NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2097-12T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, September 10, 2015 v. APPELLATE DIVISION

DESHAUN P. WILSON,

Defendant-Appellant. ___________________________________________

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.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

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, N.J.S.A. 2C:35-10(a)(1) (count

one); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

(b)(3) (count two); and second-degree possession of a controlled

dangerous substance with intent to distribute within 500 feet of

a public park, N.J.S.A. 2C:35-7.1 (count three). Following an

evidentiary hearing, the judge denied defendant's pre-trial

motion to suppress evidence seized during a warrantless search.

Defendant proceeded to trial before a different judge, but, a

mistrial was declared when the jury was unable to reach a

unanimous verdict.1

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:

1 The record originally did not contain transcripts from this trial, nor did the parties directly discuss the first trial in their briefs. We ordered the transcripts since defendant has raised arguments that necessarily implicate testimony at the first trial.

2 A-2097-12T4 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

3 A-2097-12T4 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.

4 A-2097-12T4 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 gave the men a small object.

Fifteen minutes later, defendant was approached by a female, and

Szpond observed similar activity. Other officers were called to

5 A-2097-12T4 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 placed 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 to arrest defendant. The judge held that

defendant lacked any possessory interest in the drainpipe, and

he "could not have had a subjective expectation of privacy as he

could not expect that the zip-loc bag and its contents would be

safe from detection in this area."

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

2 During his trial testimony, Szpond claimed some drugs were in the drainpipe and some were not.

6 A-2097-12T4 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,

(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 knew

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,

(2013). In this regard, our

constitution "requires only that an expectation of privacy be

reasonable."

at 236 (quoting State v. Hempele,

(1990)) (internal quotation marks omitted). However,

our courts "have recognized circumstances in which no reasonable

7 A-2097-12T4 expectation of privacy can be found, notwithstanding the

residential setting of the police activity."

(citations

omitted); see also State v. Gibson,

(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,

(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.

. After arrests were made, an officer retrieved a bag

containing cocaine from the side of the house.

.

We held that the "defendants['] privacy rights in the

contraband had already been forfeited."

. 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

8 A-2097-12T4 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

3 We have noted that motions for reconsideration are not expressly provided for by Part III of the Rules of Court governing practice in the criminal courts, but we have nevertheless applied the standards contained in Rule 4:49-2 to such applications. State v. Fitzsimmons,

(App. Div. 1995), certif. granted, and remanded,

(1996). Under that Court Rule, motions for reconsideration are addressed to "the sound discretion of the Court, to be (continued)

9 A-2097-12T4 The general rule that a "defendant cannot 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,

(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,

(App. Div.), certif. denied,

(1971); see also State v. K.P.S.,

(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."

.

Any inconsistencies and discrepancies between the officers'

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,

(App. Div. 1996) (quoting D'Atria v. D'Atria,

(Ch. Div. 1990)) (internal quotation marks omitted).

10 A-2097-12T4 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 N.J.S.A. 2C:35-

7.1(e), Detective Brendan Sullivan of the Union County

Prosecutor's Office testified that the location where the drug

transactions occurred was within 500 feet of a public park.

Detective Gary Webb testified as an expert in narcotics

transactions. The State also called a masonry contractor who

testified regarding work done on the house near the drainpipe.

Defendant presented the testimony of Edward Fitzgerald, an

investigator who visited and photographed the alleyway and the

general area of the transactions. Fitzgerald's testimony

impeached that of the officers regarding their ability to

observe what defendant was doing at the end of the alley.

[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.]

11 A-2097-12T4 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

12 A-2097-12T4 Confrontation Clause of the United States and New Jersey

Constitutions. See U.S. Const. amend. VI; N.J. Const. art, I, ¶

10) (recognizing a criminal defendant's right "to be confronted

with the witnesses against him").4 The State counters by arguing

that, pursuant to N.J.S.A. 2C:35-7.1(e), the map was admissible

as a business or government record, N.J.R.E. 803(c)(6); N.J.R.E.

803(c)(8), was properly authenticated pursuant to N.J.R.E. 902

and, for purposes of the Confrontation Clause, was not

"testimonial."

A.

N.J.S.A. 2C:35-7.1(a) provides:

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 . . . .

4 At trial, defense counsel never clearly articulated an argument under the Confrontation Clause, although he alluded to an inability to cross-examine the individual who had made the measurements. Since the trial in this case, our Court has held that a Confrontation Clause argument not advanced at trial may be deemed waived on appeal. See State v. Williams,

(2014) (holding that the "defendant's failure to object on confrontation grounds and his decision to cross-examine the [witness] constituted a waiver of his confrontation right"). However, whether admission of a drug-zone map violates the Confrontation Clause has been the subject of at least five unpublished opinions of our court, and therefore we conclude that the issue needs to be addressed in a published opinion.

13 A-2097-12T4 The purpose of the statute, and N.J.S.A. 2C:35-7,

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 mandated severe punishment for those who possess or distribute drugs in the safety zones established by those statutes.

[State v. Lewis,

(2005).]

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,

(App. Div. 2004); see also State v. Ogar,

(App. Div. 1989) (rejecting constitutional vagueness

challenge to N.J.S.A. 2C:35-7).

N.J.S.A. 2C:35-7.1(e) provides in pertinent part:

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 evidence 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

14 A-2097-12T4 facility, a public park, or a public building . . . .

[N.J.S.A. 2C:35-7.1(e); see also N.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,

(App. Div. 1993). Such maps are "self-

authenticati[ng]" pursuant to N.J.R.E. 902, which provides,

"[e]xtrinsic evidence of authenticity as a condition precedent

to admissibility is not required with respect to . . . [a]ny

. . . document . . . declared by state . . . law to be

presumptively or prima facie genuine or authentic."

Statutes like N.J.S.A. 2C:35-7 and 2C:35-7.1 that impose

enhanced penalties for acts committed within specified distances

from schools, playgrounds, public parks, and other areas are

common throughout the country, and generally the

constitutionality of these statutes has been upheld. See Tracy

A. Bateman, Annotation, Validity, Construction, and Application

of State Statutes Prohibiting Sale or Possession of Controlled

Substances Within Specified Distance of Schools,

(1995); Jay M. Zitter, Annotation, Validity, Construction,

and Application of State Statutes Enhancing Penalty for Sale or

15 A-2097-12T4 Possession of Controlled Substances Within Specified Distance of

Playgrounds,

(2007); see also William G.

Phelps, Validity and construction of

enhancing

penalty for drug distribution if offense occurs within 1,000

feet of school, college, or university,

(2008) (discussing enhanced penalties under federal law).

However, statutory provisions that allow a governmental entity

to generate and adopt an official map depicting the location and

boundaries of the specified areas, and provide for the admission

of that map as "prima facie evidence of the location and

boundaries of those areas," are far less common.

Our research uncovered similar statutory provisions only in

Texas, Tex. Health & Safety Code Ann § 481.135; Tex. Penal Code

§§ 46.12, and 71.029, Georgia,

(e) and

Washington, Wash. Rev. Code. § 69.50.435(5), and no reported

case from those jurisdictions addresses whether admission of an

official map, generated pursuant to these statutory provisions,

violates a defendant's Sixth Amendment rights.

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,

(Wash. Ct. App.), review denied,

(2014).

In Pearson, the defendant was tried for selling drugs within

16 A-2097-12T4 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

Wash. Rev Code. § 69.50.435. Id. at 1287-88. Instead, the

county's director of Geographic Information Systems (GIS), which

maintained "a digital legal map library for the county and all

its departments," testified at trial. Id. at 1286. The witness

explained that GIS would receive information supplied by the

local school districts, including the location of bus stops.

Id. at 1286-87. For the defendant's trial, GIS "created a map,"

using the location of the drug sale "as the center point and

depicting a 1,000 foot radius around that center point," with

the reported bus stop locations also depicted. Id. at 1287.

The Pearson court noted that while Washington's statute

specifically allowed for the use of an unofficial map that was

"otherwise admissible," "the map [here] [wa]s not otherwise

admissible." Id. at 1288. Citing Crawford v. Washington,

,

,

(2004), and Melendez-Diaz v. Massachusetts,

, 310-

11,

,

(2009), the

court held that the map fell "within the core class of

testimonial statements," and that defendant "had a right to

17 A-2097-12T4 confront the school district official" who provided information

regarding the location of the school bus stops. Id. at 1288.

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 N.J.S.A. 2C:35-

7(f) or N.J.S.A. 2C:35-7.1(e).

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."

,

,

(quoting Ohio v. Roberts,

,

,

(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: confrontation."

,

,

18 A-2097-12T4

(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.

, S. Ct. at

1374,

. 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.

