Date: 02-24-2017

Case Style:

Case Number: A-3951-14T3

Judge: Marie E. Lihotz

Court: SUPERIOR COURT OF NEW JERSEY

Plaintiff's Attorney:

John J. Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, Diane Ruberton, Acting Atlantic County Prosecutor

Defendant's Attorney:

Solmaz F. Firoz, Assistant Deputy Public Defender

Description: We first summarize the relevant facts and procedural history.
On August 28, 2012, at approximately 12:45 p.m., defendant crashed
her minivan into a light pole while driving on the Black Horse
Pike in Pleasantville. Defendant's husband, William Nasta, sat
in the front passenger seat, and their two-month-old and five
year-old daughters occupied the rear seat. William died due to
injuries sustained in this crash, and the daughters required
hospitalization.
EMTs transported defendant to the hospital, where police
obtained defendant's blood sample without a warrant at
approximately 2:50 p.m. Months later, private lab testing revealed
compounds related to heroin in defendant's bloodstream.
On September 19, 2013, an Atlantic County grand jury returned
an indictment charging defendant with second-degree vehicular
homicide, N.J.S.A. 2C:11-5 (count one); two counts of second
degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (counts
two and three); fourth-degree1 causing serious bodily injury while
driving with a suspended or revoked license, N.J.S.A. 2C:40-22(b)
(count four); third-degree hindering apprehension, N.J.S.A. 2C:29
3(b)(4) (count five); and third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count six).2
Defendant moved, in relevant part, to suppress the blood test
evidence and sever count six of the indictment. On August 8,
2014, the judge held a suppression hearing. Sergeant James
Rosiello of the Atlantic County Prosecutor's Office (ACPO)
testified that at approximately 2:00 p.m. on August 28, 2012, he
responded to the intersection of the Black Horse Pike and Route 9
in Pleasantville, where he observed a van that appeared to have
been in an accident stationed in the parking lot of an Exxon gas
station. He met Sergeant Simons and Detective Sample of the
Pleasantville Police Department at the scene, where he also
observed a fire truck and "numerous other uniformed and non
uniformed" officers present. Defendant, her husband, and her
children had been transported to the hospital before his arrival.
Sergeant Simons told Sergeant Rosiello the accident was a
one-vehicle crash, where a minivan drove off the roadway of the
Black Horse Pike, struck a light pole, continued through some
bushes, and came to rest in the gas station lot. Although taken
to the hospital, Sergeant Rosiello learned defendant could walk
on her own and was able to speak with EMTs about going to the
hospital for treatment.
Sergeants Rosiello and Simons conducted a walk-through of the
accident to gather evidence. Sergeant Simons discovered "a bundle
of heroin" in a debris pile on the ground on the driver's side of
the vehicle. Sergeant Rosiello said it appeared this heroin came
from the vehicle and noted the driver's side window was open. He
stated the heroin was not right outside the car, but was in "close
proximity to the vehicle." The officers also observed hypodermic
needles inside the vehicle. They proceeded to trace the path of
the vehicle into the westbound lanes of the Black Horse Pike.
Sergeant Rosiello stated that Sergeant Simons, a drug
recognition expert, said he believed defendant was under the
influence of heroin. Sergeant Rosiello then went to the hospital
to speak with defendant, and police obtained two recorded
statements. At this time, defendant was aware her husband died
and daughters were injured.
During the interviews, Sergeant Rosiello observed defendant
would occasionally nod off or fall asleep, and at other points,
she was active and emotional. He also noted defendant's eyelids
looked droopy, and her speech was slow and slurred. The sergeant
further observed "track marks" on defendant's arms, suggesting
intravenous drug use. Based on his training and experience,


6 A-3951-14T3


Sergeant Rosiello believed defendant was under the influence of
heroin.
Sergeant Rosiello then testified regarding his understanding
of the rate drugs dissipate in a person's system. He stated he
was aware the "burn-off" rate for heroin in the system is faster
than the burn-off rate for alcohol. He further stated he had been
trained to understand heroin can burn off "quickly[,] [s]ometimes
. . . within minutes," at which point it "starts breaking down to
other metabolites."
Next, Sergeant Rosiello was asked why police obtained
defendant's blood sample. He noted it is the standard policy of
ACPO to take blood from any surviving party where an accident
results in death. The sergeant noted he arrived at the hospital
after another officer, Sergeant Mark Johns of the Pleasantville
Police Department, obtained the sample. He did not know when
Sergeant Johns obtained the sample, who instructed Sergeant Johns
to draw the blood, or when Sergeant Johns was instructed to do so.
Police transported the blood to the New Jersey State Police
Lab in Hammonton. Sergeant Rosiello stated the test results were
"negative," so he took the same sample to NMS Labs, a private
laboratory in Willow Grove, Pennsylvania. This second test
revealed morphine and "heroin metabolites."


7 A-3951-14T3


Sergeant Rosiello further stated he did not believe Sergeant
Johns attempted to obtain a warrant to draw the blood. He also
noted no law enforcement officer contacted him to discuss whether
a warrant would be necessary in this case. Sergeant Rosiello
stated he has applied for telephonic warrants in the past. He
described the process as first calling an assistant prosecutor or
a legal advisor to go over the facts, and then calling a judge to
get the warrant. The sergeant stated nobody applied for a
telephonic warrant in this case.
Sergeant Rosiello also noted police had not confined
defendant after the crash, and she could have walked around freely.
He further stated he would not have been able to stop her from
leaving the hospital, since she was not in custody or under arrest.
Sergeant Simons' accident report was submitted to the court
with defendant's motion. Sergeant Simons described the accident
scene, stating he observed a male (William Nasta) partially ejected
from the passenger side of the vehicle. He also observed a
juvenile female lying on the ground bleeding heavily from her face
and an infant with some bleeding from her face. EMTs arrived at
the scene to tend to these individuals. The Pleasantville Fire
Department had to extricate William Nasta from the vehicle using
the "jaws-of-life." EMTs then placed William into an ambulance,


