                                NOT FOR PUBLICATION WITHOUT THE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-3439-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPHER R. HAAS,

     Defendant-Appellant.
____________________________

                    Submitted February 5, 2019 – Decided July 3, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 15-02-
                    0206.

                    Albert P. Mollo, attorney for appellant.

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Patrick F. Galdieri, II,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Christopher R. Haas appeals from his convictions, after a non-

jury trial in the Law Division, for driving while intoxicated (DWI), N.J.S.A.

39:4-50; possession of a controlled dangerous substance (CDS) in a car, N.J.S.A.

39:4-49.1; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A 39:4-97;

and failure to maintain a lane, N.J.S.A. 39:4-88(b).       The court sentenced

defendant to a 180-day custodial jail term, suspended his driving privileges for

twelve years, and imposed applicable fines and costs.

      Defendant raises the following points on appeal:

            POINT I
            APPELLANT WAS DENIED A SPEEDY TRIAL.

            POINT II
            APPELLANT WAS SUBJECTED TO DOUBLE
            JEOPARDY.

            POINT III
            THE CRIMINAL AND MOTOR VEHICLE
            CHARGES SHOULD HAVE BEEN JOINED FOR
            TRIAL.

            POINT IV
            THE MOTOR VEHICLE OFFENSES SHOULD
            HAVE BEEN REMANDED TO MUNICIPAL
            COURT.

            POINT V
            APPELLANT IS NOT GUILTY OF DRIVING
            UNDER THE INFLUENCE OF DRUGS AS A
            MATTER OF LAW.


                                                                         A-3439-16T4
                                       2
            POINT VI
            APPELLANT IS NOT GUILTY OF RECKLESS
            DRIVING AS A MATTER OF LAW.

            POINT VII
            APPELLANT IS NOT GUILTY OF CARELESS
            DRIVING AS A MATTER OF LAW.

            POINT VIII
            APPELLANT IS NOT GUILTY OF FAILURE TO
            MAINTAIN LANE AS A MATTER OF LAW.

            POINT IX
            APPELLANT IS NOT GUILTY OF POSSESSION OF
            CDS IN A MOTOR VEHICLE AS A MATTER OF
            LAW.

      After reviewing the record in light of the contentions on appeal and the

applicable law, we reject defendant's speedy trial and double jeopardy

arguments, and further conclude that all of defendant's convictions are supported

by sufficient, credible evidence in the trial record, with the exception of

defendant's conviction for possession of a CDS in a car. Accordingly, we affirm

in part, reverse in part, and remand for further proceedings consistent with this

opinion.

                                     I.

      We discuss with greater detail than typical the case's procedural history

as it is relevant to the issues raised on appeal. On August 8, 2014, just after



                                                                         A-3439-16T4
                                          3
midnight, R.G.1 was driving behind defendant on a one-lane road in Monroe

Township when he saw defendant repeatedly swerving back and forth across the

double-yellow line. R.G. passed defendant and while waiting at a traffic light

approximately a quarter-mile down the road, "heard a boom," and "saw [a]

flash." He called 911 shortly thereafter and returned to the scene where he

observed that defendant had driven his vehicle into a utility pole, causing the

power lines to fall.

        Monroe Township Police Officer Daniel Mosakowski, an eight-year

veteran of the Monroe Township Police Department, responded to the scene. At

trial, Mosakowski testified that he was certified to conduct field sobriety tests

and had made between fifty and seventy DWI arrests over the course of hi s

fifteen-year career. Mosakowski stated that when he arrived on the scene, he

observed defendant's car in the woods.         He contacted emergency medical

personnel, who evaluated defendant and noted he had minor abrasions on his

forearm and forehead.

        During Mosakowski's on-scene investigation, he spoke with defendant

and observed that he had a slurred and slow speech pattern, was staggering and

swaying, and his hand and feet movements were uncoordinated. Mosakowski


1
    We use initials to protect the privacy of the witness.
                                                                         A-3439-16T4
                                          4
conducted three field sobriety tests – the Horizontal Gaze Nystagmus (HGN),

the walk-and-turn, and the one-leg-stand – all recorded by the motor-vehicle

recorder (MVR) in his police vehicle.

        During the HGN test, defendant closed his eyes, failed to follow

instructions, and according to Mosakowski, appeared to fall asleep. While

performing the walk-and-turn test, defendant was unable to stand and stay in the

starting position, and during the one-leg-stand test, he repeatedly failed to

maintain his balance, requiring him to "keep putting his foot down." Defendant

admitted to Mosakowski that he had ingested more than the recommended dose

of Sudafed.

        After defendant failed to complete satisfactorily any of the field sobriety

tests, he was arrested for DWI. An officer searched defendant and recovered a

container attached to defendant's key chain that held two yellow pills.

Mosakowski testified that he and another officer noticed that the pills were

marked with a "10 and 36" on one side and what "look[ed] like a V" on the other

side.    After the court overruled defendant's counsel's hearsay objection,

Mosakowski testified that they inputted the identifying information in a "pill

identifier" program, which revealed that the pills were Vicodin – a combination

of acetaminophen and hydrocodone.


