STATE OF NEW JERSEY v. ALLISON NASTA, a/k/a ALLISON BONNAR

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,





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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."





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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,





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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).





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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.





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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





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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.





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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.





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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.





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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





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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





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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





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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





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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)).





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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.





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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





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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).





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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."





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"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.





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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.