8 A-3951-14T3


where he went into cardiac arrest and was later pronounced dead
at the hospital.
Sergeant Simons' report also discussed the heroin packets,
noting there were seven packets in total, which were stamped and
held together with a rubber band. Sergeant Simons stated these
packets were located in the vehicle's path, "to the left and back
from the large pole the vehicle struck." Based on the force of
impact, the fact the driver's window was down, and the proximity
to the vehicle's path, Sergeant Simons concluded the heroin came
from the van.
After the parties presented this evidence at the hearing, the
judge found the police had probable cause to draw defendant's
blood, but reserved his decision in order to consider the
applicability of the recent United States Supreme Court decision
in Missouri v. McNeely.3 The judge noted, should McNeely apply,
he would need to hear expert testimony on the dissipation rate of
heroin compared to alcohol. In addition, after the parties
concluded their suppression arguments at this hearing, defendant
requested the judge sever count six of the indictment. Although
the judge heard argument on this issue, the record does not reflect
he rendered a determination.
3 Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).


9 A-3951-14T3


After the hearing, the judge denied defendant's motion to
suppress in a written letter opinion. The judge ruled on two
issues: (1) whether McNeely applied to the police conduct regarding
defendant's blood test, and (2) whether the State had to establish
probable cause to have the private lab test the blood a second
time. On the first issue, the judge relied on our decision in
State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013) [hereinafter
Adkins I], rev'd and remanded, 221 N.J. 300 (2015), to determine
McNeely did not apply because it was not retroactive. On the
second, the judge found, because the initial sample was lawfully
drawn, defendant did not have a reasonable expectation of privacy
in any further testing of the blood.
The case proceeded to trial before a jury, beginning on
January 14, 2015. During trial, Sergeant Rosiello testified to
his observations of defendant's demeanor, stating he believed she
was intoxicated based on her nodding off and slurred speech.
Detective Sample also testified he believed defendant was
intoxicated. Sergeant Simons testified regarding his examination
of the crash scene, his conclusions as to the cause of the
accident, and his discovery of the heroin packets. He further
testified regarding his observations of defendan's demeanor and
his belief she was intoxicated.


10 A-3951-14T3


The parties presented detailed testimony regarding the blood
tests. Defendant presented Michael Kennedy Jr., a forensic
scientist for the New Jersey State police, who testified to the
police lab blood tests. Kennedy stated the lab tested defendant's
sample for both alcohol and drugs and used two procedures to screen
for drugs. First, the lab used an instrument called ELISA, which
screens for different categories of drugs. ELISA provides a
preliminary determination of the contents of a sample, but the
results are not "confirmatory in any way." When ELISA reveals a
positive result, the lab uses a gas chromatography mass
spectrometry (GCMS) to identify specific substances in the sample.
The ELISA is more sensitive than the GCMS, meaning it can reveal
indicators the lab would then have difficulty confirming on the
GCMS.
Kennedy stated the ELISA test yielded a positive finding for
benzodiazepines and general opiates, necessitating further testing
with the GCMS. Kennedy explained, "[I]t's not a fact that [drugs
are] in there. We haven't confirmed [drug] presence with
additional testing. It's just a preliminary indicator that . . .
there may be a drug present. And this particular sample was
positive for benzodiazepines and additional for general opiates."
The GCMS test results concluded drugs were "not detected."
Kennedy explained this result was not necessarily a negative


11 A-3951-14T3


result, as drug levels could fall below what the instrument can
detect. On cross-examination, Kennedy noted the ELISA test "picked
up opiates, the general category for opiates," and noted other
equipment, such as found in a private lab, might detect a substance
where the GCMS failed.
After receiving these test results, the ACPO requested NMS
Labs, a private laboratory, perform a second toxicology analysis.
The State presented Dr. Wendy Adams, assistant laboratory director
at NMS Labs, who testified heroin beaks down very quickly, but is
still detectible as morphine. She stated the NMS Lab tests
revealed cotetinine, codeine, and morphine in defendant's blood.
The State also presented Dr. John Brick, a forensic
pharmacologist, who testified regarding his interpretation of the
NMS Lab test results. Dr. Brick explained heroin is metabolized
to morphine, and morphine is responsible for the primary effects
of heroin on its users. Opioids such as heroin are depressants,
decreasing a user's response to the environment. He confirmed the
police observations of defendant's behavior (nodding off, slow
movements, slurred speech, impaired attention) were consistent
with the behavior of someone under the influence of opioids. Dr.
Brick stated defendant's morphine concentrations were
"significantly elevated" to the point they could affect the brain
to change behavior.


12 A-3951-14T3


The jury heard closing arguments on January 28, 2015. During
the State's closing, the prosecutor made several remarks regarding
the preliminary ELSIA screening, stating it showed defendant's
blood was "positive for opiates," and defendant had "opiates in
her system." Defense counsel objected at sidebar immediately
after the end of the State's closing, arguing the prosecutor made
"false statements or inaccurate statements." The prosecutor
responded, "I think I commented exactly on what the witnesses
testified to."
The judge agreed with the prosecutor, stating, "I think [the
prosecutor's] closing or comments . . . were inviolate of what the
evidence was[;]" nevertheless, the judge proceeded to instruct the
jury "what the attorneys say in their closing arguments . . . is
not to be considered as evidence." The judge then instructed the
jury on the charges from the indictment, including count six, the
possession of heroin charge defendant had moved to sever.
The jury returned its verdict on January 29, 2015. The jury
found defendant guilty of count one (second-degree vehicular
homicide), count four (causing serious bodily injury while driving
with a suspended or revoked license), and count six (possession
of a controlled dangerous substance). The jury acquitted defendant
of the remaining charges.