                                                                           A-3439-16T4
                                         5
      Defendant was subsequently transported to the police station and

administered a breathalyzer test which indicated his blood alcohol concentration

(BAC) was 0.00%. Shortly thereafter, Freehold Township Officer Andrew

Galaydick, a certified drug recognition officer, who testified to participating in

over one hundred arrests of intoxicated drivers, and performing over thirty drug

recognition evaluations, examined defendant.

      During Galaydick's evaluation, which was conducted three hours after

defendant's arrest, he noted defendant's coordination remained poor, his speech

was slurred, and he was still not able to complete the walk-and-turn test, the

one-leg-stand test, and the finger-to-nose test. He also stated that defendant

swayed, had a pulse of 68, which he described as toward the low end. Galaydick

testified that defendant had a blood pressure reading of 136/74, which reflected

a low diastolic number and high systolic number. Finally, Galaydick stated he

observed defendant's reaction to the direct-light evaluation was "slow," and that

he noticed "a white pasty residue" on his tongue, which he testified was

indicative of drug ingestion.

      Based on his evaluation, combined with his experience and training,

Galaydick concluded defendant was impaired.           He attributed defendant's

impairment to the ingestion of two categories of narcotics: an analgesic and a


                                                                          A-3439-16T4
                                        6
stimulant. He found defendant's symptoms characteristic of both types of drugs,

and that he had ingested them prior to operating his car. As Galaydick testified,

Sudafed, which defendant admitted to ingesting, is classified as a central

nervous system stimulant, and hydrocodone, a narcotic analgesic.

      Defendant was arrested and issued summonses for the motor vehicle

offenses listed above, along with driving while his license was suspended,

N.J.S.A. 39:3-40, failure to install an ignition-interlock device, N.J.S.A. 39:4-

50.19(a), and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). In

addition, on February 17, 2015, a grand jury indicted defendant with one count

of fourth-degree operating a motor vehicle during a license suspension for a

second or subsequent DWI conviction, N.J.S.A. 2C:40-26(b) (indictable

offense).

       On April 17, 2015, defendant's counsel requested discovery from the

State. In the State's May 20, 2015 response, it provided responsive documents

and advised that many of defendant's requests sought information that did not

exist, or the State had no obligation to provide. The next day the parties

appeared for a status conference.      Defendant's counsel acknowledged he

received the State's correspondence but maintained he still "need[ed] more

discovery." The prosecutor represented that she provided the documents in the


                                                                         A-3439-16T4
                                       7
State's possession, and all of counsel's remaining requests were either

inapplicable, or the requested discovery did not exist.

      During the May 21, 2015 conference, defendant's counsel stated he

"want[ed] this case done," as defendant has "been waiting since last August for

this case to be done," and "want[ed] a trial." In response to defendant's request,

the court explained that the DWI charge would be severed from the indictable

offense. Counsel then expressed an intention to file a motion to dismiss the

indictment based on "improper instructions given to the grand jury as to . . . the

state of culpability for [the indictable] offense." The court ordered the motion

to be filed no later than July 10, 2015, and scheduled a return date for August

11, 2015, with a trial on the indictable offense to commence on August 31, 2015.

      Despite the court's direction, defendant did not file his dismissal motion

until July 24, 2015, two weeks after the court-ordered date and sought an

adjournment of the scheduled August 11, 2015 hearing date. The court granted

counsel's request, and on September 1, 2015, heard oral arguments, denied

defendant's application, and rescheduled trial on the indictable offense for

December 8, 2015.

      The court presided over a jury trial with respect to the indictable offense

on December 11 and 14, 2015, and defendant was found guilty on December 14,


                                                                          A-3439-16T4
                                        8
2015. On December 29, 2015, defendant retained new counsel. On February

11, 2016, the court sentenced defendant to a 364-day jail term with a 180-day

period of parole ineligibility.

        On October 26, 2016, the court issued an order requiring defendant to file

all motions to dismiss the remaining motor-vehicle charges on or before

November 30, 2016.        On November 23, 2016, defendant filed a dismissal

motion, but did not file a supporting brief until December 30, 2016. Defendant’s

motion to dismiss was based on the alleged violation of his right to a speedy

trial, and his claim that a second trial would violate his right against double

jeopardy. The court heard oral arguments on January 24, 2017 and denied the

motion the same day. 2 The court also scheduled trial for the motor vehicle

charges for February 22, 2017. Thereafter, on February 1, 2017, the State sought

an adjournment of the scheduled February 22, 2017 trial date because its drug

recognition expert was unavailable as a result of the birth of his child.

