STATE OF NEW JERSEY VS. KENNETH W. VERPENT (09-09-1757, 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NOT FOR PUBLICATION WITHOUT THE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-0927-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH W. VERPENT,
Defendant-Appellant.
_______________________
Submitted October 11, 2018 – Decided October 25, 2018
Before Judges Koblitz and Currier.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. 09-09-1757.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (William P. Miller, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM
Defendant Kenneth Verpent appeals from the August 5, 2016 order
denying his motion to suppress the laboratory results of a urine test administered
following a 2008 automobile accident. Our Supreme Court remanded
defendant's case so that "exigency may be assessed on a newly developed and
fuller record in light of this Court's holding in [State v. Adkins, 221 N.J. 300
(2015)]." Adkins determined that Missouri v. McNeely, 569 U.S. 141, 144
(2013), which found that alcohol in the bloodstream did not create a per se
exigency, applied retroactively to cases "in the pipeline" at the time it was
decided. Adkins, 221 N.J. at 303. After a plenary hearing, Judge Edward A.
Jerejian found that under the totality of the circumstances, in light of the injuries
to the other driver requiring police intervention and the time it would take to
obtain a search warrant, exigent circumstances existed justifying the search
without a warrant. We affirm substantially for the reasons articulated by Judge
Jerejian in his oral opinion.
A jury convicted defendant of third-degree assault by auto, N.J.S.A.
2C:12-1(c)(2). Judge Jerejian convicted defendant of driving while intoxicated,
N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and being under the
influence of a controlled dangerous substance, N.J.S.A. 2C:35-10(b). Defendant
has served his aggregate five-year prison sentence.
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We summarized the State's evidence at the jury trial as follows:
The State presented the following evidence at trial. At
about 10:15 a.m., on December 3, 2008, Sabrina Patrick
was traveling in her Honda Accord from Little Falls,
New Jersey, to New York City. It was a clear, sunny
day, and the road surface was dry. She was stopped at
the main toll plaza for the George Washington Bridge
when she heard a "very loud crash," after which she
"was looking at the ceiling of [her] vehicle" because the
driver's seat in her car had been broken by the impact
and she had been flung backwards.
Defendant, who was operating a flatbed tow truck,
failed to stop and, according to an eyewitness,
"slammed into the back of the Honda, and a second later
that Honda hit the back of a truck in front of it." Her
treating physician testified at trial that, as a result of the
collision, Patrick had an "L3 burst fracture" of a
vertebra, which required "spinal fusion" surgery and
the insertion of metal rods into her body to provide
needed support.
An accident reconstruction expert testified that the left
front side of defendant's truck struck the right rear side
of Patrick's car at a minimum speed in the range of
twenty-seven to thirty-three miles per hour. The expert
attributed the accident to defendant's "delayed
perception response;" that is, defendant failed to apply
the truck's brakes until it was too late to avoid colliding
with Patrick's car.
....
Defendant's urine specimen tested positive for cocaine
and marijuana metabolites. The State presented
testimony from H. Chip Walls, who was qualified as an
expert in forensic toxicology and the effects of alcohol
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and drugs on humans. Walls concluded that, when
defendant's truck struck Patrick's car, defendant was
suffering the "downside" of his prior ingestion of
cocaine; he was "crashing" after the initial stimulating
effects of his cocaine use had passed.
[State v. Verpent, Docket No. A-3807-10 (App. Div.
July 2, 2012) (slip op. at 2-3, 6), rev'd in part, appeal
dismissed in part, 221 N.J. 494 (2015).]
After the testimony on remand, Judge Jerejian found that "it wasn’t till
2:30 that police secured this sample, [and] . . . that there was probable cause that
he was under the influence of drugs." At 11:20 a.m., the police officer had only
concluded that defendant was "under the influence of something." At 12:10
p.m., when defendant was placed under arrest, the officer had yet to determine
whether defendant was under the influence of alcohol or some other drug. At
12:44 p.m., defendant was given a breathalyzer test and had no alcohol in his
blood. The officer and his tour commander then decided to call in a drug
recognition expert (DRE) to determine whether defendant was under the
influence of any drug. It was not until 2:30 p.m., when the DRE concluded his
exam, that the officers had probable cause to believe that defendant was under
the influence of a drug.
Defendant argues on appeal:
POINT I: DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE WAS IMPROPERLY DENIED
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We "accord deference to the factual findings of the trial court, which had
the opportunity to hear and see the . . . witness[es] at the suppression hearing
and to evaluate the credibility of [their] testimony." State v Scriven, 226 N.J.
20, 32 (2016). "[W]e must respect factual findings that are 'supported by
sufficient credible evidence' at the suppression hearing, even if we would have
made contrary findings had we sat as the motion court." Ibid. (quoting State v.
Elders, 192 N.J. 224, 243 (2007)). The factual findings of a trial court are also
afforded deference because they are "substantially influenced by [the trial
court's] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." State v. Robinson, 200 N.J. 1, 15
(2009) (quoting Elders, 192 N.J. at 244).
The accident was very serious, it took approximately forty-five minutes
to remove Patrick from her car, the police then conducted field sobriety tests
based on defendant's bloodshot eyes, constricted pupils, and slow and unsteady
gait. They brought defendant to headquarters for a breath test, determined he
was not under the influence of alcohol, and then had him evaluated by a DRE
before obtaining a urine sample. These reasonable actions took considerable
time. In addition, under Adkins, the trial court may afford substantial weight to
the potential dissipation of the substance in a defendant's system. Adkins, 221
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N.J. at 303. The officers had probable cause to believe that defendant was under
the influence of something at the time of his arrest, and they acted in an
objectively reasonable manner under the circumstances to determine what was
in defendant's system. See Adkins, 221 N.J. at 303 (directing reviewing courts
to "focus on the objective exigency of the circumstances faced by the officers").
In a similar situation, our Supreme Court recently found objective exigent
circumstances, not found by the motion judge, stating: "We conclude that any
delay in seeking to obtain defendant's blood sample after the establishment of
probable cause is attributed to the complexity of the situation and the reasonable
allocation of limited police resources—not a lack of emergent circumstances, as
argued by defendant." State v. Zalcberg, 232 N.J. 335, 351 (2018). The
Supreme Court found that the seriousness of the accident, "the presence of
several emergency-services units," the extrication of victims from a vehicle
using the "Jaws of Life," and the fact that the accident "occurred on a typically
busy state highway," all "indicate[d] an objective exigency . . . ." Id. at 351-52.
Similarly, here the accident occurred at a toll lane at the George
Washington Bridge and required the closure of three out of four traffic lanes,
and officers had to use the "Jaws of Life" to remove Patrick from her car. Unlike
Zalcberg, in which the police officers smelled alcohol on the defendant and
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found a "miniature bottle of an alcoholic beverage in the vehicle's console[,]"
thus creating probable cause that the defendant was under the influence of
alcohol, id. at 339, the police officers here could only determine, approximately
two-and-a-half hours after the accident, when defendant's breathalyzer test was
negative, that he was "under the influence of something" other than alcohol.
This creates an even greater exigency than in Zalcberg, as the police officers,
without knowing which substance was intoxicating defendant, had no way to
estimate the dissipation rate. Therefore, the officers had no way of estimating
how much time they had to obtain a urine sample.
We affirm substantially for the thorough reasons placed on the record by
Judge Jerejian. Defendant's arguments concerning the lack of exigent
circumstances are without sufficient merit to require further discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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