13 A-3951-14T3


Defendant moved for a new trial, again raising the issue of
the prosecutor's statements during closing. The judge denied the
motion, just before sentencing on March 13, 2015. The parties
then presented their sentencing arguments: defendant requested
mitigating factor eleven (hardship to others), N.J.S.A. 2C:44
1(b)(11), and the State requested aggravating factors three (risk
of recidivism), six (prior criminal record and seriousness of
offenses), and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(3),
(6), (9).
The judge found aggravating factors three and nine. He
further found mitigating factors eleven, seven (no prior criminal
history) and ten (defendant is likely to respond to probationary
treatment), N.J.S.A. 2C:44-1(b)(7), (10). However, he gave factor
ten little weight as defendant's sentence was subject to the No
Early Release Act (NERA). The judge then found the aggravating
factors preponderated over the mitigating factors and sentenced
defendant to seven years of incarceration.
Defendant filed this appeal, presenting the following
arguments:
POINT I

TESTS THAT WERE CONDUCTED ON DEFENDANT'S BLOOD, WHICH WAS DRAWN WITHOUT A WARRANT, MUST BE SUPPRESSED GIVEN A RECENT LEGAL CHANGE THAT APPLIES RETROACTIVELY TO THIS CASE. FURTHER, SUPPRESSION OF THE TEST RESULTS NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.


14 A-3951-14T3


POINT II

DURING HIS CLOSING STATEMENT, THE PROSECUTOR MISLED THE JURY AS TO THE STATE POLICE LAB BLOOD TEST RESULTS, A CRUCIAL PIECE OF EVIDENCE THAT WENT DIRECTLY TO DEFENDANT'S GUILT. THIS PROSECUTORIAL MISCONDUCT, PAIRED WITH THE LACK OF A PROPER CURATIVE INSTRUCTION FROM THE COURT, DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HER ATTORNEY FAILED TO SEEK ADMISSION OF HER STATEMENT FOR THE PURPOSE OF REBUTTING THE STATE'S ALLEGATION OF INTOXICATION. (Not Raised Below).

POINT IV

DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE COUNT SIX, CHARGING HER WITH UNLAWFUL HEROIN POSSESSION, WAS NOT SEVERED FROM THE INDICTMENT.

POINT V

THIS CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING COURT IMPROPERLY WEIGHED THE AGGRAVATING AND MITIGATING FACTORS, RESULTING IN AN EXCESSIVE SENTENCE.

We address these points in the order presented.

I.

Defendant first argues her conviction should be reversed
because the trial judge erred in failing to suppress the results
of her warrantless blood draw pursuant to Missouri v. McNeely. We
must uphold trial court's factual findings in a motion to suppress
so long as the findings are "supported by sufficient credible


15 A-3951-14T3


evidence in the record." State v. Watts, 223 N.J. 503, 516 (2015)
(quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). However,
we review legal issues de novo. Ibid. (citation omitted).
Defendant argues the police were required to obtain a search
warrant before directing the hospital staff to draw her blood.
The United States and New Jersey Constitutions prohibit
warrantless searches "unless they fall within a recognized
exception to the warrant requirement." State v. Adkins, 221 N.J.
300, 310 (2015) [hereinafter Adkins II] (citation omitted). "One
exception to that requirement is the presence of exigent
circumstances." Ibid. (citation omitted).
The United States Supreme Court first addressed the
constitutionality of a warrantless blood draw from a suspected
drunk driver, in the context of the exigent-circumstances
exception, in its 1966 decision in Schmerber v. California, 384
U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Adkins II,
supra, 221 N.J. at 310. In Schmerber, the defendant was involved
in an accident, suffered injuries, and was transported to a
hospital for treatment. Schmerber, supra, 384 U.S. at 758, 86 S.
Ct. at 1829, 16 L. Ed. 2d at 912. Without obtaining a warrant,
police told hospital officials to draw a sample of the defendant's
blood; that sample was used to determine the defendant's blood


16 A-3951-14T3


alcohol content (BAC). Id. at 758-59, 86 S. Ct. at 1829, 16 L.
Ed. 2d at 912-13.
The Court held the "compulsory administration of a blood
test" is a search under the Fourth Amendment. Id. at 767, 86 S.
Ct. at 1834, 16 L. Ed. 2d at 918. However, the Court further held
that a warrantless seizure of the defendant's blood was reasonable
because the officer "might reasonably have believed that he was
confronted with an emergency in which the delay necessary to obtain
a warrant . . . threatened 'the destruction of evidence,'" based
on the fact alcohol naturally leaves a person's system over time.
Id. at 770-71, 86 S. Ct. at 1835-36, 16 L. Ed. 2d at 919-20
(citation omitted). Most significantly, the Court held this draw
was proper based on the "special facts" of this case, where police
had no time to obtain a warrant because "time had to be taken to
bring the accused to a hospital and to investigate the scene of
the accident." Id. at 770-71, 86 S. Ct. at 1836, 16 L. Ed. 2d at
920.
New Jersey case law post-Schmerber permitted the police to
obtain a blood sample without first obtaining a warrant, so long
as they had probable cause to believe the driver was intoxicated
and the sample was taken "in a medically acceptable manner at a
hospital or other suitable health care facility." State v. Dyal,
97 N.J. 229, 238 (1984) (citing Schmerber, supra, 384 U.S. at 771


