Opinion
DOCKET NO. A-1103-11T3
03-18-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIE KUROPCHAK, Defendant-Appellant.
Miles Feinstein argued the cause for appellant (Miles Feinstein, attorney; Mr. Feinstein and John Vincent Saykanic, on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-21-10.
Miles Feinstein argued the cause for appellant (Miles Feinstein, attorney; Mr. Feinstein and John Vincent Saykanic, on the brief).
Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; David A. Malfitano, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Julie Kuropchak was convicted in the Garfield Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Following a trial de novo in the Law Division, she was again found guilty. As a third time offender, defendant was sentenced to 180 days in Bergen County Jail, a ten year driver's license suspension, a three year interlock on her ignition following the ten year suspension, and to pay monetary fines and penalties.
On appeal, defendant raises the following arguments for our consideration:
POINT I
THE LAW DIVISION FINDING OF GUILTY DE NOVO SHOULD BE REVERSED AS TO THE DRUNK DRIVING (AND SCHOOL ZONE) CONVICTION AND A FINDING OF "NOT GUILTY" SHOULD BE ENTERED; THE INTERESTS OF JUSTICE DEMAND JUDICIAL INTERVENTION AND CORRECTION AS REASONABLE DOUBT EXISTS BASED ON THE OBSERVATIONAL (NON-PER SE) EVIDENCE ADDUCED AT TRIAL
POINT II
THE CONVICTION(S) MUST BE REVERSED AND THE SUMMONSES DISMISSED SINCE THERE WAS INSUFFICIENT EVIDENCE TO JUSTIFY THE DEFENDANT BEING TAKEN INTO CUSTODY AND BROUGHT TO POLICE HEADQUARTERS FOR FURTHER TESTING
POINT III
THE MUNICIPAL COURT JUDGE ERRED IN ADMITTING INTO EVIDENCE OVER THE DEFENDANT'S OBJECTION THE DRINKING DRIVING REPORT, THE DRINKING DRIVING QUESTIONNAIRE AND OTHER HEARSAY DOCUMENTS PRIOR TO ANY SWORN TESTIMONY BEING ADDUCED AND WITHOUT ANY LEGAL JUSTIFICATION; THIS PRACTICE PRESENTS A VIOLATION OF THE CONFRONTATION AND DUE PROCESS CLAUSES AND
CONSTITUTES AN UNCONSTITUTIONAL EXTENSION OF THE BUSINESS RECORD HEARSAY EXCEPTIONS APPLICABLE TO "FOUNDATIONAL DOCUMENTS" PURSUANT TO STATE V. CHUN
POINT IV
THE TRIAL JUDGE WAS BIASED AGAINST THE DEFENDANT, FAVORED THE PROSECUTION, AND DEPRIVED DEFENDANT OF HER SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL
POINT V
THE ALCOTEST RESULTS SHOULD HAVE BEEN SUPPRESSED AS THE DEFENSE EXPERT OPINED THAT THE FOUNDATIONAL REQUIREMENTS OF STATE V. CHUN WERE NOT ADHERED TO AS THERE WAS NO CERTIFICATE OF ANALYSIS FOR SOLUTION CONTROL LOT 08J060
POINT VI
THE ALCOTEST RESULTS SHOULD HAVE BEEN SUPPRESSED DUE TO THE TIMING OF THE TESTS AND THE FAILURE TO ADHERE TO "THE 20 MINUTE RULE" OF STRICT OBSERVATION PRIOR TO OBTAINING THE RESULTS USED TO CONVICT DEFENDANT UNDER THE "PER SE" PORTION OF THE DWI STATUTE
POINT VII
THE ALCOTEST RESULTS SHOULD HAVE BEEN SUPPRESSED DUE TO THE PRESENCE OF A CELL PHONE IN THE ALCOTEST ROOM DURING THE TESTING OF THE DEFENDANT
POINT VIII
THE ALCOTEST RESULTS SHOULD HAVE BEEN SUPPRESSED DUE TO THE DEFENDANT'S TONGUE RING, BLOOD IN THE DEFENDANT'S MOUTH, AND
HER REPETITIVE USE OF CHAPSTICK DURING THE ALCOTEST PROCEDURES
POINT IX
THE TRIAL COURT ERRED IN NOT ADMITTING INTO EVIDENCE THE PHARMACY AND MEDICAL RECORDS OF THE DEFENDANT
POINT X
NUMEROUS DISCOVERY VIOLATIONS MANDATE A REVERSAL OF DEFENDANT'S CONVICTION(S) AND DISMISSAL OF THE SUMMONSES
After reviewing the record in the light of defendant's arguments, we affirm defendant's DWI conviction and sentence.
