STATE OF NEW JERSEY VS. ALBERT ZAYAT (009-03-17, 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NOT FOR PUBLICATION WITHOUT THE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-5194-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERT ZAYAT,
Defendant-Appellant.
___________________________
Argued May 24, 2018 – Decided July 31, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Municipal Appeal
No. 009-03-17.
Kevin T. Conway argued the cause for
appellant.
Ian C. Kennedy, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Dennis Calo, Acting
Bergen County Prosecutor, attorney; Michael R.
Philips, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Following the denial of his motion to suppress the results
of a blood sample, defendant Albert Zayat pled guilty to driving
while intoxicated (DWI), N.J.S.A. 39:4-50. He was sentenced to a
nine-month driver's license suspension, and ordered to participate
in the Intoxicated Driver Resource Center Program for a period of
twenty-four hours and install an ignition interlock device for the
period of suspension and six additional months after the suspension
ended. The court also imposed the appropriate fines, assessments,
surcharges, and costs.
On appeal, defendant raises the following argument:
[POINT I]
Based on the Fourth Amendment of the United
States Constitution and [Art. I, ¶ 7] of the
New Jersey Constitution, the results of the
blood sample in this case must be suppressed.
We reject this argument and affirm.
I.
We derive the following facts from the evidence adduced at
the motion hearing. At approximately 8:00 p.m. on December 30,
2015, River Edge Police Officer Joseph Sanfilippo responded to the
scene of a motor vehicle accident on Kinderkamack Road. When he
arrived, defendant was standing outside a black sports utility
vehicle (SUV) and bleeding from a hand laceration. Sanfilippo saw
that the SUV had sustained significant front-end damage from
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striking a parked vehicle in the rear on the east side of
Kinderkamack Road. Both vehicles were facing north and were
partially on the sidewalk. Behind the two vehicles, Sanfilippo
saw a second vehicle on the lawn of a house that had rear-end
damage. He determined that the SUV had struck the first vehicle,
propelling it onto a lawn, and the SUV continued forward, striking
the second vehicle. The other two vehicles were unoccupied, and
defendant was the only person involved in the accident.
Sanfilippo spoke with defendant, who was unable to provide
information about what happened. Defendant asked Sanfilippo about
the parked car being struck and looked confused when the officer
said he struck them. Sanfilippo had to explain to defendant what
happened. While speaking with defendant, Sanfilippo "smelled an
odor of alcohol coming from him[,]" and saw that defendant was
"swaying back and forth, slightly slurring his words[,]" "seemed
incoherent in what he was saying[,]" and had bloodshot eyes.
Sanfilippo did not conduct field sobriety tests due to defendant's
condition and because an ambulance was on route to the scene.
Defendant admitted to Sanfilippo that he had been at a
restaurant in Hackensack where he consumed one to two beers. Based
on Sanfilippo's observations of defendant and the accident scene,
his smell of the odor of alcohol, and defendant's admission to
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consuming alcohol, he determined defendant was impaired due to
intoxication from the consumption of alcohol.
Emergency Medical Technician Joseph Schlossberg testified
that he responded to the accident scene and saw that defendant was
coherent and responsive, but there was a smell of alcohol on his
breath. The ambulance transported defendant to Hackensack
University Medical Center (HUMC), followed by Sanfilippo.
Schlossberg testified there was a smell of alcohol in the ambulance
during the transport that was not there before Schlossberg arrived
at the accident scene.
Defendant arrived at HUMC at approximately 8:40 p.m.
Emergency room (ER) triage nurse Krystyna Koryzma saw defendant
in the triage area, took his information, and learned he had been
in a motor vehicle accident and had a laceration to his right
hand.
Sanfilippo testified that he asked defendant for his consent
to a blood draw and to sign a consent form, and advised him of his
right to refuse. Defendant refused and said he did not want his
blood drawn. The ER nurse who eventually drew defendant's blood
was not present at the time of this exchange. Sanfilippo made no
further attempts to have defendant consent to a blood draw, and
did not threaten him in any way if he refused to consent. He also
did not advise the ER nurse who eventually drew defendant's blood
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that defendant refused to consent to a blood draw, or direct that
nurse to draw defendant's blood for police use.
