August 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY SUTTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 40-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2012
Before Judges Payne and Messano.
Following a de novo trial in the Law Division, defendant Anthony Sutton was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and driving with a suspended license, N.J.S.A. 39:3-40. The trial in Monroe Township municipal court revealed the following evidence.
At 9:18 p.m. in the evening of August 1, 2009, Monroe Township police officer Carman W. Iacovone, Jr., received a radio dispatch advising of a motor vehicle "crash" on Route 322 involving a "telephone pole which was broken." He immediately proceeded to that location, which was nearby, and saw a "large debris field and a white vehicle on the shoulder of the road with the occupant hanging out the rear door." In court, Iacovone identified defendant as that occupant of the car. The front end and the driver's side door of the vehicle were heavily damaged. Defendant was lying across the rear seat of the car, unconscious, but breathing.
Corporal James J. Kelly of the police department testified that, on the night in question, he was assigned to the traffic division. He was the "on-call traffic officer" and responded to the accident scene. The parties "stipulated" that Kelly was a "certified accident reconstructionist" since 2000. When Kelly arrived, defendant was already removed from the car.
Kelly spoke to other officers at the scene, took measurements and prepared a diagram of the crash site. Kelly described in detail his opinions regarding defendant's car's path of travel, including how it impacted the utility pole and surrounding trees. The following exchange between the prosecutor and Kelly ensued:
Q. [D]o you have an opinion, based on your investigation, as to whether or not the defendant was operating the motor vehicle at the time of the crash?
A. I . . . do.
Q. Okay. And what is your opinion?
A. That he was.
Q. And why are you of the opinion that he was the one that was operating the motor vehicle at the time of the crash?
A. I've investigated well over 1,000 motor vehicle accidents.
I've seen . . . what can happen to an unrestrained occupant. . . .
Q. And so why, based on your investigation, do you believe that this particular defendant was sitting in the driver's seat at the time of the crash?
A. Because of the direction the vehicle ended up at final rest. I knew there was a rotation there, and because of the rotation of the vehicle and the force of the tree it was easy for me to conclude that he was thrown about the vehicle upon impact.
Defendant moved for a judgment of acquittal, arguing that the State failed to prove "he was actually operating this motor vehicle." The judge denied the motion.
Defendant testified that prior to the accident, he was in a bar intending to purchase some "packaged goods." Defendant met an acquaintance, Raheem, whose last name he did not know, and began drinking with him. At some point, defendant "surrendered" his keys to Raheem, and they left the bar with Raheem driving and defendant in the back seat asleep. "The next thing" defendant recalled was "being [taken] out [of] the vehicle" by EMTs and the police. He denied operating the car after leaving the bar. The judge rejected defendant's testimony and concluded he was operating the motor vehicle at the time of the accident.*fn1
Defendant appealed to the Law Division. He argued that trial counsel provided ineffective assistance in "fail[ing] to properly give him legal guidance by waiving . . . Kelly . . . as an expert," because, although Kelly was qualified as an accident reconstruction expert, he was not "qualified as somebody . . . able to opine about the . . . movement of an individual that was unrestrained within a motor vehicle." Secondly, defendant argued that the State failed to prove beyond a reasonable doubt that he was operating the vehicle at the time of the crash.
The Law Division judge concluded that defendant had failed to demonstrate his trial counsel's performance was "outside the realm of professional competence." She also determined that the "circumstantial evidence" was sufficient to prove beyond a reasonable doubt that defendant was operating the car. The judge found defendant guilty of DWI and driving while his license was suspended. This appeal followed.
Defendant argues in a single point heading that THE COURT BELOW ERRED BY UPHOLDING THE MUNICIPAL COURT JUDGE'S DECISION THAT THE STATE MET THE BURDEN OF PROOF THAT SUTTON WAS THE OPERATOR OF THE MOTOR VEHICLE INVOLVED IN THE ACCIDENT AS THE MUNICIPAL COURT JUDGE AND THUS THE SUPERIOR COURT JUDGE ERRED IN RELYING ON THE OPINION OF AN UNQUALIFIED EXPERT We have considered this argument in light of the record and applicable legal standards. We affirm.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. He must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698) (internal quotation marks omitted).
Here, noting that she had prior experience with Kelly as a witness, trial counsel stipulated to his qualifications. There is nothing before us to indicate that this represented deficient performance, or, that, had she objected, Kelly would not have been qualified to give the very same opinions.
As to the quantum of proof, the municipal court judge and the Law Division judge credited Kelly's testimony. The Law Division judge specifically rejected defendant's assertion that Kelly's opinion -- the nature and force of the collision resulted in defendant being thrown into the back seat -- was a "net opinion." Based upon the record presented, we agree.
"[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). Thus, an expert is required to state "the 'why and wherefore' of his opinion[s], not just . . . mere conclusion[s]." Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 526 (App. Div. 2007) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)), certif. denied, 194 N.J. 272 (2008). Here, Kelly explained how the multiple impacts caused the rotation of defendant's car and resulted in defendant being thrown into the rear seat.
Moreover, there was other significant circumstantial evidence that proved defendant's operation of the vehicle. Iacovone arrived on the scene within one minute of the dispatch; defendant was the only person in the car; the driver's side door was severely damaged; and no other person in the crowd at the scene required medical attention. Both the municipal court judge and the Law Division judge were entitled to discredit defendant's self-serving and completely uncorroborated version of events.