I.
The following facts are derived from the trial record. On January 25, 2010, at approximately 8:45 p.m., Garfield Police Officer Dennis Serritella arrived at the scene of a two car accident involving defendant on Chestnut Street in Garfield, New Jersey. Upon arrival at the scene, he observed that the "two cars were head-on with each other" and had significant damage. Additionally, defendant's car appeared to be in the wrong lane.
The driver of the other car was later charged with DWI.
According to Officer Serritella, he approached defendant's car and observed that she was in the driver's seat. He asked her if she was injured and "she stated her chest hurt, but she didn't need an ambulance." Next, Officer Serritella asked defendant if she had been drinking, to which she replied that she had not and elaborated that she was coming from the doctor's office. Defendant then asked Officer Serritella "why she was being treated like a criminal because she got into an accident that wasn't her fault." Officer Serritella asked defendant for her credentials, she stared at him blankly for a few moments, and then was slow to retrieve them.
Based on his suspicion that defendant was intoxicated, Officer Serritella had defendant perform three field sobriety tests — the finger to nose test, the one legged balance test, and the walk and turn test. Defendant exited her vehicle to perform the tests without any difficulty. According to Officer Serritella, defendant passed the finger to nose test, but failed the other two tests. During the one legged balance test, defendant was unable to hold her leg up for thirty seconds and dropped her leg "many" times. Defendant informed Officer Serritella that she had difficulty balancing due to surgeries she had on her foot when she was thirteen years old. During the walk and turn test, defendant failed to walk in a "heel to toe manner" as instructed, constantly picked her head up, and also paused between steps.
Officer Serritella further observed that defendant was "swaying and her knees were sagging" as she walked, her complexion was pale, her speech was slow and slurred, her demeanor was sleepy, and her eyes were bloodshot and watery. Officer Serritella then placed defendant under arrest for DWI and transported her in his patrol car to police headquarters.
At headquarters, Officer Serritella read defendant her Miranda rights and the Department of Motor Vehicles' Standard Statement for Operations of a Motor Vehicle. When asked whether she would submit to a breath test, defendant responded that she would. Officer Serritella also asked defendant questions from the Drinking Driving Questionnaire. When asked if she was sick, defendant responded that she had a urinary tract infection for which she was under the care of a doctor. When asked if she was taking any medication, defendant responded that she was taking an appetite suppressant.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Officer Serritella then proceeded to administer the Alcotest to defendant. The first seven tests produced either no results or results outside acceptable limits. For at least some of these tests, it appears defendant failed to produce the minimum required volume of air. The eighth and ninth tests administered finally produced test results within the acceptable tolerance. Both results produced a 0.10% BAC reading.
Defendant testified on her own behalf at trial. According to defendant, between approximately 2:00 and 3:00 p.m. on the day of the accident, she went with friends to a restaurant in Hasbrouck Heights. Defendant claimed that one friend ordered a margarita, from which defendant had a "sip." Defendant denied drinking any other alcoholic beverage that day.
According to defendant, after leaving the restaurant, she drove alone to her doctor's office at 8:30 p.m. due to pain from a urinary tract infection. She was at the doctor's office for approximately ten minutes. Her doctor called in a prescription for her to a pharmacy adjacent to the office. At 8:48 p.m., defendant picked up her prescription.