Defendant was moved from the triage area into another area
of the ER at 9:10 p.m. Koryzma testified it was HUMC's protocol
to insert an IV line in ER patients in case the patient needed a
CT scan or IV medications or fluids. It was also HUMC's practice
to draw blood on all ER patients immediately after inserting the
IV line, and testing for alcohol was part of the normal blood draw
process for patients involved in motor vehicle accidents
regardless of whether the patient appeared intoxicated.
According to Koryzma, at 9:24 p.m., a doctor ordered blood
work on defendant, and at approximately 9:45 p.m., ER nurse
Tsamchoe Siphur inserted an IV line in defendant. Defendant's
blood was drawn. Although HUMC's records do not indicate who drew
the blood or when it was drawn, Koryzma testified that based on
her practice and experience, she believed Siphur drew defendant's
blood. The blood test results returned at 10:03 p.m. indicated
defendant had a blood alcohol content (BAC) of 0.177%.
Defendant began complaining of chest pain and was placed on
a cardiac monitor. At approximately 11:00 p.m., a doctor ordered
blood work on defendant, and a CT scan of defendant's head and
chest, EKGs, and a chest x-ray. Defendant's BAC did not change.
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The doctor recommended that defendant remain overnight in the
hospital for further treatment.
Sanfilippo testified that he saw an ER nurse attempt to draw
blood from defendant and heard defendant say to her, "no, we don't
have to do that[,]" and indicated he wanted to leave the hospital.
Sanfilippo then advised defendant he was under arrest for DWI and
he would transport defendant to police headquarters if he left the
hospital. Sanfillipo testified that he intended to perform an
Alcotest on defendant at headquarters and did not advise or
threaten him that he would be incarcerated if he left HUMC.
According to Sanfilippo, defendant decided to remain at HUMC.
The ER nurse then drew defendant's blood. Defendant did not ask
her to stop or indicate the blood was being drawn without his
consent. Prior to his leaving HUMC, defendant was moved to a
cardiac section. The next morning, defendant left HUMC against
medical advice.
Defendant's ex-wife, Donna Zayat, with whom he still resided,
testified that defendant phoned her and said he was at the hospital
and had a car accident. She became "frantic on the phone[,]"
"proceeded to be in a panic[,]" and asked defendant "my God, are
you okay[?]" Defendant said, "I have a cut on my hand, I'm
fine[,]" and told her "to calm down." She immediately drove to
HUMC. She was panicked when she got there. She went into the ER
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and saw defendant in the corridor with "just a bloody finger." He
told her, "calm down, I'm fine." When she saw that defendant was
not receiving any treatment, she mentioned he had an aortic
aneurysm.
According to Donna, a nurse came over, put a tourniquet on
defendant's arm, and said she had to take blood. Defendant said,
"I don't want my blood taken, I'm fine. I just really want to get
out of here." A police officer was there, but she did not recall
his name and was not present when he asked if defendant would
consent to a blood test. The nurse then spoke to the police
officer, but Donna did not hear their conversation. The officer
then told defendant "if you don't let her take your blood, I'm
taking you with me, you're under arrest." Defendant then consented
to the blood draw. Donna admitted that the nurse and police
officer did not say defendant's blood was being drawn for the
officer's purpose. Defendant then had and EKG and CT scan.
The police obtained defendant's HUMC records pursuant to a
Dyal1 subpoena.2 Defendant filed a motion to suppress his blood
1
State v. Dyal, 97 N.J. 229 (1984).
2
Sanfilippo was not questioned about his affidavit in support of
the subpoena, and the affidavit was not admitted into evidence.