        On March 1, 2017, the parties appeared for trial.        Prior to hearing

testimony, the court explained its reasons for denying defendant's motion to

dismiss based on double jeopardy and speedy trial grounds. With respect to

defendant's double jeopardy claim, the court stated that it disagreed with


2
    Defendant has not provided a transcript of the January 24, 2017 hearing.
                                                                            A-3439-16T4
                                         9
defendant's argument that the State was barred from prosecuting him on the DWI

charge after its successful prosecution of the indictable offense. The court

concluded that operating a motor vehicle during a period of license suspension

for a second or subsequent DWI conviction, and the DWI charge, are not the

same offenses, nor are they lesser-included offenses of each other. The court

further explained that the two charges seek "to punish two separate offenses and

vindicate two separate interests[,] [and that] [t]he fact that each offense requires

the operation of a motor vehicle is not sufficient to invoke double jeopardy."

      With respect to defendant's claim that his right to a speedy trial was

violated, the court emphasized that "the bulk of the reasons [for any delay] can

be laid at the feet of [defendant's first counsel]." The court explained that

counsel failed to file a dismissal motion until July 23, 2015, despite being

ordered to do so by July 10, 2015. Further, the hearing on defendant's July 23,

2015 dismissal motion was adjourned from August 11, 2015, due to counsel's

vacation plans. The court also explained that counsel made repeated claims for

discovery but failed to "precisely and concisely identify what exactly he was

entitled to and was missing."

      In addition, the court noted that once defendant retained new counsel after

the December 2015 trial, the court heard a motion to suppress on June 24, 2016,


                                                                            A-3439-16T4
                                        10
and granted the application on August 16, 2016. And, despite the court requiring

defendant to file his motion to dismiss by November 30, 2016, defendant did not

file his brief until December 30, 2016. The court explained that it heard oral

arguments on January 24, 2017, and denied the motion that day. The court

acknowledged that it granted a twenty-eight-day adjournment on February 1,

2017 due to the unavailability of the State's drug recognition expert due to the

birth of his child, but concluded that brief delay did not violate defendant's right

to a speedy trial.

      The court concluded that defendant was not "unfairly prejudiced by these

delays," noting that evidence was not lost, witnesses remained available, and

that nothing changed in the circumstances underpinning the DWI prosecution.

Finally the court explained that defendant did not file a formal motion for a

speedy trial until November 2016.

      At the conclusion of trial, the court determined defendant was guilty of

DWI, possession of a CDS in a car, reckless driving, careless driving, and failure

to maintain a lane. The court dismissed the possession of CDS and failure to

install an ignition-interlock device offenses, as the State failed to prove these

violations. Additionally, the court noted that defendant's driving while his

license was suspended offense "is a lesser-included charge of [the indictable


                                                                            A-3439-16T4
                                        11
offense], . . . that [defendant] has already been found guilty of and has already

served his sentence . . . ."

      In concluding the State established defendant's guilt beyond a reasonable

doubt on the reckless driving, careless driving, and failure to maintain a lane

charges, the court found R.G.'s testimony to be credible.        With respect to

defendant's possession of CDS in a car, the court found that "[t]estimony clearly

established that [defendant] had Vicodin pills in a fob attached to his keys." The

court explained that "[a]lthough the drugs were not chemically tested, the drugs

were readily identifiable based on their color, shape, and markings." Finally, in

finding defendant guilty of DWI, the court relied on Galaydick's credible

testimony, among other evidence, and, relying on State v. Tamburro, 68 N.J.

414, 421 (1975), stated that "[a] conviction can be based on the qualified

expert’s determination based on the subject’s conduct, physical and mental

condition, and symptoms displayed."

                                       II.

      In defendant's first point on appeal, he maintains that the trial court

violated his right to a speedy trial warranting dismissal of the motor vehicle

charges. We disagree.




                                                                          A-3439-16T4
                                       12
       It is well-settled that "[t]he right to a speedy trial is guaranteed by the

Sixth Amendment to the United States Constitution and imposed on the states

by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas,

411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386

U.S. 213, 222-23 (1967)).       "The constitutional right . . . attaches upon

defendant's arrest." Ibid. (alteration in the original) (quoting State v. Fulford,

349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to

promptly bring a case to trial, "[a]s a matter of fundamental fairness," the State

must avoid "excessive delay in completing a prosecution," or risk violating

"defendant's constitutional right to speedy trial." Ibid.

      The four-part test to determine if a defendant's speedy-trial right has been

violated was announced in Barker v. Wingo, 407 U.S. 514, 530-33 (1972) and

adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976).

The test requires "[c]ourts [to] consider and balance the '[l]ength of delay, the

reason for the delay, the defendant's assertion of his right, and prejudice to the

defendant.'" Tsetsekas, 411 N.J. Super. at 8 (quoting Barker, 407 U.S. at 530).

"No single factor is a necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial." Id. at 10 (citing Barker, 407 U.S. at

533). Courts are required to analyze each interrelated factor "in light of the


                                                                          A-3439-16T4
                                       13
relevant circumstances of each particular case." Ibid. We will not overturn a

trial judge's decision whether a defendant was deprived of due process on

speedy-trial grounds unless the judge's ruling was clearly erroneous. State v.

Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

      With respect to the first factor, we note that our judiciary "is, as a matter

of policy, committed to the quick and thorough resolution of DWI cases."