Defendant testified that she began to drive home immediately after leaving the pharmacy. While driving on Chestnut Street, a two lane street with one lane in each direction, she said she observed a vehicle with its lights off driving towards her while straddling the middle line. Defendant said this caused her to swerve left and hit her brakes in an attempt to avoid the other car, but the two cars ended up colliding. She claimed that she chose not to swerve right because she did not want to hit parked cars on the right side of the road.
According to defendant, the collision caused her car's airbags to deploy. She claimed she exited her car due to the presence of smoke. Additionally, she said she was bleeding from her neck and had blood in her mouth. Defendant explained that she was slow to produce her credentials because "everything was all over the place" following the impact. Additionally, she claimed she had difficulty answering questions due to breathing problems caused by smoke inhalation.
Regarding the field sobriety tests, defendant testified that she followed the officer's directions on the walk and turn test. Additionally, she claimed she could not perform the one legged balance test for thirty seconds due to "a botched surgery on [her] feet when [she] was [thirteen] years-old." According to defendant, it is "literally impossible" for her to balance on one foot for thirty seconds.
The defense also presented the testimony of defendant's father. He testified that defendant called him from police headquarters and denied that she had consumed alcohol. Additionally, he claimed that defendant did not appear intoxicated when he picked her up from police headquarters.
Finally, Gary Aramini, a DWI expert, testified for the defense. First, Armani testified that the State failed to properly lay a scientific foundation for the admissibility of the Alcotest results pursuant to State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158 (2008). Specifically, Aramini claimed "no simulator solution assay Certificate of Analysis was given for solution control lot 08J[060], . . . which is required for scientific purposes."
Second, Aramini testified the Alcotest results should not have been admitted because the State failed to introduce "the most recent [C]alibrating [U]nit [N]ew [S]tandard [S]olution [R]eport prior to . . . defendant's test" into evidence.
Based on the evidence presented, the Law Division judge found sufficient evidence that defendant was guilty de novo of DWI based on the observational evidence, giving due deference to the municipal court's credibility determinations.
The Law Division judge additionally found defendant guilty de novo under the per se prong of the DWI statute. Without elaboration, the judge found that the evidence supported the State's contention that it presented the three foundational documents necessary for admitting the Alcotest results. See id. at 154.
Finally, the Law Division judge determined that it was not improper for the municipal court to enter the police reports into evidence as business records and the municipal judge's questioning of the witnesses was not improper.
II.
Municipal DWI convictions are first appealed to the Law Division. R. 7:13-1; R. 3:23-1; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). The standard of review of such appeal is de novo, Rule 3:23-8, and the Law Division decides the case anew, deferring only to the credibility findings of the municipal court. State v. Locurto, 157 N.J. 463, 472-74 (1999). On appeal to this court, we review whether there is sufficient credible evidence in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). On issues of law, our review is de novo. State v. Brown, 118 N.J. 595, 604 (1990). However, like the Law Division, we defer to the credibility determinations of the municipal court. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
"[A] violation of [the DWI statute] may be proven 'through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level.'" State v. Howard, 383 N.J. Super. 538, 548 (App. Div.) (quoting State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, o.b., 180 N.J. 45 (2004)), certif. denied, 187 N.J. 80 (2006). In this matter, the Law Division judge found the State had proven defendant's guilt on both grounds beyond a reasonable doubt.
A.
We first consider the validity of defendant's conviction based on the Alcotest results. Defendant contends that the Alcotest results should not have been admitted because the State failed to meet the foundational requirements articulated in Chun, supra, 194 N.J. 54.
The State is required to enter three core foundational documents into evidence at trial to admit the Alcotest results: "(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent New Standard Solution Report prior to a defendant's test; and (3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control tests." Id. at 154.