Accordingly, we decline to consider the affidavit, which defendant
included in his appendix, as well as all references to it in his
merits brief. See N.J. Div. of Youth & Family Servs. v. M.M., 189
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test results. He argued Sanfilippo lacked probable cause to arrest
him for DWI, his blood was drawn without his consent at
Sanfilippo's request for investigative purposes, not for medical
reasons, and he was coerced into submitting to the blood draw by
Snafilippo's threat to arrest him if he did not comply.
Following a hearing, the Municipal Court judge denied the
motion. The judge found Sanfilippo and Koryzma credible, and also
found Sanfilippo's testimony about what occurred in the ER more
credible than Donna's testimony. The judge determined Sanfilippo
had probable cause to arrest defendant for DWI, and the officer
did not direct the ER nurse draw defendant's blood for
investigative purposes or coerce defendant into consenting to the
blood draw by threatening him with arrest if he did not consent.
The judge found defendant guilty of DWI and imposed the sentence
noted supra. Defendant then entered a conditional plea to DWI,
reserving his right to appeal the denial of his motion.3
On appeal to the Law Division, Judge James J. Guida denied
defendant's motion to suppress and imposed the same sentence. In
a comprehensive June 20, 2017 written opinion, the judge found
N.J. 261, 278 (2007); Soc'y Hill Condo Ass'n v. Socy' Hill Assocs.,
347 N.J. Super. 163, 177-78 (App. Div. 2002).
3
Defendant had also been charged with careless driving, N.J.S.A.
39:4-97. That charge was held in abeyance and is not part of this
appeal.
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Sanfilippo's testimony credible, and concluded he had probable
cause to arrest defendant for DWI based on his observations at the
scene of the accident, his training and experience in DWI
detection, and the totality of the circumstances.
Citing State v. Ravotto, 169 N.J. 227 (2001), Judge Guida
acknowledged a warrant is required for the police to obtain a
blood sample from a defendant. However, citing on State v. Burns,
159 N.J. Super. 539, 544 (App. Div. 1978), the judge noted:
when a hospital employee obtains a blood
sample in the course of administering medical
care, "consent is not required to the taking
of a blood sample, but the taking of such
sample must be done in a medically acceptable
manner and environment and without force or
violence or the threat of same."
Citing Dyal, 97 N.J. at 240, the judge noted:
When a blood sample of a potential or
actual DWI defendant is taken by medical
personnel solely for medical purposes, the
State is entitled to obtain those medical
records by subpoena. . . . It is proper for
the [S]tate to obtain a defendant's BAC test
results from a healthcare provider as long as
the police show a reasonable basis, based on
objective facts known by them at the time of
the event or discovered within a reasonable
time thereafter, that the operator was
intoxicated.
Judge Guida reviewed the evidence and found that defendant's
blood was drawn for medical purposes at the direction of treating
physicians, not law enforcement for investigative purposes. The
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judge found defendant was not coerced into consenting to the blood
draw under threat of arrest if he did not consent. Rather, the
judge found it more believable and probable that Sanfilippo advised
defendant he would be arrested and transported to police
headquarters if he left the hospital, not if he refused to submit
to the blood draw.
Judge Guida determined that defendant's situation differed
from Ravotto, in that defendant was not physically restrained, the
blood sample was obtained in connection with medical treatment and
not for investigative purposes, and defendant did not continue to
object after initially telling the ER nurse that he did not want
his blood drawn. The judge noted that defendant submitted to the
blood draw and remained in the hospital for several hours,
consented to treatment and further testing, and left the hospital
against medical advice after Sanfilippo left the hospital,
assuring he would not be transported to police headquarters or
detained.
Lastly, Judge Guida found that unlike in Ravotto, there was
no doubt that defendant's blood was drawn for medical purposes
independent of the law enforcement request, satisfying the
"independent source" doctrine, even if there was a Fourth Amendment
violation. This appeal followed.
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II.
On appeal, defendant argues Judge Guida erred in denying his
motion to suppress because Sanfilippo lacked probable cause to
arrest him for DWI. We disagree.
