                                NOT FOR PUBLICATION WITHOUT THE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-4094-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BHAVUK UPPAL,

     Defendant-Appellant.
_________________________

                    Submitted July 15, 2020 – Decided August 27, 2020

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 16-05-0397.

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

                    Frederic M. Knapp, Morris County Prosecutor, attorney
                    for respondent (John K. McNamara, Jr., Chief Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Defendant Bhavuk Uppal appeals from a December 1, 2017 judgment of

conviction (JOC) sentencing him to twenty-one years of imprisonment for

vehicular homicide. On appeal, he challenges the September 26, 2017 trial court

decision which denied his motion to suppress the results of the toxicological

samples taken at the hospital by medical personnel during the course of

treatment following the accident. We affirm, with a limited remand to correct

the JOC.

                                       I

      On May 19, 2016, a Morris County grand jury returned Indictment No.

16-05-0397, charging defendant with three counts of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4a(l) (counts one to three); three counts of

second-degree reckless death by a vehicle (vehicular homicide), N.J.S.A. 2C:ll-

5a (count four to six); three counts of third-degree causing death while driving

with a suspended license, N.J.S.A. 2C:40-22a (count seven to nine); two counts

of fourth-degree assault by a vehicle, N.J.S.A. 2C:12-lc(2) (count ten and

eleven); third-degree unlawful taking of a means of conveyance, N.J.S.A.

2C:20-10c (count twelve); and fourth-degree unlawful taking of a means of

conveyance, N.J.S.A. 2C:20-10b (count thirteen).




                                                                        A-4094-17T3
                                       2
      We derive the following facts from the suppression motion record. On

July 11, 2015, at approximately 1:37 a.m., defendant was driving home from

work on Route 80 in Rockaway when he crashed his Cadillac Escalade into the

rear of a Jeep stopped in traffic in a construction zone. This collision caused a

chain reaction, when the Jeep collided with a Kia sedan, which crashed into

another vehicle. The Kia quickly became engulfed in flames in the center lane.

The three occupants of the Kia could not escape the vehicle and died at the scene.

The two occupants of the Jeep also sustained injuries and required transport to

a nearby hospital.

      Meanwhile, defendant's vehicle overturned and landed on the right side of

Route 80 in an embankment. An off-duty emergence medical technician (EMT)

arrived at the scene, found defendant lying on the ground near his vehicle, and

provided him aid. The EMT noted defendant's breath smelled of alcohol and his

pupils reacted slowly.     In response to the EMT's questioning, defendant

acknowledged he drank alcohol. The EMT conveyed to Trooper Mudduser

Malik that he smelled alcohol on defendant's breath. When asked by Trooper

Malik, defendant denied consuming alcohol.         According to defendant, he

reached down to get a cigarette and when he looked back up, traffic had come

to a halt and he was unable to stop before hitting the Jeep.


                                                                          A-4094-17T3
                                        3
      Trooper Malik noted defendant's eyes were bloodshot and watery, and his

eyelids were droopy. He also confirmed with defendant that he was the driver

of the Escalade. A mobile intensive care nurse who provided aid to defendant

observed him lethargic with slurred speech. He also detected an odor of alcohol

emanating from defendant. Emergency medical service personnel removed

defendant from the scene and had to restrain him to secure him on a stretcher

before loading him into an ambulance.

      The ambulance transporting defendant arrived at Morristown Memorial

Hospital at 2:17 a.m., approximately forty minutes after the State Police

received notification of the collision. At approximately 2:18 a.m., as part of

normal procedures and protocols, the attending physician ordered hospital

personnel to draw five samples of defendant's blood. The physician also ordered

chest x-rays and radiological studies including CT scans of the head, chest and

abdomen. Medical personnel admitted defendant to the emergency room at

approximately 2:30 a.m., positioned a cervical collar on him, inserted a catheter

while he slept, and obtained routine urine samples for analysis.