Here, there was a control test performed prior to each round of defendant's breath tests on January 25, 2010. These control tests all used "Solution Control Lot: 08J060[.]" The record shows that the State did not admit into evidence the Certificate of Analysis for 0.10 simulator solution control Lot 08J060 as part of the State's case. Additionally, the most recent Calibrating Unit New Standard Solution Report was not admitted into evidence during the State's case.
We first address the issue regarding the Certificate of Analysis. According to the trial record, the State submitted a Certificate of Analysis into evidence on July 28, 2010. However, the municipal judge did not identify on the record the simulator solution lot number on the certificate, merely stating "I already marked that. This is S-12. It is a Certificate of Analysis of the breath alcohol simulator solution." Defendant's expert testified that "no simulator solution assay Certificate of Analysis was given for solution control lot 08J[060] . . . , which is required for scientific purposes."
The State does not argue that it entered into evidence the Certificate of Analysis for solution control lot 08J060. It readily admits that it only entered into evidence the Certificate of Analysis for solution control lot 09D065. The State contends that a Certificate of Analysis coincides with the calibration report. The State contends that the Alcotest machine is only required to be calibrated semi-annually, while the local police department is required to obtain new solutions every thirty days or twenty-five test subjects, whichever comes sooner. Thus, the lot number on the most recent Certificate of Analysis would not match the one on defendant's breath tests, as there would have been multiple new solutions between the May 8, 2009 calibration and defendant's January 25, 2010 breath test.
We do not find the State's explanation convincing. There are two different types of control tests performed using a simulator solution. There is a control test done as part of the Alcotest's semi-annual calibration, which here, was last completed on January 12, 2010, using simulator solution control lot 09D065. There are also control tests performed prior to and following a DWI suspect's breath tests. Here, there was a control test performed prior to and following the three rounds of defendant's breath tests on January 25, 2010 using "Solution Control Lot: 08J060[.]" Chun, supra, requires the State to enter into evidence "the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control tests." 194 N.J. at 154 (emphasis added). Nowhere in Chun does it say that that the State may instead use the Certificate of Analysis of the 0.10 simulator solution used in the control test for the Alcotest's semi-annual calibration.
Next, we address the issue of the Calibrating Unit New Standard Solution Report. During the State's case, the municipal court admitted into evidence the Calibrating Unit New Standard Solution Report dated January 12, 2010. During cross-examination, defendant's expert identified the document the State should have admitted, the Calibrating Unit New Standard Solution Report, completed on January 25, 2010, as part of defendant's Alcotest. Upon examining it, the prosecutor stated, "[n]o, no, I was never provided that document by my, my discovery by the police department."
The judge then asked "so what's the State's position? Do they want to reopen?" At that point, defense counsel objected. Moments later, the following colloquy occurred:
[PROSECUTOR]: For the record, Judge, I was never supplied with that one by discovery. I don't know why.
. . . .
THE COURT: What, what are you saying?
[PROSECUTOR]: It was never supplied in my discovery, in my package, with that one sheet.
THE COURT: Prosecutor, you're the one who supplies the discovery.
[PROSECUTOR]: I know. --
THE COURT: You can't say you weren't supplied with it.
Two weeks later, at the next court session of the trial, the prosecutor presented to the court, "for identification," the Calibrating Unit New Standard Solution Report dated January 25, 2010. In response, the judge stated "[t]his is the new standard solution report dated January 25th, 2011. I'll allow it into evidence." This occurred at the conclusion of limited rebuttal testimony from Officer Serritella that did not concern the Alcotest. We note that the State had not moved to reopen its case at that point, or at any point.
Given the sequence of these events, we have reservations whether either the correct Certificate of Analysis or the correct Calibrating Unit New Standard Solution Report were properly admitted into evidence. Because of these concerns, and in light of the evidence supporting defendant's conviction based on the observational evidence, we decline to address whether the evidential record would fairly support the Law Division's guilty finding under the per se prong of the DWI statute.
