STATE OF NEW JERSEY, Plaintiff-Respondent, v. DESHAUN P. WILSON, Defendant-Appellant.
DOCKET NO. A-2097-12T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
September 10, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION September 10, 2015 APPELLATE DIVISION
Submitted December 9, 2014 — Decided September 10, 2015
Before Judges Messano, Hayden and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-05-0454.
John J. Hoffman, Acting Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
The opinion of this court was delivered by
MESSANO, P.J.A.D.
The Union County grand jury returned an indictment charging defendant DeShaun Wilson with third-degree possession of a controlled dangerous substance,
Before retrial, defendant moved for reconsideration of his motion to suppress, contending that certain testimony at trial contradicted testimony by the same witnesses at the pre-trial hearing. The judge denied that motion, defendant again proceeded to trial, and the jury convicted him of all counts. At sentencing, the judge merged counts one and two into count three and sentenced defendant to an eight-year term of imprisonment with a four-year period of parole ineligibility.
Defendant raises the following points on appeal:
POINT I
THE DEFENDANT‘S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below)
POINT II
THE DEFENDANT‘S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE‘S LAY WITNESS RENDERED A HIGHLY PREJUDICIAL OPINION THAT SHOULD HAVE BEEN EXCLUDED.
POINT III
THE DEFENDANT‘S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I., PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT‘S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED.
A. THE TRIAL COURT ERRONEOUSLY ADMITTED ACCUSATIONS AND OTHER EVIDENCE FROM ABSENTEE WITNESSES.
B. THE TRIAL COURT ERRONEOUSLY ADMITTED HEARSAY PAPER EVIDENCE PREPARED BY THE GOVERNMENT TO PROVE AN ESSENTIAL ELEMENT OF THE CRIME.
POINT IV
THE DEFENDANT‘S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS, CONTRADICTORY, AND PREJUDICIAL INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below)
POINT V
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR.
10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below) POINT VI
THE DEFENDANT‘S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES, AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED.
POINT VII
THE DEFENDANT‘S MOTION TO RECONSIDER THE DECISION TO DENY HIS MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED.
POINT VIII
THE DEFENDANT‘S SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT ERRONEOUSLY MADE FINDINGS OF FACT THAT ELEVATED THE SENTENCE BEYOND THE MINIMUM TERM THAT COULD HAVE BEEN AND SHOULD HAVE BEEN IMPOSED BASED ON THE JURY‘S FINDINGS. (Not Raised Below)
Having considered these arguments in light of the record and applicable legal standards, we affirm.
I.
In Points VI and VII, defendant contends that the first judge erred in denying his motion to suppress, and the trial judge erred in denying his motion for reconsideration. At the pre-trial hearing on the motion to suppress, the State called Elizabeth police officer James Szpond as its sole witness. On January 30, 2009, he and officer Louis Garcia received information from a citizen regarding possible narcotics sales at a certain address in a “[h]igh narcotic trafficking” neighborhood. The information also provided a “unique” detailed description of a suspect and the clothing he wore. While conducting surveillance from an undisclosed location, the officers observed a man who fit the description, later identified as defendant, standing outside a bodega. Szpond testified that the officers also had a clear view of defendant‘s “stash spot.”
Szpond saw two men approach defendant and engage in a brief conversation, after which defendant walked a short distance away and down the alley of a nearby residential building. Szpond saw defendant bend down, return toward the street and motion to the men. Defendant received money and gavе the men a small object. Fifteen minutes later, defendant was approached by a female, and Szpond observed similar activity. Other officers were called to the scene and arrested defendant. Szpond proceeded to the alley, walked to the area where he had seen defendant bend down, and found a plastic bag containing vials of cocaine hidden in a drainpipe.2
Defendant called Garcia as a witness. His testimony was largely consistent with Szpond‘s. Garcia acknowledged that the alley was part of a private home, albeit not defendant‘s, and that the officers did not secure a search warrant prior to seizing the narcotics.
The judge placеd his oral decision on the record. He found both officers credible and, based upon the anonymous tip they received and observations they made, the judge concluded there was probable cause
Before us, defendant argues that the warrantless search of the drainpipe and seizure of the drugs was not justified by any exception to the warrant requirement. The State contends that the judge properly determined that defendant had no reasonable expectation of privacy in the drainpipe area of a stranger‘s home.