      State police arrived at the hospital at approximately 3:09 a.m. and directed

hospital personnel to retain blood samples for law enforcement.          Hospital

personnel filled out a "general laboratory requisition" form, which indicated


                                                                          A-4094-17T3
                                        4
various specimens needed to be "save[d] for investigation." Police obtained a

telephonic search warrant from the court at 4:33 a.m. to collect blood samples .

Pursuant to the warrant, hospital personnel drew a sample of defendant's blood

at 4:37 a.m. Police interviewed defendant's father who disclosed defendant

drove the Cadillac with a suspended license and without permission, was

recently hospitalized for a suicide attempt, and was addicted to heroin. At

approximately 5:57 a.m., after medical personnel cleared defendant for release,

police took him into custody.

      Judge James Demarzo authorized a search warrant for the collection and

analysis of the blood samples taken by the medical personnel at the hospital.

Law enforcement retrieved the samples and forwarded them to the State Police

laboratory for analysis.

      Judge DeMarzo also signed an order, pursuant to State v. Dyal, 97 N.J.

229 (1984) and Rule 7:7-8, authorizing the State to obtain a certified copy of

defendant's toxicology report and other medical records related to the analysis

of blood and urine samples taken from defendant for medical diagnosis. The

records disclosed evidence of the use of opiates by defendant and all but one of

the samples indicated a blood alcohol level of .08 at the time of the accident.




                                                                          A-4094-17T3
                                        5
      On September 26, 2017, Judge Stephen J. Taylor granted in part and

denied in part the State's motion to admit evidence, pursuant to N.J.R.E. 404(b).

The judge denied defendant's motion to suppress his initial blood and urine

samples taken by medical personnel prior to the issuance of the telephonic

warrant. Defendant argued medical personnel obtained his blood and urine not

for medical purposes but rather for forensic purposes without a warrant, contrary

to Missouri v. McNeely, 569 U.S. 141 (2013). The judge rejected defendant's

argument explaining,

            there is no evidence that medical personnel drew blood
            and urine at the request of law enforcement or for
            purposes other than medical diagnosis and treatment.
            The hospital records clearly established that medical
            personnel ordered the draws, and there is no indication
            that law enforcement ordered or directed any of the
            initial draws.

      Judge Taylor also noted the medical records revealed defendant was

evaluated by medical personnel for extensive trauma. Thus, the judge reasoned

the extensive testing was "compelling proof that medical personnel were

concerned regarding possible injuries to [] defendant, and that the diagnostic

tests, including the blood and urine draws, were not a pretext." Additionally,

the judge rejected defendant's remaining argument, finding he was "not under




                                                                         A-4094-17T3
                                       6
arrest or otherwise in custody of law enforcement when he was strapped to the

stretcher" as preparation for transport to the hospital by medical personnel.

      On June 28, 2016, pursuant to a plea agreement, defendant pled guilty to

three counts of second-degree reckless death by a vehicle (vehicular homicide),

N.J.S.A. 2C:11-5A (counts four to six). He also pled guilty to operating under

the influence of alcohol, N.J.S.A. 39:4-50 and driving while suspended, N.J.S.A.

39:3-40.

      On December 1, 2017, Judge Taylor held defendant's sentencing hearing.

The judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature and

circumstances of the offense and the role of the actor therein, including whether

or not it was committed in an especially heinous, cruel, or depraved manner );

three, N.J.S.A. 2C:44-1(a)(3) (risk defendant will commit another offense); and

nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating

the law). Regarding aggravating factor one, the judge found the nature and

circumstances of defendant's actions endangered other drivers and went "beyond

that degree of recklessness needed for vehicular homicide." He noted that

defendant admitted at his plea hearing that he operated his vehicle after drinking

four shots of whisky, without permission from the owner, and while his license

was suspended. The judge highlighted that the proofs showed defendant


                                                                          A-4094-17T3
                                        7
            traveled at excessive speed, failed to notice
            construction signs warning of traffic slowdowns and
            merging lanes, failed to observe traffic slowing down
            in front of him, failed to observe the roadway, having
            bent down to retrieve a cigarette according to his plea,
            although other credible evidence suggests he was
            bending down to retrieve a hypodermic needle
            recovered from the car; and failed to apply the brakes
            prior to plowing into the rear-end of the victim's vehicle
            while traveling at excessive speed.

      Addressing aggravating factor three, the judge noted defendant's juvenile

adjudication for robbery, prior disorderly persons offense, horrendous driving

record, substance abuse history, and failure to obtain long-term treatment for his

substance abuse despite opportunities to do so, weighed against him. The judge

gave this factor "very significant weight."

      Regarding aggravating factor nine,1 Judge Taylor noted a "compelling

need" to deter defendant specifically and others from violating laws that threaten

highway travelers. The judge gave "significant weight" to all three aggravating

factors and found they substantially outweighed the "non-existent mitigating

factors."




1
  The JOC incorrectly lists that the judge found aggravating factor six, rather
than aggravating factor nine. As a result, we remand for the court to enter a
corrected JOC.


                                                                          A-4094-17T3
                                        8
      The court sentenced defendant in accordance with the plea agreement to

seven years on count four, seven years on count five, and seven years on count

six. The court ordered all counts to run consecutively for an aggregate sentence

of twenty-one years, with an eighty-five percent period of parole ineligibility,

pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition,

the judge imposed a total of nine years of parole supervision upon defendant's

release from prison. The court ordered concurrent sentences for the motor

vehicle convictions, including the mandatory term of 180 days in jail for a third

driving while intoxicated conviction. Defendant received an 874-day credit for

time served. In addition to the mandatory fees and assessments, the court

suspended defendant's driving privileges for ten years upon completion of his

sentence.

      On appeal, defendant presents the following arguments for our

consideration:

            POINT I

                  THE TRIAL COURT ERRED IN DENYING
                  DEFENDANT'S MOTION TO SUPPRESS THE
                  BLOOD DRAW BECAUSE IT WAS
                  OBTAINED WITHOUT HIS CONSENT,
                  EXIGENCY OR A WARRANT AND WAS NOT
                  FREELY AND VOLUNTARILY GIVEN. U.S.
                  CONST. AMENDS. IV AND XIV; N.J. CONST.
                  ART. I, PAR. 7.

                                                                         A-4094-17T3
                                       9
                 A. The seizure was an improper arrest not
                 premised on probable cause.

                       i. The police seizure of Uppal was an
                       arrest.

                       ii. There was no probable cause for the
                       arrest.

                 B. There was no exigency, warrant, or consent
                 for the blood or urine draws.

           POINT II

                 THE TRIAL COURT IMPOSED SENTENCE
                 AFTER   IMPROPERLY    CONSIDERING
                 UNPROVEN CHARGES, CONSIDERING
                 DEFENDANT'S MENTAL HEALTH ISSUE AS
                 AN      AGGRAVATOR       WITHOUT
                 EXPLANATION,   AND   FAILING    TO
                 CONSIDER THE LIKELIHOOD THAT THE
                 YOUTHFUL DEFENDANT WOULD NOT
                 REOFFEND.

                 A. Consideration of dismissed charges.

                 B. The use of mental illness as an aggravating
                 factor.

                 C. Failure to consider the likelihood that Uppal
                 would not reoffend.

                                 II

     We first address defendant's argument that he was under arrest at the time

he was "removed from the scene and bodily fluids were taken from him." He

                                                                       A-4094-17T3
                                      10
asserts there "was no probable cause to believe [he] was intoxicated, and

therefore, no reason to arrest him and forcibly take him to the hospital." He

alleges the original blood draw "was independently unconstitutional because it

took place absent exigency, consent, or a warrant."

      We apply a highly deferential standard of review to a trial judge's

determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101

(2016). We will uphold "the motion judge's factual findings so long as sufficient

credible evidence in the record supports those findings. Those factual findings

are entitled to deference because the motion judge . . . has the 'opportunity to

hear and see the witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" Ibid. (citations omitted) (quoting State v. Johnson, 42 N.J.

146, 161 (1964)).