The correct Certificate of Analysis in this case would be for the 0.10 Simulator Solution control lot 08J060.
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B.
Next, we consider defendant's conviction based on the observational evidence. To prove a defendant is guilty under the DWI statute, the State may rely on the observational evidence of a lay witness. Bealor, supra, 187 N.J. at 585. Indicia that a person is intoxicated include, but are not limited to — failure to perform field sobriety tests, slurred speech, sagging knees, bloodshot eyes, and blank stares. See, e.g., id. at 590-91; State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001).
Despite defendant's arguments to the contrary, we find sufficient credible evidence in the record to support defendant's DWI conviction based on the observational evidence. As summarized by the Law Division judge:
First Officer Serritella testified that when he arrived at the scene of the accident, the defendant's vehicle was in the opposite lane from where it should have been, with the defendant seated in the driver's seat. Officer Serritella also testified that when he asked the defendant to produce her credentials, she did not respond and simply stared at him, defendant admitted herself to doing so, before slowly producing them. Additionally, the defendant did not successfully perform the field sobriety tests administered by the Officer. Lastly, Officer Serritella made numerous observations concerning the defendant's physical indicia of intoxication: namely that she swayed as she walked, she had pale complexion, her speech was slow and slurred, she appeared sleepy, and her eyes were bloodshot and watery.
Defendant contends that other evidence shows she was not intoxicated. Notwithstanding defendant's explanations for her demeanor at the accident scene, the municipal court judge found defendant's testimony incredible and Officer Seritella's testimony credible. The Law Division correctly deferred to the municipal judge's credibility findings, and we are mandated to defer to those findings as well. Locurto, supra, 157 N.J. at 472. Because the findings of the Law Division could reasonably have been reached on sufficient credible evidence present in the record, we affirm defendant's conviction based upon her physical condition. Howard, supra, 383 N.J. Super. at 548.
III.
We now turn to defendant's arguments concerning evidentiary issues. Defendant first contends that the "Drinking Driving Questionnaire" and the "Drinking Driving Report" were improperly entered into evidence prior to any testimony.
Hearsay is a statement "other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). An exception to the hearsay rule is the business record exception. N.J.R.E. 803(c)(6). In order for a document to be admitted under the business record exception:
First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.
[State v. Matulewicz, 101 N.J. 27, 29 (1985). ]
Here, the Law Division judge properly concluded, police reports, such as the two documents at issue, are generally admissible as business records. See State v. Burris, 357 N.J. Super. 326, 337 (App. Div. 2002). The transcript is unclear as to whether the municipal judge was marking the documents for identification or admitting them into evidence prior to a proper foundation being laid for their admission. Regardless, any harm presented by the premature admission of the reports into evidence was soon mitigated by Officer Serritella testifying as to the contents of the reports.
Defendant's Sixth Amendment rights were not impacted by the admission of the documents. The Sixth Amendment of the United States Constitution bars the admission of "testimonial" hearsay in a criminal trial without the defendant's opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004). This was not an issue in this case, as Officer Serritella was available for cross-examination, and was in fact extensively cross-examined by defense counsel. Thus, even if it was error to admit the reports into evidence, it was harmless. State v. Modell, 260 N.J. Super. 227, 247 (App. Div. 1992) ("Hearsay error, depending on the circumstances, may be harmless error or it may require reversal.").
Defendant also contends that the municipal judge erred by failing to admit her prescription and medical records into evidence and the Law Division erred by failing to consider the records. Defendant fails to provide any authority to support this claim of error.
Nevertheless, defendant testified that she picked up her prescription and testified regarding her foot surgeries. We fail to see where the admission of either record would have had any effect on the outcome of the proceeding. The Law Division judge correctly found that he was bound by the evidentiary record of the municipal court, which did not include the prescription or medical records. See State v. Loce, 267 N.J. Super. 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div), certif. denied, 134 N.J. 563 (1993).
As to defendant's remaining arguments, we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION