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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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?
Q. Okay. And what is your opinion?
Q. And why are you of the opinion that he was the one that was operating the motor vehicle ...