STATE OF NEW JERSEY VS. TYWAUN S. HEDGESPETH (16-07-2215 AND 16-07-2216, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0850-18T3

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

Plaintiff-Respondent, AS REDACTED

August 3, 2020

v.

APPELLATE DIVISION

TYWAUN S. HEDGESPETH, a/k/a

TYWAUNE HEDGESPETH,

TYWUAN HEDGESPETH,

TYWAUN HEDGSPETH, and

TAVON JAMES,

Defendant-Appellant.

______________________________

Argued telephonically April 1, 2020 –

Decided August 3, 2020

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment Nos. 16-07-

2215 and 16-07-2216.

Whitney Faith Flanagan, Assistant Deputy Public

Defender, argued the cause for appellant (Joseph E.

Krakora, Public Defender, attorney; Whitney Faith

Flanagan, of counsel and on the briefs).

Lucille M. Rosano, Special Deputy Attorney General/

Acting Assistant Prosecutor, argued the cause for

respondent (Theodore Stephens II, Acting Essex

County Prosecutor, attorney; Lucille M. Rosano, of

counsel and on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Following a jury trial, defendant was convicted of third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-l0(a); and

second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b).

He subsequently pled guilty to second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b)(1). The convictions stemmed from officers

observing the butt of a handgun in defendant's waistband when he urinated in

an alleyway, as a result of which they searched him and recovered the gun.

During the ensuing search incident to his arrest, the officers also found cocaine

on defendant's person. Defendant's pre-trial motion to suppress the evidence

seized was denied.

On December 1, 2017, defendant was sentenced to an aggregate term of

eight years' imprisonment with a five-year period of parole ineligibility. He

now appeals from the conforming judgment of conviction, raising the

following points for our consideration:

POINT I

THE ERRONEOUS ADMISSION OF

[DEFENDANT]'S TWELVE-YEAR-OLD PRIOR

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CONVICTIONS FOR THIRD[-]DEGREE

OFFENSES REQUIRES REVERSAL.

POINT II

THE CONVICTION SHOULD BE REVERSED

BECAUSE THE TRIAL COURT FAILED TO

ESTABLISH THAT JUROR RACIAL BIAS DID

NOT PREJUDICE DELIBERATIONS.

POINT III

THE ADMISSION OF AN AFFIDAVIT SIGNED BY

A NON-TESTIFYING POLICE OFFICER

VIOLATED THE RULES OF EVIDENCE AND THE

CONFRONTATION CLAUSE OF THE NEW

JERSEY AND FEDERAL CONSTITUTIONS.

POINT IV

THE MOTION COURT ERRED IN DENYING

SUPPRESSION WITHOUT A HEARING WHEN

THERE WERE MATERIAL FACTUAL

[DIFFERENCES] BETWEEN THE STATE AND

DEFENSE VERSIONS OF THE EVENTS LEADING

TO [DEFENDANT]'S ARREST AND SEARCH.

POINT V

THE CUMULATIVE EFFECT OF THE

AFOREMENTIONED ERRORS DENIED

DEFENDANT A FAIR TRIAL. (NOT RAISED

BELOW).

Having considered the arguments and applicable law, we affirm.

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I.

We glean these facts from the trial record. At approximately 12:00 p.m.

on April 21, 2016, while conducting visual surveillance in the area of 310

South 14th Avenue in Newark, "a mixture of residential homes" and

"commercial establishments," Detectives Ozzie Ryals and Ricardo Rickards of

the Essex County Sheriff's Narcotics Bureau observed "four to six unidentified

[B]lack males . . . loitering and lingering" in the area. Ryals testified they

were conducting surveillance because they "had received numerous complaints

from concerned citizens about narcotic[s] activity at that particular location."

Subsequently, the unidentified individuals were joined by an individual later

identified as defendant. When defendant "urinat[ed] on the wall" in "an

alleyway . . . between . . . two buildings," and "was fixing himself and

adjusting his clothes," the officers observed what they "thought [was] the butt

of a gun" located in the "waistband of [defendant's] pants."

Ryals communicated his observations to back-up officers in the area,

including a description of defendant's "approximate height[,] . . . weight," and

"clothing." At approximately 2:00 p.m., at least nine detectives, including

Detectives Angel Colon and Jimmy Bradley, responded to the area. Upon

approaching defendant and identifying himself as a law enforcement officer,

Bradley "grabbed . . . [d]efendant, [and] took him to the ground face down," at

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which point both Bradley and Colon observed a gun in "the rear of

[defendant's] waistband."

After Colon "recovered the weapon," identified as "a Hi-Point .45

caliber handgun," another detective "read . . . [d]efendant his rights and placed

him under arrest." A search of defendant's person incident to his arrest

uncovered fourteen "small Ziploc bags" of suspected cocaine in defendant 's

"front waistband." Later testing by a New Jersey State Police (NJSP) forensic

scientist confirmed that the substance recovered from defendant was cocaine,

and ballistics testing by a detective confirmed that the handgun was operable.