Tsetsekas, 411 N.J. Super. at 11 (quoting State v. Farrell, 320 N.J. Super. 425,

446 (App. Div. 1999)). Although this matter neither originated, nor resolved, in

the municipal court, we nevertheless acknowledge that "[i]n 1984, Chief Justice

Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from

the Administrative Office of the Courts, that municipal courts should attempt to

dispose of DWI cases within sixty days." Ibid. (quoting Farrell, 320 N.J. Super.

at 446-47).   We have not, however, suggested that "any delay beyond the

sixty-day goal is excessive," and declined to apply a bright-line test as to when

any delay is deemed excessive. See State v. Cahill, 213 N.J. 253, 270 (2013);

Tsetsekas, 411 N.J. Super. at 11 ("There is no set length of time that fixes the

point at which delay is excessive.").

      "Barker's second factor examines the length of a delay in light of the

culpability of the parties." Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407


                                                                           A-3439-16T4
                                        14
U.S. at 531). "[D]ifferent weights should be assigned to different reasons"

proffered to justify a delay. Barker, 407 U.S. at 531. Purposeful delay tactics

weigh heavily against the State. Tsetsekas, 411 N.J. Super. at 12 (citing Barker,

407 U.S. at 531). "A more neutral reason[,] such as negligence or overcro wded

courts[,] should be weighted less heavily but nevertheless should be considered

since the ultimate responsibility for such circumstances must rest with the

government rather than with the defendant." Barker, 407 U.S. at 531. "[A] valid

reason, such as a missing witness, should serve to justify appropriate delay."

Ibid. And, "[d]elay caused or requested by the defendant is not considered to

weigh in favor of finding a speedy trial violation." Farrell, 320 N.J. Super. at

446.

       With respect to the third factor, we recognize the assertion of a right to

speedy trial by a defendant is not required, but should be given strong weight

when balancing the factors. Fulford, 349 N.J. Super. at 195. We examine

whether and how a defendant asserts the right to a speedy trial to determine

whether the state has violated the right. Cahill, 213 N.J. at 258. In this regard,

a defendant's assertion of the right to a speedy trial need not be "by way of

formal motion." State v. Smith, 131 N.J. Super. 354, 363-64 (App. Div. 1974).

We have also observed that a defendant's mere comment that he or she was


                                                                          A-3439-16T4
                                       15
"'ready for trial' and 'wanted it to occur sooner rather than later'" were sufficient

assertions of a defendant's speedy-trial right. State v. May, 362 N.J. Super. 572,

597 (App. Div. 2003). Finally, a court may also consider "the frequency and

force of the [defendant's] objections" when assessing whether the defendant

properly invoked the right. Barker, 407 U.S. at 529.

      Finally, the fourth factor we consider is prejudice to a defendant caused

by delay.    "[P]roof of actual trial prejudice is not 'a necessary condition

precedent to the vindication of the speedy trial guarantee.'" Tsetsekas, 411 N.J.

Super. at 13-14 (quoting Merlino, 153 N.J. Super. at 15-16). Although the delay

may not prejudice a "defendant's liberty interest or his ability to defend on the

merits[,] . . . significant prejudice may also arise when the delay causes the loss

of employment or other opportunities, humiliation, the anxiety in awaiting

disposition of the pending charges, the drain in finances incurred for payment

of counsel or expert witness fees and the 'other costs and inconveniences far in

excess of what would have been reasonable under more acceptable

circumstances.'" Id. at 13 (quoting Farrell, 320 N.J. Super. at 452) (citing

Fulford, 349 N.J. Super. at 195; State v. Dunns, 266 N.J. Super. 349, 380 (App.

Div. 1993); Merlino, 153 N.J. Super. at 15-16). The impairment of an accused's




                                                                             A-3439-16T4
                                        16
defense is considered "the most serious since it [goes] to the question of

fundamental fairness." Szima, 70 N.J. at 201.

      Balancing the four Barker factors, that are "related factors to be

considered with such other circumstances as may be relevant," Szima, 70 N.J.

at 201, we do not find the court's denial of defendant's speedy-trial motion to be

clearly erroneous. As to the first and second Barker factors, we first recognize

that, on its face, the 936-day delay between defendant's arrest and the

commencement of trial on his DWI and related motor vehicle offenses, appears

inordinate. As the trial court noted, however, "[w]hile it [took] some time for

th[e] case to reach the point of resolution, the bulk of the reasons can be laid at

the feet of prior defense counsel." Further, as the trial court concluded, the delay

from defendant's arrest to his motor vehicle trial was primarily "attributable [to

defendant's counsel's] repeated requests for discovery the defendant was not

entitled to[,] and [the] failure to . . . follow the court’s briefing schedule." These

factual findings are amply supported by the record. Finally, during this time

period, the court decided, without objection, to resolve the indictable charge

before the motor vehicle charges.

      Additionally, the ninety-eight-day delay from defendant's November 23,

2016 formal request for a speedy trial to the March 1, 2017 trial was fully


                                                                              A-3439-16T4
                                        17
justified. The court's adjournment of the February 22, 2017 trial date was

validly explained by the unavailability of the State's drug recognition expert on

the scheduled February 2017 trial date. Under these circumstances, we decline

to weigh the first and second Barker factors in defendant's favor.

      With respect to the third Barker factor, we note that defendant never

brought a formal speedy trial motion with respect to the indictable offense. As

noted, defendant only brought his speedy trial motion with respect to the motor

vehicle charges on November 23, 2016, and the trial was conducted less than

three and one-half months later.

      Defendant claims, however, that his counsel's comments at the May 21,

2015 proceeding where he stated that "[defendant] has been waiting since last

August for this case to be done," and that they "want[ed] a trial," invoked his

speedy trial rights. After being advised, however, that the indictable offense

and motor vehicle charges would be severed, defendant did not request a trial

on the motor vehicle charges until November 2016. To the extent defendant's

May 21, 2015 comments asserted his right to a speedy trial on all the outstanding

charges, and not simply the indictable offense, we note that immediately after

making those comments, he requested additional discovery from the State.




                                                                         A-3439-16T4
                                      18
Accordingly, it is clear that defendant was not prepared to try either the

indictable offense or motor vehicle charges at that time.

       Finally, as to the fourth Barker factor, we find that except for pre-verdict

anxiety, stress and personal inconvenience, and the cost of air travel and

transportation caused by the adjournment, the lack of significant prejudice

suffered by defendant militates against dismissal of this case. As the court

recognized, defendant was not subject to pretrial incarceration and his defense

was "absolutely not" impaired. Accordingly, measured against the four Barker

factors, we conclude there was no violation of defendant's constitutional speedy-

trial right.

       Defendant's reliance on Cahill to support his contention that his right to a

speedy trial was violated is misplaced, as the facts in Cahill are distinguishable.

In Cahill, the defendant was arrested for DWI and charged with various motor

vehicle violations. Cahill, 213 N.J. at 257. A few months later, a grand jury

indicted the defendant with assault by auto, and the defendant pled guilty. Ibid.

The defendant's motor vehicle charges were subsequently remanded to

municipal court. Id. at 259. Sixteen months after the defendant was sentenced

for the indictable offense, he received a trial notice for his motor vehicle




                                                                           A-3439-16T4
                                       19
charges. Ibid. The scheduled trial date was twenty-nine months after his arrest.

Ibid.

        The Cahill court conducted the four-part Barker test and concluded that

the defendant's right to a speedy trial was violated by the twenty-nine-month

delay between his arrest and his trial. Cahill, 213 N.J. at 275. In balancing the

Barker factors, the Court noted that "the State offer[ed] no justification for the

delay," such as "a conflict of interest requiring recusal of the judge." Id. at 273.

Further, the Court noted that "[a]ll necessary witnesses were available." Id. at

273.

        In Cahill, defendant's actions did not cause any delay. Here, however, as

the court concluded, defendant's counsel's discovery requests and failure to

follow the briefing schedule contributed to the delay in resolution of the motor

vehicle charges. Once defendant formally asserted his right to a speedy trial,

the court concluded the trial less than three and one-half months later.

Additionally, as noted, the brief delay caused by the February 22, 2017

adjournment was a result of the expert witness's unavailability, and was entirely

justified. Accordingly, Cahill does not support defendant's assertion that he was

denied a speedy trial.




                                                                            A-3439-16T4
                                        20
                                        III.

      We also disagree with defendant's second point on appeal, that his second

trial for his motor vehicle charges subjected him to double jeopardy.

Specifically, defendant contends that his indictable offense and DWI charge

involve a common statutory element and were proven by "much of the same

evidence." We reject this argument because the act of driving with a suspended

license is not the same offense as defendant's DWI conviction, and the same

evidence used to establish defendant’s indictable offense was not necessary to

prove his DWI charge.

      The Fifth Amendment's double jeopardy clause "provides that no person

shall 'be subject for the same offense to be twice put in jeopardy of life or limb.'"

State v. Miles, 229 N.J. 83, 92 (2017) (quoting U.S. Const. amend. V).

Similarly, under the New Jersey Constitution, "No person shall, after acquittal,

be tried for the same offense." N.J. Const. art. I, ¶ 11; see Miles, 229 N.J. at 92

("This   Court    has    consistently   interpreted    the   State    Constitution's

double-jeopardy protection as coextensive with the guarantee of the federal

Constitution."). The double jeopardy clause "protects against (1) 'a second

prosecution for the same offense after acquittal,' (2) 'a second prosecution for

the same offense after conviction,' and (3) 'multiple punishments for the same


                                                                             A-3439-16T4
                                        21
offense.'" Miles, 229 N.J. at 92 (quoting North Carolina v. Pearce, 395 U.S.

711, 717 (1969)). "Common to all three protections is the concept of 'same

offense.'" Ibid. Thus, courts evaluating a double jeopardy claim must ask

"whether the second prosecution is for the same offense involved in the first."

Id. at 93 (quoting State v. Yoskowitz, 116 N.J. 679, 689 (1989)).

      "Double jeopardy analysis involves consideration of one of two prongs:

(1) the 'same offense' test, which focuses upon the statutory elements of a crime

rather than proofs proffered for conviction; or (2), alternatively, the 'same

evidence' test, which focuses upon whether the same evidence used to prove the

first offense is necessary to prove the second offense." State v. Hand, 416 N.J.

Super. 622, 627 (App. Div. 2010) (citing State v. De Luca, 108 N.J. 98, 107

(1987)).3

      N.J.S.A. 2C:40-26(b) states that it "shall be a crime of the fourth-degree

to operate a motor vehicle during the period of license suspension . . . ." The



3
   In Miles, our Supreme Court followed the United States Supreme Court's
elimination of the "same evidence" test in United States v. Dixon, 509 U.S. 688
(1993), and adopted the "same elements" test as the "sole double jeopardy
analysis." Miles, 229 N.J. at 96. However, the "new singular same elements
standard" applies "prospectively to offenses committed after the date of th[e]
[Miles] opinion." Id. at 99. Accordingly, as defendant was arrested in August
2014, we use both the "same elements" test and the "same evidence" test in our
analysis of defendant's double jeopardy claim.
                                                                         A-3439-16T4
                                      22
plain wording of the statute establishes its intent to impose penalties for the act

of driving with a suspended license. It is not the prior DWI convictions that are

being revisited or enhanced with an additional penalty. Instead, the Legislature

has mandated that when a person with more than two DWI convictions drives a

vehicle while his or her license is suspended, that new and separate act of driving

with a suspended license is a fourth-degree crime subject to penalties. As we

have previously recognized, the violation of N.J.S.A. 2C:40-26(b) constitutes a

new and separate crime from the predicate DWI convictions. See State v.

Carrigan, 428 N.J. Super. 609, 620-21 (App. Div. 2012) (holding that a

conviction under N.J.S.A. 2C:40-26(b) does not violate ex post facto

constitutional principles). Accordingly, there is no double jeopardy violation

under the "same elements" test.

      Additionally, we do not find a double jeopardy violation based on the

"same evidence" test. We first note that defendant has failed to provide a

transcript of the trial on the indictable offense. We nevertheless note that the

only proofs necessary for the State to establish defendant's guilt on the indictable

offense was that defendant was driving or operating a motor vehicle, and that

his license had been suspended for a second violation of DWI. The evidence

necessary to prove defendant’s DWI charge included not only that he was


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                                        23
driving, but that he was "under the influence of intoxicating liquor, narcotic,

hallucinogenic or habit-producing drug." N.J.S.A. 39:4-50. In this regard,

evidence of defendant’s previous DWIs, which was relevant at his trial on the

indictable offense, was unnecessary to establish his guilt on the DWI charge.

Further, the testimony of Galaydick and Mosakowski regarding their evaluations

of defendant, was relevant only to defendant's DWI charge. Accordingly, the

"same evidence" used to establish the indictable offense was not necessary to

prove his DWI charge.

                                       IV.

      Next, defendant argues that the court committed error by severing the

indictable charge from his motor vehicle charges. In the alternative, defendant

asserts that the court erred because it failed to remand the motor vehicle charges

to the municipal court. We disagree.

      Pursuant to Rule 3:15-3(a)(1), "the court shall join any pending

non-indictable complaint for trial with a criminal offense based on the same

conduct or arising from the same episode." However, "if for any reason it

appears that a defendant or the State is prejudiced by the joinder required by

paragraph (a), the court may decline to join or may grant other appropriate

relief." R. 3:15-3(b).


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                                       24
      We note that defendant's first counsel failed to object to the severance of

the indictable offense from the motor vehicle charges prior to either trial.

Rather, defendant's new counsel only asserted that the indictable offense and

motor vehicle charges should have been tried together at the March 8, 2017

sentencing hearing, after the second trial. As the court explained, "it [would

have been] prejudicial for the jury to hear on the [N.J.S.A. 2C:]40-26 [charge]

that [defendant] also was intoxicated." The court explained "it would be more

unfair to [defendant] if the jury would hear that, not only did he violate the

[c]ourt order not to drive after a second DWI, but that he drove while drunk."

Accordingly, we conclude the court properly exercised its discretion under Rule

3:15-3(b), in ordering a severance. Indeed, defendant conceded, at the March 8,

2017 hearing and in his merits brief, that it would be fundamentally prejudicial

to defendant if the jury heard during the trial on the indictable offense that

defendant was intoxicated while driving.

      Defendant improperly relies on State v. Muniz, 118 N.J. 319 (1990) to

support his contention that the court was required to join his indictable offense

and motor vehicle charges in a single trial. In Muniz, our Supreme Court held

that "lesser-included motor vehicle offenses, if supported by evidence in the

record, should be joined in the prosecution of the [New Jersey] Code [of


                                                                         A-3439-16T4
                                      25
Criminal Justice] offense of death by auto . . . ." Id. at 332. Here, however,

defendant’s DWI charge is not a lesser-included offense of driving with a

suspended license for a second DWI conviction.