      Both the United States Constitution and the New Jersey Constitution

guarantee freedom from unreasonable searches and seizures by the government.

U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Taking a "blood sample for the

purpose of alcohol-content analysis constitutes a search" under the Fourth

Amendment. State v. Zalcberg, 232 N.J. 335, 345 (2018) (citing Schmerber v.

California, 384 U.S. 757 (1966)).




                                                                          A-4094-17T3
                                       11
      Applying the above standards, we discern no reason to reverse the denial

of defendant's motion.    The judge found the attending physician's order to

hospital personnel to draw five samples of defendant's blood and urine was

routine medical care appropriately administered to him after a serious car crash.

The judge noted the numerous tests ordered indicated the medical personnel's

concerns that defendant may have suffered serious internal injuries.

      We also discern no basis to disturb the judge's conclusion that defendant

was not under arrest or otherwise in custody of law enforcement when he was

strapped to the stretcher. Gonzales, 227 N.J. at 101. Defendant's reliance on

McNeely is misplaced because in that case the police drove the defendant to the

hospital and "directed a hospital lab technician to take a blood sample," without

first obtaining a warrant. 569 U.S. 141, 146 (2013). Here, an ambulance drove

defendant to the hospital; in addition, the record contains no evidence that police

officers accompanied defendant to the hospital or that officers were present

when medical personnel obtained the original blood and urine samples.

Defendant additionally failed to provide any evidence that police ordered or

directed any of the initial draws. The record reflects that medical personnel

drew defendant's blood at 2:18 a.m., nearly an hour prior to police arriving.

Thus, we find no basis to support defendant's contention that police ordered the


                                                                           A-4094-17T3
                                       12
initial blood draw nor do we find the blood draw constituted a search requiring

a warrant because the blood was drawn by medical personnel for treatment

purposes. Zalcberg, 232 N.J. at 345.

      We next address defendant's claim of sentencing error. Defendant argues

the judge inappropriately considered contacts with law enforcement "that did

not result in any showing of culpability."         Defendant asserts the judge

improperly used his mental health history that included "hospitalizations,

depression, and suicide attempts, as an aggravating factor" when it could only

be used as a mitigating factor. Defendant asserts the judge also failed to consider

his age, as he was twenty-two years old at the time of the offense.

      "An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018). In reviewing a sentence, the court must determine whether: "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were . . . 'based upon competent credible evidence in the

record;' [and] (3) 'the application of the guidelines to the facts' of the case

'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).




                                                                           A-4094-17T3
                                       13
      "An appellate court is bound to affirm a sentence, even if it would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent

credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)

(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).

      Here, the judge found aggravating factors one, three and nine, N.J.S.A.

2C:44-1(a)(1) (the nature and circumstances of the offense), (3) (risk that

defendant will commit another offense), (9) (need to deter defendant and

others from violating the law). The judge found that the aggravating factors

outweighed the non-existent mitigating factors.

      The judge found there was a need to deter defendant and others from

violating the law.     The judge noted defendant had not been receptive to

substance abuse treatment and because he remains untreated, he poses a

considerable risk to re-offend. The judge did not abuse his discretion in relying

on these facts. Additionally, the judge noted defendant's "abysmal driving

record." There is sufficient evidence in the record to support the judge's finding

of aggravating factors three and nine.

      In short, our review establishes that the sentencing court did not err, and

the sentence was within the guidelines, the aggravating and lack of mitigating


                                                                             A-4094-17T3
                                         14
factors found were based on "competent and credible evidence in the record,"

and the sentence does not shock our judicial conscience. See State v. Fuentes,

217 N.J. 57, 70 (2014) (quoting Roth, 95 N.J. at 364-65 (1984)). However, a

remand is warranted to correct the JOC, which mistakenly refers to aggravating

factor six, when it is clear the judge found aggravating factor nine applied.

      Affirmed, with a limited remand for the trial court to enter a corrected

JOC. We do not retain jurisdiction.




                                                                          A-4094-17T3
                                      15