The handgun, as well as the magazine and nine rounds of ammunition

recovered from it, were also processed for fingerprints by a crime scene

investigator (CSI) with negative results.

During the three-day trial conducted from August 8 to 10, 2017, in

addition to Ryals, Colon, the forensic scientist, the ballistics detective, and the

CSI testifying for the State, 1 the Essex County Superior Court Criminal

Division Manager authenticated "a certification of no gun permit," which

attested to the fact that her office "searched [the county's] systems" and "found

1

An Essex County Sheriff's Officer assigned to the jail also testified for the

State, and confirmed that defendant's clothing at the time of his arrest was

"inventoried as part of the processing procedures . . . at the jail," and

"subsequently turned over to the [Essex County Prosecutor's Office (ECPO)]."

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no record [of] gun permits for [defendant]." Additionally, Detective John

Cosgrove, assigned to the Trial Section of the ECPO, authenticated an

"affidavit" prepared by NJSP Detective Brett Bloom, certifying that the NJSP

performed a record check and determined defendant "[did] not have a permit to

carry a firearm on record with the State."

Cosgrove explained in detail the procedure for obtaining record checks

from the NJSP and testified he had requested approximately one thousand

similar record checks during his career. Cosgrove also stated that although he

did "not know which particular trooper did the search," the affidavit in this

case was requested by an investigative aide in his unit. Further, Cosgrove

explained that the difference between the NJSP affidavit and the county

affidavit was the former "searche[d] the State database," while the latter only

"search[ed] the County database."

After the State rested, defendant's motion for a judgment of acquittal, R.

3:18-1, was denied by the trial judge, as was defendant's objection to admitting

his prior convictions for impeachment purposes if he elected to testify pursuant

to State v. Sands, 76 N.J. 127 (1978), and State v. Brunson, 132 N.J. 377

(1993). Thereafter, defendant did not testify or present any witnesses on his

own behalf, but, through cross-examination, challenged the State's version of

events by, among other things, pointing out that there were no

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contemporaneous central dispatch recordings referring to a man with a gun to

corroborate the detectives' account. 2 After the jury returned the guilty verdict,

defendant entered a negotiated guilty plea to the certain persons charge

stemming from the same incident but charged in a separate indictment. This

appeal followed.

II.

In Point I, defendant argues the judge "mistakenly ruled that the

prosecutor could use his prior convictions to impeach him" if he elected to

testify by erroneously using "the date that [defendant] completed probation,"

instead of "the date that [he] was convicted of the prior offense," as "th e

triggering date for the remoteness determination." According to defendant,

"[t]his was an incorrect interpretation of the rule, . . . infringed [defendant's]

due process right to testify and deprived him of a fair trial."

At the Sands/Brunson hearing, pursuant to N.J.R.E. 609, the State moved

to introduce for impeachment purposes defendant's two prior drug-related

2

Ryals testified there were three different ways to communicate with other

officers, "recorded" radio calls on the central dispatch channel, unrecorded

calls on a "direct" channel that only "detectives assigned to the Narcotic[s]

Unit" could hear, and "cellphone" calls between the detectives if there was

"too much radio chatter." According to Ryals, because "both [he and

Rickards] were relaying information" to the back-up officers simultaneously,

one of them "us[ed] one channel," and "the other . . . us[ed] the other

[channel]."

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convictions, a 2001 third-degree conviction for which defendant was sentenced

to a three-year term of imprisonment with a one-year parole disqualifier,3 and a

2005 third-degree conviction for which defendant was sentenced to four years'

probation. The State argued that the 2005 conviction was "not remote"

because the probationary disposition "ended in 2009 which [was] less than ten

years ago," and the 2001 conviction was admissible based on the 2005

conviction showing a continuing course of criminal conduct. Defendant

objected, arguing that the convictions were "so remote" that there was "no

reason for [defendant] to be prejudiced by something that he did more than

[twelve] years ago."

The judge accepted the State's argument and admitted the prior

convictions for impeachment purposes, reasoning that they were not "too

remote[] as there ha[d] been a continuing course of conduct." See Sands, 76

N.J. at 145 ("If a person has been convicted of a series of crimes through the

years, then conviction of the earliest crime, although committed many years

before, as well as intervening convictions, should be admissible."). However,

the judge determined that the prior convictions "should be sanitized" since

they were also drug related charges. See Brunson, 132 N.J. at 391 (holding

3

The 2001 conviction encompassed two different third-degree drug offenses

charged in two separate accusations, for which defendant received an

aggregate three-year term of imprisonment with a one-year parole disqualifier.

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that in cases in which a testifying defendant's prior conviction "is the same or

similar to the offense charged, the State may introduce evidence of the

defendant's prior conviction limited to the degree of the crime and the date of

the offense but excluding any evidence of the specific crime of which

defendant was convicted.").

"[W]hether a prior conviction may be admitted into evidence against a

criminal defendant rests within the sound discretion of the trial judge," Sands,

76 N.J. at 144, "whose discretion 'is a broad one.'" State v. Murphy, 412 N.J.

Super. 553, 564 (App. Div. 2010) (quoting Sands, 76 N.J. at 144). "However,

we do not defer to a ruling that is based on a mistaken interpretation of an

evidence rule, or that misapplies the rule." State v. R.J.M., 453 N.J. Super.

