State v. Zingis
| Decision Date | 25 April 2022 |
| Docket Number | DOCKET NO. A-0905-20 |
| Citation | 471 N.J.Super. 590,274 A.3d 677 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Thomas ZINGIS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Michael B. Cooke argued the cause for appellant.
Cheryl L. Hammel, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Cheryl L. Hammel, on the brief).
Before Judges Currier,1 DeAlmeida and Smith.
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendant Thomas Zingis appeals from the October 20, 2020 order of the Law Division convicting him after a trial de novo of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. In addition, defendant appeals his sentence, arguing that the court erred when it considered his conviction to be a second DWI offense for sentencing purposes. We affirm defendant's conviction. However, because the State did not prove beyond a reasonable doubt that defendant's prior DWI conviction was not based on Alcotest breath sample test results rendered inadmissible by the holding in State v. Cassidy, 235 N.J. 482, 197 A.3d 86 (2018), we vacate his sentence, and remand for resentencing as a first offense.
After a trial, a municipal court judge found the following facts based on what he determined to be the credible testimony of Berkeley Township Patrolman Justin Heffernan. On August 27, 2018, at approximately 1:20 a.m., Heffernan was in his patrol car when he observed defendant, who was operating a motorcycle, make an illegal U-turn onto Route 9 North. Defendant stopped briefly on the shoulder before pulling out directly in front of an SUV traveling on the highway, causing the SUV driver to "slam on its brakes and lay on the horn." Defendant then took off at "a high rate of speed." Heffernan gave chase and stopped defendant, who had no difficulty dismounting his motorcycle and retrieving documents from the seat compartment.
Heffernan immediately smelled alcohol emanating from defendant. After defendant removed his fully enclosed motorcycle helmet, the odor of alcohol became "extremely strong." The officer observed defendant's flushed face, droopy eyelids, and bloodshot, watery eyes. Defendant's speech also appeared slow, although he did not slur or stutter. When Heffernan asked if defendant had been drinking, he responded that he had consumed one beer.
Heffernan then administered three field sobriety tests: (1) a walk-and-turn test, (2) a one-legged-stand test, and (3) an alphabet test. Defendant displayed signs of intoxication during each test. During the walk-and-turn test, defendant did not comply with the physical aspects of the test by failing to hold the heel-to-toe position while being given instructions, crossing his legs while walking, leaving gaps between his heel and toe, and stumbling backwards. In addition, he failed to follow Heffernan's instructions when, after walking in one direction, he stopped instead of turning around and returning to the starting point.
During the one-legged-stand test, defendant was unable to keep his lifted leg straight. His knee was bent and not lifted to the appropriate height. In addition, his foot touched the ground several times. Defendant also failed to count out loud, as instructed by the officer.
Finally, defendant could not complete the alphabet test. Although he had completed high school, defendant could not recite the alphabet from D to V. He quickly recited only "D-E-F," before falling silent. Because the alphabet test is not a standard field sobriety test, the court gave defendant's performance on this test "very limited" weight.2
As a result of his observations, Heffernan charged defendant with DWI, and careless driving, contrary to N.J.S.A. 39:4-97.
The court issued an oral opinion convicting defendant of both offenses. The court found Heffernan's opinion credible, based on his observation of defendant's performance during the field sobriety tests and his experience and training, that defendant was alcohol impaired while operating the motorcycle. The court noted the officer's testimony was corroborated by a body camera recording of his interactions with defendant.3 The judge also concluded that defendant was guilty of careless driving.
The court rejected defendant's claim that his medical condition raised reasonable doubt as to whether his inability to perform the field sobriety tests was the result of intoxication. Prior to starting the tests, defendant informed Heffernan that he had disc issues in his neck and back for which he took pain medication. He also stated that his leg "goes a little numb." At trial, however, defendant did not produce an expert report or other evidence regarding his medical condition or its effect on his ability to perform physical tasks. The court concluded it was "not going to give any probative value to the medical conditions raised by the [d]efendant without any other further evidence or scientific testimony." The court also noted that defendant's operation of a motorcycle "would take some physicality."
At sentencing, defendant, although previously convicted of DWI in Camden County in 2012, moved to be sentenced as a first-time offender. See N.J.S.A. 39:4-50 (). He argued the court should disregard the 2012 conviction because the State failed to produce documentary evidence that it was not based on an Alcotest breath sample test result rendered inadmissible by the holding in Cassidy. That case arose from the misconduct of State Trooper Marc W. Dennis. Id. at 486, 197 A.3d 86. For several years, Dennis falsely certified that he had calibrated Alcotest instruments using a NIST-traceable thermometer. Ibid. The Court held that the false certifications rendered the results of breath sample tests administered on Alcotest instruments calibrated by Dennis inadmissible. Id. at 497-98, 197 A.3d 86. The holding in Cassidy called into question the validity of thousands of past DWI convictions. Id. at 486, 497-98, 197 A.3d 86. Defendant's 2012 conviction happened during the time Dennis was filing false certifications.
In support of his argument, defendant relied on two documents issued while Cassidy was pending before the Court:
and (2) the June 29, 2018 letter issued by a Deputy Attorney General on behalf of the Attorney General to all county prosecutors, implementing Judge Lisa's November 28, 2017 supplemental order as follows:
The municipal prosecutor told the court that Ocean County had "over 900 Cassidy cases," that he was "well familiar with all of the facts," and that defendant's prior conviction "is not a Cassidy Dennis case." He also proffered that "there were no Dennis cases in Camden County" and that counties.
The trial court responded that The municipal prosecutor interrupted the...
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