      We also disagree with defendant's argument that the court should have

remanded the motor vehicle charges to municipal court. As the court correctly

noted at the March 8, 2017 hearing, our Supreme Court has not made any ruling

mandating that motor vehicle charges only be heard in municipal court. Further,

the record before us does not demonstrate that after the first trial, defendant's

counsel sought to remand the motor vehicle charges to municipal court.

Accordingly, the court's exercise of jurisdiction over the second trial on

defendant's motor vehicle charges was proper and not an abuse of its discretion.

                                        V.

      Defendant next maintains that the court committed error in failing to

dismiss the DWI, reckless driving, careless driving, and failure to maintain a

lane charges as a matter of law. We are not persuaded by any of defendant's

arguments.

      The court found R.G. to be a credible witness, and based on his testimony

that defendant was swerving back and forth between lanes, concluded defendant

was guilty of reckless driving, careless driving, and failure to maintain his lane.


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With respect to the DWI charge, the court relied on the testimony of

Mosakowski and Galaydick. As noted, Mosakowski testified that defendant

exhibited slurred speech, was uncoordinated, and failed to satisfactorily

complete the three field sobriety tests conducted. Galaydick further testified

that he concluded defendant was impaired based on his poor coordination,

slurred speech, abnormal blood pressure results, and various other test results.

In addition, the court reviewed the MVR, which was played at trial, and showed

defendant failing to satisfactorily complete the three field sobriety tests

conducted by Mosakowski. As the court correctly noted, "the focus is on the

effect the substance has on the physical coordination and/or mental faculties as

opposed to the exact identification of the substance." See Tamburro, 68 N.J. at

421 ("It is enough if, from the subject's conduct, physical and mental condition

and the symptoms displayed, a qualified expert can determine that he or she is

'under the influence' of a narcotic."). In sum, the court’s findings of guilt beyond

a reasonable doubt as to these charges are supported by sufficient, credible

evidence in the trial record.




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                                        27
                                        VI.

         Finally, defendant claims that the trial court committed error in denying

his request to dismiss the possession of CDS in a motor vehicle charge. We

agree.

         Pursuant to N.J.S.A. 39:4-49.1,

               No person shall operate a motor vehicle on any highway
               while knowingly having in his possession or in the
               motor vehicle any controlled dangerous substance . . .
               or any prescription legend drug, unless the person has
               obtained the substance or drug from, or on a valid
               written prescription of, a duly licensed physician . . . .

               [(Emphasis added).]

The elements of this offense must be established beyond a reasonable doubt.

State v. Bealor, 187 N.J. 574, 586 (2006) ("We have repeatedly made clear that,

in motor vehicle violation cases, the State's burden of proof unquestionably is

beyond a reasonable doubt.").

         Hearsay is a statement "other than one made by the declarant while

testifying at a trial or hearing, offered in evidence to prove the truth of the matte r

asserted." State v. Byrd, 198 N.J. 319, 336 n.5 (2009) (citing N.J.R.E. 801(c)).

Hearsay is inadmissible at trial "unless specifically exempted by an evidence

rule or other law." Ibid. (citing N.J.R.E. 802). However, "if evidence is not

offered for the truth of the matter asserted, the evidence is not hearsay and no

                                                                               A-3439-16T4
                                           28
exception to the hearsay rule is necessary to introduce that evidence at trial. "

State v. Long, 173 N.J.138, 152 (2002).

      Mosakowski testified at trial that another officer discovered the pills in a

container attached to defendant's keys. He stated that, thereafter, "[they] took

the markings on the pills[,] . . . put [them] into a program called '[p]ill

[i]dentifier,'" and identified the pills as Vicodin.   Upon cross-examination,

Mosakowski was unable to describe in detail the particular pill identifier website

used, whether it was created and maintained by a pharmaceutical company, or

"state-sponsored."

      As noted, defendant's counsel objected to the pill identifier testimony,

asserting it was hearsay. The State argued that the testimony was not offered to

prove the truth of the matter asserted, but rather, to demonstrate the effect on

Mosakowski's decision to charge defendant with possession of CDS in a car.

The court overruled defendant's counsel's objection, admitted the testimony

regarding the results of the pill identifier program, and relied upon this

testimony, as well as Galaydick's testimony, to find defendant guilty of

possession of Vicodin.

      After a thorough review of the record, we conclude Mosakowski's

testimony that he identified defendant’s pills as Vicodin based on a visual


                                                                          A-3439-16T4
                                       29
comparison of pills depicted on a pill identifier program from an unidentified

website is inadmissible hearsay, as it was intended to establish the truth of the

matter asserted – that the pills were Vicodin, a CDS. We find no exception to

the hearsay rule that would permit Mosakowski to testify regarding the contents

of the pill identifier program.

