State v. Cantalupo

• Decision Date: 08 January 2019
• Docket Number: DOCKET NO. A-4142-16T2
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN J. CANTALUPO, a/k/a JOHN J. CANTALUPO, JR., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN J. CANTALUPO, a/k/a JOHN J. CANTALUPO, JR., Defendant-Appellant.

DOCKET NO. A-4142-16T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued December 19, 2018

January 8, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13-07-1772.

Thomas M. Cannavo argued the cause for appellant (Steven W. Hernandez, attorney; Thomas M. Cannavo, of counsel and on the brief).

William K. Meighan, Senior Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; William K. Meighan, on the brief).

PER CURIAM

Defendant John J. Cantalupo appeals from a March 29, 2017 order after a bench trial in which he was found guilty of possession of a controlled dangerous substance (CDS) in an automobile, N.J.S.A. 39:4-49.1; driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f); failure to observe traffic signals, N.J.S.A. 39:4-81; and third-degree possession of Phencyclidine (PCP), N.J.S.A. 2C:35-10(a)(1). As part of his sentence, defendant received three years of probation with 180 days in jail, but the court suspended 150 days of the jail time imposed. We affirm the convictions, but reverse and remand the sentence in accordance with this opinion.

The following facts are taken from the record. On January 12, 2013, Toms River Police Sergeant Daniel Sysol observed a vehicle operated by defendant moving unusually slow and well below the speed limit, traveling southbound on Vermont Avenue toward the intersection with Cox Cro Road. Sysol followed the vehicle, which stopped briefly at a red light before making an illegal left-hand turn on red.

When Sysol stopped the vehicle he noted defendant was not wearing his seatbelt. Defendant was moving slowly, fumbled his credentials, spoke withslurred speech, and his pupils were unusually constricted. Sysol requested defendant exit the vehicle and observed he was moving slowly and having difficulty standing and walking without falling or swaying from side-to-side. Sysol requested a Drug Recognition Expert ("DRE") assist in the investigation.

Officer Steven Schwartz, a DRE, responded. He also observed defendant's pupils were constricted and noted he had difficulty maintaining his balance. Additionally, he detected a strong chemical odor on defendant's breath. Schwartz requested defendant perform a field sobriety test.

Schwartz had defendant perform a Horizontal Gaze Nystagmus ("HGN") test. Schwartz testified defendant's eyes did not follow his finger smoothly and his body swayed from side-to-side, which were signs of impairment. Schwartz next conducted a walk-and-turn-test, which defendant also struggled to perform. Defendant stumbled several times, had difficulty maintaining his balance, held his arms out horizontally for balance, failed to touch his toe to heel as he took each step, and took more steps than directed. Schwartz also directed defendant to perform a one-leg-stand test, but he was unable to raise his foot off the ground without losing balance.

Defendant was arrested for DWI, read his Miranda¹ warnings, and placed in a police vehicle. Prior to transporting defendant's vehicle from the scene, Schwartz illuminated its interior and observed a small glass vial positioned between the center console and the driver's seat. Schwartz testified the vial looked similar to an eyedropper glass with a black cap, and believed it contained CDS based on its appearance and the chemical odor on defendant's breath. Schwartz observed the contents of the vial were a brown liquid substance with floating vegetative matter. Subsequent laboratory testing on the vial revealed it contained PCP.

At the police station, defendant was read his Miranda warnings a second time, and signed a waiver form. An Alcotest indicated a blood alcohol content of 0.0. As a result, Schwartz performed a full DRE to determine the source of defendant's impairment. He conducted another HGN test, which defendant failed. He also conducted a lack of convergence ("LOC") test where defendant was instructed to follow the officer's fingertip as it was moved toward defendant's nose. Defendant's eyes remained focused straight ahead and did not converge on the officer's fingertip, which was a sign of intoxication.

Defendant was also asked to stand with his feet together, close his eyes, tilt his head backward, and estimate the passage of thirty seconds without counting aloud. Although defendant was able to count for twenty-seven seconds, he swayed in a circular motion throughout the test.

Schwartz conducted another one-leg-stand test during which defendant failed to maintain his balance. He also performed a dark room test to observe how defendant's pupils adjusted to light. Defendant's pupil constriction was slow. Defendant's blood pressure was elevated, and his body temperature was below normal during the testing. However, his muscle tone was normal and he showed no signs of injection sites or drug residue in the mouth or nose.

Schwartz interviewed defendant as a part of the DRE. He testified defendant still had a chemical odor on his breath, spoke in slurred speech, and admitted to smoking a cigarette dipped in PCP approximately fifteen minutes before he was stopped. Defendant also admitted he had taken Percocet earlier in the day because he was experiencing shoulder pain. Defendant consented to providing a urine sample, which tested positive for oxycodone and PCP.

We next recite the extensive pre-trial timeline and motion practice, which occurred in this case, because it bears on the issues raised in the appeal. Defendant incurred the motor vehicle charges in January 2013, and was indictedfor the drug possession charge in July 2013. On July 25, 2013, the State offered to recommend probation with 364 days in jail, in return for defendant's entry of a guilty plea with respect to the DWI and CDS charges. Defendant did not enter into a plea and was subsequently arraigned in September 2013.

On June 23, 2014, the State hand-delivered the urinalysis report to defendant. In January 2015, defendant filed a motion to dismiss the indictment and the charges on speedy trial grounds. The motion was denied in February 2015.

On March 18, 2015, the State requested a plea cutoff date and a trial date. Five days later, defendant requested the State agree to a conditional plea, which would have allowed him to plead guilty to the indictable offense while preserving his right to appeal the denial of the speedy trial motion. The State rejected the request.

In April 2015, defendant filed a motion to stay the imposition of the sentence and to set bail in the event of a conviction. In May 2015, defense counsel advised the court defendant would likely plead guilty and requested the motion be adjourned until after the plea.

On May 18, 2015, defendant retained new counsel, who filed a motion to suppress the urinalysis and field sobriety tests the following day. The courtheard extensive testimony on the motion on October 15, October 28, and November 12, 2015, and ultimately denied it on December 1, 2015.

On January 4, 2016, defendant renewed the request for a conditional plea, which the State rejected. On January 29, 2016, he filed a motion to compel the conditional plea over the State's objection, which the court denied on February 22, 2016.

A plea cutoff date was set for March 15, 2016, and a trial date was set for September 13, 2016. A month before trial, defendant moved to sever the motor vehicle offenses from the indictable charge. A day later he filed another motion raising seven arguments, none of which are raised on appeal.

On September 9, 2016, defendant made a third request for a conditional plea, which was rejected. Because a new trial judge was assigned to the case, the trial date was converted into a status conference with that judge, who set trial for October 25, 2016.

On September 15, 2016, defendant requested an adjournment of the trial because his expert was unavailable to testify. On September 20, 2016, he filed a motion for reconsideration of the conditional plea and the speedy trial determinations. The motions were argued on October 11 and October 14, and denied on October 26, 2016.

Defendant filed a motion for leave to appeal from the denial of reconsideration. We denied the motion on December 19, 2016.

Defendant waived his right to a jury trial. The trial commenced in February 2017 and continued into March 2017. The trial judge found defendant guilty on all charges and sentenced defendant in May 2017. This appeal followed.

Defendant raises the following points:

POINT I - THE LAW DIVISION ERRED IN DENYING THE INITIAL SPEEDY TRIAL DISMISSAL MOTION. THUS, ALL CHARGES SHOULD BE DISMISSED.

POINT II - EVEN IF THE INITIAL SPEEDY TRIAL MOTION WERE CORRECTLY DENIED, THE ADDITIONAL DELAY DUE TO THE STATE'S ARBITRARY REFUSAL TO ALLOW A CONDITIONAL PLEA VIOLATED DEFENDANT'S SIXTH AMENDMENT AND ART. 1, PAR. 10 SPEEDY TRIAL RIGHTS, MANDATING DISMISSAL OF ALL CHARGES WITH PREJUDICE.

POINT III - GIVEN THE LACK OF REASONABLE SUSPICION TO PERFORM PSYCHOPHYSICAL TESTS AT THE SCENE PURSUANT TO STATE V. BERNOKEITS, THE LAW DIVISION ERRED IN FAILING TO SUPPRESS ALL EVIDENCE SEIZED OR OBSERVED AS FRUIT OF THE POISONOUS TREE. THUS, DEFENDANT SHOULD BE ACQUITTED OF ALL CHARGES ARISING AFTER THE MOTOR VEHICLE STOP.

POINT IV - THE LAW DIVISION ERRED IN DENYING THE MOTION TO SUPPRESS THE CDS FOUND IN THE MOTOR VEHICLE UNDER THE DOCTRINE OF PLAIN VIEW. THUS, THE DEFENDANT MUST BE ACQUITTED OF

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