261, 266 (App. Div. 2018).

"Under N.J.R.E. 609, there are different standards for admissibility of a

prior criminal conviction for impeachment purposes, depending on whether

'more than ten years have passed' since the defendant's conviction 'or release

from confinement for it, whichever is later.'" Id. at 263-64, 267 (quoting

N.J.R.E. 609(b)(1)). "Pursuant to N.J.R.E. 609(a), a defendant's prior criminal

conviction is admissible for impeachment purposes, unless the defense

establishes, pursuant to N.J.R.E. 403, that its admission will be substantially

more prejudicial than probative." Id. at 266; see N.J.R.E. 609(a). "However,

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N.J.R.E. 609(b)(1) creates a presumption that a conviction more remote than

ten years is inadmissible for impeachment purposes, unless the State carries

the burden of proving 'that its probative value outweighs its prejud icial

effect.'" R.J.M., 453 N.J. Super. at 266-67 (quoting N.J.R.E. 609(b)(1)).

Specifically, pursuant to N.J.R.E. 609(b)(1),

[i]f, on the date the trial begins, more than ten years

have passed since the witness'[s] conviction for a

crime or release from confinement for it, whichever is

later, then evidence of the conviction is admissible

only if the court determines that its probative value

outweighs its prejudicial effect, with the proponent of

that evidence having the burden of proof.

In making that determination, pursuant to N.J.R.E. 609(b)(2), "the court

may consider"

(i) whether there are intervening convictions for

crimes or offenses, and if so, the number, nature, and

seriousness of those crimes or offenses,

(ii) whether the conviction involved a crime of

dishonesty, lack of veracity or fraud,

(iii) how remote the conviction is in time,

(iv) the seriousness of the crime.

[N.J.R.E. 609(b)(2)(i) to (iv).]

"However, making findings as to those four factors is not enough. The

court must then engage in the weighing process under (b)(1), to determine

whether the State has carried its burden of proving that evidence of the remote

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conviction would not be more prejudicial than probative." R.J.M., 453 N.J.

Super. at 270 (citing N.J.R.E. 609(b)(1)). Thus, N.J.R.E. 609(b)(1)

encompasses a more stringent admissibility standard, when more than ten

years have passed since the "conviction" or the defendant's "release from

confinement for it," than N.J.R.E. 609(a), applicable when ten years or less

have passed.

Because "confinement" is not defined in the rule, whether discharge

from probation constitutes "release from confinement" for the purpose of the

ten-year time limit under N.J.R.E. 609(b)(1) is an issue of first impression in

this State. "We interpret an evidence rule, as we would a statute, by first

looking at its plain language." R.J.M., 453 N.J. Super. at 267 (quoting State ex

rel. J.A., 195 N.J. 324, 338 (2008)). "We give 'the terms used . . . their

ordinary and accepted meaning,' and we construe the words in the context in

which they appear." Ibid. (quoting State v. Shelley, 205 N.J. 320, 323 (2011));

see also N.J.S.A. 1:1-1; State v. Regis, 208 N.J. 439, 447 (2011).

"Where the meaning is evident from the plain language, we need not

look further in interpreting the rule." R.J.M., 453 N.J. Super. at 269; see also

State v. Rangel, 213 N.J. 500, 509 (2013) ("If giving an enactment's words

their commonsense and ordinary meaning reveals legislative intent, our

mission is complete."); DiProspero v. Penn, 183 N.J. 477, 492 (2005) ("The

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Legislature's intent is the paramount goal when interpreting a statute and,

generally, the best indicator of that intent is the statutory language.").

However, if the "words 'admit[] to more than one reasonable interpretation,' we

consider external sources in attempting to 'ascertain . . . intent.'" State v.

Clarity, 454 N.J. Super. 603, 607 (App. Div. 2018) (first alteration in original)

(quoting State v. Reiner, 180 N.J. 307, 311 (2004)).

In Clarity, on which defendant heavily relies, we considered whether a

"probationary term imposed for [a defendant's] last prior crime [w]as the

equivalent of 'confinement'" under N.J.S.A. 2C:44-3(a), permitting "imposition

of an extended prison term when the defendant was convicted of at least two

separate prior crimes but only if 'the latest' of those crimes was committed or

the defendant's 'last release from confinement' occurred—'whichever is later'—

within ten years of the charged crime." 454 N.J. Super. at 606, 608. We held

that "an individual serving a probationary term cannot be considered to be

confined within the meaning of N.J.S.A. 2C:44-3(a)," id. at 611 (footnote

omitted), because "[b]eing on probation is not the same as being 'confine[d]'

within the meaning of N.J.S.A. 2C:44-3(a)." Id. at 609 (second alteration in

original).

Acknowledging that "the Legislature did not define the word

'confinement,'" we applied "its 'generally accepted meaning,'" and concluded

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that "[t]he Legislature undoubtedly meant that 'confinement' would not occur

unless the defendant had been deprived of his freedom by governmental

authorities." Id. at 609-10.

