A-0850-18T3 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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

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 N. 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.

A-0850-18T3
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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 "the

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]."

A-0850-18T3
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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.

A-0850-18T3
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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 prejudicial

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

A-0850-18T3
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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

A-0850-18T3
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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

A-0850-18T3
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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 . . .

A-0850-18T3
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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

A-0850-18T3
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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.

III.

In Point II, defendant argues that the judge's "limited questioning"

during jury deliberations when a juror reported to the judge that another juror

"had made comments that several jurors took to be racially biased," was

"insufficient to ensure the integrity of deliberations," and to ensure "that racial

bias had not tainted jury deliberations." Defendant asserts that because the

error was "a structural one," his convictions must be reversed.

After deliberations began, Juror 7 indicated she wanted to address the

judge. In counsel's presence, after being cautioned by the judge not to discuss

the deliberative process, the juror reported "a comment that somebody made

that sounded really like they were being racially . . . bias[ed] towards the

situation." According to Juror 7, when "several jurors" told the purportedly

offending juror she could not "make any opinions[] because of . . . race," the

offending juror said she was "going to stand up for the [B]lack community"

and "just kept insisting that she[ was] not going to let another [B]lack person

go to jail for no reason."5 When the judge asked Juror 7 whether the

5
Defendant is African American.

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21
discussion "affect[ed her] ability to serve" and "follow the instructions of the

law," the juror responded it did not.

Relying in part on State v. Jenkins, 182 N.J. 112 (2004), the judge

informed counsel that she intended "to remind [all the jurors] of their

responsibility to adhere to the oath, and to follow the law," and then inquire

whether anyone was unwilling or unable to comply. Depending on the

responses, the judge would then address individual jurors as necessary. While

the prosecutor requested that the offending juror, identified as Juror 10, be

"interviewed, and then potentially stricken based upon her answers," defense

counsel posed no objection to the judge's proposal.

After the judge gave the supplemental instructions, she told the jurors to

communicate their responses in writing and cautioned them against discussing

their deliberations in those communications. After a short recess, the jury sent

the judge a note indicating they were "ready to proceed," prompting the judge

to resume with the playback of testimony that had previously been requested

by the jury. After the playback was completed, the prosecutor renewed his

request to interview Juror 10, and added that the remaining jurors should " be

voir dired" to assess "taint[]." Based on the prosecutor's request, to which

defense counsel objected, the judge agreed to "conduct the extensive inquiry

A-0850-18T3
22
. . . required by [State v. Brown, 442 N.J. Super. 154 (App. Div. 2015)],"

beginning with the questioning of Juror 10.

Prior to the individual questioning, the judge instructed all the jurors

"not to speculate, conjecture, or draw any inferences" regarding the "inquiry or

discuss anything about it among [themselves]." As to Juror 10, in response to

the judge's specific question whether she commented that she was "going to

stand up for the [B]lack community," and that she was "not going to let

another [B]lack person go to prison for no good reason," Juror 10 denied

making the comments. Instead, Juror 10 admitted commenting that she did not

"want to see . . . a [B]lack male found guilty, when [they were] not sure of the

evidence." The judge then asked Juror 10 whether she was able "to adhere to

[the] oath" and "reach a verdict based . . . solely on the evidence . . . presented,

and the law as . . . instructed," to which Juror 10 responded affirmatively.

Next, the judge questioned the remaining deliberating jurors

individually, asking each juror whether "anyone . . . made any comment that

would affect [his or her] ability to be a fair and impartial juror" and, if not,

whether he or she was "able to make any decision . . . solely on the evidence

. . . presented in court, and . . . [the] law as . . . instructed." Although Juror 3

indicated that "there was a little argument going on that [he] totally missed,"

all the jurors, including Juror 3, responded negatively to the first question, and

A-0850-18T3
23
affirmatively to the second. 6 Thereafter, the judge concluded that based on the

jurors' responses to her "[earlier] general inquiry," as well as the individual

questioning, she was satisfied that "[the jurors] could be fair and impartial,"

and thus resumed deliberations. The jury reached a unanimous verdict later

that same day.

"[A]n allegation that a juror is racially biased strikes at the very heart of

the defendant's right to a trial by an impartial jury." State v. Phillips, 322 N.J.

