STATE OF NEW JERSEY VS. GREGORY TANASHIANÂ Â (004-08-14, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0623-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY TANASHIAN,
Defendant-Appellant.
____________________________
Argued October 24, 2017 – Decided November 3, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. 004-
08-14.
John Vincent Saykanic argued the cause for
appellant.
Elizabeth R. Rebein, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Ms. Rebein, of counsel and on the brief).
PER CURIAM
Defendant appeals from his de novo conviction for driving
while intoxicated (DWI), N.J.S.A. 39:4-50. This case involves
allegations that defendant drove under the influence of an
inhalant, not alcohol. Erroneous evidentiary rulings, which may
have influenced credibility findings, together with cumulative
errors deprived defendant of a fair trial. We therefore reverse
and remand.
Defendant had an accident in a parking lot at approximately
10:00 a.m. (the parking lot accident), for which he received no
motor vehicle tickets. Defendant was allegedly involved in a hit-
and-run accident later that morning (the hit-and-run accident),
for which he received two tickets: careless driving, N.J.S.A.
39:4-97; and leaving the scene of an accident, N.J.S.A. 39:4-
129(b). At approximately 3:40 p.m. the same day, defendant's
vehicle struck a tree (the tree accident), and he received two
additional tickets: one for DWI, N.J.S.A. 39:4-50, and one for
careless driving, N.J.S.A. 39:4-97.
Defendant moved to sever the tickets relating to the hit-and-
run accident and the tree accident; dismiss the charges on
discovery grounds; suppress urine-test results; and exclude
testimony from the State's drug recognition expert (DRE), Officer
Salvatore LoCascio. The Municipal Court judge granted defendant's
motion to sever the tickets, and denied the motions to dismiss the
tickets, suppress the urine-test results, and exclude the
officer's testimony. The Municipal Court judge then tried the
case on the tree accident charges.
2 A-0623-15T4
The State produced testimony from three witnesses: Officer
John Brown; Officer LoCascio; and Monica Tremontin, an expert
toxicologist. Defendant produced testimony from Dr. Richard
Saferstein. The State stipulated to Dr. Saferstein's
qualifications as an expert in the field of forensic science.
Officer Brown responded to the scene of the tree accident.
When he arrived at the scene, the officer observed defendant
standing outside his vehicle, which had struck a tree located on
someone's lawn. No other vehicle was present, although defendant
eventually told the officer that another vehicle ran him off the
road.
Officer Brown noticed red-paint scrapes, which were
purportedly from the hit-and-run accident, on the side of
defendant's vehicle. Brown testified that defendant produced his
credentials in a "[s]low lethargic manner," his complexion was
pale, and he "didn't look quite right." The officer conducted
field sobriety tests, suspected defendant was under the influence,
and arrested him after verbally administering his Miranda1 rights.
Officer Brown had the vehicle towed from the scene, and transported
defendant to police headquarters.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3 A-0623-15T4
Defendant arrived at the police station and agreed to provide
a urine sample. Defendant gave breath samples, which showed
Alcotest results of 0.0%. As a result, Officer Brown contacted
the Bergen County Police Department and requested that its DRE,
Officer LoCascio, perform a drug influence evaluation of
defendant.
Officer LoCascio arrived at the police station and conducted
the examination. He testified that defendant looked "sluggish,
and he appeared drowsy" and "drunk-like." According to the
officer, defendant's speech was "slow, thick and slurred" and
defendant admitted to taking Xanax, Ambien, and Klonopin.
Officer LoCascio performed a Horizontal Gaze Nystagmus test,
a Vertical Gaze Nystagmus test, and a Romberg balance test, all
of which defendant failed. The officer noticed that defendant's
eyelids were tremoring and his eyes were dilated beyond the average
threshold; his breath had a chemical odor; his tongue had a
brownish tint to it; and his eyes were bloodshot and droopy.
Defendant counted the passage of thirty-five seconds in seventy-
five seconds. Officer LoCascio concluded that defendant was under
the influence of an inhalant.
Ms. Tremontin analyzed defendant's urine sample using a Gas
Chromatography Mass Spectroscopy. Ms. Tremontin testified that
she tested a urine sample that leaked, which meant "there was the
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possibility of the vapor . . . escaping from the container with
the urine in it." She tested that sample twice: one analysis was
negative, and the other showed an indication of difluoroethane
(DFE). Ms. Tremontin concluded that she did not have a proper
sample, and requested another sample from the original specimen.
She then tested the new sample twice, and both were positive for
DFE.
Dr. Saferstein testified that the State's method of testing
defendant's urine could not prove that he was under the influence
of DFE when the tree accident occurred. He opined that the testing
could only show that DFE was present in the urine, but could not
show the quantity, which would clarify the timing of when defendant
may have been under the influence of DFE. Dr. Saferstein testified
that traces of DFE may be present in a urine sample for up to
seventy-two hours after use and that defendant's positive urine
test does not prove he was under the influence while driving.
The Municipal Court judge found defendant guilty of DWI.2 In
reaching that verdict, she found the State's witnesses to be
credible. The Municipal Court judge suspended defendant's license
for two years, and imposed the proper fines and penalties.
2
The Municipal Court judge then dismissed the careless driving
ticket from the tree accident, and the other two tickets related
to the hit-and-run accident.
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Defendant then appealed from his DWI conviction to the Law
Division.
In the Law Division, the judge conducted a de novo trial. He
deferred to the credibility findings of the Municipal Court judge,
and found defendant guilty of DWI. The judge then suspended
defendant's license for two years, imposed the same penalties
defendant had received in municipal court, and then stayed the
sentence pending this appeal.
On appeal, defendant argues:
POINT I
THE LAW DIVISION JUDGE ERRED IN NOT FINDING
THAT THE MUNICIPAL COURT JUDGE DID NOT ABUSE
HER DISCRETION IN HER EVIDENTIARY RULINGS BY
THE ADMISSION OF THE "NEW JERSEY POLICE CRASH
INVESTIGATION REPORT" (S-1), THE "FIELD
SOBRIETY CHECKLIST" (S-2), THE LETTER OF
SERGEANT FIRST CLASS KEVIN M. FLANAGAN (S-3),
THE "DRUG INFLUENCE EVALUATION" (S-4), AND THE
"LOG OF DRUG INFLUENCE EVALUATION" (S-5); THE
MUNICIPAL COURT VIOLATED NOT ONLY DEFENDANT'S
SIXTH AMENDMENT CONFRONTATION RIGHTS, BUT
VIOLATED HIS FOURTEENTH AMENDMENT DUE PROCESS
RIGHT TO A FAIR TRIAL, VIOLATED THE UNITED
STATES SUPREME COURT'S RULING IN CRAWFORD V.
WASHINGTON,[] AND VIOLATED THE NEW JERSEY
SUPREME COURT'S RULING IN STATE V. KUROPCHAK.
POINT II
THE LAW DIVISION FINDING OF GUILT DE NOVO
SHOULD BE REVERSED AS TO THE DWI CONVICTION
AND A FINDING OF "NOT GUILTY" SHOULD BE
ENTERED; THE LAW DIVISION COMMITTED CLEAR
ERROR IN FINDING DEFENDANT GUILTY AND THE
INTERESTS OF JUSTICE DEMAND INTERVENTION AND
CORRECTION AS THE STATE FAILED TO PROVE THE
REQUISITE ELEMENTS OF DEFENDANT'S OPERATION OF
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A MOTOR VEHICLE WHILE UNDER [THE] INFLUENCE
OF DRUGS BEYOND A REASONABLE DOUBT.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
FAILING TO EXCLUDE THE STATE'S EXPERT WITNESS
AND IN REFUSING TO CONDUCT A FRYE[3] HEARING
SINCE THE DRE PROGRAM AND THE DRE WITNESS WERE
BOTH UNQUALIFIED UNDER EVIDENCE RULE 702 AND
PURSUANT TO STATE V. DORIGUZZI; THE ADMISSION
OF THE DRE EXPERT TESTIMONY VIOLATED THE
DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS
RIGHT TO A FAIR TRIAL.
POINT IV
THE DWI CONVICTION MUST BE REVERSED AND THE
SUMMONSES DISMISSED (OR, AT THE VERY LEAST,
ALL EVIDENCE AND THE DEFENDANT'S STATEMENTS
SUPPRESSED) AS THE ARRESTING OFFICER LACKED
PROBABLE CAUSE TO ARREST THE DEFENDANT; THE
TRIAL COURT WAS CLEARLY MISTAKEN AND THE
INTERESTS OF JUSTICE DEMAND INTERVENTION AND
CORRECTION.
POINT V
THE TRIAL COURT WAS CLEARLY MISTAKEN IN
FAILING TO SUPPRESS THE DEFENDANT'S URINE
SPECIMEN WHICH WAS OBTAINED AT HEADQUARTERS
WITHOUT A WARRANT OR VALID CONSENT; THE
INTERESTS OF JUSTICE DEMAND INTERVENTION AND
CORRECTION.
POINT VI
THE COURTS BELOW ERRED IN FAILING TO SUPPRESS
OR GIVE LITTLE WEIGHT TO THE TESTIMONY OF THE
STATE'S CHEMIST REGARDING HER ANALYSIS OF THE
DEFENDANT'S URINE BASED ON DEFECTIVE CHAIN OF
CUSTODY AND A LEAKING CONTAINER IN WHICH THE
URINE WAS STORED; THE TRIAL COURT ABUSED ITS
3
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (outlining
expert testimony, authoritative literature, and judicial
recognition as the methods of determining general acceptability
of scientific methods).
7 A-0623-15T4
DISCRETION IN ADMITTING TESTIMONY AS TO THE
URINALYSIS RESULTS.
POINT VII
THE NUMEROUS ERRORS THAT OCCURRED AT TRIAL
DEPRIVED DEFENDANT OF HIS FOURTEENTH AMENDMENT
DUE PROCESS RIGHT TO A FAIR TRIAL MANDATING A
REVERSAL OF HIS DWI CONVICTION.
The following general standards guide our review. When a
defendant appeals to the Law Division from a conviction entered
in a municipal court, the judge is required to conduct a de novo
review of the record, giving "due regard to the municipal judge's
opportunity to view the witnesses and assess credibility." State
v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State
v. Johnson, 42 N.J. 146, 157 (1964)). On appeal from the Law
Division, we must determine whether the judge's findings "could
reasonably have been reached on sufficient credible evidence
present in the record." Johnson, supra, 42 N.J. at 162. "Any
error or omission shall be disregarded by the appellate court
unless it is of such a nature as to have been clearly capable of
producing an unjust result . . . ." R. 2:10-2.
N.J.S.A. 39:4-50(a) prohibits operating a motor vehicle
"while under the influence of intoxicating liquor, narcotic,
hallucinogenic or habit-producing drug." "[T]he phrase 'narcotic,
hallucinogenic or habit-producing drug' includes an inhalant
. . . ." Ibid. Here, the State maintained that defendant was
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under the influence of DFE. Although DFE is not listed in the
statute, the Supreme Court has held that N.J.S.A. 39:4-50(a) "does
not require that the particular narcotic be identified." State
v. Tamburro, 68 N.J. 414, 421 (1975).
"A conviction for DWI requires proof beyond a reasonable
doubt." State v. Kuropchak, 221 N.J. 368, 382 (2015). The State
attempted to prove defendant was under the influence of DFE by
offering testimony from two experts and by introducing testimony
from Officer Brown's observations of defendant at the scene of the
tree accident and police station. Critical to accepting the
State's theory of the case was the believability of these
witnesses, because without accepting their expert opinions and
observation testimony, the State would be unable to show defendant
was under the influence of DFE. Here, we conclude the Municipal
Court judge's credibility determinations "may have [been] unduly
influenced" by multiple layers of inadmissible hearsay. Id. at
374.
I.
We begin by addressing defendant's contention as to the
admissibility of a police crash investigation report (S-1); a
field sobriety checklist (S-2); a letter congratulating Officer
LoCascio (S-3); a drug influence evaluation report (S-4); and a
log of drug influence evaluations (S-5). Defense counsel
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repeatedly objected to the admissibility of these documents on
hearsay grounds.
We accord "substantial deference to a trial court's
evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998),
cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306(2001). "[T]he decision of the trial court must stand unless it
can be shown that the trial court palpably abused its discretion,
that is, that its finding was so wide of the mark that a manifest
denial of justice resulted." State v. Carter, 91 N.J. 86, 106
(1982). Such is the case here.
Officer Brown prepared S-1, which is a five-page crash
investigation report. The assistant prosecutor properly presented
S-1 to the officer during his testimony, solely as an aid to
refresh his recollection. At the conclusion of all testimony,
however, the State moved S-1 into evidence to prove the truth of
what the entire report asserted. S-1 is therefore inadmissible
hearsay even though the officer testified and was subject to cross-
examination.
S-1 also contains multiple embedded hearsay statements from
other declarants, including an alleged witness to the hit-and-run
accident, a police officer who reported what that individual told
him about the hit-and-run accident, Officer LoCascio, and
statements from defendant's wife. At no point did the State lay
10 A-0623-15T4
a proper foundation to move S-1 into evidence, including any of
the multiple layers of hearsay.
S-2 is a one-page document prepared by Officer Brown after
completing the field sobriety tests. The officer testified about
performing the tests and the results. Certainly he could use S-2
to refresh his recollection if need be, but the document is
considered hearsay and the State laid no foundation for its
admissibility. Additionally, S-2 contains embedded hearsay from
Officer LoCascio by reporting his opinion that defendant was under
the influence of an inhalant.
S-3 is an April 20, 2010 letter to Officer LoCascio from a
sergeant of the Alcohol/Drug Test Unit of the Department of Law
and Public Safety. The sergeant congratulated the officer on
becoming a DRE expert, and made other comments in the letter as
to the officer's qualifications as an expert. Officer LoCascio
testified about his own qualifications. If he needed S-3 to
refresh his recollection, then he could have used the document.
Otherwise, S-3 is hearsay and the State failed to lay a foundation
for its admissibility at trial.
Officer LoCascio prepared S-4, which is his drug influence
evaluation report. The officer could have used S-4 to refresh his
recollection during his testimony, however, the document is
considered hearsay and inadmissible unless it falls into a hearsay
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exception. S-4 also contains additional statements from Officer
Brown, who told Officer LoCascio that defendant's wife had told
him defendant possessed a large quantity of computer cleaning
solvents, which the wife said defendant had ingested. The State
did not lay a foundation for the admissibility for S-4 or for the
embedded hearsay statements under any exception to the hearsay
rule, or even under N.J.R.E. 703.
S-5 is a seven-page hearsay document purportedly logging
Officer LoCascio's drug evaluations of numerous individuals not
involved in this case. The officer testified at the trial and
could have recited this information, subject to relevancy grounds,
and if he was unable to do so, then the officer could have used
S-5 to refresh his recollection.
In Kuropchak, the Court concluded that the admissibility of
a Drinking Driving Questionnaire and a Drinking Driving Report
contained inadmissible hearsay and "may have unduly influenced the
municipal court's credibility findings." Kuropchak, supra, 221
N.J. at 373-74. We too conclude that the embedded hearsay
statements contained in S-1 to S-5, especially the statements by
defendant's wife about his ingestion of cleaning solvents, may
have influenced the Municipal Court judge's findings that the
State's witnesses testified credibly. Moreover, the admissibility
of embedded hearsay statements from the wife and purported witness
12 A-0623-15T4
to the hit-and-run accident deprived defense counsel of the
opportunity to cross-examine them.
II.
Defendant contends that the police seized his urine sample
in violation of his federal and state constitutional rights.
Defendant argues that the police violated his rights by obtaining
his urine specimen without proper consent or a warrant. Defendant
urges us, at the very least, to remand like the Supreme Court did
in State v. Verpent, 221 N.J. 494 (2015) and State v. Adkins, 221
N.J. 300 (2015). We agree and remand on this issue for further
proceedings.
The Supreme Court in Adkins, held that it would apply
Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d
696 (2013), retroactively. Adkins, supra, 221 N.J. at 313.
McNeely, held that "in drunk-driving investigations, the natural
dissipation of alcohol in the bloodstream does not constitute an
exigency in every case sufficient to justify conducting a blood
test without a warrant." McNeely, supra, 569 U.S. at 165, 133 S.
Ct. at 1568, 185 L. Ed. 2d at 715. Adkins further held that law
enforcement should "present to the court their basis for believing
that exigency was present in the facts surrounding the evidence's
potential dissipation and police response under the circumstances
13 A-0623-15T4
to the events involved in the arrest." Adkins, supra, 221 N.J.
at 317.
Under certain circumstances, courts have held obtaining
warrantless urine samples subsequent to arrest to be
constitutional. In State v. Malik, 221 N.J. Super. 114, 118, 120
(App. Div. 1987), we concluded that a request for urine fell under
the incident to arrest exemption and the exigency exemption to the
warrant requirement. We further stated that "a person arrested
by the police with probable cause to believe that [he or] she has
recently ingested a controlled dangerous substance has no federal
constitutional right to prevent being required to give a urine
sample." Id. at 122. We explained that "urinalyses are
commonplace in these days of periodic physical examinations and
do not constitute an unduly extensive imposition on an individual's
personal privacy and bodily integrity." Ibid.After its decision in Adkins, the Supreme Court remanded in
Verpent, supra, 221 N.J. at 495. Verpent involved a defendant
voluntarily providing a urine sample following DRE testing to
police who did not have a warrant for it. State v. Verpent, No.
A-3807-10 (App. Div. July 2, 2012) (slip op. at 5), rev'd 221 N.J.
494 (2015). The Supreme Court ordered a new suppression hearing
to address exigency "on a newly developed and fuller record in
light of . . . Adkins." Verpent, supra, 221 N.J. at 494. As in
14 A-0623-15T4
Verpent, we too remand to develop a more complete record, after
which the Municipal Court judge should re-visit defendant's motion
to suppress the urine sample.
III.
We reject defendant's contention that the Municipal Court
judge erred by failing to conduct a Frye hearing and permitting
Officer LoCascio to testify as a DRE.
