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Full Opinion
NOT FOR PUBLICATION WITHOUT THE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-3366-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KELSY L. RUSSELL, a/k/a
KELSY L. MANGINO,
KELSY I. RUSSEL, and
KELSEY I. RUSSELL,
Defendant-Appellant.
Submitted May 13, 2025 – Decided July 16, 2025
Before Judges Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal No.
23-029-J.
Wronko & Loewen, attorney for appellant (James R.
Wronko, of counsel and on the brief).
Robert J. Carroll, Morris County Prosecutor, attorney
for respondent (Tiffany M. Russo, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kelsy Russell appeals from an order after a Law Division trial
de novo finding her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-
50. Defendant contends the trial judge erred by: (1) considering inadmissible
lay opinion testimony from the arresting officer concerning defendant's
substance induced intoxication; and (2) failing to review and consider the police
body worn camera (BWC) footage of the entire encounter. Because we conclude
the judge's consideration of the officer's testimony related to defendant's
intoxication was proper and substantial evidence existed in the record showing
defendant was guilty of DWI, we affirm.
I.
On August 13, 2021, defendant was charged with several drug offenses
and traffic violations. In June 2023, pursuant to a plea agreement, defendant
pled guilty to one count of third-degree possession of a controlled dangerous
substance (CDS), N.J.S.A. 2C:35-10a(1), and was sentenced to five years
Recovery Court probation. The traffic violations for DWI; driving or parked an
unregistered motor vehicle, N.J.S.A. 39:3-4; careless driving, N.J.S.A. 39:4-97;
and operating a motor vehicle while in possession of a narcotic, N.J.S.A. 39:4-
49.1, were remanded to the Hanover Township Municipal Court.
A-3366-23
2
At the municipal court trial, Lieutenant Anthony Vitanza testified on
behalf of the State. Vitanza testified that he received training on Title 39 motor
vehicle violations and estimated that during his career he made "500 to 600"
DWI motorist stops or arrests. He estimated that he has interacted with impaired
drivers under the influence of narcotics "thousands" of times over the years and
had "a couple hundred" arrests.
Vitanza recalled responding to a department store based on a motorist's
request for assistance in unlocking her vehicle. He met defendant who had
locked her keys in her vehicle while her dogs were inside. He observed
defendant's vehicle was not in a parking spot and was "[fifteen to twenty] feet
from being fully in the parking spot." He observed that two people were
standing outside the vehicle and the vehicle was running.
Vitanza testified he eventually identified the other individual as
defendant's husband. He stated defendant told him they were going on a trip
and that her husband went inside the store to buy t-shirts while she waited
outside in the vehicle with their two dogs. He testified defendant informed him
that she exited the driver's seat to retrieve something from the trunk, but it was
locked and when she went back to open the driver's side door, it also was locked.
A-3366-23
3
Based on his observations of defendant and her husband, Vitanza stated that he
suspected that they were both under the influence of substances.
Vitanza testified he noticed defendant's speech was slurred, she had "pin-
point" pupils that were not reactive to the bright sunlight, and she was swaying.
Vitanza stated based on his training and experience, these behaviors were
indicative of someone under the influence of narcotics. Vitanza attempted to
unlock defendant's vehicle with a lockout kit. He relayed that while attempting
to unlock the vehicle he observed it was "in complete disarray," with open bags
of food, dirty seats, liquid soaked papers, and debris all over the floor and back
seat. Vitanza testified that based on his experience, "most people who use drugs
. . . [have cars that] are in disarray . . . and generally are very filthy."
Vitanza stated, eventually, with the assistance of other officers, they were
able to open a door of the vehicle and it started rolling forward, stopping after
it hit the curb in front of the parking stall. The officers determined that the
vehicle was left in drive and never placed in park. Vitanza testified he then
asked defendant and her husband to produce identification. Vitanza stated when
defendant's husband opened the center console to obtain his identification, he
observed several prescription plastic bottles with worn out labels. According to
Vitanza, these observations were significant based on his experience that
A-3366-23
4
substance abusers often use old prescription bottles to hold narcotics or
paraphernalia. He stated he also observed a fresh "track mark" on defendant's
husband's bicep where blood was dripping. Defendant also produced her
identification. At this point, Vitanza testified based on his observations he
advised defendant that he believed she was under the influence of narcotics. He
stated that he did not smell the odor of alcohol emanating from either her or her
vehicle.
Vitanza testified he searched defendant's purse and found open packages
of Suboxone.1 He stated defendant informed him she had a prescription but was
unable to produce any proofs. Officers searched the vehicle and located a
suitcase which contained an estimated $138,000 cash and approximately twenty-
five grams of methamphetamine. Defendant also possessed methamphetamine,
which was hidden in her bra. Vitanza testified defendant was placed under arrest
and transported to police headquarters, where he conducted standard field
sobriety tests (SFST) on her. Vitanza explained that he conducted the SFST to
confirm his suspicion defendant was under the influence of substances. This
event was recorded on BWC.
1
Possessing Suboxone, a Schedule III controlled dangerous substance, without
a valid prescription is a violation of N.J.S.A. 2C:35-10.5.
A-3366-23
5
Vitanza testified he administered the horizontal gaze nystagmus (HGN)
test to defendant. Vitanza stated that he has administered the HGN test "a
thousand times [. . .] [i]f not more." He explained this was a test that is done to
determine narcotics usage. Vitanza noted that there were indications that
defendant was under the influence, including a lack of smooth pursuit and
inability to cross her eyes. Vitanza then conducted the walk-and-turn test. He
testified that he had administered the walk-and-turn test "thousands" of times.
Vitanza stated that defendant did not perform the test satisfactorily, as she
stepped off once, swayed the entire time, did not count out loud, raised her arms,
took more than nine steps, performed an improper turn, and did not stop at any
point during the test.
Vitanza testified he also conducted the one-legged stand test which he has
administered "the same amount of time" as the other tests because they are
conducted together. Vitanza stated defendant did not perform the test
satisfactorily, as she swayed for the entire test, could not keep her foot up for
thirty seconds, and raised her hands to help with her balance. At this point,
Vitanza stated he believed that defendant was impaired due to drug use and it
was improper for her to be operating a motor vehicle. He explained that when
someone is impaired, their motor skills are affected and that defendant 's
A-3366-23
6
impairment was shown by how she left the vehicle prior and during his
encounter as well as her performance of the SFST. Vitanza stated that he did
not believe defendant was under the influence of alcohol since no odor of alcohol
was present. Breath testing was conducted on defendant to rule out alcohol
intoxication, which was negative.
Vitanza testified that while defendant was in custody, her demeanor would
go "back and forth" between being okay and being upset. He stated at certain
points, she began "nodding off" which he clarified is a term law enforcement
uses when someone is under the influence of narcotics. Vitanza explained that
usually someone will appear to be fine but once the narcotic starts wearing off,
they start nodding and fall asleep, which is what was observed of defendant in
the processing room. He further stated that defendant declined a drug
recognition evaluation. The BWC videos of the officers on the scene were
introduced into evidence by the State for the court's review.
Defendant also testified at the hearing. She admitted operating the motor
vehicle on the day of the incident and explained she primarily drove it because
her husband did not have a license. She testified that there was a "big amount"
of methamphetamine, needles, syringes, and a large amount of cash in the
vehicle. Defendant testified she exited the vehicle to make sure she had
A-3366-23
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everything needed for the trip. However, the trunk was locked, and when she
tried to return to the driver's seat, the door was also locked. Defendant then
called police for assistance. She testified that she did not use methamphetamine.
Defendant admitted that there was Suboxone in her purse, which she stated was
a "maintenance drug" that she took that morning. Defendant testified the drug
did not have an effect on her ability to operate a motor vehicle. Defendant
alleged the methamphetamine found in her bra was there because her husband
"asked her to hold it, to get on the plane, because he couldn't go a few hours
[. . .] without doing it, because he was a drug addict."