Super. 429, 442 (App. Div. 1999). "A juror who would decide a case based

solely on a defendant's race," even if the "defendant stood to benefit," or "on a

personal identification or revulsion with a defendant, without regard to the

evidence . . . violates [his or] her oath." Jenkins, 182 N.J. at 128, 131.

Likewise, "[a] juror . . . who announces that [he or] she cannot obey [his or ]

her oath, follow the law, and render fair and impartial justice cannot remain on

the jury." Id. at 128. "To rule otherwise would be to yield to a notion that is

anathema to our scheme of justice—that a juror, judging the fate of a

defendant, can be a law unto [himself or] herself." Ibid. For that reason, our

Supreme Court has held that "a juror who expressly states that [he or] she

cannot be impartial or that [he or] she is controlled by an irrepressible bias,

and therefore will not be controlled by the law, is unable to continue as a juror

6
The two alternates were not questioned.

A-0850-18T3
24
for purposes of Rule 1:8-2(d)(1), and must be removed from a jury." Ibid.; see

R. 1:8-2(d)(1) (governing the removal and substitution of jurors both before

and after the commencement of deliberations).

In Brown, we stated:

Our pretrial jury selection screening process is
designed and intended to detect and filter out jurors
who harbor views or beliefs that are per se
incompatible with the judiciary's mission to deliver
equal justice under law. However, like all things
designed by the human mind, the pretrial jury
selection process is not perfect. This requires our
colleagues at the trial level to be in a constant state of
vigilance throughout a jury trial for any signs of racial
bias or other extraneous matters that may affect a
juror's impartiality. Once a juror's latent or overt
racial bias is discovered, the juror must be removed
from the jury. Thereafter, the judge must conduct a
comprehensive, fact-sensitive inquiry to determine
whether the removed juror's odious beliefs are shared
by any other member of the jury or has otherwise
tainted the remaining jurors to such an extent that a
mistrial is warranted.

[442 N.J. Super. at 159-60.]

During the inquiry, to "forestall the inadvertent disclosure of

confidential information by a juror" that "could damage the deliberative

process and improperly influence the decisions that must be made by both

counsel and the court," courts "must caution a juror at the outset of the

colloquy that [he or] she must not reveal the way in which any juror plans to

vote, or the vote tally on a verdict." Jenkins, 182 N.J. at 134. Thereafter, "[a]

A-0850-18T3
25
complete inquiry into the context in which the juror's remark was made and its

impact on the jury's deliberation process" should be conducted . Phillips, 322

N.J. Super. at 441; see State v. Scherzer, 301 N.J. Super. 363, 488-90 (App.

Div. 1997) (finding that the trial judge's investigation of a report of a juror

conducting daily prayer sessions with the jury, during which the judge took

"two full days to thoroughly question all of the jurors about their involvement

in and feelings about the prayers and comments," supported the judge's finding

that "no outside influences had infiltrated the jury room").

"[I]n defining the scope of the inquiry[,] . . . the breadth of the

questioning should be sufficient to permit the entire picture to be explored"

without "inject[ing] prejudice into the case where it otherwise did not exist."

Phillips, 322 N.J. Super. at 441-42. To that end,

[t]he court is obliged to interrogate the [offending]
juror, in the presence of counsel, to determine if there
is a taint; if so, the inquiry must expand to determine
whether any other jurors have been tainted thereby.
The trial court must then determine whether the trial
may proceed after excusing the tainted juror or jurors,
or whether a mistrial is necessary.

[State v. R.D., 169 N.J. 551, 558 (2001) (citing
Pressler, Current N.J. Court Rules, cmt. 2 on R. 1:16-1
(2000)).]

While "the court should not simply accept the [offending] juror's word

that no extraneous information was imparted to the others, the court's own

A-0850-18T3
26
thorough inquiry of the juror should answer the question whether additional

voir dire is necessary to assure that impermissible tainting of the other jurors

did not occur." Id. at 561. "In some instances, the court may find that it would

be more harmful to voir dire the remaining jurors because, in asking questions,

inappropriate information could be imparted." Ibid.

We "review[] the trial court's jury-related decisions under the abuse of

discretion standard." Brown, 442 N.J. Super. at 182. "This standard respects

the trial court's unique perspective and the traditional deference we accord to

trial courts in 'exercising control over matters pertaining to the jury.'" Ibid.

