Judge sets date for Comasco trial to begin

BLOOMFIELD, NJ — The trial of Nicholas Comasco, a Bloomfield man charged with vehicular homicide and assault by auto, has been scheduled to begin March 14. The date was announced in Newark Superior Court on Wednesday, Dec. 9, by Judge Verna Leath. Comasco, wearing a gray suit and tie, was present in the courtroom. It was his 27th birthday.

Comasco was the driver of a car alleged to have been speeding down Broughton Avenue on Sept. 29, 2012, when it crashed into a second car carrying three occupants. One of those occupants was a Bloomfield High School junior, Christina Lembo, who was pronounced dead a short time later, from injuries suffered in the collision.

Comasco’s blood alcohol level was taken at Mountainside Hospital about an hour after the accident and measured .0734. In New Jersey, a level of .08 or greater is considered driving while intoxicated.

Most of the one-hour meeting on Dec. 9 was taken up by Leath reconsidering a defense motion for dismissal of testimony.
The attorney for the defense, Emile Lisboa, wanted to prohibit the prosecution from providing testimony from an alcohol expert who has retroactively calculated, or extrapolated, Comasco’s blood alcohol level to .09 at the time of the crash. At this level, anyone operating a motor vehicle in New Jersey would be considered intoxicated under the law.

New Jersey law prohibits a retroactive calculation from determining if a driver was actually intoxicated while operating a motor vehicle. But the law does allow the calculation to help prove that alcohol may have been a factor for a driver’s recklessness.

Lisboa has called retroactive calculations of blood alcohol levels “junk science.” He was making this claim again because Leath is new to the case, having taken over from Judge Robert Gardner, who had ruled in favor of admitting the testimony. Lisboa’s motion fared no better with Leath than with Gardner.

Leath said as long as an extrapolation is not used to prove impairment, but recklessness, it is admissible.
“But case law should not tie the court’s hands if it prevents the court from being equitable,” she said. “This court finds it is not inequitable or unfair to leave undisturbed Judge Gardner’s ruling.”

Lisboa then told Leath that the expert for the prosecution, Dr. Robert Pandina, was a psychologist and unqualified to provide extrapolation testimony.

According to the website of Rutgers University, where he is employed, Pandina is the director of the Center for Alcohol Studies, and a professor in the psychology department.

Leath said that Pandina was qualified to provide the testimony.
“I find it curious that defense would find retrograde extrapolation junk science,” Leath said.
Lisboa said the extrapolation would be based on one blood test, in addition to what his client had to drink, to eat, his weight, and his burn-off rate.

“One blood test is purely speculative,” Lisboa said.
“Tell the jury it was only one reading,” O’Connor said.
Following the courtroom conference, Lisboa said he believed the case was about one issue and that issue was in dispute: Who was at fault?

“Who caused the accident?” he said. “They have to prove my guy caused the accident.” And then, referring to the driver of the other vehicle, he added, “He signaled right and made a left.”

According to previous courtroom statements by Lisboa, and undisputed by O’Connor or Gardner, the driver of the car in which Lembo was a passenger had told police that he signaled for a right-hand turn but instead turned left. It was while making this left-hand turn that his car was struck by Comasco’s car.

Comasco has been charged with second-degree vehicular homicide, for the death of Lembo, and fourth-degree aggravated assault by auto, for the injury of another passenger in the car he struck. He was offered a plea deal, by O’Connor, of four years in state prison. He would have had to serve at least 85 percent of that sentence. Comasco rejected this offer in favor of a trial.

“It’s hard to consider a plea deal with all the underlying issues,” Lisboa said, “and the other driver saying what he did. It would have been different if my guy was drunk.”

Regarding the alcohol expert, Lisboa said it was pretty straightforward: The prosecution would have their expert and and the defense would have one, also.