At the conclusion of the trial, the municipal court found defendant guilty
of DWI, possession of CDS in a motor vehicle, and careless driving. She was
sentenced to fines and costs as well as a seven-month loss of her driving
privileges and twelve (12) hours at the Intoxicated Driver Resource Center on
the DWI conviction. The careless driving and possession of CDS in a motor
vehicle charges were merged. The court found defendant not guilty of operating
an unregistered vehicle.
Defendant appealed to the Law Division. The judge heard arguments and
issued a written decision. Specifically, the judge found:
Here, the [municipal] court found that Lt. Vitanza's
testimony [credible]. Lt. Vitanza has thirty-eight years
A-3366-23
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of experience in the field. Lt. Vitanza testified as a lay
witness to his personal observation of the [d]efendant's
physical condition as well as her performance on the
SFSTs. This court adopts the credibility findings of the
municipal court as those findings are entitled to
deference from this court.
The lower court found that the [d]efendant was showing
signs of impairment. The [d]efendant exited the vehicle
while it was still in gear and locked herself out of the
vehicle. The vehicle was not fully parked in an
appropriate parking spot. Defendant was not able to
perform the various SFSTs. Defendant admitted to
taking [S]uboxone the morning of the incident. The
[d]efendant testified she did not have a prescription for
the medication. The lower court erred when it used the
"probable cause" burden of proof rather than beyond a
reasonable doubt. This court finds that the State proved
beyond a reasonable doubt that the [d]efendant was
operating the motor vehicle while under the influence.
The judge found defendant guilty of DWI, careless driving and operation of a
vehicle while in possession of CDS. The careless driving and operation of a
vehicle while in possession of a narcotic were merged. Defendant was sentenced
to same sentence imposed by the municipal court.
On appeal, defendant contends the following:
POINT 1
WHETHER THE TRIAL JUDGE ERRED IN
ADMITTING [] VITANZA'S TESTIMONY.
A-3366-23
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POINT 2
WHETHER THE TRIAL JUDGE ERRED IN NOT
CONSIDERING AND RELYING SOLELY ON []
VITANZA'S VIDEO RECORDING.
POINT 3
WHETHER THE TRIAL JUDGE ERRED IN
FINDING DEFENDANT GUILTY OF DRIVING
UNDER THE INFLUENCE BEYOND A
REASONABLE DOUBT.
II.
In an appeal from the municipal court to the Law Division, the standard
of review is de novo on the record. Pressler and Verniero, Current N.J. Court
Rules, cmt. 1.1 to R. 3:23-8 (2025). The Law Division renders a new decision
on its own, although it gives due regard to the municipal judge's opportunity to
view the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). Because the Law
Division judge is not in a position to judge the credibility of witnesses, deference
is due to the credibility findings of the municipal court judge. State v. Locurto,
157 N.J. 463, 472 (1999); See also R. 3:23-8 governing de novo criminal trials.
Our scope of review is both narrow and deferential. State v. Stas, 212 N.J.
37, 48-49 (2012). We will "uphold the factual findings underlying the trial
[judge]'s decision, provided that those findings are 'supported by sufficient
credible evidence in the record.' " State v. Boone, 232 N.J. 417, 425-26 (2017)
A-3366-23
10
(quoting State v. Scriven, 226 N.J. 20, 40 (2016)). However, our review is
limited to determining whether there is sufficient credible evidence present in
the record to uphold the findings of the Law Division, not the municipal court.
Johnson, 42 N.J. at 162. We may not "weigh the evidence, assess the credibility
of witnesses, or make conclusions about the evidence." State v. Barone, 147
N.J. 599, 615 (1997). We also must defer to the trial court's credibility findings.
State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Moreover, "[u]nder the two-court rule, appellate 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. "However, no such deference is owed to the
Law Division or the municipal court with respect to legal determinations or
conclusions reached on the basis of the facts." Stas, 212 N.J. at 49.
