Kenneth W. Verpent appeals from his December 7, 2010 judgment of conviction. After losing a motion to suppress the laboratory analysis of his urine sample, defendant was convicted by a jury of third-degree assault by auto in Bergen County Indictment No. 09-09-1757. N.J.S.A. 2C:12-1(c)(2). Defendant was also found guilty in a subsequent non-jury trial, pursuant to Rule 3:15-3(a), of (1) the disorderly persons offense of being under the influence of a controlled dangerous substance without a medical purpose, N.J.S.A. 2C:35-10(b); (2) reckless driving, N.J.S.A. 39:4-96; and (3) driving while intoxicated, N.J.S.A. 39:4-50. After merging the disorderly persons and reckless driving offenses into the assault by auto charge, Judge Jerejian sentenced defendant on his convictions of assault by auto and driving while intoxicated to an aggregate term of five years in prison and ordered him to pay the required fees and penalties. After reviewing the record in light of the contentions advanced on appeal, we affirm, remanding only to correct the judgment of conviction to more accurately reflect the record.
The State presented the following evidence at trial. At about 10:15 a.m., on December 3, 2008, Sabrina Patrick was traveling in her Honda Accord from Little Falls, New Jersey, to New York City. It was a clear, sunny day, and the road surface was dry. She was stopped at the main toll plaza for the George Washington Bridge when she heard a "very loud crash," after which she "was looking at the ceiling of [her] vehicle" because the driver's seat in her car had been broken by the impact and she had been flung backwards.
Defendant, who was operating a flatbed tow truck, failed to stop and, according to an eyewitness, "slammed into the back of the Honda, and a second later that Honda hit the back of a truck in front of it." Her treating physician testified at trial that, as a result of the collision, Patrick had an "L3 burst fracture" of a vertebra, which required "spinal fusion" surgery and the insertion of metal rods into her body to provide needed support.
An accident reconstruction expert testified that the left front side of defendant's truck struck the right rear side of Patrick's car at a minimum speed in the range of twenty-seven to thirty-three miles per hour. The expert attributed the accident to defendant's "delayed perception response;" that is, defendant failed to apply the truck's brakes until it was too late to avoid colliding with Patrick's car.
Around 11:00 a.m., after Patrick had been removed from her car by "the jaws of life," Port Authority Police Officers Steven Truglio and Brian Faustina spoke with defendant concerning the collision. Truglio testified that defendant, who was seated in the driver's seat of his truck, stated that he had not been injured in the accident.
Defendant provided his driver's license, registration, and proof of insurance in a slow manner. His eyes were bloodshot and watery and his pupils were "constricted."
Truglio asked defendant to exit the truck and walk to its front. Truglio observed that defendant was slow-moving, lethargic, as well as "slightly unsteady" and "a little wobbly on his feet." Defendant's demeanor was very polite and calm, though his physical appearance was a "mess."
Truglio asked defendant "how he caused the crash," to which defendant replied that "he just didn't see the car in front stopped, and he had nodded off at the wheel."
Truglio then had defendant perform two field sobriety tests. Defendant failed the "finger to nose" test, but passed the "one-legged stand" test. At that point, Truglio and Faustina took defendant to the police station so that a breathalyzer test could be administered in order to "rule out alcohol."
At 12:44 p.m., defendant was tested and did not have any alcohol in his system. Truglio then decided to have defendant evaluated by a police drug recognition expert (DRE).*fn1
DRE Brian McKeever of the Hillsdale Police Department arrived at the police station at around 1:30 p.m. According to McKeever, Truglio asked that a DRE evaluation be performed because the level of impairment that defendant exhibited was inconsistent with the negative breathalyzer test results.
McKeever testified that defendant stated that he had slept well and taken no prescribed medications. McKeever took defendant's temperature, pulse, and blood pressure, all of which registered on the lower side of the normal range, and he noted that defendant's pupils were constricted, his forearms had puncture marks, and his overall muscle tone was "very flaccid." McKeever then conducted four field sobriety tests, some of which defendant failed.
McKeever testified to his conclusion "from the totality of the exam, taking into account the vital signs, his divided attention, the psychophysical tests, the pupils in the dark room, that . . . [defendant] was unable to operate a motor vehicle safely, that he was impaired, and he was under the influence of a narcotic analgesic."*fn2
Following the DRE testing, McKeever asked Truglio to request blood and urine samples from defendant. Defendant refused to provide a blood sample, but voluntarily provided a urine sample.
Defendant's urine specimen tested positive for cocaine and marijuana metabolites. The State presented testimony from H. Chip Walls, who was qualified as an expert in forensic toxicology and the effects of alcohol and drugs on humans. Walls concluded that, when defendant's truck struck Patrick's car, defendant was suffering the "downside" of his prior ingestion of cocaine; he was "crashing" after the initial stimulating effects of his cocaine use had passed.*fn3
According to Walls, during such a downside crash from cocaine ingestion, a person becomes very quiet and sleepy, with a lowered heart rate and blood pressure. The person's pupils become constricted and his or her muscles become limp and flaccid. The person becomes mentally dull, slow, and inattentive, and is "not paying attention to all the details" of situations occurring around him, and reaction time is diminished.
Walls pointed to an overlap of symptoms to explain the conflict between his opinion that defendant was crashing from cocaine at the time of the collision and McKeever's opinion that defendant was under the influence of a narcotic analgesic at that time.
Defendant testified on his own behalf at trial indicating that he was momentarily distracted. He denied being under the influence of any substance on the day of the accident. He denied ever ingesting cocaine or heroin, and he stated that he had last used marijuana about a week before the accident. In regard to the laboratory report, his only explanation for the presence of cocaine and marijuana metabolites in his urine was that it was not his urine that was tested.
According to defendant, he was "willing to give blood" while at the police station, and he denied that Truglio or McKeever asked him to explain how the accident occurred. He also denied telling Truglio that he had "nodded off" while at the wheel of the truck.
On appeal defendant raises the following issues:
POINT ONE: THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION TO SUPPRESS THE LABORATORY ANALYSIS OF HIS URINE SAMPLE. POINT TWO: OFFICER MCKEEVER IMPROPERLY BOLSTERED THE CREDIBILITY OF EXPERT WITNESS
H. CHIP WALLS, AND PRESENTED TESTIMONY BEYOND THE SCOPE OF HIS QUALIFICATIONS.
POINT THREE: THE EXPERT OPINION OF H. CHIP WALLS ON THE ULTIMATE FACTUAL ISSUE USURPED THE ROLE OF THE JURY.
POINT FOUR: OFFICER TRUGLIO'S ASSESSMENT OF DEFENDANT'S STATE OF MIND CONSTITUTED AN IMPROPER LAY OPINION.
POINT FIVE: THE CONVICTION FOR DRIVING UNDER THE INFLUENCE SHOULD HAVE MERGED INTO THE ...