                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1425-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PATRICK HEALY, a/k/a PAT,

     Defendant-Appellant.
_________________________

                    Submitted December 19, 2018 – Decided February 11, 2020

                    Before Judges Fuentes and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 15-08-
                    0563.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for respondent (Staci L. Scheetz, Senior
                    Assistant Prosecutor, and Monica Bullock, on the
                    brief).

          The opinion of the court was delivered by
FUENTES, P.J.A.D.

       A Gloucester County Grand Jury indicted defendant Patrick Healy on one

count of fourth degree driving a motor vehicle while his driver's license was

suspended for two or more convictions of driving while intoxicated (DWI),1

N.J.S.A. 2C:40-26(b). Defendant was also charged with the disorderly persons

offense of possession of drug paraphernalia (a metallic pipe), with intent to use,

N.J.S.A. 2C:36-2, driving with an open container of alcohol, N.J.S.A. 39:4-51,

failing to maintain a traffic lane, N.J.S.A. 39:4-88, and driving with a suspended

license, N.J.S.A. 39:3-40.

       The jury trial on the fourth degree criminal offense began on August 2,

2016 and ended on August 4, 2016. The jury found defendant guilty as charged.

More than two months after the jury trial, the judge conducted a bench trial on

the disorderly persons offense and the Title 39 charges, and found defendant

guilty of possession of drug paraphernalia, driving with a suspended license, and

failure to maintain a traffic lane. The judge acquitted him on the Title 39 charge

of driving with an open container of alcohol.

       On October 14, 2016, the judge sentenced defendant on his fourth degree

conviction to a one-year term of probation conditioned upon serving 180 days


1
    N.J.S.A. 39:4-50.
                                                                          A-1425-16T3
                                        2
without parole in the Gloucester County Correctional Facility as mandated by

N.J.S.A. 2C:40-26(c). He also suspended defendant's driver's license for six

months, as required by N.J.S.A. 39:3-40(d), and imposed the mandatory fines

and penalties.

      In this appeal, defendant argues the trial judge committed reversible error

by: (1) admitting a recording of a 9-1-1 call in which the individual who reports

the one-car accident at issue here claimed a man, who was subsequently

identified as defendant, was "standing outside of [the car], but . . . looked like

. . . he might have been drunk or something;" and (2) allowing a police officer

who responded to the scene of the accident to testify that he recovered from

defendant's person a pipe commonly used to smoke marijuana.            Defendant

argues this evidence should have been excluded as prejudicial and devoid of

probative value. According to defendant, these ostensible errors by the trial

judge violated his right to a fair trial.

      After considering the record developed before the trial court and the

evidence presented to the jury, we reject defendant's arguments and affirm.

                                            I

      At around midnight on December 2, 2014, a 9-1-1 dispatcher who covers

Monroe Township received two emergency calls reporting a man standing


                                                                          A-1425-16T3
                                            3
outside of what appeared to be a one-car accident on Coles Mill Road. The first

caller was Thomas Orselli. He identified the specific location of the accident

and said there was "a car that’s sideways on the road." Orselli also reported the

presence of a person at the scene who "looked like he might have been drunk or

something."    When the 9-1-1 dispatcher asked him if the vehicle had "hit

anything[,]" Orselli responded: "when I was going by[,] it looked like there was

some kind of a skunk out in the road." The prosecutor played to the jury the

recording of Orselli's 9-1-1 call in its entirety. 2

      Monroe Township Police Officer Maxwell Janofsky reported to the scene

of the accident approximately ten minutes after the 9-1-1 calls were placed. His

marked patrol car is equipped with an "MVR" which, as Janofsky explained,




2
  The State called Carl Vandergrift, the operations supervisor of the County and
Gloucester Emergency Response Center, to explain to the jury how the 9-1-1
emergency response system operates. Vandergrift also authenticated the DVD
audio recordings of the 9-1-1 calls the State played to the jury. The trial judge
permitted the prosecutor to provide the jurors with a "transcript of the 9 -1-1
recordings from the two passerby[s] that observed" the scene of the one -car
accident. Without objection from defense counsel, the trial judge gave the jury
the following instructions: "Ladies and Gentlemen, you’re going to be given a
transcript for the purposes of an aid. That’s just to help you in case you don’t
quite hear or to help you be able to understand what’s being said. The transcript
itself is not evidence. It’s just an aid."


                                                                         A-1425-16T3
                                           4
stands for "motor vehicle recorder." According to Janofsky, at the time of this

accident he "did not have a mic that was hooked up to the MVR."

      Upon arrival at the scene, Janofsky "observed a vehicle parallel to the

street" on a two lane road and "mailbox debris and a[n electric] pole that was

damaged on the side of the road" in a residential neighborhood. The vehicle

sustained "heavy frontend damage." Janofsky saw defendant "seated in the

passenger seat at the time." Janofsky also saw damage to the driver-side of the

vehicle, presumably caused by the collision with the electric pole. Janofsky

testified that defendant had difficulty "putting coherent sentences together." He

also had "a large laceration on top of his head[,]" which according to Janofsky,

was "consistent with striking the windshield."