The reason for this interpretation seems obvious. The

statute was intended to create the judicial discretion to

impose an extended term on an individual incapable of

living a law-abiding life for a significant period of

time. Our Legislature fixed that period of time at ten

years, thus conveying that an individual who is

capable of residing in our communities for more than

ten years without committing a crime should not be

treated as a persistent offender. The portion of the

statute that views that ten-year period as commencing

from the individual's release from "confinement"

simply deprives that individual of the ability to

illogically argue a preceding ten-year crime-free life

when that individual was only able to remain crime-

free because of imprisonment. [4] An individual on

probation, while living with some limitations, is out in

society and remains capable of committing a crime.

Remaining crime free during the preceding ten

years—even when serving a probationary term during

part or all of that ten years—demonstrates that

individual's ability to lead the ten-year crime-free life

anticipated by our Legislature when enacting N.J.S.A.

2C:44-3(a).

4

On the other hand, the underlying rationale for N.J.R.E. 609 is the belief that

a person who has lived contrary to "the rules of society and the discipline of

the law" by committing crimes should not be able to shield his or her

credibility from the jury and present himself or herself as a law-abiding

individual. State v. Sinclair, 57 N.J. 56, 64 (1970) (quoting State v. Harless

459 P.2d 210, 211 (1969)); see also Sands, 76 N.J. at 145 ("A jury has the right

to weigh whether one who repeatedly refuses to comply with society's rules is

more likely to ignore the oath requiring veracity on the witness stand than a

law abiding citizen.").

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[Id. at 610.]

In State v. Boykins, the issue was whether the defendant, who received a

second extended-term sentence for a crime he committed "while he was on

probation and out on bail awaiting trial" on the offense for which he received

his first extended-term sentence, "was 'in custody' within the meaning of

[N.J.S.A.] 2C:44-5(b) when he committed the second offense" and "thus not

subject to the statute's prohibition against multiple extended terms." 447 N.J.

Super. 213, 214-15, 217-18, 223 (App. Div. 2016). We concluded defendant

committed the second offense "while he was 'in custody' as that term was

understood by the drafters of [N.J.S.A.] 2C:44-5(b), and therefore that his

second extended-term sentence was not illegal." Id. at 217-18.

Unlike Clarity, in Boykins, we rejected the defendant's argument that

being "on probation or on bail" is "contrary to the . . . conventional meaning"

of the term being "'in custody.'" Id. at 220 (quoting N.J.S.A. 2C:44-5(b)). We

explained that "[a]lthough there [was] no disputing that [a] defendant would

not be entitled to jail credit for the time he spent on probation or on bail prior

to his trial" pursuant to Rule 3:21-8, "[j]ust because the phrase 'in custody'

appears in both N.J.S.A. 2C:44-5(b) and in Rule 3:21-8 does not mean it

means the same thing in both texts." Boykins, 447 N.J. Super. at 220; see

State v. DiCarlo, 67 N.J. 321, 325 (1975) (noting "the adventitious occurrence

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of like or similar phrases, or even of similar subject matter, in laws enacted for

wholly different ends will normally not justify applying the rule" of in pari

materia as an aid in statutory construction).

More to the point, in R.J.M., we considered the definition of

confinement in relation to N.J.R.E. 609, but in a different context. There, the

issue was "whether the time period during which a defendant has been civilly

committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.

30:4-27.24 to -27.38, must be included in determining the ten-year time

period" for purposes of N.J.R.E. 609(b)(1). 453 N.J. Super. at 264. "We

h[e]ld that because civil commitment is not confinement 'for' the crime of

which a defendant was convicted, the period of civil commitment must be

included in determining the ten-year time period." Ibid. We noted that

"[t]aken in context, 'confined' clearly refers to the custodial portion of a

defendant's criminal sentence, and is not a more general reference to any

deprivation of physical liberty." Id. at 269.

Federal courts have consistently held that "confinement" in Rule 609(b)

of the Federal Rules of Evidence does not include periods of probation. See

Fed. Rules Evid. 609(b) (providing that "if more than [ten] years have passed

since the witness's conviction or release from confinement for it, whichever is

later," evidence of the conviction is only admissible if "its probative value . . .

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substantially outweighs its prejudicial effect; and . . . the proponent gives an

adverse party reasonable written notice of the intent to use it so that the party

has a fair opportunity to contest its use"). Although N.J.R.E. 609 "departs

significantly from its federal analog," because a "conviction or release from

confinement for it," appears in both rules as the starting point for the

calculation of the ten-year time period, the federal courts' interpretation of

confinement is instructive. State v. Harris, 209 N.J. 431, 442, 444 (2012).

In United States v. Stoltz, the court held consistent with "[its] sister

circuits" that "'confinement' for purposes of the ten-year time limit in Rule

609(b) does not include periods of probation." 683 F.3d 934, 939 (8th Cir.

2012) (quoting United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008)).