17 A-3951-14T3


72, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920). Other courts believed
Schmerber "created a rule that the dissipation of alcohol
constituted a per se exigency justifying a warrantless search."
Adkins II, supra, 221 N.J. at 311. In order to resolve a split
in authority on this issue, the Court decided McNeely. Ibid.
In McNeely, the Court reaffirmed Schmerber as "fit[ting]
comfortably within our case law applying the exigent circumstances
exception," but held a different result applied in a simple DWI
traffic stop. McNeely, supra, 569 U.S. at ___, 133 S. Ct. at
1560, 185 L. Ed. 2d at 706. Under the facts of McNeely, police
stopped the defendant's vehicle for traffic violations. Id. at
___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702. After the defendant
failed field sobriety tests and declined a breathalyzer, the
officer transported him to a hospital for blood testing, without
securing a warrant. Id. at ___, 133 S. Ct. at 1557, 185 L. Ed.
2d at 702.
The Court in McNeely held the natural metabolization of
alcohol does not create a per se exigency for all drunk-driving
cases, and that "exigency in this context must be determined case
by case based on the totality of the circumstances." Id. at ___,
133 S. Ct. at 1556, 185 L. Ed. 2d at 702. "In those drunk-driving
investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without significantly


18 A-3951-14T3


undermining the efficacy of the search, the Fourth Amendment
mandates that they do so." Id. at ___, 86 S. Ct. at 1561, 185 L.
Ed. 2d at 707.
The McNeely Court declined to engage in a detailed discussion
of all the relevant factors for determining the reasonableness of
acting without a warrant. Id. at ___, 133 S. Ct. at 1568, 185 L.
Ed. 2d at 715. However, the Court noted the availability of
telephonic warrants could be a factor in this determination. Id.
at ___, 133 S. Ct. at 1562, 185 L. Ed. 2d at 708-09. The Court
further noted the "metabolization of alcohol in the bloodstream,"
and the subsequent loss of evidence, is another factor. Id. at
___, 133 S. Ct. at 1568, 185 L. Ed. 2d at 715.
Here, the trial judge declined to apply McNeely because we
had held it was not retroactive. See Adkins I, supra, 433 N.J.
Super. at 493. However, in Adkins II, our Supreme Court found
McNeely's "totality of the circumstances analysis would be given
pipeline retroactivity."4 State v. Jones, 441 N.J. Super. 317,
320 (App. Div. 2015) [hereinafter Jones II] (citing Adkins II,
supra, 221 N.J. at 317). Because final adjudication of this case
4 When a new rule of law is given "pipeline retroactivity," it applies to "pending cases where the parties have not yet exhausted all avenues of direct review." State v. Feal, 194 N.J. 293, 308 (2008) (quoting State v. Burstein, 85 N.J. 394, 402-03 (1981)).


19 A-3951-14T3


was pending when McNeely was decided on April 17, 2013, our Supreme
Court has determined:
[W]e shall retroactively enforce the Supreme Court's declaration that the totality-of-thecircumstances examination applies to all blood draws from suspected drunk drivers, we hold further that law enforcement should be permitted on remand in these pipeline cases to 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 to the events involved in the arrest. Further, the exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from our Court that did not dwell on such an obligation, we direct reviewing courts to focus on the objective exigency of the circumstances that the officer faced in the situation.

[Adkins II, supra, 221 N.J. at 317.]

Applying this rule, we find there was an "objective exigency"5
in the instant case sufficient to justify a warrantless blood draw
on defendant approximately two hours after a severe accident that
resulted in her husband's death. We find the facts here are
5 We apply the "objective exigency" standard, as the officer testified during the suppression hearing it was ACPO policy to draw blood any time an accident resulted in a death.



20 A-3951-14T3


analogous to the facts of our recent decision in Jones,6 as well
as the "special facts" warranting a warrantless blood sample in
in Schmerber.
In Jones, the defendant caused a large three-vehicle crash
at a busy intersection of Kings Highway in Cherry Hill. Jones I,
supra, 437 N.J. Super. at 71. Eleven officers responded to the
"very chaotic" scene, as did two EMS vehicles, two fire trucks,
and an unknown number of firefighters. Ibid. Police had to block
off traffic around the crash scene, and there was a "concern that
the building [the] defendant had stuck might collapse." Ibid.
The defendant was discovered unconscious and bleeding in her car,
and EMTs took a half-hour to remove her from the vehicle. Ibid.
The defendant was taken to the hospital, as was an occupant of
another car. Id. at 72. The investigation of the accident took
several hours. Ibid.
EMTs detected the scent of alcohol on the defendant's breath
and police noted her slurred speech once she regained
consciousness. Id. at 71-72. As a result, police ordered the
6 In State v. Jones, 437 N.J. Super. 68 (App. Div. 2014) [hereinafter Jones I], decided before the decision in Adkins II, we declined to determine whether McNeely would apply retroactively because "the application of McNeely to the facts of [the] case [did] not require the suppression of the results of defendant's blood test." Id. at 77-78. Our Supreme Court later summarily remanded the case to use for reconsideration in light of Adkins II, and we reached the same result. See Jones II, supra, 441 N.J. Super. at 320-21.


21 A-3951-14T3


hospital draw her blood approximately one hour and fifteen minutes
after the accident. Id. at 72. The police officer later testified
that, pursuant to standard operating procedures at the time, he
was not required to obtain a search warrant. Ibid. He also stated
telephonic warrants were not available in their jurisdiction at
the time of the accident. Id. at 72-73.
Reviewing this case in light of the "objective exigency" and
the "totality of the circumstances" as directed by Adkins II, we
declined to exclude the warrantless blood evidence. Jones II,
supra, 441 N.J. Super. at 321. We noted the events did not involve
"a routine motor vehicle stop," and the exigency "did not depend
solely upon the fact that alcohol dissipates in the blood." Ibid.
"Viewing the circumstances . . . objectively," we found the officer
"might reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant, under
the circumstances, threatened 'the destruction of evidence[.]'"
Ibid. (quoting Schmerber, supra, 384 U.S. at 770, 86 S. Ct. at
1835, 16 L. Ed. 2d at 919-20).
The circumstances in the instant matter, as described in the
suppression hearing and Sergeant Simons' report, are partially
distinguishable from Jones. Here, in a single car accident,
defendant drove her vehicle into a pole. Furthermore, defendant's
car came to rest in a parking lot, meaning the road was open