(quoting R.D., 169 N.J. at 559-60); see R.D., 169 N.J. at 561 (holding that the

abuse of discretion standard of review applies to trial court determinations

regarding whether a juror has been tainted by extraneous information during a

trial).

Here, the judge conscientiously fulfilled her duty and complied with the

demanding standards applicable where allegations of racial bias are made.

While defendant agrees with the judge's decision to question each juror

individually, and does not suggest that Juror 10 should have been removed,

defendant challenges the scope of the judge's inquiry, asserting that the

questioning "was insufficient for the court to be sure that racial bias had not

prejudiced jury deliberations." In that regard, defendant asserts the judge

A-0850-18T3
27
"made exactly the same errors as those identified in Brown," and conducted

the "perfunctory questioning" disapproved in Phillips.

In Phillips, we reversed a murder conviction because of the inadequate

questioning of the jurors after one juror claimed that another juror made a

disparaging and offensive racial remark during deliberations. 322 N.J. Super.

at 441-42. The judge excused the offended juror and replaced him with an

alternate after the juror told the judge "he could not 'come to a clear verdict'

because he was 'mad and angry.'" Id. at 435. At defense counsel's request,

"[a]fter instructing the reconstituted jury to begin its deliberations anew, the

judge asked the jurors whether [the excused juror] had spoken to them about

his inability to continue serving in the case" and "whether any of the jurors had

said anything 'offensive' during the earlier deliberations." Ibid. "No juror

responded affirmatively." Ibid. We concluded "that the trial judge's

perfunctory questioning of the reconstituted jury concerning [the excus ed

juror's] dismissal was inadequate to protect the integrity of the proceedings."

Id. at 441. We explained that the offending juror should have been identified

and "questioned out of the presence of the other jurors," and "the remaining

jurors should have been questioned singly by the judge to determine the

impact, if any, of the [objectionable] reference." Ibid.

A-0850-18T3
28
 In Brown, we reversed the carjacking and related convictions of two

defendants "because the trial judge failed to remove a deliberating juror who

disclosed her racial bias" to the judge as well as to "two of her fellow jurors"

who "were sympathetic" to her. 442 N.J. Super. at 158-59. Specifically, the

offending juror "revealed how she immediately construed the presence of two

African-American men in her all white neighborhood as a menacing sign of

possible retaliation by [the] defendants, merely because they were also

African-American men." Id. at 182. By "infer[ing] a sinister conspiratorial

purpose from a facially innocuous event, based only on the race of the

participants," the juror "revealed a deeply-rooted, latent racial bias that

required her removal from the jury." Id. at 159. We determined that although

the offending juror made "self-serving denial[s] of racial bias" when

questioned by the judge, "[h]er initial instinctive[] subliminal association of

race with criminality or [wrongdoing] far trumped her subsequent assurances

of impartiality." Ibid.

We also held that the judge "failed to take proper measures to determine

whether [the two jurors], who initially shared [the offending juror's] concern

. . . harbored similar latent racial biases." Id. at 160. In that regard, we

explained that while questioning the two jurors, the judge "failed to conduct a

thorough and probing examination" by asking "open ended questions" or

A-0850-18T3
29
asking them "to recite what [the offending juror] had told them" to determine

whether they "were capable of discharging their duty to judge the evidence

fairly and impartially." Id. at 160, 183.

We stressed that the errors were compounded by the "judge's reaction to

[the offending juror's] revelations." Id. at 182. "The judge was not only

oblivious to the juror's unmistakable racial bias, but . . . actually endorsed the

juror's misguided apprehensions" and expressed a "willingness to accept racial

bias in a juror as an unavoidable reality of life" in his "impromptu, sua sponte

'instructions' to the jury, made soon after the judge had finished interviewing

the . . . jurors in his chambers." Id. at 182-83.

The facts in Brown and Phillips are distinguishable from the facts in this

case. Unlike the circumstances in Brown, this case was not tainted by and

contaminated with invidious racial bias and prejudice that prevented the jurors

from evaluating the evidence fairly and impartially, and making a decision

based only on the evidence presented at trial and the court's instructions on the

law. Indeed, upon questioning, Juror 10 denied making the comments

attributed to her, and essentially admitted stating only that she did not want to

find anyone guilty, particularly "a black male," if the jurors were uncertain

about the evidence. Nonetheless, Juror 10 confirmed for the judge that she

was able to adhere to her oath, make a decision based only on the evidence,

A-0850-18T3
30
follow the law, and render fair and impartial justice. Because the judge found

Juror 10's affirmations credible, we are satisfied that defendant was not

deprived of his right to a fair trial.

Likewise, through individual questioning, the judge confirmed that the

remaining jurors were also able to render fair and impartial justice. Unlike

Phillips, the judge conducted a thorough and probing examination of the

remaining jurors, asking each of them an open-ended question to ascertain

whether anyone had made a comment that would affect their ability to be fair

and impartial, rather than posing a question that risked "inject[ing] prejudice

into the case where it otherwise did not exist." 322 N.J. Super. at 441-42.

Given the jurors' responses, which the judge credited, the judge determined

there was no need to inquire further. Additionally, unlike Brown, where the

judge "actually endorsed the juror's misguided apprehensions," 442 N.J. Super.

at 182, the judge here properly exercised her sound discretion in handling the

jury, and correctly determined that jury deliberations had not been tainted by

racial bias to warrant a mistrial.

IV.

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

A-0850-18T3
31
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.

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

foundation."

A-0850-18T3
32
 The judge acknowledged that the affidavit constituted hearsay, but

qualified for admission under N.J.R.E. 803(c)(7), 7 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), [8]
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, 9 providing that "[e]xtrinsic

evidence of authenticity as a condition precedent to admissibility is not

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."

7
We note that N.J.R.E. 803 has been amended since the trial.
8
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.
9
We note that N.J.R.E. 902 has also been amended since the trial.

A-0850-18T3
33
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

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

the existence of a permit.").

A-0850-18T3
34
 Having concluded that the affidavit is admissible under the hearsay

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

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

State Constitutions." 10 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

(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

10
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.

A-0850-18T3
35
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-

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

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

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36
 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 54 9. 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
establish a fact relevant to an ongoing police
investigation.

A-0850-18T3
37
 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

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

convicts him or her").

A-0850-18T3
38
 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

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

A-0850-18T3
39
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

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

A-0850-18T3
40
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 . . . .

[Id. at 487 (citations and internal quotation marks
omitted).]

A-0850-18T3
41
 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.

V.

In Point IV, defendant argues the motion judge "erred in finding that the

[S]tate had established the legality of the search without holding a testimonial

suppression hearing, despite the fact that the defense version of events was

materially different from that of the [S]tate." Defendant urges us to "remand

for a testimonial suppression hearing."

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 Pursuant to Rule 3:5-7(c), governing hearings in motions to suppress

evidence, "[i]f material facts are disputed, testimony thereon shall be taken in

open court." Our Supreme Court has also clarified that

[t]he proper mechanism through which to explore the
constitutionality of warrantless police conduct is an
evidentiary hearing.

At evidentiary hearings, the State presents
witnesses to substantiate its basis for the challenged
warrantless conduct, and the defense is afforded the
opportunity to confront and cross-examine the State's
witnesses.

[State v. Atwood, 232 N.J. 433, 445 (2018) (citations
omitted).]

See also State v. Parker, 459 N.J. Super. 26, 28 (App. Div. 2019) (reversing

the motion judge's ruling because the judge "suppressed the physical evidence

without conducting an evidentiary hearing" where "the parties dispute[d] the

material facts that led to [the] defendant's arrest and subsequent indictment").

The rule provides that the filing of a motion by a
defendant asserting that evidence to be used against
him was seized in a warrantless search triggers a
requirement that "the State shall, within fifteen days
of the filing of the motion, file a brief, including a
statement of facts as it alleges them to be, and the
movant shall file a brief and counter statement of facts
no later than three days before the hearing."

[State v. Green, 346 N.J. Super. 87, 90 (App. Div.
2001) (quoting R. 3:5-7(c)).]

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However, "[i]t is only when the defendant's counter statement places material

facts in dispute that an evidentiary hearing is required." Id. at 90-91 (citing

State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J.

Super. 360 (App. Div. 1981)).