"Rather, Rule 609(b)'s '[ten-year] clock starts at the witness's release from any

physical confinement, or in the absence of confinement, the date of the

conviction.'" Ibid. (alteration in original) (quoting Rogers, 542 F.3d at 201).

In Rogers, the court specified "Rule 609(b) unambiguously starts the clock at

the date of conviction or release from 'confinement,' without any mention of

periods of probation or parole." 542 F.3d at 200.

In United States v. Daniel, where the court also concluded that

"'confinement' excludes probationary periods," 957 F.2d 162, 168 n.4 (5th Cir.

1992), to support its decision, the court pointed to "the change in the language

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of the rule" from the pre-1972 language "that the ten-year period should run

from 'the expiration of the period of . . . parole, probation, or sentence,'" to the

current amended language "that a conviction is not admissible if more than ten

years have elapsed since 'release from confinement.'" Id. at 168. The court

determined "[t]he change in the language . . . forecloses the interpretation [that

release from confinement includes probation]." Ibid.; see also United States v.

Butch, 48 F. Supp. 2d 453, 465 (D.N.J. 1999) ("In calculating [609(b)'s] ten

year period, the term 'release from confinement' does not include any period of

probation or parole.").

Other states with rules similar to Rule 609(b) of the Federal Rules of

Evidence have followed the lead of the federal courts and held that

confinement does not include that portion of a sentence served while on

probation. See Allen v. State, 687 S.E.2d 799, 803 (Ga. 2010) (holding that

"probation does not qualify as confinement" under Georgia's equivalent of Fed.

Rules Evid. 609(b)); State v. Shands, 817 S.E.2d 524, 533 (S.C. Ct. App.

2018) ("[P]robation and parole do not constitute 'confinement' for the purposes

of Rule 609(b); confinement ends when a defendant is released from actual

imprisonment."); Commonwealth v. Treadwell, 911 A.2d 987, 991 (Pa. Super.

Ct. 2006) ("[W]e agree with the federal courts and our sister states, and

conclude that probation does not qualify as confinement under Pennsylvania

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Rule 609(b)," which "was modeled after and differs only slightly from Federal

Rule of Evidence 609(b)."); State v. Dunlap, 930 P.2d 518, 538 (Ariz. Ct. App.

1996) (holding that "probation is not confinement and does not extend the time

for measuring the ten-year period" of Arizona's Rule 609(b), which "source" is

"the federal rule").

We are persuaded that the plain language of N.J.R.E. 609, coupled with

the construction of identical language by the federal courts and sister states, as

well as our prior interpretation of confinement in both related and unrelated

contexts lead us to conclude that probation does not qualify as confinement

under N.J.R.E. 609(b)(1). As we stated in Clarity, the "generally accepted

meaning [of confinement] requires that the confined individual be 'imprisoned

or restrained,' 'deprive[d] . . . of . . . liberty,' or 'place[d] in prison or jail.'" 454

N.J. Super. at 609 (alterations in original) (first quoting Black's Law

Dictionary 362 (10th ed. 2014), then quoting Ballentine's Law Dictionary 244

(3d ed. 1969)). Although a defendant is not technically a free citizen while on

probation, he or she is no longer confined or imprisoned as required under

N.J.R.E. 609(b)(1).

Here, because more than ten years lapsed between defendant's 2005

conviction and his 2017 trial, and he was not confined while on probation for

the 2005 conviction, both prior convictions were presumptively inadmissible

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and the judge erred in ruling to the contrary. Because the judge erroneously

admitted the convictions under N.J.R.E. 609(a)'s less stringent standard, she

did not consider the N.J.R.E. 609(b)(2) factors and did not analyze the

admissibility of the prior convictions under N.J.R.E. 609(b)(1)'s more stringent

standard. Thus, we conclude the judge's evidentiary ruling constituted a

mistaken exercise of discretion.

Next, we address whether the ruling was harmless error. Rule 2:10-2

directs reviewing courts to disregard "[a]ny error or omission . . . unless it is of

such a nature as to have been clearly capable of producing an unjust result."

"[T]hat rule 'requires that there be "some degree of possibility that [the error]

led to an unjust result."'" State v. Scott, 229 N.J. 469, 484 (2017) (alteration in

original) (quoting State v. R.B., 183 N.J. 308, 330 (2005)). "The possibility

must be real, one sufficient to raise a reasonable doubt as to whether [it] led

the jury to a verdict it otherwise might not have reached." R.B., 183 N.J. at

330 (alteration in original).

While the "[e]xclusion of testimony, . . . which is central to a defendant's

claim or defense, 'if otherwise admissible, cannot be held to be harmless

error,'" when it comes to a defendant's testimony, "we look to evidence outside

of defendant's testimony because it is the 'sort of evidence that a jury naturally

would tend to discount as self-serving.'" Scott, 229 N.J. at 484 (quoting

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Skipper v. South Carolina, 476 U.S. 1, 8 (1986)). Thus, under this standard, if

the evidence is strong, and a limiting instruction is given to mitigate the error,

the error may be harmless.

Here, defendant understandably declined to testify in light of the judge's

ruling that if he did so, the State could impeach him with his prior convictions.