      Janofsky's comment about the cause of defendant's head injury prompted

an immediate objection from defense counsel. At a sidebar conference, defense

counsel argued the witness did not establish a foundation to support his opinion

about what caused defendant's head injury. The prosecutor argued the witness'

testimony was supported by the car's "severe frontend damage" and the damage

to the windshield. The judge accepted the prosecutor's argument, overruled

defense counsel's objection, and denied her request to strike this part of

Janofsky's testimony.


                                                                         A-1425-16T3
                                       5
      The prosecutor resumed her direct examination of Janofsky with the

following exchange:

            Q. Okay. So when you indicated he may have hit the
            windshield you don’t know if he possibly hit something
            else inside the car or anything else?

            A. Correct.

            Q. Okay. Now, once you assess that scene, what did
            you do with him?

            A. At that point once I saw the laceration and he
            couldn’t put his coherent sentence together we called
            for an ambulance because medical treatment comes
            first at that point.

            Q. And did you ask for his identification?

            A. I asked him for his credentials, his driver’s license,
            registration, insurance card. He couldn’t provide any
            of that. Without knowing who he was I patted him
            down to find his ID. As I was patting him down I
            located his ID and a metallic pipe commonly used for
            smoking marijuana.

            [(Emphasis added).]

      Defense counsel objected; the trial judge promptly sustained the objection

and gave the following sua sponte curative instruction to the jury: "You’re to

strike that last part of the response, the commonly used for the smoking of

marijuana from your consideration." The record shows that through Janofsky's

testimony, the State established defendant was unable to produce his driver's

                                                                        A-1425-16T3
                                       6
license, automobile insurance identification card, or the vehicle registration

card.

        Despite the judge's admonition to the jury concerning the smoking pipe,

the prosecutor continued to pursue this line of questioning with Janofsky:

              Q. You indicated that it was a small pipe that you found
              in his pocket?

              A. Yes.

              Q. And is it common just for -- is it paraphernalia?

              A. Yes.

              DEFENSE COUNSEL: Objection, Your Honor. Can
              we have a sidebar, Judge?

        At this second sidebar conference, defense counsel objected to Janofsky's

"conclusion" that the pipe was "paraphernalia" and "that the pipe is commonly

used to smoke marijuana." The judge noted that he had previously "struck" from

the record the notion that the pipe "is commonly used to smoke marijuana" and

reminded the prosecutor that he had previously ruled the State had to first "lay

a foundation" that Janofsky is "able to testify regarding paraphernalia." The

prosecutor argued that she established the witness' competency to testify in these

matters when she questioned him regarding "his training [and] experience" as




                                                                          A-1425-16T3
                                         7
an instructor for the "New Jersey LEAD, 3" DARE, and his involvement with the

"K-9 narcotic detection dog." The judge was not persuaded by the prosecutor's

response.

      Defense counsel asked the judge for "a limiting instruction right now [for]

. . . the jury not to consider what was just said because there has been no

foundation that he is an expert to say such a thing." After discussing the issue

with the parties at length in this second sidebar conference, the judge sustained

defense counsel's objection but declined to give any additional instructions to

the jury.

      The prosecutor resumed her direct examination of Janofsky by asking him:

"How many paraphernalias [sic] can you identify or have you been trained to

identify?" Although he could not give an exact number, Janofsky claimed that

based on his "multiple investigations" that resulted in "convictions [,]" he "can

name pretty much anything you put in front of [him] and what it could be used

for." In response to the prosecutor's question, Janofsky confirmed that the pipe




3
  Earlier in his direct testimony, Janofsky explained that New Jersey LEAD is
a program "[t]o educate the younger generations about drug abuse and
awareness, to what -- how to stay away from it and other programs they can go
into rather than going down the path of CDS."
                                                                         A-1425-16T3
                                       8
can be used for "ingesting" illicit drugs. At this phase of the trial, the State had

not produced the actual pipe Janofsky allegedly found on defendant's person.

      According to Janofsky, defendant told him the accident happened when

"he swerved to miss an animal." However, Janofsky testified that defendant told

him he was not driving the car at the time of the accident and claimed there were

three other "gentlemen" in the car. Janofsky testified that defendant identified

the driver of the car by three different names – "Michael . . . John[,] and . . .

Robert."   An ambulance transported defendant to Cooper Trauma Hospital

where he was treated for a head injury. He was hospitalized for approximately

two weeks.

      Defendant did not testify in his own defense. He called his younger

brother and two life-long friends as character witnesses. Defendant based his

trial strategy on the State's alleged inability to prove beyond a reasonable doubt

that he was the driver of the car. Defense counsel framed the issue clearly in

her opening statement to the jury:

             Now, the State has indicated it has two witnesses.
             Neither of those witnesses is going to testify that they
             actually saw my client operating a motor vehicle. The
             State is not going to be presenting witnesses that say
             they saw Mr. Healy in the driver’s seat operating a
             motor vehicle. That’s not going to be the testimony.
             The testimony is going to be that Mr. Healy exited his


                                                                            A-1425-16T3
                                         9
            vehicle outside of the passenger side of the car. I’m
            going to address that more thoroughly in my closing.