22 A-3951-14T3


despite the crash. Defendant was not seriously injured, while the
defendant in Jones was unconscious and firefighters had to extract
her from her car. Defendant urges we find Jones distinguishable,
contending Jones "involved a more serious and urgent situation
than this case."
We do not find defendant's arguments persuasive. Because the
case under review was "not a routine motor vehicle stop" and
involved Schmerber's "special facts" of an accident investigation
and hospitalization of the accused, we find the circumstances here
were comparably exigent to those in Jones. As in Jones, police,
firefighters, and EMT personnel all arrived on the scene. Although
defendant herself did not require a "jaws-of-life" extraction, her
husband did. EMTs then transported defendant, her husband and
their daughters to the hospital. Police conducted an
investigation, involving surveying the left-hand lane of the Black
Horse Pike and gathering evidence near the vehicle. We find the
cases comparable in that police and Sergeant Johns "might
reasonably have believed" they were involved in an emergency
situation where the delay necessary to obtain a warrant risked the
destruction of evidence. Jones II, supra, 441 N.J. Super. at 321
(quoting Schmerber, supra, 384 U.S. at 770, 86 S. Ct. at 1835, 16
L. Ed. 2d at 919-20).


23 A-3951-14T3


Defendant also contends, citing Sergeant Rosiello's
statements during the suppression hearing, that police drew
defendant's blood not because of an exigency but because of ACPO
policy. Defendant is likely correct that after McNeely, a policy
cannot serve as the sole basis for a warrantless blood draw.
However, under an "objective exigency" analysis given the
circumstances of the accident, we find police and Sergeant Johns
could have reasonably believed there was an emergency
necessitating a warrantless blood draw. Jones II, supra, 441 N.J.
Super. at 321.
Defendant further argues the differences between alcohol and
heroin meant there were no exigent circumstances in this case.
Specifically, defendant contends alcohol dissipates slowly in the
blood, while heroin dissipates in a matter of minutes. Defendant
asserts there could have been no exigency once these few minutes
had passed, since any test not done immediately would show a
negative result for heroin.
However, as Jones II instructs, the test we apply views the
circumstances objectively to determine whether an officer "might
reasonably have believed" there was an emergency. Ibid. Sergeant
Rosiello testified during the suppression hearing he received
training that heroin dissipates "quickly[,] [s]ometimes . . .
within minutes" and "starts breaking down to other metabolites."


24 A-3951-14T3


"As the United States Supreme Court has noted, traces of illegal
drugs are continuously eliminated from the bloodstream. The delay
in obtaining a warrant could result in the disappearance of the
evidence of drug use." Rawlings v. Police Dep't of Jersey City,
133 N.J. 182, 191 (1993) (citing Skinner v. Railway Labor Execs.'
Ass'n, 489 U.S. 602, 623, 109 S. Ct. 1402, 1416, 103 L. Ed. 2d
639, 663 (1989)). We conclude there was a reasonable basis for
finding an exigency to draw the blood not for heroin itself, but
before metabolites indicating heroin use dissipated from
defendant's bloodstream. Evidence at the accident scene caused
the police to suspect the driver was under the influence, and
Sergeant Rosiello testified, based upon his training, that heroin
dissipates quickly, sometimes within minutes.
Defendant argues officers could have requested a telephonic
warrant to seize defendant's blood. Indeed, unlike in Jones I,
supra, 437 N.J. Super. at 72-73, the police here were familiar
with the telephone warrants. However, although McNeely considered
the availability of telephonic warrants as a factor in a "totality
of the circumstances" analysis, the Court stated, "We by no means
claim that telecommunications innovations have, will, or should
eliminate all delay from the warrant-application process."
McNeely, supra, 569 U.S. at ___, 133 S. Ct. at 1562, 185 L. Ed.
2d at 709.


25 A-3951-14T3


To show that a telephonic warrant should have been obtained,
defendant cites State v. Witt, 223 N.J. 409, 436 (2015), where our
Supreme Court noted that in one test program the average request
time for such a warrant could take between one and two hours.
Defendant contends because the accident occurred at 12:45 p.m. and
the draw at 2:50 p.m., police could have obtained a warrant during
this time. However, this delay is likely a reflection of the time
it took to transfer defendant to the hospital. As Sergeant
Rosiello noted, the ACPO warrant process involves first contacting
an assistant prosecutor and discussing the case, and then locating
and phoning a judge to obtain a warrant.
Here, the police responded to a serious accident requiring
"jaws-of-life" extraction of the front-seat passenger. The driver
and two child passengers required hospital evaluation and
treatment. As noted, the police suspected defendant was under the
influence, and Sergeant Rosiello was trained that heroin
dissipates quickly. Under these circumstances, we conclude
Sergeant Johns could have reasonably believed he had insufficient
time to complete the two-step process to secure a telephone
warrant, given the emergency confronting him. See Jones II, supra,
441 N.J. Super. at 321.
Finally, defendant asserts, assuming arguendo the initial
draw was proper, the second lab test by NMS labs was improper as


26 A-3951-14T3


the police had no probable cause for the second test. Defendant
cites the Third Circuit's case Reedy v. Evanson, 615 F.3d 197, 229
(3d Cir. 2010), cert. denied, 562 U.S. 1256, 131 S. Ct. 1571, 179
L. Ed. 2d 474 (2011), which stated, "[I]n Schmerber, while the
Supreme Court noted that the taking of blood involves intrusion
beyond the body's surface, it did not say that the blood, once
drawn, is no longer subject to a reasonable expectation of
privacy."
We disagree and find Reedy distinguishable. In Reedy, a rape
victim consented to having her blood drawn as part of a rape kit,
but law enforcement further directed the hospital to test it for
drug use without the victim's consent and without a warrant. Id.
at 204-05, 230. The court held the defendant only consented to
the blood draw for the rape kit, and she therefore had a reasonable
expectation of privacy in her blood for other uses. Id. at 230.
Here, police lawfully drew the blood, and the initial probable
cause for heroin use, specifically defendant's slurred speech and
demeanor, justified this second test. The positive ELISA screening
also justified this test, even though the GCMS was negative. As
was stated at trial, a negative result on the police equipment is
not conclusive, and other equipment from a private lab may detect
a substance where the police equipment cannot.