"The mere allegation of a warrantless search, with the attendant burden

of proof on the State to justify same, does not place material issues in dispute,

nor does defendant's assertion that he denies the truth of the State's

allegations." Id. at 91. Indeed, the moving papers should be "sufficiently

definite, specific, detailed, and nonconjectural to enable the court to conclude

that contested issues of fact going to the validity of the search are in question."

Hewins, 166 N.J. Super. at 215 (quoting United States v. Ledesma, 499 F.2d

36, 39 (9th Cir. 1974)); see also State v. Kadonsky, 288 N.J. Super. 41, 46

(App. Div. 1996) ("In the absence of factual allegations to support the claim

that the search and seizure were illegal, a hearing was not required and the

motion to suppress was properly denied.").

Here, at the hearing on defendant's motion to suppress the handgun and

cocaine seized at the time of his arrest, the motion judge correctly posited that

"the threshold issue [was whether] there [was] a genuine issue of material fact

warranting a[n evidentiary] hearing." The judge elaborated that in order "[t]o

raise such material fact," defendant "provided a certification" and "a best

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efforts at a transcript of the [central] dispatch" tape. In the certification,

defendant stated:

I was stopped allegedly because I . . . was observed
while urinating in the alleyway. Police claimed they
saw a handgun in my waistband. The incident report
states that the police came into contact based upon an
anonymous tip; however, I reviewed the radio dispatch
recordings for the police communications surrounding
the event of my crime. There's no mention of an
anonymous tip specifically being observed in the
alleyway.

The judge determined an evidentiary hearing was not warranted because

there were no material facts in dispute, and the motion could therefore "be

decided on the papers and [defendant's] certification." The judge explained

that because "the dispatch recording [was] neither intended, nor . . . practically

function[ed as] . . . a memorialization of the entirety of an investigation, . . .

the fact that nothing . . . referenc[ed] the anonymous tip [was] of no moment

and [did] not contribute to the existence of a material fact." The judge

continued that "[t]he reference to the [confidential informant (CI)]" was "also

irrelevant because the . . . CI [was] referenced only to place the officers at the

physical location" where "they made observations which [were] set forth in the

report of [defendant] urinating" and exposing "the butt of a handgun."

The judge denied defendant's motion, concluding the State sustained its

burden of establishing the applicable exceptions to the warrant requirement to

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prove the legality of the searches. According to the judge, the plain view

exception applied because the detectives, who were "experienced" in

identifying handguns, were "lawfully in the viewing area" when they

inadvertently observed the handgun in defendant's waistband. See State v.

Gonzales, 227 N.J. 77, 101 (2016) ("Under the plain-view doctrine, the

constitutional limiting principle is that the officer must lawfully be in the area

where he observed and seized the . . . contraband, and it must be immediately

apparent that the seized item is evidence of a crime.").

The judge also found that the search incident to arrest exception applied

because the contraband was seized from defendant's person following a lawful

arrest. See State v. Oyenusi, 387 N.J. Super. 146, 153 (App. Div. 2006)

("[W]hen the police arrest a suspect, they may conduct a search of his 'person

and the area "within his immediate control"—construing that phrase to mean

the area from within which he might gain possession of a weapon or

destructible evidence.'" (quoting Chimel v. California, 395 U.S. 752, 763

(1969))). The judge's findings are amply supported by the record and his legal

conclusions are sound. See State v. Elders, 192 N.J. 224, 245 (2007) (applying

a "deferential standard of review to the motion judge's findings"). Aside from

disputing the anonymous tip which had no relevance to the detectives' plain

view observations, defendant provided no facts in his written submission to

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place material issues in dispute. Accordingly, the judge did not err in

adjudicating defendant's suppression motion without an evidentiary hearing.

VI.

Finally, in Point V, defendant argues even if we find no individual errors

warranting reversal, the "cumulative effect" of the individual errors "cast

sufficient doubt upon the verdict to warrant reversal." See State v. Jenewicz,

193 N.J. 440, 473 (2008) ("We have recognized in the past that even when an

individual error or series of errors does not rise to reversible error, when

considered in combination, their cumulative effect can cast sufficient doubt on

a verdict to require reversal."). However, because we conclude there were no

reversible errors, defendant's cumulative error argument must also fail.

Affirmed.

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