Opinion
DOCKET NO. A-4537-14T1
05-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HITESH SEGHAL, Defendant-Appellant.
Jared B. Weiss argued the cause for appellant (Fruchter, Weiss & Associates, attorneys; Harvey Fruchter, of counsel; Mr. Weiss, on the briefs). Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Campbell, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 6122. Jared B. Weiss argued the cause for appellant (Fruchter, Weiss & Associates, attorneys; Harvey Fruchter, of counsel; Mr. Weiss, on the briefs). Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Campbell, on the brief). PER CURIAM
Defendant Hitesh Seghal appeals from the Law Division's order entered after a de novo trial on the record. The Law Division judge found him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. After reviewing the record in light of the contentions advanced on appeal and the applicable law, we affirm.
While on patrol, Cranford Police Officer Sean Holcomb observed a vehicle crossing over the center yellow line, the occupant of which was not wearing a seatbelt. When Holcomb stopped the vehicle and approached the driver, he noted defendant's eyes were glassy and he smelled the odor of alcohol emanating from the car. The officer inquired whether defendant had been drinking; he responded he had consumed two or three beers. Defendant was asked to undergo several field sobriety tests which he was unable to successfully perform.
Based upon the officer's observations, the odor of alcohol emanating from the vehicle, and defendant's poor efforts at performing the field sobriety tests, he was arrested and charged with DWI.
In preparation for the administration of the Alcotest at the police station, Detective Matthew Nazzaro began to observe defendant, seated in a holding cell, at 4:12 a.m. The detective was sitting three to five feet away from the cell. At 4:36 a.m., the detective asked Holcomb to begin observing defendant so that he could input information into the Alcotest machine. The test was administered at 4:41 a.m. and resulted in a .13% blood alcohol reading.
At the close of the State's case, defendant objected to the admission of the Alcotest results, arguing that the officers did not comply with the twenty-minute uninterrupted period of observation required by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). After the municipal court judge overruled the objection and admitted the Alcotest results, defendant again objected to their admission as the State had not introduced into evidence the operator's certification card for the generator of the report.
Defendant contends that when Nazzaro turned to input information into the Alcotest, it stopped the required twenty-minute continuous period.
The prosecutor had introduced into evidence the certification card of the trooper who did the linearity and control tests.
The prosecutor requested he be permitted to re-open the State's case, contending the failure to introduce the card was an oversight and he had the required document. The municipal court judge permitted the State to re-open its case, re-call Nazzaro to the witness stand and move the required document into evidence. Defense counsel declined to cross-examine the detective.
The Law Division judge found the "State has met its burden in establishing that defendant was continuously observed for a period of at least twenty minutes prior to the administration of the Alcotest as required by Chun. The observation period in the present case was a joint effort between Detective Nazzaro and Officer Holcomb." She further noted that it was "not an abuse of discretion to permit the State to reopen its case and introduce the credentials and testimony of Detective Nazzaro." The judge found defendant guilty of DWI as a per se offender based on the Alcotest results; she found sufficient observational evidence of defendant's intoxication as well.
On appeal, defendant argues:
POINT I: THE RESULTS OF THE ALCOTEST SHOULD HAVE BEEN SUPPRESSED FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF STATE V. CHUN.
A. THE STATE FAILED TO MEET ITS BURDEN TO PROVE THAT THE DEFENDANT WAS CONTINUOUSLY OBSERVED FOR TWENTY MINUTES IMMEDIATELY PRIOR TO THE ADMINISTRATION OF THE ALCOTEST.
B. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE TO RE-OPEN THE CASE-IN-CHIEF TO INTRODUCE ADDITIONAL TESTIMONY AS TO THE ALCOTEST.
POINT II: THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION OF DRIVING WHILE INTOXICATED BASED UPON THE OBSERVATIONS OF THE DEFENDANT MADE BY THE POLICE.
Our scope of review is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). The two-court rule provides that we "should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999) (citation omitted).
Appellate courts give substantial deference to a trial judge's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). These findings should only be disturbed when there is no doubt that they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Id. at 412. We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We begin by addressing defendant's contention that because the officers conducting the Alcotest did not comply with the twenty minute observational period required in Chun, supra, 194 N.J. at 79, the results of the testing should have been suppressed. We disagree.
The protocol for the administration of the Alcotest established in Chun requires operators to wait twenty minutes before collecting a breath sample. "[T]he operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the testing sequence." Ibid. The waiting period must begin anew if the "arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth." Ibid. Nazzaro's testimony satisfied the observational requirement. As the judge stated:
The observation period . . . was a joint effort between Detective Nazzaro and Officer Holcomb. Nazzaro started observing defendant face-to-face at 4:12 a.m., and twenty-four minutes later at 4:36 a.m. began inputting information into the Alcotest machine, at which point he acknowledged that he turned away from defendant. Other than inputting information into the Alcotest, Nazzaro could not recall any other time his attention was 'not fully, completely, and uninterruptedly on the defendant.' When Nazzaro was not observing defendant face-to-face, he designated Holcomb to conduct the observations. During the observation period, Nazzaro testified defendant did not ingest, regurgitate or place anything into his mouth.
We disagree with defendant's argument that Holcomb was required to testify to his own observations. As we have previously noted, the State's burden as to the observational element is to show that defendant was continuously observed during the twenty-minute period. "The identity of the observer is not germane to this central point. The State can meet this burden by calling any competent witness who can so attest." State v. Ugrovics, 410 N.J. Super. 482, 485 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). Nazzaro's testimony satisfied the observational element.
Defendant does not argue that the absence of Holcomb's testimony deprived him of his Sixth Amendment confrontation right. --------
Defendant also contends that the municipal court judge erred in permitting the State to re-open its case to permit additional testimony respecting the Alcotest. Again, we disagree. After the State rested its case, defense counsel objected to the admission of the Alcotest findings, citing deficiencies in the prosecutor's presentation of the results. The Law Division judge found it was "not an abuse of discretion to allow the State to recall Detective Nazzaro and question him about removing electronic devices from the room and changing out the mouthpiece." She also noted that all of the foundational documents required by Chun had been admitted into evidence during the State's case.
Defendant's reliance on State v. Kuropchak, 221 N.J. 368 (2015) is not persuasive. In that case, a required foundational document was not proffered during the State's case-in-chief. Id. at 377. After realizing the mistake, the prosecutor sought to introduce the document on a subsequent trial day following a witness whose testimony was unrelated to the Alcotest. Ibid. Although the State had not sought to reopen its case, the trial judge admitted the document. Id. at 385. The Court found this procedure improper and as the foundational documents were not properly admitted into evidence, the defendant's conviction of per se intoxication was unsubstantiated. Ibid.
We find the circumstances in this matter to be dissimilar. Immediately following defendant's objection to the admission of the Alcotest results, the prosecutor moved to re-open the case. After discussion, Nazzaro was permitted to provide additional testimony and was subjected to cross-examination. Unlike the situation in Kuropchak, Nazzaro was the operator of the test, not a rebuttal witness. As the Law Division judge concluded here: "Under the circumstances, it was not an abuse of discretion to permit the State to reopen its case and introduce the credential and testimony of Detective Nazzaro."
We are satisfied there is sufficient credible evidence in the record to substantiate the Law Division judge's findings that defendant was guilty of DWI as a per se offender, and therefore find that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirm substantially for the thoughtful reasons expressed by the Law Division judge.
Affirmed. The stay pending appeal is vacated.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION