SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2080-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY H. CONDIT,

Defendant-Appellant.

_________________________

Submitted January 23, 2020 – Decided

Before Judges Koblitz and Whipple. 

On appeal from the Superior Court of New Jersey, Law

Division, Morris County, Municipal Appeal No. 18-

013.

Daniel W. Heinkel, attorney for appellant.

Fredric M. Knapp, Morris County Prosecutor, attorney 

for respondent (Paula Cristina Jordao, Assistant 

Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

February 10, 2020
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A-2080-18T3

After a trial de novo on the record in Superior Court, defendant Gary H. 

Condit appeals from December 3, 2018 convictions of possession of a controlled 

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(4); possession of drug 

paraphernalia, N.J.S.A. 2C:36-2; reckless driving, N.J.S.A. 39:4-96; careless 

driving, N.J.S.A. 39:4-97; operation of a motor vehicle while in possession of 

CDS, N.J.S.A. 39:4-49.1; driving while intoxicated (DWI), N.J.S.A. 39:4-50, 

for the second time; unsafe lane change, N.J.S.A. 39:4-88(b); refusal to provide 

breath samples, N.J.S.A. 39:4-50.2; and failure to keep right, N.J.S.A. 39:4-82. 

Penalties other than incarceration were imposed pursuant to statute. Defendant 

raises various evidentiary issues and maintains the evidence was insufficient for 

a finding of guilt on many of the charges. We affirm substantially for the reasons 

expressed in the detailed ten-page written statement of reasons attached to Judge 

Michael E. Hubner's December 3, 2018 order of conviction.

The trial testimony reveals the following facts. On May 18, 2017, at 

approximately 12:30 a.m., Lieutenant Jeffrey Tucker of the Denville Police 

Department was traveling east on Route 46 when he saw a commercial van drift 

over the double yellow line, into Tucker's eastbound lane of traffic, before 
3

A-2080-18T3

returning to its westbound lane.1 Fearing for his safety and that of other 

motorists, Tucker made a U-turn to drive behind the van. He saw the van drift 

from the left lane into the right lane, then back into the left lane of the westbound lanes, without using a signal. Tucker activated his emergency lights, 

pulled the van over and approached the van. The driver's side window was 

down, defendant was seated behind the wheel, and Tucker immediately detected 

the smell of raw marijuana. Defendant explained to Tucker that he was swerving 

because he was trying to avoid potholes. Tucker testified that the stretch of road 

did not have noticeable potholes. 

Tucker noticed defendant's license indicated that an interlock device2 was 

required and one was not installed in the van. Defendant stated that the interlock 

device was only required in his personal vehicle. He said he was allowed by 

court order to drive a work van without the device. Tucker testified that 

defendant's speech was slow and slightly slurred. 

Tucker asked defendant to step out of the car. Defendant explained to 

Tucker that he had worked a considerable amount of hours that week and the 

1 Defendant submitted a DVD of the recording from Tucker's dash camera, 

which was entered into evidence at trial. 

2 See N.J.S.A. 39:4-50.17(a)(1) regarding the requirement of interlock devices 

after a DWI conviction.
4

A-2080-18T3

week before. Defendant worked full-time as an operations manager and 

designer at a florist. He testified that the florist owns the commercial van he 

was driving that night and that other employees drive it also. 

Tucker smelled the odor of burnt marijuana coming from defendant as he 

was speaking with him. Defendant denied he had smoked any marijuana and 

denied that marijuana was present in the van. Defendant said someone else had 

driven the van earlier that day. Tucker then conducted a series of field sobriety 

tests. 

The first test conducted was the Horizontal Gaze Nystagmus (HGN) test. 

Tucker asked defendant to stand with his feet together, arms down at his side 

and to follow Tucker's finger. While he was administering the test, Tucker 

observed that defendant was swaying slightly side-to-side and his eyes were 

bloodshot. 

The second test was the walk-and-turn test. During the instructional phase 

of the test, Tucker asked whether defendant was suffering from any injuries that 

would prevent him from performing the test. Defendant responded that he was 

involved in a motor vehicle accident several years prior and his injuries would 

likely affect his ability to perform the test. Tucker testified that he took this 
5

A-2080-18T3

information into consideration and then proceeded to administer the test on a 

slightly inclined surface. 

During the instructional phase of the test, defendant was asked to stand 

with his right foot in front of his left and with his arms down by his side. 

Defendant did not follow instructions and was swaying slightly. During the test, 

defendant raised his arms for balance, did not touch heel to toe on each 

consecutive step, leaned significantly to the side, took an extra step, and nearly 

fell. 

The final test conducted was the one-leg-stand test in which defendant 

was instructed to raise his foot approximately six inches off the ground, point 

his toe straight out and look down at his toe while keeping his arms at his sides 

and count "one one thousand two one thousand" out loud until instructed to stop. 

Defendant started the test before he was instructed to do so. He attempted the 

test twice, both times only reaching the count of one before putting his foot 

down. 

After conducting the field sobriety tests, Tucker searched the van and 

found a cigar box, wedged between the driver's seat and the center console area, 

which contained a small bag of raw marijuana, an e-cigarette device with a 
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A-2080-18T3

concentrate cartridge, and two unsmoked marijuana "blunts."

3

 Tucker then 

arrested defendant for possession of marijuana and driving while intoxicated. 

The small bag of raw marijuana and two blunts tested positive for marijuana at

the State Police Laboratory.

Upon arrival at the police station, Tucker set up the Alcotest and began 

the required twenty-minute observation period of defendant. Defendant 

belched, so Tucker reset the clock back to begin a new twenty-minute 

observation period. Tucker testified that after defendant's second belch, he 

advised defendant that if he continued to belch it would be considered a refusal. 

After defendant belched two more times, Tucker stopped the test and charged 

defendant with refusal to provide a breath sample. 

Defendant testified and denied he was under the influence or knew of the 

marijuana in the van. He said he belched because he was "extremely nervous" 

and could not control his "bodily function." On cross-examination, defendant 

admitted to being familiar with the smell of both raw and burnt marijuana.

3

"A blunt is an inexpensive cigar, typically a 'Philly Blunts' brand cigar, that 

has been split open and emptied of tobacco. Marijuana is substituted for the 

removed tobacco, and the exterior tobacco leaf of each cigar is used to rewrap 

the new contents." State v. Eckel, 185 N.J. 523, 525 n.1 (2006) (quoting 

National Institute on Drug Abuse, Assessing Drug Abuse Within and Across 

Communities, http://www.drugabuse.gov/DESPR/Assessing/AppendixH1.html 

(last visited Nov. 30, 2005)).
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Defendant raises the following issues on appeal:

I. DEFENDANT'S CONVICTION FOR DRIVING 

WHILE INTOXICATED SHOULD BE REVERSED. 

A. CHALLENGED EVIDENTIARY RULINGS:

1. LT. TUCKERS TESTIMONY IDENTIFYING A 

LIQUID CONCENTRATE CARTRIDGE AS 

MARIJUANA IS INADMISSIBLE.

 

a) DE NOVO REVIEW IS THE CORRECT 

STANDARD OF REVIEW. (Not raised below)

b) LT. TUCKER'S TESTIMONY IDENTIFYING 

THE CONCENTRATE CARTRIDGE AS 

MARIJUANA IS INADMISSIBLE HEARSAY. 

c) LT. TUCKER'S TESTIMONY IS EXCLUDED 

BY N.J.R.E. 403. (Not raised below)

2. LT. TUCKER'S OPINION THAT DEFENDANT 

WAS UNDER THE INFLUENCE OF MARIJUANA 

SHOULD BE EXCLUDED FROM EVIDENCE. 

a) THE TRIAL COURT'S RULING THAT 

RETROACTIVELY QUALIFIED LT. TUCKER IS 

AN ABUSE OF DISCRETION. (Not raised below)

i) EVEN IF THE TRIAL COURT'S RULING IS 

AFFIRMED, THE "EXPERT" OPINION SHOULD 

STILL BE STRICKEN BECAUSE IT IS A NET 

OPINION. (Not raised below)
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A-2080-18T3

b) UNDER STATE V. BEALOR,

[4] LT. TUCKER'S 

LAY OPINION ON MARIJUANA INTOXICATION 

IS INADMISSIBLE.

 

B. THERE IS INSUFFICIENT EVIDENCE TO 

PROVE DRIVING WHILE INTOXICATED 

BEYOND A REASONABLE DOUBT. 

 

1. DE NOVO REVIEW IS THE CORRECT 

STANDARD OF REVIEW. (Not raised below) 

2. THE STATE'S PROOFS ARE INSUFFICIENT 

TO PROVE DRIVING WHILE INTOXICATED 

BEYOND A REASONABLE DOUBT. 

3. THE STATE'S PROOFS ARE LEGALLY 

INSUFFICIENT EVEN IF THE SUBSTANTIAL 

EVIDENCE STANDARD OF REVIEW IS APPLIED. 

(Not raised below) 

II. DEFENDANT'S CONVICTION FOR 

REFUSAL TO PROVIDE A BREATH SAMPLE 

MUST BE REVERSED. 

A. DE NOVO REVIEW IS THE CORRECT 

STANDARD OF REVIEW. (Not raised below) 

B. THE STATE'S PROOFS ARE INSUFFICIENT

TO PROVE THE OFFENSE BEYOND A 

REASONABLE DOUBT. 

1. APPLICABLE LAW.

2. THE STATE FAILED TO PROVE THE 

"REFUSAL" ELEMENT OF THE OFFENSE 

BEYOND A REASONABLE DOUBT. 

4 187 N.J. 574 (2006).
9

A-2080-18T3

3. THE STATE FAILED TO PROVE BEYOND A 

REASONABLE DOUBT THAT THE ARRESTING 

OFFICER HAD PROBABLE CAUSE TO ARREST 

DEFENDANT FOR DRIVING WHILE 

INTOXICATED. 

III. DEFENDANT'S CONVICTIONS RELATING 

TO UNLAWLFUL POSSESSION OF MARIJUANA 

MUST BE REVERSED. 

A. CHALLENGED EVIDENTIARY RULINGS:

1. LT. TUCKER'S TESTIMONY THAT THE 

VEHICLE OPERATED BY DEFENDANT WAS HIS 

"PRIMARY" VEHICLE SHOULD BE EXCLUDED 

FROM EVIDENCE. 

a) DE NOVO REVIEW IS THE CORRECT 

STANDARD OF REVIEW. (Not raised below).

b) LT. TUCKER'S TESTIMONY IS NOT BASED 

ON PERSONAL KNOWLEDGE. 

2. THE TRIAL COURT IMPROPERLY 

PERMITTED THE STATE TO QUESTION 

DEFENDANT ABOUT HIS FAMILIARITY WITH 

THE SMELL OF RAW MARIJUANA DURING 

CROSS-EXAMINATION. 

B. THERE IS INSUFFICIENT EVIDENCE TO 

PROVE ACTUAL OR CONSTRUCTIVE 

POSSESSION OF MARIJUANA. 

1. DE NOVO REVIEW IS THE CORRECT 

STANDARD OF REVIEW. (Not raised below) 

2. THE STATE'S PROOFS DO NOT PROVE 

POSSESSION BEYOND A REASONABLE DOUBT. 
10 A-2080-18T3

IV. DEFENDANT'S CONVICTION FOR 

RECKLESS DRIVING MUST BE REVERSED. 

Our review of a de novo conviction by the Law Division is limited to the 

issue of whether the court's findings "could reasonably have been reached on 

sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 

146, 162 (1964). We are "not permitted to 'weigh the evidence, assess the 

credibility of witnesses, or make conclusions about the evidence.'" State v. 

Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 

(1997)). We review the legal rulings of the trial court de novo. State v. 

Robertson, 228 N.J. 138, 148 (2017). "It is well-settled that the trial judge 

'giv[es] due, although not necessarily controlling, regard to the opportunity of 

the' municipal court judge to assess 'the credibility of the witnesses.'" Ibid.

(alteration in original) (quoting Johnson, 42 N.J. at 157). "[A]ppellate courts 

ordinarily should not undertake to alter concurrent findings of facts and 

credibility determinations made by two lower courts absent a very obvious and 

exceptional showing of error." Locurto, 157 N.J. at 474.

"[A] trial court's evidentiary rulings are 'entitled to deference absent a 

showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" 

State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 

469, 484 (1997)).
11 A-2080-18T3

Defendant argues that the Law Division erred by "retroactively 

qualifying" Tucker as an expert witness. Defendant argues that this was an 

abuse of discretion because it violated his due process right to discovery of the 

State's evidence. Citing to Rule 7:7-7(b)(11), defendant states he is entitled to: 

1) the identity of the expert; 2) the expert's qualifications; 3) the subject matter 

of the expert's testimony; and 4) a copy of the expert's report or statement of 

opinion with supporting facts and reasons. Defendant asserts that "[t]he State's 

failure to identify the expert witness or expert opinion in discovery precludes 

the expert's testimony." 

At the time of trial, the State did not attempt to qualify Tucker as an expert 

witness. The argument was made by the State on appeal to the Law Division,

which found that Tucker could have been and should be regarded as an expert 

because he meets the requirements under N.J.R.E. 702. N.J.R.E. 702 states that 

"a witness qualified as an expert by knowledge, skill, experience, training, or 

education may testify thereto in the form of an opinion or otherwise." The Law 

Division concluded that Tucker’s twenty-year experience as a police officer 

dealing with individuals under the influence of marijuana, his three-year 

experience as an evidence officer smelling raw marijuana, and his “significant 

amount of training” related to individuals under the influence of marijuana 
12 A-2080-18T3

establishes his expert qualification. Our Supreme Court has stated that "[i]n 

view of their training, police officers in this State are eligible to qualify as 

experts on marijuana intoxication under N.J.R.E. 702." Bealor, 187 N.J. at 592. 

Any discovery violation does not meet the reversible error standard. See State 

v. Macon, 57 N.J. 325, 338 (1971) (When reviewing for error, "the question" is 

whether under "all the circumstances there was a reasonable doubt as to whether 

the error denied a fair trial and a fair decision on the merits."); Rule 2:10-2 ("Any 

error or omission shall be disregarded by the appellate court unless it is of such 

a nature as to have been clearly capable of producing an unjust result . . . .").

Furthermore, defendant argues for the first time before us that, even if this 

court affirms the Law Division's qualification of Tucker as an expert, his opinion 

should still be stricken because it is a net opinion and improperly characterizes 

defendant's guilt of driving while intoxicated. Defendant cites to Townsend v. 

Pierre, 221 N.J. 36, 53 (2015) and N.J.R.E. 703 for the proposition that an 

expert's opinion must be based on facts or data. Tucker explained in great detail 

the observations that led him to conclude that defendant was intoxicated. Tucker 

related his observations of defendant's driving, his appearance, and his 

performance on the field sobriety tests.
13 A-2080-18T3

Pursuant to N.J.S.A. 39:4-50(a), a "driving while intoxicated" violation 

occurs when "operat[ing] a motor vehicle while under the influence of 

intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug." Our 

Supreme Court has "repeatedly made clear that, in motor vehicle violation cases, the 

State's burden of proof unquestionably is beyond a reasonable doubt." Bealor, 187 

N.J. at 586 (citing State v. Fearon, 56 N.J. 61, 62 (1970)).

Defendant argues that the State's proofs of intoxication are legally 

insufficient under Bealor because there are no independent proofs as to the cause 

of intoxication, such as a urine sample, blood sample, admission of use, or 

evidence of burnt marijuana or paraphernalia. While the State in Bealor proved 

the presence of marijuana through a urine sample, the Court in Bealor found that 

"fact testimony in respect of defendant's erratic and dangerous driving, his 

slurred and slow speech, his 'bloodshot and glassy' eyes, his droopy eyelids, his 

'pale and flushed' face, his 'fumbl[ing] around the center console and his 

glovebox searching for all his credentials,' [and] the smell of burnt marijuana on 

defendant," was enough to prove intoxication. Id. at 590 (first alteration in

original). The Supreme Court in Bealor expressly found that expert testimony 

regarding the cause of intoxication is not required. Id. at 591.
14 A-2080-18T3

As the Law Division found, Tucker's observations of defendant's driving, 

the odor of raw marijuana and burnt marijuana on his person, bloodshot eyes, 

his slow and slurred speech, swaying, and inability to satisfactorily perform the 

field sobriety tests are sufficient proofs to establish intoxication beyond a 

reasonable doubt.

We affirm based on our discussion above as well as Judge Hubner's wellreasoned statement of reasons. Any issues not covered are deemed without 

sufficient merit to require written discussion. R. 2:11-3(e)(2).

Affirmed.