We think a case decided after the briefs were submitted in this appeal is fully dispositive of the issue. In State v. Brown, 216 N.J. 508, 535 (2014), the Court made clear that a defendant has “no standing to challenge a search if an officer had an objectively reasonable basis to believe [defendant] was a trespasser.” It is apparently undisputed that defendant was a trespasser, in that he did not live at the premises and received no permission from the owner to repeatedly walk down the alley. Because the record is unclear as to whether the officers knеw this beforehand, we assume arguendo that defendant had standing to bring the motion to suppress and consider whether the search and seizure without a warrant was justified.
“Even when a defendant has automatic standing, if . . . the merits rest on whether defendant possesses a reasonable expectation of privacy, the court must address that issue as part of the substantive constitutional analysis.” State v. Hinton, 216 N.J. 211, 234 (2013). In this regard, our constitution “requires only that an expectation of privacy be reasonable.” Id. at 236 (quoting State v. Hempele, 120 N.J. 182, 200 (1990)) (internal quotation marks omitted). However, our courts “have recognized circumstances in which no reasonable expectation of privacy can be found, notwithstanding the residential setting of the police аctivity.” Ibid. (citations omitted); see also State v. Gibson, 318 N.J. Super. 1, 10-11 (App. Div. 1999) (holding that the defendant‘s movements in a driveway “whether it was owned by him, his mother or any other person, was within the public view and observed from the public thoroughfare . . . . Accordingly, [he] could have no reasonable expectation of privacy in the driveway.“).
The facts in this case are most similar to those presented in State v. Ford, 278 N.J. Super. 351 (App. Div. 1995). There, officers on surveillance observed the defendant walk down the side of a nearby house, kneel down, take something out of a hidden plastic bag, return the bag to a location on the outside of the house and complete a drug transaction with his cohort. Id. at 353. After arrests were made, an officer retrieved a bag containing cocaine from the side of the hоuse. Id. at 353-54. We held that the “defendants[‘] privacy rights in the contraband had already been forfeited.” Id. at 357. We upheld the warrantless seizure, reasoning,
Given the knowledge that a crime had been committed, given both officers’ visual observations of the defendants during its commission, and given the observation of the contraband and its place of attempted concealment in an exterior portion of the house accessible by anyone from the outside
without entering the house, no compelling constitutional interests require suppression of the seized contraband from its known location.
[Ibid. (citation omitted); see also State v. Jessup, ___ N.J. Super. ___ (App. Div. 2015) (holding the defendant had no reasonable expectation of privacy regarding drugs left on top of the tire of a car).]
We believe the same rationale applies here. The judge properly denied defendant‘s motion to suppress.
Defendant next argues that the trial judge erred in denying his motion for reconsideration because the testimony of Szpond and Garcia at the first trial differed significantly from their testimony during the pre-trial suppression hearing. The trial judge stated “there was a discrepancy between what [they] said at trial, what they said in their police reports, and what they said . . . at the hearing.” He concluded, however, that while this presented significant credibility issues for the jury, it did not affect whether the seizure of the drugs without a warrant was constitutional. He denied defendant‘s motion for reconsideration.3
The general rule that a “defendant cаnnot refer to evidence developed other than at the motion to suppress[] applies when [the] defendant challenges the denial of a motion to suppress.” State v. Tavares, 364 N.J. Super. 496, 502 (App. Div. 2003). “The court‘s decision becomes the law of the case and is binding on whatever judge ultimately tries the case.” State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971); see also State v. K.P.S., 221 N.J. 266, 277-79 (2015) (holding that “law of the case” is not applicable to appeals filed by co-defendants).
Of course, there are exceptions to this general rule. “Presumably, if [a] defendant could show that the motion was denied because of fraud, or that the interest of justice required a new hearing on the merits (e.g., perjury), such would be permissible under the rules.” Jordan, supra, 115 N.J. Super. at 76-77.
Any inconsistencies and discrepancies between the offiсers’ testimony at the hearing and the first trial do not suggest fraud or perjury, nor do the interests of justice compel the
(continued) exercised in the interest of justice.” Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D‘Atria v. D‘Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (internal quotation marks omitted).
conclusion that the trial judge mistakenly exercised his discretion in denying defendant‘s motion for reconsideration.
II.
At the second trial, the State called Szpond and Garcia as witnesses. Their testimony generally conformed with that referenced above, although they were subject to impeachment through inconsistencies in their reports and prior testimony. Utilizing an enlargement of a certified map, see
[At the court‘s direction Subsections A, B, and C of Section II of its opinion, which concern discrete issues, have been redacted from the published opinion, because they do not meet the criteria set by R. 1:36-2(d) for publication. The published parts of the opinion continue as follows.]
III.
As previously mentioned, Detective Brendan Sullivan of the Union County Prosecutor‘s Office testified at trial. Sullivan identified an exhibit as “a standard 500-foot map,” depicting an area within a five-hundred foot radius around Legget Park in Elizabeth. Sullivan identified the location where the drugs were found as being within the circle. Defense counsel vigorously cross-examined Sullivan, eliciting that the map was prepared by an engineer in 1998, and Sullivan could not verify the accuracy of its measurements or add much by way of description of the park itself.
Near the close of the State‘s case, the prosecutor sought to move the map, an affidavit authored by an assistant prosecutor who met with county engineers to prepare the map, and a resolution approved by the Union County Board of Chosen Freeholders accepting the map as official into evidence. Defense counsel objected, arguing that the State failed to lay an adequate foundation and the affidavit and resolutions were hearsay. The judge overruled defendant‘s objection and admitted the items into evidence.
Before us, defendant argues that the map was “testimonial” because it was “prepared for the purpose of prosecuting drug criminals,” and its admission in evidence violated the Confrontation Clause of the United States and New Jersey Cоnstitutions. See
A.
Any person who violates subsection a. of
N.J.S.A. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree . . . .
is essentially the same: to protect those, predominantly children, in and around schools and public parks from exposure to the drug culture and perils of drug trafficking. In furtherance of that purpose, the Legislature mandatеd severe punishment for those who possess or distribute drugs in the safety zones established by those statutes.
We have upheld the statute against a constitutional challenge alleging its disparate impact upon “minority and poor populations that make up a large percentage of the residents of public housing.” State v. Brooks, 366 N.J. Super. 447, 457-58 (App. Div. 2004); see also State v. Ogar, 229 N.J. Super. 459, 471-72 (App. Div. 1989) (rejecting constitutional vagueness challenge to
In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 500 feet of a . . . public park, . . . or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie еvidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 500 feet of a public housing facility, a public park, or a public building . . . .
[
N.J.S.A. 2C:35-7.1(e) ; see alsoN.J.S.A. 2C:35-7(f) (containing similar provisions with respect to one thousand-feet school-zone maps.]
When an official map is admitted into evidence, the ordinance or resolution adopting the map should also be entered into evidence, as it was in this case. State v. Collins, 262 N.J. Super. 230, 240 (App. Div. 1993). Such maps are “self-authenticati[ng]” pursuant to
Statutes like
Our research uncovered similar statutory provisions only in Texas,
One case from Washington did address a related issue — whether the admission of an unofficial map violated the defendant‘s right to confrontation. See State v. Pearson, 321 P.3d 1285 (Wash. Ct. App.), review denied, 337 P.3d 327 (2014). In Pearson, the defendant was tried for selling drugs within 1000 feet of a school bus stop. Id. at 1286. Yakima County, where the offense occurred, had never adopted a “complying resolution or ordinance” adopting an official map under
We do not consider Pearson to be particularly informative, since the holding focused on the hearsay nature of information given to the county director, who had no personal knowledge of the bus stop locations, and the defendant‘s inability to confront the source of that information. No reported decision in New Jersey has considered a Confrontation Clause challenge to the evidentiary provisions contained in either
B.
We need not recount in great detail the sea change occasioned by the Supreme Court‘s decision in Crawford, prior to which hearsay statements were admitted without running afoul of the Confrontation Clause if they fell “under a firmly rooted hearsay exception or [bore] particularized guarantees of trustworthiness.” 541 U.S. at 40 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). Instead, the Court in Crawford held, “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
158 L. Ed. 2d at 203 (emphasis added). Thus, admission of an out-of-court testimonial statement violates the Confrontation Clause unless the witness is unavailable and the defendant had an opportunity to cross-examine that witness. Id. at 68. By contrast, “[w]here nontestimonial hearsay is at issue,” the States have “flexibility in their development of hearsay law” and are not required to afford the defendant an opportunity for cross-examination. Ibid.
“[T]he question of whether a hearsay statement is testimonial or nontestimonial defies facile definition.” State v. Buda, 195 N.J. 278, 300 (2008). Quoting Crawford, our Court has said that testimonial statements are those in which “witnesses bear testimony against the accused.” State v. Cabbell, 207 N.J. 311, 329 (2011) (emphasis added) (quoting Crawford, supra, 541 U.S. at 51). In Davis v. Washington, 547 U.S. 813 (2006), while declining to “produce an exhaustive classification of all conceivable statements,” the Court endeavored to provide greater clarity for determining whether a statement was “testimonial,” adopting the “primary purpose” test:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances оbjectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at 822 (emphasis added).]
The Supreme Court has recently reiterated, “the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.‘” Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). “[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clausе.‘” Ibid. (quoting Bryant, supra, 562 U.S. at 359).
“Our state confrontation jurisprudence has followed the federal approach, focusing on whether a statement is testimonial[,]” State v. Roach, 219 N.J. 58, 74 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 2348 (2015),
through application of the “primary purpose test.” State v. Michaels, 219 N.J. 1, 30-32, cert. denied, ___ U.S. ___, 135 S. Ct. 761, 190 L. Ed. 2d 635 (2014). “In order to correctly apply the Crawford analysis” a court “must consider first whether the particular evidence is admissible under the ordinary rules of evidence.” State v. Chun, 194 N.J. 54, 139, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). If so, the next inquiry is “whether the particular evidence is ‘testimonial’ within the meaning of theCrawford, Davis and Clark involved verbal statements made by a declarant to either law enforcement personnel or other third parties where the declarant was not produced as a witness at trial. Our Court has considered application of the
Crawford seemingly made clear that most statements contained in documentary evidence admitted under well-recognized “hearsay exceptions . . . by their nature were not testimonial—for example, business records.” 541 U.S. at 55, 124 S. Ct. at 1367, 158 L. Ed. 2d at 195. However, in a subsequent trilogy of cases involving forensic testing reports, that ratio decidendi has been obscured.
In Melendez-Diaz, supra, 557 U.S. at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321, a five-four decision, the Court concluded that certificatеs of analysis, “the sole purpose of [which] was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance,” were testimonial statements, and the defendant “was entitled to be confronted with the analysts at trial.” (Internal quotation marks omitted). The Court went on to say:
Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity‘s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. Whether or not they qualify as business or official recоrds, the analysts’ statements here prepared specifically for use at petitioner‘s trial—were testimony against petitioner, and the analysts were subject to confrontation under the
Sixth Amendment .[Id. at 324, 129 S. Ct. at 2539-40, 174 L. Ed. 2d at 329-30 (emphasis added).]
Justice Kennedy wrote a vigorous dissent, declaring that Crawford and Davis only applied to “formal statements made by a conventional witness—one who has personal knowledge of some aspect of the defendant‘s guilt.” Id. at 330, 129 S. Ct. at 2543, 174 L. Ed. 2d at 334 (Kennedy, J., dissenting) (emphasis added).
In Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2709-10, 180 L. Ed. 2d 610, 616 (2011), a subsequent five-four decision, the Supreme Court concluded that the admission of a standard lab report regarding the defendant‘s blood alcohol level as a business record, in the absence of the preparer of the report as a witness, violated the
Lastly, in Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), the majority of the Supreme Court concluded there was no
Our Court found Williams to provide “at best unclear” precedential force, and specifically rejected the above-referenced aspect of Justice Alito‘s analysis, noting it diverged from “the primary purpose test that had been applied previously.” Michaels, supra, 219 N.J. at 31. Both Michaels and Roach considered issues similar to those presented in Bullcoming and Williams.
In Michaels, supra, 219 N.J. at 5-6, the Court held the
Summing up the holdings in both cases, the Roach court explained that the confrontation rights of a defendant will not be violated if a supervisor, co-worker, or independent reviewer testifies “based on his or her independent review of raw data and conclusions . . . based on that data,” provided the testimony is “provided by a truly independent and qualified reviewer of the underlying data and report” and not merely “parrot[ed]” by a surrogate witness. Id. at 79. Here, of course, no witness testified regarding preparation of the park-zone map or how its measurements were made.
Our Court has wrestled with
A laboratory certificate in a drug case is not of the same ilk as other business records, such as an ordinary account ledger or office memorandum in a corporate-fraud case. Those latter documents have not been prepared specifically for the govеrnment‘s use in a potential criminal prosecution. In contrast, the analyst prepares the laboratory certificate at a prosecuting agency‘s request for the sole purpose of investigating an accused.
[Id. at 49 (emphasis added).]
We have applied similar analysis to lab reports prepared by police chemists and blood test certificates issued under
In Chun, the Court considered Crawford‘s application to documentary evidence—the Alcotest‘s “foundational documents,” relating to the good working order of the device, Chun, supra, 194 N.J. at 142, and the “Alcohol Influence Report” or AIR, that “reports the results of a test which, in and of itself under our statute, suffices to support a conviction.” Id. at 145. As to the foundational documents, the Court said they were “business records in the traditional sense.” Id. at 142. Their admission did not violate the
The Chun Court also determined that the AIR was not testimonial, reasoning:
First, the AIR reports a present, and not a past, piece of information or data. Second, although given in the presence of a police officer who operates the device, nothing that the operator does can influence the machine‘s evaluation of the information or its report of the data. Third, although the officer may have a purpose of establishing evidence of a BAC in excess of the permissible limit, the machine has no such intent and may as likely generate a result that exonerates the test subject as convicts him or her.
[Chun, supra, 194 N.J. at 147.]
Nevertheless, the Court also “concluded that [with respect to the AIR] defendants are entitled to certain safeguards that we have required be implemented in prosecutions based on the Alcotest[,] . . . through our requirement that the oрerator of the device be made available to testify.” Id. at 148.
We turn to the map at issue in this case, a piece of documentary evidence not readily amenable to
C.
It is beyond peradventure, and defendant does not contend otherwise, that the map “is admissible under the ordinary rules of evidence.” Id. at 139; see
However, like the foundational documents found not to be testimonial in Chun, the map is wholly objective, having been prepared by an independent firm, under the direction of the county engineer, and adopted by the freeholders as “properly depict[ing] the location and boundaries of the area on or within 500 feet of a public housing facility or a public park or a public building . . . within Union County.”
We acknowledge that
Additionally, and we believe more importantly, the map was produced and adopted once in the past, without regard to this, or any other, particular defendant‘s trial. A common thread throughout the cases cited is that the documentary testimonial statement at issue was prepared specifically to be introduced at the defendant‘s future prosecution. Compare Williams, supra, ___ U.S. at ___, 132 S. Ct. at 2243, 183 L. Ed. 2d at 115 (DNA lab report prepared by non-testifying lab technician “was not prepared for the primary purpose of accusing a targeted individual“), with Melendez-Diaz, supra, 557 U.S. at 324, 129 S. Ct. at 2540, 174 L. Ed. 2d at 329-30 (lab certificatе “prepared specifically for use at petitioner‘s trial” was “testimony against petitioner . . . subject to confrontation under the
The map in this case was not prepared to prosecute this defendant, although it likely served no purpose excеpt to be evidence at the prosecution of a defendant. In this regard, we find it closely analogous to the foundational documents in Chun, which the Court concluded were not “testimonial in the constitutional sense” even if they proved reliability of a device “used to conduct the breath test for a particular defendant.” Chun, supra, 194 N.J. at 144. A number of out-of-state
We find these cases, together with the Court‘s reasoning in Chun, to be particularly persuasive in this instance. The park-zone map, although hearsay, was not testimonial in nature, and therefore did not violate the
[At the court‘s direction, Section IV of its opinion, which concerns discrete issues, has been redacted from the published opinion because the issues do not meet the criteria set by
R. 1:36-2(d) for publication.]
The judge did not abuse the broad discretion accorded to him in imposing sentence upon defendant, and we therefore affirm defendant‘s sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notes
Any person taking a specimen pursuant to section 1 of this act shall, upon request, furnish to any law enforcement agency a certificate stating that the specimen was taken pursuant to section 1 of this act and in a medically acceptable manner. The certificate shall be signed under oath before а notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence of the statements contained therein.
[
(A) a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the official‘s duty either to perform the act reported or to observe the act, condition, or event reported and to make the written statement, or (B) statistical findings of a public official based upon a report of or an investigation of acts, conditions, or events, if it was within the scope of the official‘s duty to make such statistical findings, unless the sources of information or other circumstances indicate that such statistical findings are not trustworthy.
[
N.J.R.E. 803(c)(8) .]