"[T]he question of whether a hearsay statement is

testimonial or nontestimonial defies facile definition." State

v. Buda,

(2008). Quoting Crawford, our Court

has said that testimonial statements are those in which

"witnesses bear testimony against the accused." State v.

Cabbell,

(2011) (emphasis added) (quoting

,

,

). In Davis v. Washington,

,

,

(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

19 A-2097-12T4 to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively 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. ___, ___,

,

(2015) (quoting Michigan v. Bryant,

,

,

(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 Clause.'"

(quoting

,

,

).

"Our state confrontation jurisprudence has followed the

federal approach, focusing on whether a statement is

testimonial[,]" State v. Roach,

(2014), cert.

denied, ___ U.S. ___,

,

(2015),

20 A-2097-12T4 through application of the "primary purpose test." State v.

Michaels,

, cert. denied, ___ U.S. ___,

,

(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,

, cert. denied,

,

,

(2008). If so, the

next inquiry is "whether the particular evidence is

'testimonial' within the meaning of the Confrontation Clause,

for if it is, then the fact of admissibility for purposes of the

exceptions to the hearsay rules is insufficient" to warrant

admission absent cross-examination. Id. at 138-39; see also

State v. Sweet,

(2008).

Crawford, 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

Confrontation Clause to similar scenarios, resulting in settled,

albeit fact-sensitive, precedent. See, e.g., State ex rel.

J.A.,

(2008) (non-testifying witness's

statements to police were testimonial and their admission under

the circumstances violated the Confrontation Clause);

(holding child's statements to his

21 A-2097-12T4 mother and a DYFS worker were nontestimonial). However, the

Confrontation Clause's application to statements contained in

documentary evidence has stirred muddier waters.

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."

,

,

. However, in a subsequent trilogy of

cases involving forensic testing reports, that ratio decidendi

has been obscured.

In Melendez-Diaz, supra,

,

,

, a five-four decision, the Court

concluded that certificates 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 records, the analysts' statements here —

22 A-2097-12T4 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,

(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."

, 129 S. Ct. at

2543,

(Kennedy, J., dissenting) (emphasis

added).

In Bullcoming v. New Mexico, ___ U.S. ___, ___,

,

(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 Confrontation Clause.

Although the state produced a witness who was generally familiar

with laboratory procedures, testing and reports, the Court

concluded that "the formalities attending the" report qualified

the preparer's "assertions as testimonial."

at ____, 131 S.

Ct. at 2717,

. Justice Kennedy, again

writing for the dissent, argued that the Confrontation Clause

did not "impose a constitutional bar on the admission of

23 A-2097-12T4 impartial lab reports . . . prepared by experienced technicians

. . . that follow professional norms and scientific protocols."

at ____, 131 S. Ct. at 2726,

(Kennedy,

J., dissenting).

Lastly, in Williams v. Illinois, ___ U.S. ___,

,

(2012), the majority of the Supreme Court

concluded there was no Confrontation Clause violation when a

testifying expert witness referenced a DNA report prepared by an

outside laboratory, from which no witness was produced. In his

plurality opinion, Justice Alito wrote that the report was not

testimonial, in part, because it "was not prepared for the

primary purpose of accusing a targeted individual." Williams,

supra, ___ U.S. at ___,

,

.

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."

. 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

Sixth Amendment was not violated by admission at trial of a

24 A-2097-12T4 certified lab report indicating defendant's blood sample tested

positive for intoxicating substances, even though only the

supervising analyst who had performed the test was the only

witness at trial. In Roach, supra,

, the Court

held the defendant's confrontation rights were not violated even

though the testifying DNA analyst "did not perform the testing

procedures that provided the basis for the DNA profile developed

from the perpetrator's evidence," but only reviewed those tests

and "matched" the defendant's DNA with that gathered from the

crime scene.

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.

. Here, of

course, no witness testified regarding preparation of the park-

zone map or how its measurements were made.

Our Court has wrestled with Confrontation Clause issues

involving admission of purely documentary evidence both before

and since Crawford was decided. In State v. Simbara,

A-2097-12T4 37, 40 (2002), our Court considered the Confrontation Clause

implications of N.J.S.A. 2C:35-19(b), which permits the

admission in evidence of a laboratory certification, very much

like the one at issue in Diaz-Melendez, without live testimony.

The Court concluded that "[t]he State's proffer of a certificate

whose form and content conform to the statute does not itself

preclude a defendant's right to confront the certificate's

preparer at trial." Id. at 48. The Court explained:

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 government'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

N.J.S.A. 2A:62A-11,5 finding in both instances that the document

5 That statute provides:

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 (continued)

26 A-2097-12T4 was "testimonial" and triggered rights under the Confrontation

Clause. State v. Kent,

(App. Div.