27 A-3951-14T3


Moreover, in Dyal, supra, 97 N.J. at 239, our Supreme Court
recognized where police accompany a drunk driver to the hospital
and lawfully obtain a blood test for diagnostic purposes, they
need not perform a new second test for investigatory purposes.
Although the circumstances here are different, Dyal suggests once
police lawfully obtain a blood sample of a suspected intoxicated
driver, they need not take extra steps in order to conduct
additional tests.
As we find the blood draw reasonable under the totality of
the circumstances, we need not remand this case as authorized by
Adkins II, supra, 221 N.J. at 317. Although the trial judge stated
he intended to take testimony regarding the dissipation rate of
heroin if McNeely applied, we find the suppression hearing record
sufficient to establish a warrant was not needed in this matter.
II.
Defendant next argues the prosecutor's summation inaccurately
related the State Police blood test results and deprived her of a
fair trial. We disagree.
Summations, like jury instructions, must be read in the
context of the trial as a whole. See State v. Morton, 155 N.J.
383, 416 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149
L. Ed. 2d 306 (2001). We do not evaluate a summation in isolation
because the State is permitted to respond to allegations made by


28 A-3951-14T3


defense counsel. State v. Engel, 249 N.J. Super. 336, 379-80
(App. Div.), certif. denied, 130 N.J. 393 (1991).
Prosecutors in criminal cases "are expected to make vigorous
and forceful closing arguments to juries." State v. Frost, 158
N.J. 76, 82 (1999) (citation omitted). They are "afforded
considerable leeway in closing arguments as long as their comments
are reasonably related to the scope of the evidence presented."
Ibid. (citations omitted). Prosecutors "may comment on facts in
the record and draw reasonable inferences from them." State v.
Lazo, 209 N.J. 9, 29 (2012) (citation omitted). Most importantly,
"prosecutors should not make inaccurate legal or factual
assertions during a trial." State v. Reddish, 181 N.J. 553, 641
(2004) (quoting State v. Smith, 167 N.J. 158, 178 (2001)).
Where prosecutorial misconduct has occurred, however, courts
should not reverse unless the conduct was "so egregious that it
deprived the defendant of a fair trial." State v. Wakefield, 190
N.J. 397, 438 (2007) (quoting Smith, supra, 167 N.J. at 181),
cert. denied, 522 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817
(2008). In determining whether prosecutorial misconduct warrants
reversal, courts should consider: "(1) whether defense counsel
made timely and proper objections to the improper remarks; (2)
whether the remarks were withdrawn promptly; and (3) whether the
court ordered the remarks stricken from the record and instructed


29 A-3951-14T3


the jury to disregard them." Smith, supra, 167 N.J. at 182 (citing
State v. Timmendequas, 161 N.J. 515, 575 (1999)). Despite
overwhelming evidence of guilt, a defendant cannot be deprived of
the right to a fair trial. Frost, supra, 158 N.J. at 87.
Defendant challenges the following statements by the
prosecutor during summation, quoted here, in relevant part:
Because the fact of the matter is the State Lab expert said he did find opiates in her system, remember? There were two tests? The first test positive. What was it positive for? It was positive for opiates.

The second test wasn't able to determine which opiates it was or in what quantity. And he was asked why would that be. And he said, well, our equipment sometimes isn't that sensitive. Other equipment might be more sensitive. It might be able to tell you. But absolutely that State Lab tech found opiates in this defendant's system.

. . . .

In minutes after taking heroin, it's just gone from your system and it's broken down into those metabolites, metabolites that the State Lab found, metabolites that NMS Labs described for you.

. . . .

And so I suggest to you both witnesses presented by the defense support the fact that this defendant was high.

. . . .

[N]obody was really all that surprised when her blood work came back with codeine and morphine in it; when her blood work came back


30 A-3951-14T3


from the State Police as being positive for opiates.

After defense counsel objected to these statements, the judge
provided the following curative instruction:
Now, we spent some time up here just before I [began] this charge to you speaking about alleged inaccuracies or incompletion of argument the attorneys have made to you. And I can only . . . reiterate to you, as I have probably two or three times before, that what the attorneys say in their closing arguments as well as their openings is not to be considered as evidence.

Defendant argues the prosecutor's comments were based on
facts not in evidence, because although the ELISA test showed a
positive result, it was not "confirmatory," and the GCMS and State
Lab report revealed drugs were "not detected" in the sample.
Defendant contends this deprived her of a fair trial, as the blood
results were essential to establishing her guilt on the issue of
driving while intoxicated. Last, she argues the trial judge's
general curative instruction was insufficient to cure her
prejudice, as it did not remind the jury that the ELISA test was
only presumptive and not conclusive.
We are not persuaded. As quoted above, defendant's witness
Kennedy testified although drugs were not confirmed in the ELISA
sample, "this particular sample was positive for benzodiazepines
and additional for general opiates." Kennedy also stated although
the GCMS did not detect drugs, it was not necessarily a negative