However, the State's evidence was so strong that had defendant testified, there

was no real possibility that the jury would have reached a different result.

While defendant challenged the detectives' credibility, particularly whether

they actually observed a handgun in his waistband, their credibility was

corroborated by the fact that a handgun was, in fact, recovered from that

precise location.

Further, at defendant's request, the judge instructed the jury that it may

not draw any inferences adverse to defendant on the basis of his failure to

testify. See State v. Haley, 295 N.J. Super. 471, 475 (App. Div. 1996)

(holding that the trial judge's failure to instruct the jury that it may not draw an

adverse inference from a defendant's exercise of the right not to testify is an

error of constitutional magnitude which requires reversal of any resulting

conviction). Thus, given the strength of the State's evidence and the limiting

instruction provided by the judge, the erroneous evidentiary ruling was not of

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"such a nature as to have been clearly capable of producing an unjust result."

R. 2:10-2.

In Point III, defendant argues that his conviction for possession of a

handgun without a permit should be reversed because the judge "erred in

admitting the [NJSP no-permit] affidavit of a non-testifying witness" in

violation of "both the New Jersey Rules of Evidence and [his] constitutional

right to confrontation." According to defendant, because the affidavit "was

created by a state trooper in response to a request by the [ECPO]," for "the

express purpose of [defendant's] criminal prosecution," and "was signed by a

state trooper who never testified," the "affidavit was . . . testimonial and not

admissible without the signer's appearance as a witness."

Under N.J.S.A. 2C:39-5(b), the State was required to prove that

defendant was "knowingly . . . in . . . possession [of a] handgun . . . without

first having obtained a permit to carry the same." To meet the "no-permit"

requirement, through the testimony of Detective Cosgrove, the State offered

into evidence an affidavit with a raised seal, signed by NJSP Detective Brett

Bloom of the NJSP Firearms Investigative Unit, notarized on August 1, 2017,

and attesting to the fact that a search of the NJSP database revealed that there

was no permit to carry a firearm issued to defendant on record with the State.

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Defendant objected to the admission of the affidavit "without any witness or

foundation."

The judge acknowledged that the affidavit constituted hearsay, but

qualified for admission under N.J.R.E. 803(c)(7), 5 the exception permitting the

admission of

[e]vidence that a matter is not included in a . . . record

kept in accordance with . . . [N.J.R.E.] 803(c)(6), [6]

when offered to prove the . . . nonexistence of the

matter, if the matter was of a kind of which a . . .

record was regularly made and preserved, unless the

sources of information or other circumstances indicate

that the inference of . . . nonexistence is not

trustworthy.

Additionally, notwithstanding the testimony of Detective Cosgrove, the

judge admitted the affidavit under N.J.R.E. 902, 7 providing that "[e]xtrinsic

evidence of authenticity as a condition precedent to admissibility is not

5

We note that N.J.R.E. 803 has been amended since the trial.

6

N.J.R.E. 803(c)(6) permits the admission of:

[a] statement contained in a writing or other record . . .

made at or near the time of observation by a person

with actual knowledge or from information supplied

by such a person, if the writing or other record was

made in the regular course of business . . . unless the

sources of information . . . indicate that it is not

trustworthy.

7

We note that N.J.R.E. 902 has also been amended since the trial.

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required with respect to" a "document purporting to bear a signature affixed in

an official capacity by an officer or employee of the State of New Jersey."

N.J.R.E. 902(a); see also N.J.R.E. 902(k) (providing that "[a] writing asserting

the absence of an official record" authenticated as prescribed under N.J.R.E.

902(a) is a valid self-authenticating document). The judge noted that the

notarized affidavit bore the raised seal of a governmental agency and was

signed by an officer of the NJSP acting in his official capacity as the

supervisor of the Firearms Investigative Unit.

We review "evidentiary rulings" by a trial judge under an "abuse of

discretion" standard. State v. Gorthy, 226 N.J. 516, 539 (2016). "Hearsay is

not admissible except as provided by [the Rules of Evidence] or by other law."

N.J.R.E. 802. Under our evidence rules, the "no-permit" affidavit constitutes

hearsay and is therefore only admissible if an exception to the prohibition

against hearsay applies. Applying these principles, we discern no abuse of

discretion in the judge's application of the hearsay rules to the State's proffer

of the "no-permit" affidavit. The affidavit was properly admitted under

N.J.R.E. 803(c)(7) and N.J.R.E. 902(a) and (k). See State v. Rogers, 177 N.J.

Super. 365, 375 (App. Div. 1981) (allowing an affidavit by a non-testifying

officer of the NJSP Firearms Identification Unit indicating that there was no

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23

record of issuance of, or application for, a permit by the defendant to "negate

the existence of a permit.").

Having concluded that the affidavit is admissible under the hearsay

rules, we must next "address whether [it is] testimonial and thus run[s] afou l of

the Confrontation Clause's guarantee" as "embodied in either the federal or our

State Constitutions." 8 State v. Sweet, 195 N.J. 357, 368, 374 (2007); U.S.