2007); State v. Renshaw,

(App. Div.

2007).

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,

, 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."

. As to

the foundational documents, the Court said they were "business

records in the traditional sense."

. Their admission

did not violate the Confrontation Clause because, although some

were "prepared by the police, . . . none of them relate[d] to or

report[ed] a past fact and none of them [was] generated or

prepared in order to establish any fact that is an element of

the offense."

at 144 (citing

-

24,

,

). The

(continued) certificate shall be signed under oath before a notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence of the statements contained therein.

[N.J.S.A. 2A:62A-11.]

27 A-2097-12T4 foundational documents were not "testimonial in the

constitutional sense." Ibid.; see also

(reaching same conclusion regarding breathalyzer

foundational documents).

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,

.]

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 operator of

the device be made available to testify."

.

We turn to the map at issue in this case, a piece of

documentary evidence not readily amenable to Confrontation

Clause analysis.

28 A-2097-12T4 C.

It is beyond peradventure, and defendant does not contend

otherwise, that the map "is admissible under the ordinary rules

of evidence."

; see N.J.R.E. 803(c)(8).6 We

acknowledge defendant's essential argument, however, that the

map is "testimonial" because its primary, and perhaps only,

purpose is to establish a fact that the State must prove as an

element of the crime charged, i.e., in this case, that a

particular location is within five-hundred feet of Legget Park.

In this sense, the map is "an out-of-court substitute for trial

testimony."

,

,

.

6 The rule excepts from exclusion under the hearsay rule:

(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).]

29 A-2097-12T4 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 Confrontation Clause analysis cannot

turn on whether a defendant is able to introduce evidence to

"challenge or verify" the testimonial statement.

,

,

. However, unlike out-of-court verbal statements made

by unavailable witnesses, or laboratory analysis conducted in

the past and perhaps unable to be replicated at the time of

trial, defendant is peculiarly capable of refuting the State's

proof regarding the map, because defendant may conduct his own

measurements and introduce them at trial.

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,

30 A-2097-12T4 ___ U.S. at ___,

,

(DNA

lab report prepared by non-testifying lab technician "was not

prepared for the primary purpose of accusing a targeted

individual"), with

,

,

(lab certificate "prepared

specifically for use at petitioner's trial" was "testimony

against petitioner . . . subject to confrontation under the

Sixth Amendment"); see also

,

,

) (Confrontation Clause

barred formal statement taken by police of non-testifying

"witness[] against the accused" (internal quotation marks

omitted)); and compare Simbara, supra, 175 N.J. at 49 ("[T]he

analyst prepares the laboratory certificate at a prosecuting

agency's request for the sole purpose of investigating an

accused.") (emphasis added), with State v. Dorman,

(App. Div. 2007), aff'd sub nom.,

(2008), cert. denied,

,

,

(2009) (noting that Breathalyzer

"certificates of operability . . . were not created with any

specific case in mind").

The map in this case was not prepared to prosecute this

defendant, although it likely served no purpose except to be

evidence at the prosecution of a defendant. In this regard, we

31 A-2097-12T4 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."

. A number of out-of-

state cases have similarly concluded that the admission of

documentary hearsay evidence not generated in relation to a

specific defendant did not violate the Confrontation Clause.

See, e.g., State v. Fischer,

(Neb. 2007)

(holding a simulator solution certificate that "was prepared in

a routine manner without regard to whether the certification

related to any particular defendant" non-testimonial); State v.

Dial,

, 825-26 (Ohio Ct. App. 2013)

(distinguishing cases involving a defendant's "individual blood-

test results" from documents related to machine calibration,

which are "not prepared with an eye to prosecute a specific

defendant"); Jarrell v. State,

(Ind. Ct. App. 2006) (holding breath-test-machine certifications

nontestimonial because "not prepared in anticipation of

litigation in any particular case or with respect to implicating

any specific defendant").

We find these cases, together with the Court's reasoning in

Chun, to be particularly persuasive in this instance. The park-

32 A-2097-12T4 zone map, although hearsay, was not testimonial in nature, and

therefore did not violate the Confrontation Clause.

Additionally, it was admitted in a manner that complied with our

Evidence Rules and N.J.S.A. 2C:35-7.1(e).

[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.

33 A-2097-12T4