31 A-3951-14T3


result, as other equipment could potentially pick up drugs where
the GCMS failed. He reiterated on cross-examination the ELISA
"picked up opiates, the general category for opiates."
In light of this testimony, we find the prosecutor did not
make inaccurate factual assertions. Had the prosecutor stated the
State Police found "drugs" or "heroin" in defendant's system, it
would have been cause for concern. However, stating defendant's
blood was "positive for opiates" was a "reasonable inference[]"
based on Kennedy's testimony. Lazo, supra, 209 N.J. at 29.
Furthermore, defense counsel had the opportunity during
closing to stress an opposite interpretation of the tests, and did
so at length. For instance, the defense stated, "The State Police
performed tests on the blood and reported that no drugs were
detected." He later stated, "Dr. Brick testified that the amount
of morphine noted in the NMS test is high. Yet nothing was
detected in the State test." Reading the summations in the context
of the trial as a whole, Morton, supra, 155 N.J. at 416, we find
defendant was not deprived a fair trial.
Finally, we note the judge's curative instruction was
sufficient to cure any inaccuracies. Curative instructions must
be specific, and "firm, clear, and accomplished without delay."
State v. Vallejo, 198 N.J. 122, 134-35 (2009). However, a general
charge can serve to ameliorate prejudice where improper remarks


32 A-3951-14T3


are only "slightly improper." Frost, supra, 158 N.J. at 86-87
(citations omitted). General instructions that the jury should
not consider prosecutor's statements as evidence can cure any
"lingering potential for undue prejudice." Engel, supra, 249 N.J.
Super. at 382.
The judge's general instruction was sufficient here. We
decline to reverse on this basis.
III.
We decline to consider the ineffective-assistance-of counsel
claim defendant raises in Point III of her brief. Claims attacking
counsel's assistance "are particularly suited for post-conviction
review because they often cannot reasonably be raised in a prior
proceeding." State v. Preciose, 129 N.J. 451, 460 (1992) (citing
R. 3:22-4(a)). "Our courts have expressed a general policy against
entertaining ineffective-assistance-of-counsel claims on direct
appeal because such claims involve allegations and evidence that
lie outside the trial record." Ibid. (citations omitted). Such
is the case here.
IV.
Defendant next argues the trial court should have severed
count six from the indictment, charging her with possession of a
controlled dangerous substance. We disagree.


33 A-3951-14T3


Mandatory joinder of charges is required where multiple
criminal offenses are "based on the same conduct or arising from
the same episode." R. 3:15-1(b). However, Rule 3:15-2(b) grants
a trial judge the discretion to "order separate trials on counts
of an indictment if a party is prejudiced by their joinder." State
v. Oliver, 133 N.J. 141, 150 (1993).
"The test for assessing prejudice is 'whether, assuming the
charges were tried separately, evidence of the offenses sought to
be severed would be admissible under [N.J.R.E. 404(b)] in the
trial of the remaining charges.'" State v. Sterling, 215 N.J. 65,
73 (2013) (alteration in original) (quoting State v. Chenique
Puey, 145 N.J. 334, 341 (1996)). Our Supreme Court in State v.
Cofield, 127 N.J. 328, 338 (1992), created a four-prong test for
determining the admissibility of N.J.R.E. 404(b) evidence. "The
admissibility of the evidence in both trials renders
inconsequential the need for severance." State v. Davis, 390 N.J.
Super. 573, 591 (App. Div.) (citation omitted), certif. denied,
192 N.J. 599 (2007).
Generally, this court reviews the trial court's severance
determination for abuse of discretion. Ibid. Reviewing courts
also determine admissibility rulings on other-crime evidence,
N.J.R.E. 404(b), under an abuse of discretion standard. State v.
Darby, 174 N.J. 509, 518 (2002). However, our Supreme Court has


34 A-3951-14T3


held where the trial court does not recognize contested evidence
is "other-crime evidence," and does not analyze it under the four
part test described in Cofield, this court's review is de novo.
Ibid. This is arguably the case here; defendant moved to sever
the indictment before trial, and the parties discussed whether the
charge should be severed at the suppression hearing, but they did
not explicitly cite Cofield. There is also no ruling on record
as to the court's decision on the motion to sever, but the case
proceeded to trial with count six included. Therefore, we will
review this issue de novo.
The issue here is whether the evidence of the wrapped heroin
bags at the scene of the accident would be admissible at trial
under N.J.R.E. 404(b) in order to prove the other offenses charged,
specifically defendant's intoxication. Sterling, supra, 215 N.J.
at 73. N.J.R.E. 404(b) provides that evidence of other crimes or
acts is "not admissible to prove the disposition of a person in
order to show that such person acted in conformity therewith," but
may be used for other purposes including proof of "opportunity"
and "absence of mistake." The four-part Cofield test governs
admissibility of this evidence as follows:
1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;



35 A-3951-14T3


3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Rose, 206 N.J. 141, 159-60 (2011) (quoting Cofield, supra, 127 N.J. at 338).]

First, under prong one, evidence is relevant if it makes an
inference more probable and is related to a material issue in
dispute. Id. at 160. Here, although defendant argues the packets
were discovered unopened, they are relevant because they
demonstrate defendant had the opportunity to use heroin, and also
prove she was able to obtain the substance and had some on hand.
N.J.R.E. 404(b).
Regarding prong two, our Supreme Court has noted it does not
require universal application, as it is "limited to cases that
replicate the circumstances in Cofield." Rose, supra, 206 N.J.
at 160 (quoting State v. Williams, 190 N.J. 114, 131 (2007)). In
Cofield, supra, 127 N.J. at 332-33, the question was whether
evidence of a subsequent illegal drug incident several weeks after
the one at issue in the case could come into evidence, and the
prong is thus inapplicable here.
On prong three, the prosecution must establish the act
occurred by "'clear and convincing' evidence." Rose, supra, 206
N.J. at 160 (quoting Cofield, supra, 127 N.J. at 338). Defendant
argues the evidence she possessed the heroin was not "clear and