III.
A.
Defendant argues under Point 1 that the Law Division judge erred in
considering Vitanza's testimony because it was inadmissible opinion evidence
since it did not satisfy the standards set forth in State v. Bealor, 187 N.J. 574,
587 (2006), and State v. Olenowski, 255 N.J. 529 (2023) (Olenowski II).
A-3366-23
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Defendant contends in Bealor, the Supreme Court distinguished between
alcohol and marijuana impairment, noting that while an ordinary citizen can
offer an opinion about alcohol intoxication, no such general awareness exists
regarding marijuana intoxication. She argued Olenowski II further clarified that
expert testimony is necessary to establish drug impairment and lay opinions are
inadmissible. The defense also argues the Court in Olenowski II set forth a strict
test for the admissibility of drug recognition expert (DRE) testimony, imposing
limitations that the testimony can only address whether the observed behavior
is consistent with the ingestion of drugs from the identified categories, without
opining on whether the impairment was caused by those drugs or to what extent.
Additionally, the State must make a reasonable attempt to obtain a toxicology
report and the defense must be given an opportunity to impeach the DRE's
testimony.
Defendant asserts Vitanza's testimony that defendant was under the
influence of drugs because she had droopy eyelids, pinpoint pupils, slurred
speech, and physical marks did not meet the requirements for admission.
Defendant contends Vitanza's "opinions" were not based on the criteria
established in Olenowski II, since he was not qualified through the rigorous
process required for expert testimony. Furthermore, defendant argues that the
A-3366-23
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State circumvented the Olenowski II limitations by presenting Vitanza's
testimony as that of a lay witness, rather than as an expert. As such, defendant
argues that all of Vitanza's opinions should be excluded, as they fail to meet the
admissibility requirements established by Olenowski II.
Defendant further asserts that the judge erred by failing to review and
consider the police body camera of the entire encounter which she asserts proves
that she was not under the influence of narcotics.
We are not persuaded. It is illegal to operate a motor vehicle "while under
the influence of intoxicating liquor, narcotic, hallucinogenic or habit -producing
drug[s]." N.J.S.A. 39:4-50(a). Accordingly, in cases where the State seeks to
prove that a defendant was under the influence of a substance other than alcohol,
the State must establish that: "(1) defendant was intoxicated[,] and (2) the cause
of the intoxication was either narcotics, hallucinogens, or habit-producing
drugs." Olenowski II, 255 N.J. at 550.
In State v. Olenowski (Olenowski I), the Court adopted a "Daubert-type"2
standard for determining the reliability of expert evidence in criminal and quasi -
criminal cases. 253 N.J. 133, 151-55 (2023). In Olenowski II, the Court held
2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
A-3366-23
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that DRE testimony could satisfy the modified Daubert criteria for admission,
subject to certain limitations. 255 N.J. at 546. In that regard, the Court stated:
If feasible, the State must make a reasonable attempt to
obtain a toxicology report based on a blood or urine
sample from the driver. If the State fails to make such
a reasonable attempt without a persuasive justification,
the DRE opinion testimony must be excluded.
[Ibid.]
The Supreme Court has held that lay persons, including police officers,
can testify that someone was intoxicated, but lay persons cannot opine as to the
cause of the intoxication when the cause of the intoxication is not alcohol
consumption. Bealor, 187 N.J. at 574, 577, 585.
Relevant to this appeal, in Olenowski II, the Court reinforced Bealor's
holding that testimony on intoxication due to drugs, whether expert or lay,
requires corroborating evidence. 255 N.J. at 551. The independent evidence
can include factual observations, a driver's admission, information about a
driver's recent drug use, or drugs or paraphernalia found in the vehicle. Id. at
610.
In Bealor, our Supreme Court concluded that "the State proved beyond a
reasonable doubt that defendant 'operate[d] a motor vehicle while under the
influence of . . . narcotic, hallucinogenic or habit-producing drug[s]' in violation
A-3366-23
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of N.J.S.A. 39:4-50." 187 N.J. at 591. The Court based its conclusion on the
arresting officer's
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," or the smell of burnt marijuana on
defendant, his sagging knees and the "emotionless stare
on his face."