            But I want all of you to remember and keep that in
            mind. He’s actually in the passenger side of the car and
            he is not seen operating a motor vehicle by any of the
            State’s witnesses or any witnesses at this trial. So I
            want you to consider that and I will readdress that in
            my closing when I’m asking that all of you find Mr.
            Healy not guilty. Thank you.

      Defense counsel noted the State did not call as a witness the person who

made the first 9-1-1 call to report the accident. She emphasized that when

Janofsky arrived at the scene, he saw defendant seated in the passenger side of

the car. Counsel argued this was corroborated by the video taken by the patrol

car MVR.

            We saw on the MVR that it was raining outside. It was
            nighttime. It was dark out and what do you see on the
            MVR? You see the officer pull up and Mr. Healy is not
            seated in the driver seat. You do not see that. You see
            that Mr. Healy exits through the passenger seat of the
            car and not the driver seat.

            And I asked the officer whether or not he put that in his
            police report. And no, he didn’t think it was important
            to put in his police report that the person who was
            alleged to have been driving is found in the passenger
            seat of the vehicle.




                                                                        A-1425-16T3
                                      10
      Defense counsel also attacked the State's introduction of testimony about

a pipe found on defendant's person, which it characterized as paraphernalia

allegedly used to smoke illicit drugs.

             Now, the State made a big deal about bringing up this
             pipe. There's a pipe that’s found on Mr. Healy and you
             heard testimony that anyone can buy this pipe. You can
             just buy it in a store.

             He wants you to believe that it's used for paraphernalia,
             but there's no allegation of any illegal drugs found.
             There’s no smell of marijuana as he had indicated. He
             didn't find any marijuana and this is a pipe that can be
             bought in a store by anyone. Any citizen off the street
             can walk into the store and buy this pipe and perhaps
             there is an innocent use for this pipe.

      Finally, defense counsel noted that the second 9-1-1 caller, a woman who

did not give her name, "said she was in the house right by the accident." Counsel

argued the police should have made some attempt to locate her residence – "why

not just knock on a couple doors that are in that area right in front of the accident

scene?" Counsel concluded her closing argument by returning to the issue she

stressed in her opening statement:

             The State has to prove this beyond a reasonable doubt
             that Mr. Healy was driving and they have failed to do
             that. If you have any doubt as to whether or not Mr.
             Healy was driving, then you must find him not guilty
             and that is what I'm requesting of all of you today.
             Thank you.


                                                                             A-1425-16T3
                                         11
      The jury found defendant guilty of fourth degree driving a motor vehicle

while his driver's license was suspended for two or more DWI convictions.

Against this backdrop, defendant raises the following argument.

            POINT I

            THE TRIAL COURT ERRED IN ADMITTING
            EVIDENCE OF A 9-1-1 CALLER'S OPINION THAT
            MR. HEALY MAY HAVE BEEN INEBRIATED AND
            THAT POLICE CLAIMED TO HAVE LOCATED
            MARIJUANA PARAPHERNALILIA AND AN OPEN
            CONTAINER AT THE SCENE OF THE ACCIDENT.
            THAT EVIDENCE WAS NOT ONLY IRRELEVANT,
            AND THEREFORE NOT PROBATIVE, BUT IT
            UNFAIRLY PREJUDICED MR. HEALY.                U.S.
            CONST. AMENDS. V, VI, AND XIV; N.J. CONST.
            ART. I, PAR. 9, 10. (Partially raised below).

      Defendant's argument lacks sufficient merit to warrant extensive

discussion in a written opinion. R. 2:11-3(e)(2). Here, the State was required

to prove beyond a reasonable doubt that: (1) that defendant knowingly operated

a motor vehicle; and (2) he operated the vehicle while his driver's license was

suspended or revoked for a second or more DWI convictions. N.J.S.A. 2C:40-

26(b). Defendant does not dispute that the State met its burden of proof as to

all the elements of this offense.

      "[T]he decision to admit or exclude evidence is one firmly entrusted to the

trial court's discretion." State v. Scott, 229 N.J. 469, 479 (2017) (quoting Estate


                                                                           A-1425-16T3
                                       12
of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). This

court will uphold evidentiary rulings made by a judge in the course of a trial

absent evidence showing an abuse of discretion or a clear error of judgment.

State v. Brown, 170 N.J. 138, 147 (2001). We discern no legal basis to conclude

the evidentiary rulings defendant challenges in this appeal impugned the

reliability of the jury's verdict or undermined the fairness of the trial. The judge

promptly and effectively responded to defense counsel's objections and, where

warranted, provided an appropriate curative instruction to the jury to counteract

any possible prejudice.

      Affirmed.




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                                        13
