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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
& nbsp; SUPERIOR COURT OF NEW JERSEY
& nbsp; APPELLATE DIVISION
& nbsp; DOCKET NO. A-4283-04T3
STATE OF NEW JERSEY,
Text Box
APPROVED FOR PUBLICATION
June 7, 2006
APPELLATE DIVISION
Plaintiff-Respondent,
v.
RICHARD F. BEREZANSKY,
Defendant-Appellant.
________________________________
Text Box
June 7, 2006
Argued January 19, 2006 - Decided
Before Judges Wecker, Fuentes and Graves
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
33-04.
The opinion of the court was delivered by
WECKER, J.A.D.
This is defendant's appeal from a conviction for driving while intoxicated (DWI), as proscribed byN.J.S.A. 39:4-50. After being found guilty in the municipal court of Manville, defendant appealed to the Law Division, where a trial de novo again resulted in defendant's conviction. He was sentenced just as he was in municipal court to an eight-month loss of driving privileges. Motor vehicle offenses of careless driving, N.J.S.A. 39:4-97, and failure to wear a seatbelt, N.J.S.A. 39:3-76.3, were merged with defendant's DWI conviction. Defendant also was required to complete an alcohol counseling program and the Intoxicated Driver Resource Center Program. See footnote 1 All of defendant's penalties, with the exception of his continued alcohol counseling, have been stayed pending appeal. We now reverse.
I
Evidence adduced at trial supports these facts. At approximately 6:40 p.m. on December 3, 2003, Sergeant Jeffrey Petrone of the Manville Police Department was dispatched to the scene of a one-car motor vehicle accident on Dukes Parkway. Upon his arrival at the scene of the accident, Sergeant Petrone observed a white Pontiac Grand Am automobile resting against a utility pole. The windshield of the car was cracked, and defendant, Richard F. Berezansky, was inside the vehicle, bleeding from the head. Sergeant Petrone noticed that defendant was shaking, and the officer detected alcohol on his breath. Defendant informed Sergeant Petrone that he had had two beers and that he suffered from Parkinson's disease. Because he was concerned for defendant's health, Sergeant Petrone did not perform any psychophysical tests to determine whether defendant was intoxicated prior to his being transported to Somerset Medical Center.
Sergeant Petrone followed defendant to the hospital, where the officer requested a blood sample from defendant to determine his blood alcohol level. Sergeant Petrone supplied a signed blood alcohol request form; the laboratory technician and a nurse who was present when defendant's blood was drawn also signed the form. The technician then capped the vials of defendant's blood and handed them to Sergeant Petrone. He placed the vials in a cardboard box, which he sealed and returned to police headquarters. Upon his arrival at police headquarters, Sergeant Petrone placed the box inside a locked metal box in the evidence refrigerator. He then placed the key to the box in the evidence locker for the custodian of evidence.
Detective Michael Guilbert See footnote 2 is the custodian of evidence for the Manville Police Department. Detective Guilbert testified that he was the only person who had access to the sample while it was held in police headquarters. On the evening of December 3, Detective Guilbert entered information about the evidence into a computer and sent that information to the New Jersey State Police Laboratory. At approximately 2:00 p.m. on December 4, 2005, Detective Guilbert removed the samples from the cardboard box, placed the vials into a bag, heat-sealed the bag, and transported it to the New Jersey Police Laboratory in Trenton, commonly referred to as the Central Regional Laboratory. Detective Guilbert gave the samples to Megan Williams, a clerk at the laboratory, who signed for the evidence.
Defendant's blood, however, was actually tested at the State Police South Regional Laboratory rather than the Central Regional Laboratory. Detective Guilbert could not explain how defendant's blood samples were transported from the Central Regional Laboratory to the South Regional Laboratory; indeed, Detective Guilbert stated that he had no idea where the South Regional Laboratory was located.
