                         NOT FOR PUBLICATION WITHOUT THE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-3283-16T1

STATE OF NEW JERSEY,

              Plaintiff-Appellant,

v.

SANTOS MORALES,

          Defendant-Respondent.
________________________________

              Argued September 28, 2017 – Decided October 18, 2017

              Before    Judges    Simonelli,     Haas    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 14-11-1205.

              Jennifer Paszkiewicz, Assistant Prosecutor,
              argued the cause for appellant (Scott A.
              Coffina,    Burlington  County   Prosecutor,
              attorney; Ms. Paszkiewicz, of counsel and on
              the brief).

              Tamika T. McKoy argued the cause for
              respondent (McKoy Law Firm, LLC, attorneys;
              Ms. McKoy, on the brief).

PER CURIAM
     By leave granted, the State appeals from a March 7, 20171 Law

Division order barring the State from introducing expert testimony

concerning defendant's use of marijuana in this vehicular homicide

case.     We reverse.

                                    I.

     At approximately 2:30 p.m. on June 24, 2012, defendant was

driving his car westbound on Stage Road in Bass River Township.

According to the driver of a car that was directly behind him,

defendant was driving a few miles under the speed limit and slowed

down as he approached the intersection of Stage Road and Greenish

Road.     From behind defendant's car, the other driver saw a woman

driving    a   motorcycle   eastbound    on   Greenish   Road    toward   the

intersection.       Defendant    then    drove   his     car    through   the

intersection to make a left-hand turn, directly across the path

of the oncoming motorcycle, which struck defendant's car on its

right side.      The motorcyclist was thrown from her vehicle and

sustained fatal injuries.       The driver of the car that was behind

defendant told the police that he saw the approaching motorcycle

and anticipated the collision because defendant turned left just

as the motorcycle entered the intersection.




1
  The file stamp on the trial court's order incorrectly states
that the order was issued on March 7, 2016.

                                    2                                A-3283-16T1
       Defendant told the police he had consumed a twenty-two-ounce

bottle of beer and a shot of cognac at approximately 11:00 a.m.

The police charged defendant with careless driving and making an

improper turn.          The police also obtained blood samples from

defendant at 4:21 p.m. on the day of the accident.                        The police

sent the samples to the State Police Laboratory for analysis.

       The State Police subsequently forwarded the blood samples to

Dr. Richard D. Cohn, Ph.D., who worked at a private drug-testing

company, for analysis and interpretation. Dr. Cohn has over forty-

five    years   of    experience       as       a     forensic    toxicologist     and

pharmacologist.      He has also been qualified as an expert witness

on the effect of marijuana ingestion on an individual's ability

to drive in hundreds of cases in over twenty-five states, including

New Jersey.     Indeed, in an earlier case in the same vicinage where

this accident occurred, the trial judge in this case permitted Dr.

Cohn to testify "that the presence of . . . 15 [nanograms per

milliliter (ng/ml)] of marijuana in one's system is sufficient to

inhibit a person's ability to perform safety sensitive tasks" like

driving a car.       State v. Cintron, No. A-1342-11 (App. Div. Sept.

23, 2013) (slip op. at 7).

       On November 21, 2012, Dr. Cohn issued a written report stating

that the test of defendant's blood sample revealed defendant's

delta-9-THC     (THC)    level   was    14          ng/ml   and   his   9-Carboxy-THC

                                            3                                 A-3283-16T1
(Carboxy-THC) level was 225 ng/ml.2         Dr. Cohn's report explained

that an individual's THC level rises quickly following ingestion

by smoking marijuana, and that peak levels are attained in a few

minutes.    The THC level then declines rapidly at first, and then

declines   more   slowly.    After       approximately    six    hours,    the

individual's THC level will become undetectable.                On the other

hand, Carboxy-THC levels "rise more slowly, and persist longer,

being routinely detectable for approximately [twenty-four] hours."

     Dr. Cohn found that defendant's 14 ng/ml THC level in the

blood sample taken almost two hours after the accident was highly

significant.   Based on his review of "decades [of] published data

in forensic toxicology," Dr. Cohn opined        that a concentration of

THC in a person's blood that is over 10 ng/ml renders the person

"unfit to perform safety sensitive tasks" like driving a car.

Thus, Dr. Cohn stated that defendant's THC level of 14 ng/ml,

combined with his high Carboxy-THC level, meant that defendant had

ingested marijuana "in dosage amounts capable of producing [the

drug's]    pharmacological   psychoactive      effects,    and     thus,    of


2
  Dr. Cohn testified that THC is the "active [and hallucinogenic]
constituent" and "the psychoactive component of marijuana."
Carboxy-THC is the "non-psychoactive constituent." In layperson's
terms, the THC level determines how intoxicated the person is,
while the Carboxy-THC level indicates when the individual may have
ingested the drug.



                                     4                               A-3283-16T1
rendering [defendant] unfit to safely operate a motor vehicle on

the highway."3

     On November 20, 2014, a Burlington County grand jury indicted

defendant for second-degree vehicular homicide, N.J.S.A. 2C:11-

5(a).   In preparation for trial, the State asked Dr. Cohn to

prepare a second written report.       In his June 26, 2015 report, Dr.

Cohn again concluded that the THC and Carboxy-THC

          concentration found in [defendant's] blood,
          together with the chronological history
          regarding the time between the car-motorcycle
          collision and acquisition of blood, are
          consistent with and indicative of the recent
          intake of . . . MARIJUANA in dosage amounts
          capable    of     producing    its     adverse
          pharmacological     effects,    and    thereby
          impairing    this    individual's    cognitive
          faculties and motor skills associated with his
          performance of safety sensitive tasks.

               In other words, the blood marijuana
          findings constitute an independent cause of
          impairment, and in the absence of other
          similarly or more competent causes are (a)
          corroborative of [defendant's] recent use of
          toxicologically   significant   amounts   of
          Marijuana, and (b) high enough (based on the
          totality of circumstances) to have been
          causally related to the fatal motor vehicle
          collision.

          [(Emphasis added).]




3
 Dr. Cohn's testing did not reveal any "alcohols (including ethyl
alcohol) or other volatile intoxicants" in defendant's blood.

                                   5                            A-3283-16T1
      Defendant thereafter moved to bar Dr. Cohn's expert reports

and   testimony   at   trial,   and       primarily   alleged   there     was

insufficient evidence to demonstrate that the specimen tested by

Dr. Cohn was the same sample obtained from defendant by the police.

Defendant also complained that Dr. Cohn did not provide copies of

the published data he relied upon to form his opinion.              However,

this claim was addressed when the State provided defendant and the

trial court with the supporting documents Dr. Cohn relied on

following the Rule 104 hearing.

      Testifying at the Rule 104 hearing, Dr. Cohn again opined

that because defendant had 14 ng/ml THC in his system almost two

hours after the accident, he had used a "sufficient amount of

marijuana to have adversely affected his ability to perform safety

sensitive tasks, including the operation of a motor vehicle safely"

at the time of the accident.      Defendant did not call an expert

witness at the hearing to rebut Dr. Cohn's findings and opinions.

      After   defendant's   attorney        conducted   a   short     cross-

examination of Dr. Cohn, the trial judge extensively questioned

the State's expert.      In response to those queries, Dr. Cohn

reiterated that his opinion was based upon his review of "many"4


4
  Dr. Cohn stated that "there's a myriad of . . . published
documents in the scientific literature, peer reviewed documents
in the scientific literature in both journals, peer review journals


                                      6                              A-3283-16T1
published studies "address[ing] the relationship between marijuana

ingestion and driving under the influence."

      The judge also questioned Dr. Cohn about the last sentence

of his report, where he summed up his conclusions.                        In that

sentence, Dr. Cohn wrote that "in the absence of other similarly

or   more    competent    causes,   [defendant's          THC   level]   makes    it

reasonably certain that [defendant's] controlled substance abuse

was at least casually, if not directly, related to the fatal

crash[.]"     (emphasis added).       As noted above, Dr. Cohn used the

word "causally" rather than the word "casually" one page earlier

in   his    report   to   explain   the       connection   between    defendant's

marijuana use and the accident.                  In response to the judge's

questions, Dr. Cohn testified that his use of the word "casually"

at the end of the report was a mistake, and he had not picked up

this typographical error when he proofread the report.

      After considering the parties' post-hearing submissions, the

trial   judge   rendered     a   written       decision    granting   defendant's

motion to exclude Dr. Cohn's reports and testimony at trial.                     The


and in actual texts that discuss the various levels of THC and
[C]arboxy-THC in blood and the interpretation therein."        In
response to the judge's questions, Dr. Cohn confirmed that these
studies were "specifically related to driving." Indeed, Dr. Cohn
told the judge that "we're not in a situation here where there's
an absence of documentable information concerning circulating
levels of marijuana and its ability to impair motor and cognitive
functions."

                                          7                                A-3283-16T1
judge first observed that the Legislature had enacted a statutory

standard providing that a defendant who drives "with a blood

alcohol concentration (BAC) of 0.08% or more by weight of alcohol"

in his or her blood is guilty of driving while intoxicated.

N.J.S.A.     39:4-50(a).      However,        the   Legislature   had    not   yet

established     a   comparable     standard      for    determining    whether    a

defendant has driven under the influence of a narcotic drug like

marijuana.     Thus, the judge stated that "[t]he present case falls

into the statute's undefined black hole."

         The judge then cited several reasons for his determination

that Dr. Cohn's testimony was insufficient to fill the void he

perceived in the statute.          Based upon his independent review of

the scientific data that Dr. Cohn marshalled in support of his

expert opinion, the judge opined that "there presently exist no

precise scientific standards for measuring THC's influence on a

person's inability to safely operate a motor vehicle."                 In support

of this conclusion, the judge referred to his own interpretation

of   a    "recent   report"   of   the       National   Academy   of    Sciences,

Engineering, and Medicine and stated that the committee that

prepared the report "concluded that while there is an increased

risk associated with cannabis use, there are no studies correlating

its use to intoxication or driving while impaired."               However, the

judge ignored the report's ultimate conclusion that "[t]here is

                                         8                                A-3283-16T1
substantial evidence of a statistical association between cannabis

use and increased risk of motor vehicle crashes[,]" which is

consistent    with   all   of   the   studies   Dr.   Cohn   considered    in

formulating his expert opinion.

     The judge also stated that Dr. Cohn's second report lacked

"conviction" and "scientific certainty" because he used the word

"casually" rather than "causally" in the last sentence to explain

the link between defendant's THC level and his unfitness to drive

his car at the time of the accident.            The judge noted that Dr.

Cohn testified that he typed "casually" by mistake.           However, the

judge rejected that testimony based upon his conclusion that

inserting the word "causally" in the sentence as Dr. Cohn intended

"destroys the entire syntax of the sentence."           The judge did not

address Dr. Cohn's correct use of the word "causally" just one

page earlier in the report.       This appeal followed.

                                      II.

     On appeal, the State argues that the trial judge mistakenly

exercised his discretion by excluding Dr. Cohn's expert testimony.

We agree.

     We review a trial judge's decision to exclude expert testimony

for abuse of discretion.         Townsend v. Pierre, 221 N.J. 36, 52

(2015).     N.J.R.E. 702 governs the admission of expert testimony.

This rule states:

                                       9                            A-3283-16T1
                 If scientific, technical, or other
            specialized knowledge will assist the trier
            of fact to understand the evidence or to
            determine a fact in issue, a witness qualified
            as an expert by knowledge, skill, experience,
            training, or education may testify thereto in
            the form of an opinion or otherwise.

Under N.J.R.E. 702, expert testimony is admissible when:                    (1) the

intended testimony concerns matters "beyond the ken of the average

juror"; (2) the field in question is at "a state of the art" such

that the expert's testimony is sufficiently reliable; and (3) the

witness     has    "sufficient         expertise     to    offer    the    intended

testimony."       Kemp v. State, 174 N.J. 412, 424 (2002) (quoting

Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992)).

      Dr.   Cohn's      proposed      testimony    concerning      the   effects    of

defendant's       THC   level    on    his    ability     to   safely    operate    an

automobile met the first prong of the N.J.R.E. 702 test because

it was obviously "beyond the ken of the average juror."                        Kemp,

supra, 174 N.J. at 424.               The trial judge also found that "Dr.

Cohn's expertise as a toxicologist is evident[,]" thus satisfying

the third prong of the test.

      However, the judge found that the second prong of the test

was   not   met    because      Dr.    Cohn's     proposed     testimony   was     not

scientifically reliable.           As the Supreme Court held over twenty-

five years ago in Rubanick v. Witco Chem. Corp., a theory of

causation "may be found to be sufficiently reliable [and therefore

                                         10                                  A-3283-16T1
admissible   under    N.J.R.E.       702]    if   it   is    based   on    a    sound,

adequately-founded       scientific     methodology          involving     data     and

information of the type reasonably relied on by experts in the

scientific field."       125 N.J. 421, 449 (1991).

      In   determining    the    soundness        of   the    proposed     expert's

methodology, the Court cautioned trial judges not to "directly and

independently determine as a matter of law that a controversial

and   complex   scientific      methodology       is   sound.        The   critical

determination is whether comparable experts accept the soundness

of the methodology, including the reasonableness of relying on

this type of underlying data and information."                 Id. at 451.       Thus,

a trial judge should not "independently review[]" the studies

relied upon by the expert, or make his or her own determination

as to scientific reliability of those studies.                   Ibid.     Instead,

"[t]he proper inquiry is whether comparable 'experts in the field

[would]    actually   rely'     on    that    information."          Id.       at   452

(alteration in original) (quoting Ryan v. KDI Sylvan Pools, Inc.,

129 N.J. 276, 289 (1990)).

      More recently, the Court reiterated that while trial judges

should "act as gatekeepers to the proper admission of expert

testimony, we do not expect [them] to investigate sua sponte the

extent to which the scientific community holds in esteem the

particular analytical writings or research that a proponent of

                                       11                                      A-3283-16T1
testimony advances as foundational to an expert opinion."            Hisenaj

v. Kuehner, 194 N.J. 6, 16 (2008) (citing Rubanick, supra, 125

N.J. at 451).     Instead, the Court stated that "[i]t falls to the

parties at trial, who are positioned best to gather and analyze

the   viability   of   an    expert's     proffered   testimony,   [and]        to

highlight the strengths and shortcomings of the foundation for

that testimony so that the trial court can reach an informed

admissibility decision."        Ibid.