Const. amend. VI; N.J. Const. art. I, ¶ 10. "[I]f it is, then the fact of

admissibility for purposes of the exceptions to the hearsay rules is

insufficient." State v. Chun, 194 N.J. 54, 138-39 (2008). "That is to say, if the

evidence is testimonial, reliability as defined by the exceptions to the hearsay

rules does not equate with, and cannot substitute for, confrontation through

cross-examination." Id. at 139.

"Under the standard set forth in Crawford, a testimonial statement

against a defendant by a non-testifying witness is inadmissible under the

Confrontation Clause unless the witness is unavailable and the defendant had a

prior opportunity to cross-examine him or her." Wilson, 227 N.J. at 545

8

While defendant did not expressly make a Confrontation Clause objection to

the affidavit in the trial court, a defendant is not "require[d] to specifically use

the terms 'Confrontation Clause' or 'Sixth Amendment' or to refer to [Crawford

v. Washington, 541 U.S. 36 (2004)] to preserve a Confrontation Clause

challenge." State v. Wilson, 227 N.J. 534, 543 (2017). Thus, we find the

substance of defendant's objection to be sufficient to raise a Confrontation

Clause challenge.

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24

(citing Crawford, 541 U.S. at 59). "The threshold issue is, thus, whether the

proffered statement is 'testimonial' in nature." Ibid. In Crawford, the Court

described the class of testimonial statements covered by the Confrontation

Clause as follows:

Various formulations of this core class of testimonial

statements exist: [ex parte] in-court testimony or its

functional equivalent—that is, material such as

affidavits, custodial examinations, prior testimony that

the defendant was unable to cross-examine, or similar

pretrial statements that declarants would reasonably

expect to be used prosecutorially; extrajudicial

statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior

testimony, or confessions; statements that were made

under circumstances which would lead an objective

witness reasonably to believe that the statement would

be available for use at a later trial.

[541 U.S. at 51-52 (second alteration in original)

(citations and internal quotation marks omitted).]

"Although the Crawford Court refrained from offering a 'comprehensive

definition' of the term," Wilson, 227 N.J. at 545 (citing Crawford, 541 U.S. at

68), in Wilson, our Supreme Court "upheld the primary purpose test originally

announced in [Davis v. Washington, 547 U.S. 813 (2006)] and developed in

pre-[Williams v. Illinois, 567 U.S. 50 (2012)] case law." Wilson, 227 N.J. at

546. Under the primary purpose test, "the question is whether, in light of all

the circumstances the 'primary purpose' of the evidence was to 'create an out -

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25

of-court substitute for trial testimony.'" Id. at 547 (alterations omitted)

(quoting Ohio v. Clark, 576 U.S. 237, 245 (2015)).

Although our courts have not applied the "primary purpose" test to a

"no-permit" affidavit to date, the test has been applied in a variety of other

contexts. In Wilson, the Court determined that "the map, prepared and

adopted by a governmental entity" and used in the defendant's drug

distribution related prosecution was not testimonial. 227 N.J. at 549. The

Court acknowledged that the map was "used in criminal prosecutions and was

created, in part, for that purpose." Id. at 551. Nonetheless, the Court

explained that the map "does not conclusively establish . . . guilt," depicted "an

objective measurement that require[d] no 'independent interpretation' of raw

data," and "report[ed] a present fact." Id. at 550-51 (quoting State v. Roach,

219 N.J. 58, 81 (2014)).

Furthermore, the map did not "target a particular person" and "may

exonerate a person charged with violating N.J.S.A. 2C:35-7.1(a)," prohibiting

distribution of a controlled dangerous substance within 500 feet of a public

park. Id. at 551.

Importantly, the map was not created in response to a

criminal event. The map was created years before the

commission of any of the offenses alleged here. When

the map was produced, there was no alleged crime

committed by defendant. Nor was the map created to

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26

establish a fact relevant to an ongoing police

investigation.

Therefore, the map was not created for the primary

purpose of "establish[ing] or prov[ing] past events

potentially relevant to later criminal prosecution."

[Ibid. (alterations in original) (quoting State v. Bass,

224 N.J. 285, 314 (2016)).]

See also Bass, 224 N.J. at 317 (finding an autopsy report that had been

prepared by a medical examiner who was deceased at the time of the

defendant's trial was testimonial because its primary purpose was "to establish

facts for later use in the prosecution of [that] case"); Roach, 219 N.J. at 81

(finding that a DNA profile created by a State forensic scientist from machine -

generated data that required "subjective analysis" and "independent

interpretation" of the raw data was testimonial); State v. Michaels, 219 N.J. 1,

9, 44 (2014) (finding that a report signed by a supervisor at a private lab

certifying that the defendant would have been unfit to drive based on the

presence of illegal drugs in his blood was testimonial because its primary

purpose was to serve as a "direct accusation against [the] defendant" in the

ensuing vehicular homicide prosecution); Chun, 194 N.J. at 147 (finding the

printout on which the Alcotest reports its readings measuring a person's blood

alcohol level was not testimonial because the printout "reports a present, and

not a past, piece of information or data," cannot be influenced by the Alcotest

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27

operator, "and may as likely generate a result that exonerates the test subject as

convicts him or her").

