NJ appeals court orders new grand jury after DUI blood samples mix-up

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When Stephen A. Zadroga’s trial testimony proved that his blood sample had been lost, the judge declared the trial a mistrial. Now, the New Jersey Appeals Division has ordered a new grand jury out of “manifest necessity.”

On November 16, 2017, Zadroga was involved in a head-on collision in Jersey City with two passengers in the car. The accident killed his rear passenger, Mathhew Nierstedt, according to the Opinion of the Appeal Division in State against Zadroga. Crash reconstruction experts estimated that Zadroga was going 80 miles per hour in a 25 mph zone. His blood was drawn at the hospital later that day to test his blood alcohol level. The ‘apparent’ results showed he was well over the legal limit, the appeals court said.

In June 2018, the case went to the grand jury, where the prosecutor questioned the two investigators, Dets. Tony Espaillat and Joe Bisone. According to the opinion, their investigation yielded several witnesses to the drivers who consumed alcohol that evening as well as to the ensuing accident.

Espaillat told the grand jury that he took statements from three of the defendants’ friends who all said that Zadroga had not consumed any drinks that evening. Espaillat also informed the grand jury that he had obtained video footage from bars showing the two drivers drinking alcohol before the accident, according to the opinion.

The grand jury charges Zadroga with five counts, including first-degree manslaughter, second-degree death by automobile, and three additional counts specific to individual victims. The other driver has not been charged, according to the opinion.

At trial, a nurse at the Jersey City Medical Center testified that she took two vials of blood from the defendant. The Hudson County District Attorney’s Office had a report indicating that he had five vials in his possession. Upon further investigation, the state realized that the blood was actually from a deceased hospital patient, according to the opinion.

The trial judge, Essex County Judge Patrick J. Arre, dismissed three of the five counts with prejudice and dismissed the trial. In his motion for reconsideration, the defendant argued three reasons for dismissing the case with prejudice: fundamental fairness, dual criminality, and a violation of his rights under Brady v. Maryland.

In his written opinion, Arre declined to dismiss the entire indictment with prejudice and retained the first two counts. Reviewing the handling of the blood sample, Arre concluded that Zadroga’s argument that the state’s admission of an inaccurate blood sample violated his due process rights under Brady be unenforceable because the state failed to accept “evidence favorable to the accused”.

Arre said in his ruling that “there was a strong likelihood that [the blood sample evidence] was exculpatory. To remedy the violation of due process, Arre barred the state from pursuing the three counts of third-degree automobile assault by dismissing those counts with prejudice. Regarding counts one and two, Arre explained that despite the “inexcusable conduct” of the state, the public has the right “to have the accused tried and punished, if he is found guilty” in light of the “seriousness of the crime charged”.

Zadroga appealed on two fronts: that the order of a new grand jury is a violation of double jeopardy and that allowing the charges of aggravated manslaughter and death by automobile was fundamentally unfair.

Appellate Division Judge Jack M. Sabatino, in his written opinion, said “the proper remedy in this situation is to re-present the case to a new grand jury.” Sabatino said that although “the risk is ‘attached’ to the point of swearing in the jury… not all mistrials preclude a new trial; only the abusive termination of a trial by the court prevents the prosecution of an accused. »

Sabatino said the trial court correctly dismissed the defendant’s argument that “a new prosecution on counts one and two would violate principles of fundamental fairness.” He went on to explain that beyond evidence of alcohol consumption prior to the crash, there is evidence of “criminally reckless driving.”

However, Sabatino reminded prosecutors that no evidence of “degradation” can be introduced into the prosecution. He said an answer to the question of whether the defendant’s blood alcohol level was possibly above or below the legal limit is now ‘unrecoverable’.

Judges Garry S. Rothstadt and Jessica R. Mayer upheld the opinion.

Peter R. Willis of Willis & Novel represented Zadroga and could not be immediately reached for comment.


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