      Applying    these     principles,    we   conclude   the   trial     judge

mistakenly applied his discretion in finding that Dr. Cohn's

proposed testimony did not meet the second prong of the N.J.R.E.

702 test.    Dr. Cohn's opinion that a person who has over 10 ng/ml

of THC in their blood may not safely operate an automobile was not

based on new or novel scientific theories, methodologies, or

studies.     As Dr. Cohn testified, his opinion was derived from

information contained in "decades [of] published data in forensic

toxicology" as viewed through the lens of his significant expertise

in this highly specialized field.

      In addition, Dr. Cohn previously provided similar expert

testimony in hundreds of cases across the country, including New

Jersey.     The defense did not provide any expert testimony of its

own to contradict Dr. Cohn's opinions.



                                     12                                  A-3283-16T1
     In determining that Dr. Cohn's opinion was nevertheless not

scientifically reliable under N.J.R.E. 702, the judge mistakenly

conducted his own independent search of the scientific literature

and focused on a single study which he believed contradicted Dr.

Cohn's opinion.     By doing so, the judge failed to follow the

Supreme Court's admonitions in Rubanick and Hisenaj that trial

courts should leave the gathering of scientific research to the

parties.   Moreover, the study the judge relied upon actually

concluded that "[t]here is substantial evidence of a statistical

association between cannabis use and increased risk of motor

vehicle crashes."

     The judge's remaining criticisms of Dr. Cohn's expert report

are also unavailing.    The judge correctly noted that N.J.S.A.

39:4-50 permits the State to establish a prima facie case that a

driver is driving under the influence of alcohol if the driver's

BAC is .08% or higher, but does not set a comparable standard for

cases where the driver is under the influence of        marijuana.

However, this observation is of no moment because even in the

absence of a blood test, the State has always been permitted to

submit lay and expert testimony on the issue of whether a driver

was under the influence of a drug.   State v. Bealor, 187 N.J. 574,

585-86 (2006). Indeed, the Court has stated that "expert testimony



                               13                           A-3283-16T1
remains the preferred method of proof of marijuana intoxication."

Id. at 592.

       Finally, Dr. Cohn's opinions were stated in terms that were

sufficiently "certain" and "definitive" to allow their admission

in evidence at trial.     Dr. Cohn's first report clearly stated that

the THC levels found in defendant's blood rendered him "unfit to

safely operate a motor vehicle on the highway."                    In his more

detailed, second report, Dr. Cohn opined that defendant's THC

level was "high enough (based on the totality of circumstances)

to   have    been   causally   related    to   the   fatal     motor    vehicle

collision."     Dr. Cohn's testimony at the Rule 104 hearing was

stated with equal conviction.

       The judge's contrary conclusion was based upon his finding

that   Dr.   Cohn   intended   to   opine   there    was    only   a   "casual"

connection between defendant's drug use and the accident, based

upon Dr. Cohn's use of the word "casually" instead of "causally"

in the last sentence of his second report.            We normally defer to

a trial judge's credibility findings because trial judges have the

opportunity to see and hear the witnesses testify.                     State v.

Locurto, 157 N.J. 463, 470-71 (1999).           However, where a judge's

finding is "so wide of the mark that a mistake must have been

made[,]" we do not apply the same deference.               N.J. Div. of Youth

& Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B.

                                     14                                 A-3283-16T1
Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65,

69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

     Here, the judge made no mention of the fact that Dr. Cohn's

use of the word "casually" in the last sentence of the report was

completely inconsistent with his testimony throughout the hearing

that there was a causal connection between defendant's THC level

and the accident.   He also failed to mention that Dr. Cohn had

specifically used the word "causally" just one page earlier in the

report to describe the correlation between defendant's ingestion

of marijuana and the fatal collision.    Thus, we are constrained

to reject the judge's finding on this point.

     In sum, the judge mistakenly barred the State from presenting

the expert testimony of Dr. Cohn at trial.     We therefore reverse

the judge's decision and remand for appropriate proceedings.

     Reversed and remanded.   We do not retain jurisdiction.




                               15                           A-3283-16T1