36 A-3951-14T3


convincing" because there was some distance between the heroin on
the ground and the car, meaning there was no conclusive evidence
the heroin came from the inside the vehicle. However, as the
trial judge suggested during the motion hearing, the proximity of
the car, driven by a heroin user, to where the bags were found
establishes clear and convincing evidence she possessed the
heroin. Furthermore, Sergeant Simons' report stated, "Based on
the force of the impact, the fact that the driver's side window
was down, the proximity of where it was found to the path the
vehicle took, I concluded that this contraband came from the inside
of the van." Therefore, we find the evidence presented at the
hearing was clear and convincing.
Finally, defendant argues the evidence would not be
admissible under the fourth Cofield factor because it was highly
prejudicial. Defendant contends, because the State was able to
try all of the offenses jointly, the heroin evidence "made it more
likely that the jurors inferred she was intoxicated, even though
there was no evidence that the heroin found had been opened and
used."
Prong four is the "most difficult to overcome," and the
court must engage in a "careful and pragmatic evaluation of the
evidence" regarding probative value versus prejudice. Rose,
supra, 206 N.J. at 160 (quoting State v. Barden, 195 N.J. 375, 389


37 A-3951-14T3


(2008)). Most importantly, "[i]f other less prejudicial evidence
may be presented to establish the same issue, the balance in the
weighing process will tip in favor of exclusion." Id. at 161
(quoting Barden, supra, 195 N.J. at 392 (2008)). However, evidence
should be excluded "only when its probative value is so
significantly outweighed by [its] inherently inflammatory
potential as to have a probable capacity to divert the minds of
jurors from a reasonable and fair evaluation of the issues in the
case." State v. Gillispie, 208 N.J. 59, 90 (2011) (alteration in
original) (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)).
Defendant argues the prejudicial value of this evidence
outweighed the probative value, as it "characterized her as a bad
person who had the propensity to commit the crimes charged."
However, we find the probative value of the evidence was high.
Under the vehicular homicide statute, proof defendant was under
the influence of drugs gives rise to an inference she was driving
recklessly. N.J.S.A. 2C:11-5(a). Although the evidence of the
blood tests and police observation of defendant's demeanor was
available to suggest intoxication, the heroin evidence was
necessary in order to connect the metabolites in her bloodstream
to the opportunity to obtain and use drugs. Therefore, we find
the probative value of the heroin outweighed the prejudice to
defendant.


38 A-3951-14T3


Since the heroin evidence meets the four prongs of Cofield,
we conclude the trial judge's failure to sever count six did not
deny defendant a fair trial.
V.
Last, defendant argues she received an excessive sentence,
contending the judge improperly weighed the aggravating and
mitigating factors. We disagree, but we vacate and remand for
correction of an error in the final judgment of conviction.
Our review of sentencing decisions is governed by an abuse
of discretion standard. State v. Blackmon, 202 N.J. 283, 297
(2010). Our role is to ensure the aggravating and mitigating
factors applied by the sentencing judge "were based upon competent
credible evidence in the record." State v. Miller, 205 N.J. 109,
127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)).
We will modify a sentence only where the judgment of the court is
such that it "shocks the judicial conscience." State v. Roth, 95
N.J. 334, 364 (1984) (citing State v. Whitaker, 79 N.J. 503, 512
(1979)).
In reviewing aggravating and mitigating factors, the trial
judge should not just "quantitatively compare" the number of
aggravating versus mitigating factors, but should assess each in
a "case-specific balancing process." State v. Fuentes, 217 N.J.
57, 72-73 (2014) (citations omitted). "The factors are not


39 A-3951-14T3


interchangeable on a one-to-one basis. The proper weight to be
given to each is a function of its gravity in relation to the
severity of the offense." Roth, supra, 95 N.J. at 368. "[I]f the
aggravating factors and mitigating factors are in equipoise, the
midpoint will be an appropriate sentence[,]" but, "when the
mitigating factors preponderate, sentences will trend toward the
lower end of the range." Fuentes, supra, 217 N.J. at 73 (quoting
State v. Natale, 184 N.J. 458, 488 (2005)).
Here, the judge found aggravating factors three (risk
defendant will reoffend) and nine (need for deterrence). N.J.S.A.
2C:44-1(a)(3), (9). The judge further found mitigating factors
seven (risk of recidivism), ten (defendant is likely to respond
to probationary treatment), and eleven (hardship to others), but
gave factor ten little weight as the sentence was subject to NERA.
N.J.S.A. 2C:44-1(b)(7), (10), (11). The judge found the
aggravating factors preponderated over the mitigating factors.
Defendant argues the judge's sentencing determination was
"inexplica[ble]," as he found three mitigating factors, but only
two aggravating factors.
We discern no mistaken exercise of discretion in the judge's
weighing of the aggravating and mitigating factors and his
imposition a seven-year sentence. Defendant suggests the judge
erred based on the numerical advantage of the mitigating factors


40 A-3951-14T3


versus the aggravating factors. However, we note the factors are
essentially equal, as the trial judge appropriately gave
mitigating factor ten little weight. Furthermore, trial judges
review the factors on a case-by-case basis. Fuentes, supra, 217
N.J. at 72-73. A conviction on count one, second-degree vehicular
homicide, carries a sentence between five and ten years. N.J.S.A.
2C:43-6(a)(2). Here, the seven-year term was just below the
midpoint of the sentencing range. We will not disturb the judge's
finding on this basis.
However, we remand this matter to the Law Division to correct
a mistake in the judgment of conviction. Defendant was convicted
on count four of violating N.J.S.A. 2C:40-22(b), causing serious
bodily injury while driving with a suspended or revoked license,
a fourth-degree offense. At the sentencing hearing, the judge
imposed a term of imprisonment of nine months for this offense,
concurrent with the seven-year sentence for count one. The
judgement of conviction, however, lists count four as a third
degree offense7 and states the term of imprisonment for this
offense is three years. The judgment of conviction should have
stated defendant was convicted of a fourth-degree offense on count
four with a term of imprisonment of nine months.

Outcome: