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In his opinion, defendant was responding to prompts from the officers and attempting to please them. Semel meant behavior “beneath awareness.” In his opinion, for a severe alcoholic automatic behavior and state-dependent behavior combine and merge. He acknowledged that defendant's drinking and driving were “volitional” but not a product of “conscious thought.” When asked whether defendant's conduct was voluntary within the meaning of New Jersey law, which the prosecutor advised includes action that is either “conscious or habitual,” Dr. Semel said it was not because defendant was acting automatically.

Frederick Rotgers, a psychologist qualified as an expert in that field with specialties in cognitive and behavioral areas, alcoholism and related issues. His conclusions about defendant's alcohol and Librium consumption and their effect on his cognitive ability did not differ from those of Dr. Rotgers concluded that defendant's alcohol dependence was severe and his depression was major, serious and chronic. By interview, he determined that defendant's drinking became problematic about eight years prior to the accident. Based on the reports of defendant's friends and family members, he also noted that defendant's behavior had been quieter and more somber and detached after his last hospitalization. In his opinion, because of defendant's physical and psychological dependence on alcohol, he very likely did not realize that he was putting alcohol and Librium into his system. Rotgers explained: “[E]xtensive research over the last 25 years or so ․ has documented a variety of ways in which our behavior as human beings is largely — largely happens automatically without us consciously being aware of it or controlling it.” He pointed to other examples of what he deemed automatic behavior — chain smoking and arriving at one's destination safely without remembering driving one's regular route. He explained that for that reason, a recovering alcoholic is referred to as having a “mindless relapse” when he or she finds a drink in his or her hand without knowing how it came to be there.

Rotgers, as a consequence of defendant's cognitive impairment, he would not have been aware of the effect of taking alcohol and Librium — not because he did not know it, but because he would not have access to the information he knew, which is a necessary component of the capacity to think reasonably. Pertinent to the question of defendant's cognitive functioning during the recorded statement, Dr. Rotgers noted that the tolerance of alcohol developed with excessive consumption makes it difficult for others to discern that an alcoholic's reasoning, thinking and ability to assess situations and modify their behavior accordingly is impaired. Greenfield testified as the State's expert in psychiatry, forensic psychiatry and addiction. In his opinion, defendant's depression was mild to moderate, not major. When he interviewed defendant, his alcohol dependence was in remission and there was no indication of cognitive impairment or brain damage. He disputed the defense experts' opinions about defendant's drinking being automatic behavior, observing that defendant made a conscious decision to purchase the alcohol and carry the alcohol found in the beverage container, which was all goal-directed behavior indicative of defendant making a decision to drink, get in his car and drive to his mother's home. Greenfield also discounted the significance of the Librium defendant had taken in the morning, based on the fact that his blood sample showed that most of it had been metabolized. In his opinion, the impact of the Librium was, as a practical matter, comparable to defendant's taking another shot of vodka. Greenfield acknowledged that an alcoholic with a tolerance for the substance would appear normal despite a high level of alcohol in his or her blood. In his opinion, however, neither the Librium nor defendant's depression would deprive defendant of the ability to understand the simple directions about using the Librium or assess the risk of driving while intoxicated. Based on defendant's demeanor and responses during the recorded interview, Dr. Greenfield concluded that defendant was exercising judgment. He demonstrated his understanding of the fact that he was in trouble by telling the officers that he did not know what he was being charged with and by asking about the reports on the children's condition. Rotgers and Greenfield had also testified at a pre-trial hearing on defendant's motion to suppress his recorded statement and the State's motion to preclude defendant's pursuit of a defense based on intoxication that was neither self-induced nor pathological. With the consent of defense counsel, the judge resolved those issues together. Their expert testimony at that pre-trial hearing, N.J.R.E. 104, focused on defendant's capacity to waive his rights and give a knowing, voluntary and reliable statement, and it focused on the relevance of his automatic behavior and the synergistic effect of Librium and alcohol to his intoxication being self-induced and pathological, N.J.S.A. The doctors' respective testimonies at that hearing did not include opinions or supporting facts that were not included in their trial testimony summarized above, at least none of any import that defendant has mentioned or we have noted. We reject defendant's claim that he was too intoxicated to validly waive his Miranda rights, which is raised in Point IV of his brief. The deference this court owes to the judge's factual findings warrants some discussion because they are based not only on the testimony presented at the pre-trial hearing on admissibility but also the recording of the interrogation presented at the pre-trial hearing, which captures not only the words but also the images of the officers and defendant throughout the interview. Where “the trial court has based its findings on conduct or behaviors that defendant exhibited during a videotaped interrogation that may be observed and analyzed with equal precision by an appellate court, a review of the videotape of the interrogation is appropriate.” State v. The Court explained that in this circumstance, “there is little, if anything, to be gained from deference.” Ibid. In contrast, where the “trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified.” Ibid. As we understand Diaz–Bridges, in a case such as this, where the judge has made findings based upon both testimony and the recorded interview, to the extent that the findings can be segregated, they must be assessed under the appropriate standard. Accordingly, we have, “consider[ed] the recording of the event itself,” id. at 566, and afforded those findings based upon it no deference.

However, where the judge's findings rest on testimony presented at the hearing and he was in a better position than we to make a determination informed by his opportunity to observe the witnesses and his “feel of the case,” we have deferred to and accepted findings that could have been made on the evidence presented. 463, 471 (1999), and stressing that the Court was not altering “its admonition” that this court “give due deference to the fact-finding role of the trial courts”); Locurto, supra, 157 N.J. at 471 (requiring deference for findings “ ‘substantially influenced by’ ” a trial judge's “ ‘opportunity to hear and see the witnesses and to have the “feel” of the case, which a reviewing court cannot enjoy’ ” (quoting State v. Having considered the recording, its transcript and the record of the suppression hearing in conformity with Diaz–Bridges, we affirm substantially for the reasons the judge provided in the oral opinions delivered at the conclusion of the pre-trial hearing on January 11, 2010, and when he denied defendant's motion for reconsideration and a stay on January 19, 2010. Contrary to defendant's contention, the judge considered the impact of defendant's condition and other circumstances pertinent to the questions whether: 1) the State established beyond a reasonable doubt that defendant gave his waiver and statement knowingly, intelligently and voluntarily, State v. 533, 552 (2004); and 2) the statement was sufficiently reliable to be admitted into evidence, N.J.R.E. As previously noted, defendant had some college education and a steady history of employment as an electronics salesman.

The entire interview, exclusive of two breaks, took about one hour, and defendant was offered and accepted water during the interview, which defendant drank while holding the glass with a steady hand.


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