loses appeal on apnea argument

Branchburg man convicted of eluding police loses appeal on apnea argument
By MICHAEL DEAK • Staff Writer • December 9, 2008


SOMERVILLE —A Branchburg man who claimed to have sleep apnea has lost the appeal of his conviction of eluding a police officer.


Samuel Ornstein, 63, appealed his conviction on the basis that he was denied a fair trial because the jury had not been instructed to consider the testimony of a physician who specialized in sleeping disorders. Ornstein was placed on three years probation.

During Ornstein's trial, Hillsborough Police Office Peter Scholz testified that shortly before 2 a.m. on June 8, 2005, he responded to a call of a gold Lincoln SUV stopped in an intersection with its driver "passed out," according to court papers.

Scholz testified that when he approached the SUV, he saw the driver, later identified as Ornstein, "hunched" over the steering wheel. When Scholz tapped on the window and identified himself as a police officer, Ornstein awoke and the SUV began to move, court papers indicate.

Scholz returned to his patrol car and followed Ornstein, who drove at from 35 to 40 mph for about 1 1/2 miles, sometimes striking the curb and sometimes swerving into the opposing lane of traffic, according to court papers.

Another Hillsborough Police Officer, Jeremy Cuomo, joined the pursuit.

When Ornstein came to a stop, Cuomo ordered him out of the car and when he failed to respond, Scholz broke the passenger-side window with his flashlight, court papers said.

Ornstein then got of the SUV, but struggled with the officers, leading him to be sprayed with Mace.

The entire incident was videotaped by dashboard cameras in each officer's patrol car.

Dr. Monroe Karetzky, a sleeping disorders specialist, testified that Ornstein's behavior was a "consequence of his problem from having obstructive sleep apnea and the impaired state of wakefulness," court papers indicate.

Ornstein was acquitted of resisting arrest.

Ornstein maintained in his appeal that state Superior Court Judge Julie Marino failed to tell the jury to consider the relevancy of Karetzky's testimony to the facts of the case, focusing on whether Ornstein had knowingly eluded police.

But the Appellate Court ruled that "there was no possibility that the jury was confused about the import of Karetzky's testimony because the doctor essentially rendered his opinion about the ultimate issue when he told the jury that (Ornstein's) "cognitive problems' made him unaware of what was happening."

Michael Deak: 908-707-3134; mdeak@MyCentralJersey.com.

jnk wrote:Hey, at least a local-yokel Jersey smokey got to use his flashlight and mace. He'll have a story to tell all his buddies for decades about the dangerous motorist who tried to elude capture in that high-speed pursuit before he showed him who's boss.

Remind me never to fall asleep in Jersey!

Slinky wrote:Oh, bowser! I love that pretty fat face on that gray cat. And I LOVE those smokey gray cats. The only one I've ever owned had a pretty fat face like your avatar and was the smooth, pure, smokey gray. SWEET, sweet personality. Sadly lost in a house fire in 1970.

dieselgal wrote:Had the person not been treated for OSA or did he just wake up in the middle of the street with a cop at the door and realize it at that moment? If he were being treated for it already it obviously wasn't working. If not had he never had a sleep issue before? If he had sleep issues and fell asleep like this often as indicated by the diagnosis, didn't he realize there was a problem at some point before this happened?