      In this regard, we note that Mosakowski was not qualified as an expert

witness with particular expertise in recognizing CDS. See State v. Frost, 242

N.J. Super. 601, 615 (App. Div. 1990) ("[A]n expert witness must possess the

minimal technical training and knowledge essential to the expression of a

meaningful and reliable opinion.").         Nor was Mosakowski's testimony

permissible lay opinion testimony under N.J.R.E. 701. See Neno v. Clinton, 167

N.J. 573, 585 (2001) ("A lay witness's opinion cannot rely on the inadequate

support of inadmissible hearsay without the benefit of an exception."); Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 701

(2018) ("[L]ay opinion testimony may not cross into the realm of expert

testimony.").    Rather, the court permitted Mosakowski to combine his

admissible percipient observations regarding the pills (i.e., that another officer

discovered the pills, which were yellow and had markings) with the substantive

out of court statements contained in the pill identifier program.


                                                                          A-3439-16T4
                                       30
      The court also relied on Galaydick's expert testimony, in which he

testified that he identified defendant's pills by comparing the pills' "markings"

with an unidentified "drug identification bible," and by relying on Mosakowski's

representation that he identified the pills as Vicodin.

      "[E]xpert testimony depends on a witness's 'specialized knowledge' to

address matters outside a juror's understanding." State v. Hyman, 451 N.J.

Super. 429, 443 (App. Div. 2017).        Accordingly, the admission of expert

testimony involves the following requirements:

            (1) the intended testimony must concern a subject
            matter that is beyond the ken of the average juror; (2)
            the field testified to must be at a state of the art that
            such an expert's testimony could be sufficiently
            reliable; and (3) the witness must have sufficient
            expertise to offer the intended testimony.

            [Id. at 443-44 (quoting State v. Kelly, 97 N.J. 178, 208
            (1984) and discussing N.J.R.E. 702).]

Additionally, N.J.R.E. 703, which "addresses the foundation for expert

testimony," requires that expert opinions be grounded in:

            facts or data derived from (1) the expert's personal
            observations, or (2) evidence admitted at the trial, or (3)
            data relied upon by the expert which is not necessarily
            admissible in evidence but which is the type of data
            normally relied upon by experts in forming opinions on
            the same subject.

            [Townsend v. Pierre, 221 N.J. 36, 53 (2015).]

                                                                          A-3439-16T4
                                       31
      N.J.R.E. 703 requires "the hearsay [to] be of the type usually relied on by

experts in the field to reach 'conclusions of the type offered by the witness.'"

State v. Torres, 183 N.J. 554, 576 (2005) (quoting State v. Pasterick, 285 N.J.

Super. 607, 620-21 (App. Div. 1995)). Further, while N.J.R.E. 703 permits a

testifying expert to refer to a hearsay statement "for the purpose of apprising the

jury of the basis for his opinion," Konop v. Rosen, 425 N.J. Super. 391, 406

(App. Div. 2012) (quoting Agha v. Feiner, 198 N.J. 50, 63 (2009)), "[t]he

'hearsay is not admissible substantively as establishing the truth of the

statement.'" Ibid. (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480

(App. Div. 2002)).

      "The corollary of [Rule 703] is the net opinion rule, which forbids the

admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data." Polzo v. Cnty of Essex, 196 N.J. 569, 583 (2008)

(quoting State v. Townsend, 186 N.J. 473, 494 (2006)). Essentially, "[a]n expert

must '"give the why and wherefore" that supports the opinion, "rather than a

mere conclusion."'" Borough of Saddle River v. 66 East Allendale, LLC, 216

N.J. 115, 144 (2013) (quoting Polzo, 196 N.J. at 583). In this regard, expert

witnesses must "be able to identify the factual bases for their conclusions,

explain their methodology, and demonstrate that both the factual bases and the

                                                                           A-3439-16T4
                                       32
methodology are reliable." Townsend, 221 N.J. at 55 (quoting Landrigan v.

Celotex Corp., 127 N.J. 404, 417 (1992)).

      Here, unlike his testimony regarding defendant's impairment, Galaydick's

testimony regarding the identification of defendant's pills as Vicodin had no

proper foundation, as he failed to provide the "why and wherefore" supporting

his conclusion.4 Specifically, Galaydick failed to detail which particular drug

identification bible he used, explain satisfactorily how he used it to identify the

pills, and establish whether it was a reliable source to identify drugs.

Accordingly, Galaydick's testimony regarding his identification of the pills as

Vicodin is inadmissible.

       Without further confirmatory proof of the pills' chemical composition,

Mosakowski's and Galaydick's testimony regarding his use of the pill identifier

program and drug identification bible, as the sole evidence that defendant

possessed CDS in a car, is insufficient to establish the pills' classification as

CDS beyond a reasonable doubt. Accordingly, we reverse the court's finding

that defendant is guilty of possession of CDS in a motor vehicle.


4
   We have independently reviewed the March 1, 2017 trial transcript and
conclude that Galaydick's testimony regarding defendant's impairment is
properly derived from his personal observations of defendant, and not solely his
identification of the Vicodin from Mosakowski's representation or the drug
identification bible. See Townsend, 221 N.J. at 53.
                                                                           A-3439-16T4
                                       33
      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




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                                      34