[187 N.J. at 590.]
In sum, Bealor "explicitly disavowed" the notion "that the nexus between
the facts of intoxication and the cause of intoxication can only be proved by
expert opinion" to support a conviction under N.J.S.A. 39:4-50. Id. at 591.
Other cases with similar fact patterns have considered a wide variety of other
corroborative evidence but usually involve either admissions or physical
scientific results. See State v. Tamburro, 68 N.J. 414, 416-17 (1975) (defendant
admitted to taking narcotics that day); State v. Franchetta, 394 N.J. Super. 200,
203 (App. Div. 2007) (blood test revealed cocaine metabolites).
Here, the Law Division judge conducted a Bealor analysis. The judge
credited the officers' observations and found:
This court finds that Lt. Vitanza did not opine as to the
cause of the intoxication but only as to [d]efendant
being under the influence. The State indicates the
A-3366-23
15
[d]efendant's impairment was resulted [sic] from the
Suboxone that was retrieved during the search and
[d]efendant admitted to ingesting it earlier in that day.
Here, the lower court found that Lt. Vitanza's testimony
credible. Lt. Vitanza has thirty-eight years of
experience in the field. Lt. Vitanza testified as a lay
witness to his personal observation of [d]efendant's
physical condition as well as her performance on the
SFSTs.
Our role "is to 'determine whether the findings made could reasonably
have been reached on sufficient credible evidence present[ed] in the record,'
considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App.
Div. 2005). Here, the trial judge's conclusion of guilt is supported by sufficient
credible evidence based on Vitanza's testimony. Vitanza was qualified to testify
as to defendant's condition because he had participated in hundreds of DWI
arrests and was specifically trained in conducting SFST. In addition, as the
judge found, Vitanza did not offer an opinion on the cause of intoxication but
rather stated that defendant was "impaired." The corroborating evidence
presented at trial included: (1) defendant's inability to properly operate the
vehicle by failing to place the vehicle in park; (2) Vitanza's observations of
defendant's pin-point pupils and her swaying while being questioned; and (3)
defendant's failure to adequately perform the SFSTs. We conclude this
corroborative evidence aptly supports the judge's consideration of Vitanza's
A-3366-23
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testimony and its finding that defendant was under the influence of drugs in
violation of N.J.S.A. 39:4-50.
B.
We now turn to defendant's second point contending the Law Division
judge erred by "not considering and relying solely on Vitanza's . . . [BWC] video
recording." We conclude there is no merit to this argument.
We reiterate that our role on appeal is to determine whether there is
sufficient credible evidence present in the record to uphold the findings of the
Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333
(App. Div. 1995). We may "not weigh the evidence . . . or make conclusions
about the evidence," State v. Barone, 147 N.J. 599, 615 (1997). Unless we
determine the Law Division's finding was "clearly a mistaken one and so plainly
unwarranted . . . [and] the interests of justice demand intervention and correction
. . . then, and only then, [] should [we] appraise the record as if [we] were
deciding the matter at inception and make [our] own findings and conclusions."
Avena, 281 N.J. Super. at 333.
We conclude the Law Division judge did not commit error in determining,
as did the municipal court, that Vitanza's testimony was credible. We determine
that the judge's reliance on Vitanza's testimony as opposed to the BWC video(s)
A-3366-23
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was not a clear mistake. These findings by the judge do not require our
intervention. We observe the record exhibited that Vitanza testified clearly and
in detail concerning his observations and testing of defendant and the judge
providing more weight to this testimonial evidence as compared to the BWC
video was not error.
To the extent we have not specifically addressed any of defendant's
remaining legal arguments we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3366-23
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Case Information
- Court
- N.J. Super. Ct. App. Div.
- Decision Date
- July 16, 2025
- Status
- Precedential