Our review of a trial court's decision on a motion to suppress
is limited. State v. Robinson, 200 N.J. 1, 15 (2009). As our
Supreme Court has held:
Appellate review of a motion judge's factual
findings in a suppression hearing is highly
deferential. We are obliged to uphold the
motion judge's factual findings so long as
sufficient credible evidence in the record
supports those findings. Those factual
findings are entitled to deference because the
motion judge, unlike an appellate court, has
the "opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a
reviewing court cannot enjoy."
[State v. Gonzales, 227 N.J. 77, 101 (2016)
(citations omitted).]
We will "reverse only when the trial court's determination is so
clearly mistaken that the interests of justice demand intervention
and correction." State v. Gamble, 218 N.J. 412, 425 (2014)
(citation omitted). However, we owe no deference to the trial
court's legal conclusions or interpretations of the legal
consequences flowing from established facts, and review questions
of law de novo. State v. Watts, 223 N.J. 503, 516 (2015). Applying
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the above standards, we discern no reason to reverse the denial
of defendant's motion.
To make an arrest for DWI, the arresting officer need only
have "'reasonable grounds to believe' that the driver was operating
a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v.
Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (alteration in
original) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284
(App. Div. 1967)). Reasonable grounds can be based solely on the
officer's observations. See State v. Liberatore, 293 N.J. Super.
580, 589 (Law Div.) (holding that "observational evidence" may be
sufficient to prove "a defendant guilty beyond a reasonable doubt
of DWI."), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). "[A]
conviction for driving while under the influence of alcohol will
be sustained on proofs of the fact of intoxication--a defendant's
demeanor and physical appearance--coupled with proofs as to the
cause of intoxication--i.e., the smell of alcohol, an admission
of the consumption of alcohol, or a lay opinion of alcohol
intoxication." State v. Bealor, 187 N.J. 574, 588 (2006); see
also State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993)
(sustaining conviction for DWI based on proofs of defendant's
slurred speech, loud and abusive behavior, disheveled appearance,
red and bloodshot eyes, together with the strong odor of alcohol
were sufficient to sustain a DWI conviction); Moskal, 246 N.J.
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Super. at 20-21 (sustaining conviction for DWI based on proofs of
defendant's flushed face, "drooping and red" eyes, the strong odor
of alcohol, and an admission of drinking established probable
cause for arrest).
Here, defendant was involved in a serious accident. He was
unable to provide information about what happened and looked
confused when Sanfilippo told him he struck two parked vehicles.
Sanfilippo smelled an odor of alcohol coming from defendant, and
saw defendant swaying back and forth, slightly slurring his words
and seemed incoherent in what he was saying. Defendant also had
bloodshot eyes and admitted to consuming alcohol. We are satisfied
there was sufficient credible evidence to support Judge Guida's
finding that Sanfilippo had probable cause to arrest defendant for
DWI based on his training and experience, observational evidence,
and the totality of the circumstances.
III.
Defendant argues that Judge Guida erred in denying his motion
to suppress because his blood was drawn without his consent and
for investigative purposes, not medical reasons, and he was coerced
into submitting to the blood draw under threat of arrest if he did
not comply.
We have considered this argument in light of the record and
applicable legal principles and conclude it is without sufficient
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merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm substantially for the reasons Judge Guida expressed in
his cogent written opinion. We are satisfied there was ample
credible evidence supporting the judge's finding that defendant's
blood was drawn for medical purposes at the direction of treating
physicians, not law enforcement for investigative purposes, and
defendant was not coerced into submitting to the blood draw under
threat of arrest if he did not comply. Sanfilippo testified,
credibly, that he did not direct the ER nurse to draw defendant's
blood for police use or threaten defendant in any way if he refused
to consent to a blood draw. Sanfilippo merely advised defendant
he was under arrest and would be transported to police headquarters
if he left the hospital, not if he refused to submit to the blood
draw.
Affirmed.
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