In Melendez-Diaz v. Massachusetts, the United States Supreme Court

determined that documents attesting to the non-existence of a particular record

(often referred to as Certificates of Nonexistence of a Record or CNRs) "fall

within the 'core class of testimonial statements'" covered by the Confrontation

Clause. 557 U.S. 305, 310 (2009). There, the documents at issue that were

found to be testimonial consisted of notarized certificates prepared by State

analysts "showing the results of the forensic analysis performed" on the

substances seized from the defendant in his drug trafficking prosecution. Id. at

308.

We acknowledge a split among federal and state courts as to whether

certain CNRs are testimonial and thereby subject to the Confrontation Clause.

See, e.g., United States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008) (finding

that "CNR[s] are nontestimonial business records not subject to the

requirements of the Confrontation Clause under Crawford"); United States v.

Urqhart, 469 F.3d 745, 748-49 (8th Cir. 2006) ("[L]ikening the CNR to a

business record, we follow the lead of our sister circuits and hold that a CNR

is nontestimonial evidence under Crawford."); United States v. Cervantes-

Flores, 421 F.3d 825, 833-34 (9th Cir. 2005) (holding that the CNR, certifying

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28

no record of consent to reenter the United States, belonged to a "class of

records . . . kept in the ordinary course of the [agency's] activities, prior to and

regardless of [the defendant's] prosecution," and was therefore nontestimonial

evidence under Crawford notwithstanding the fact that the CNR was made "at

the request of the prosecutor"). But cf. United States v. Orozco-Acosta, 607

F.3d 1156, 1164 (9th Cir. 2010) (holding that the CNR, certifying no record of

consent for re-admission into the United States, was testimonial but the

violation of the defendant's confrontation right caused by its admission was

harmless error); United States v. Martinez-Rios, 595 F.3d 581, 586 (5th Cir.

2010) (holding that because the CNR, certifying no record of consent to

reapply for admission to the United States, was "exclusively generated for use

at trial" and was used to establish a "fact necessary to convict," it was

testimonial and triggered the Confrontation Clause); Tabaka v. District of

Columbia, 976 A.2d 173, 175-76 (D.C. Cir. 2009) (holding that the CNR

generated by a Department of Motor Vehicle official, certifying no record of

an operator's permit having been issued to the defendant, was testimonial and

improperly admitted without the testimony of the affiant in the defendant's

drunk driving related prosecution); Washington v. State, 18 So. 3d 1221, 1223-

25 (Fla. Dist. Ct. App. 2009) (holding that the CNR prepared by a State

Licensing Board employee, certifying no contractor's license had been issued

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29

to the defendant, was testimonial and its admission in the defendant's

prosecution for acting as an unlicensed contractor violated the Confrontation

Clause but "was harmless given the other evidence").

We find the analysis used by the Virginia appellate court in Harris v.

Commonwealth, 673 S.E.2d 483 (Va. App. 2009) instructive. There, the

defendant was convicted of failure to re-register as a sex offender. Id. at 484.

On appeal, he argued the trial court violated the Confrontation Clause by

admitting an affidavit prepared by the "custodian of the records for the

Virginia State Police Sex Offender Registry" attesting to the fact that their

records showed no sex offender registration form on file for the defendant

during the relevant time period. Ibid.

In concluding that the affidavit was not testimonial in nature, the court

explained

the affidavit in question here is a document

establishing the existence or absence of some

objective fact, rather than detailing the criminal

wrongdoing of the defendant. It was prepared in a

non-adversarial setting, and is not accusatory. The

affiant simply generated the document from objective

facts already in existence. The sex offender registry is

a neutral repository of information that reflects the

objective results of a search of public records. The

information contained in the affidavit simply

summarizes the official registry of the Department of

State Police . . . .

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[Id. at 487 (citations and internal quotation marks

omitted).]

Likewise, here, the NJSP "no-permit" affidavit is not testimonial. The

affidavit establishes the absence of an objective fact, rather than detailing the

criminal wrongdoing of defendant. It is not accusatory in nature and is

generated from facts already in existence. The information contained in the

affidavit simply summarizes information in the NJSP's official database, which

is a neutral repository for such information. Importantly, the database was not

created in response to a criminal event, or to establish a fact relevant to an

ongoing police investigation. It was created before any alleged crime by

defendant, and could have just as easily generated a response that exonerated

defendant. As in Harris, "while the affidavit may have been prepared with an

eye towards litigation, the underlying records are not prepared in anticipation

of litigation." Id. at 486. Because the affidavit is not testimonial, its

admission without Bloom's testimony did not violate the Confrontation Clause.

[At this court's direction, Parts III, V, and VI of

this opinion, which concern matters not pertinent

to the admission of defendant's prior convictions

for impeachment purposes, or the admission of the

affidavit of a non-testifying police witness, have

been omitted from the published version of this

opinion. R. 1:36-3.]

Affirmed.

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