In a criminal case, we ordinarily review de novo a trial
judge's decision after a Frye hearing. State v. McGuire, 419 N.J.
Super. 88, 123-24, 130 (App. Div.), certif. denied, 208 N.J. 335(2011). Here, the question is whether the Municipal Court judge
erred by not conducting a Frye hearing as to Officer LoCascio.
Generally, a trial judge has discretion in determining the
sufficiency of an expert's qualifications "and [his or her
decision] will be reviewed only for manifest error and injustice."
State v. Ravenell, 43 N.J. 171, 182 (1964), cert. denied, 379 U.S.
982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). Such is not the case
here.
Expert testimony only requires that a witness be qualified
"by knowledge, skill, experience, training, or education."
N.J.R.E. 702. Here, the Municipal Court judge properly admitted
the DRE testimony. New Jersey courts have not invalidated DRE
protocol or DRE experts. See e.g., State v. Franchetta, 394 N.J.
15 A-0623-15T4
Super. 200 (App. Div. 2007). Moreover, the Municipal Court judge
permitted extensive testimony from Officer LoCascio about his
qualifications and did not abuse her discretion when she found him
to be a DRE. The Supreme Court has also found that police officers
were eligible experts on marijuana intoxication pursuant to
N.J.R.E. 702 because of their specialized training "in detecting
drug-induced intoxication." State v. Bealor, 187 N.J. 574, 592-
93 (2006).
IV.
We reject defendant's contention that the arresting officer
lacked probable cause.
The probable cause to arrest standard is "a 'well grounded'
suspicion that a crime has been or is being committed" by the
defendant. State v. Waltz, 61 N.J. 83, 87 (1972) (quoting State
v. Burnett, 42 N.J. 377, 387 (1964)). "Probable cause exists
where the facts and circumstances within . . . [the officers']
knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a [person] of reasonable
caution in the belief that an offense has been or is being
committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000) (first
and second alterations in original) (quoting Brinegar v. United
States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed.
16 A-0623-15T4
1879, 1890 (1949)), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083,
148 L. Ed. 2d 959 (2001).
Probable cause for driving under the influence will be found
where an officer "ha[d] reasonable grounds to believe that [the
driver was] operating a motor vehicle in violation" of the DWI
statute. N.J.S.A. 39:4-50.2; see also Strelecki v. Coan, 97 N.J.
Super. 279, 284 (App. Div. 1967). In assessing probable cause, a
judge considers the totality of the circumstances. State v. Moore,
181 N.J. 40, 46 (2004). The facts are viewed "from the standpoint
of an objectively reasonable police officer." State v. Basil, 202
N.J. 570, 585 (2010) (quoting Maryland v. Pringle, 540 U.S. 366,
371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003)).
Here, Officer Brown had reasonable grounds to believe
defendant was operating a motor vehicle in violation of the DWI
statute. Defendant was outside his vehicle after the tree
accident, produced his credentials lethargically, giggled at
Officer Brown, failed the field sobriety tests, and denied that
he had been in an accident.
V.
We reject defendant's argument that the court failed to
suppress testimony from Ms. Tremontin because of an alleged
defective chain of custody as to the leaking urine container. The
United States Supreme Court has made clear "it is not the case[]
17 A-0623-15T4
that anyone whose testimony may be relevant in establishing the
chain of custody, authenticity of the sample, or accuracy of the
testing device, must appear in person as part of the prosecution's
case." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129
S. Ct. 2527, 2532 n.1, 174 L. Ed. 2d 314, 322 n.1 (2009). Rather,
the Court explained that gaps in chain of custody go to the weight
of the evidence, not its admissibility. Ibid.; see also Morton,
supra, 155 N.J. at 446-47. Furthermore, the positive DFE test
results came from the second urine sample, which had not leaked.
Even if the State failed to demonstrate the chain of custody, such
a failure would go to the weight of the evidence and not the
admissibility.
After considering the record, arguments at oral argument
before us, and the briefs, we conclude that defendant's remaining
arguments are "without sufficient merit to warrant discussion in
a written opinion." R. 2:11-3(e)(2). In reversing the DWI
conviction, we do not mean to suggest that the State may ultimately
not prevail. Rather, we emphasize that we premise the reversal
primarily on the potentially infected credibility determinations
flowing from the multiple layers of embedded hearsay. The outcome
on remand will depend on the proofs presented.
Reversed and remanded for a new trial in the municipal court.
In fairness to the Municipal Court judge who tried the case and
18 A-0623-15T4
made the credibility findings, we remand to a different Municipal
Court judge for further proceedings consistent with this opinion.
We do not retain jurisdiction.
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