The laboratory certificate indicated that the sample of defendant's blood contained a blood alcohol level of 0.33%, more than three times the 0.10% threshold then set by statute. N.J.S.A. 39:4-50a(1)(ii). See footnote 3 Over defendant's objection, the trial judge found that the laboratory certificate was properly admitted into evidence under the business records exception to the hearsay rule.N.J.R.E. 803(c)(6).
In letters addressed to the municipal prosecutor for the Borough of Manville, dated December 19, 2003 and January 26, 2004, defendant gave notice that he questioned the chain of custody of his blood sample and expressed his intention to confront the custodian. In the December 19, 2003 letter, defendant demanded the preservation and production of the unused portion of his blood sample, stating that he sought the blood sample in order to obtain independent testing and analysis. See N.J.S.A. 39:4-50.2(c) and (d). Defendant reiterated those demands in a subsequent letter to the municipal prosecutor dated January 26, 2004. Detective Guilbert testified that he received the final evidence report from the State Police Laboratory, but he did not seek or obtain any vials of defendant's unused blood and was not requested to do so by the municipal prosecutor.
The State failed to produce any evidence in discovery or at trial to establish how or why defendant's blood samples were transported from the Central Regional Laboratory to the South Regional Laboratory. The laboratory certificate, which is dated December 24, 2003, states that the laboratory's policy is to destroy unused portions of a sample ninety days after the date of the final report. Defendant's multiple requests for the sample were transmitted to the municipal prosecutor well within the ninety-day period. The record does not provide any information about the maintenance or disposal of the remainder of the sample defendant sought to test.
The State also failed to comply with defendant's requests for documentation pertaining to the laboratory certificate or the tests performed. In his December 19 letter, defendant demanded the notes of the chemist who performed the analysis on defendant's blood and all graphs and printouts related to the analysis. Defendant's January 26, 2004 letter to the municipal prosecutor repeated that demand. The State failed to supply this documentation.
Defendant twice demanded a speedy trial, first in his December 19, 2003 letter to the municipal prosecutor and second in a March 10, 2004 letter addressed to the municipal court administrator. The municipal court trial began on May 6, 2004.
II
On appeal, defendant presents these arguments: POINT I
DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESS AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT IMPROPERLY ADMITTED THE STATE POLICE LABORATORY REPORT INTO EVIDENCE WITHOUT TESTIMONY FROM THE CHEMIST WHO PERFORMED THE ANALYSIS AND PREPARED THE REPORT.
POINT II
THE LABORATORY REPORT WAS IMPROPERLY ADMITTED INTO EVIDENCE BECAUSE THE STATE FAILED TO ESTABLISH THE CHAIN OF CUSTODY THAT BROUGHT THE BLOOD EVIDENCE TO THE STATE POLICE LABORATORY WHERE IT WAS ALLEGEDLY TESTED.
POINT III
DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE STATE'S FAILURE TO PRESERVE AND MAKE AVAILABLE THE DEFENDANT'S BLOOD SAMPLE FOR INDEPENDENT BLOOD TESTING.
POINT IV
DEFENDANT'S CONVICTION MUST BE REVERSED AS A RESULT OF THE STATE'S DENIAL OF THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL.
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We have carefully considered the record in light of defendant's contentions on appeal, and we are convinced that defendant's right of confrontation was violated by the admission of the laboratory certificate without giving defendant an opportunity to confront its preparer. We therefore reverse defendant's conviction and remand for a new trial.
III
Defendant argues that the admission of the lab certificate without the testimony of its preparer violated his constitutional right of confrontation because he was denied the opportunity to cross-examine the chemist who analyzed the sample and prepared the certificate. The State claims that the lab certificate was properly admitted as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
The Sixth Amendment to the Constitution of the United States and article I, paragraph 10 of the New Jersey Constitution each guarantee a criminal defendant "the right . . . to be confronted with the witnesses against him." In Crawford v. Washington,541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. See footnote 4 The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86.
The Court held that "[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, theSixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial."
[541 U.S. at 68, 124 S. Ct. at 1374,158 L. Ed 2d at 203 (footnote omitted)]..... more info at http://kennethvercammen.com/SvBerezanskyHearsay.html |
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