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State v. Malsbury

Decided: August 24, 1982.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ROBERT S. MALSBURY, DEFENDANT-APPELLANT



Gottlieb, J.J.D.R.C. (temporarily assigned).

Gottlieb

This appeal of two municipal court convictions concerns the reception into evidence of a report by the Burlington County Forensic Science Laboratory, under Evid.R. 63(15), without an appearance in court by the chemist from the laboratory.

Defendant Robert S. Malsbury was convicted in the Bordentown Township Municipal Court of violations of N.J.S.A. 2C:29-2b (attempting to elude a police officer in a motor vehicle), N.J.S.A. 24:21-20a(4) (unlawful possession of less than 26 grams of marihuana) and N.J.S.A. 39:4-97 (careless driving). He has appealed the first two convictions to this court under R. 3:23.

Only one witness, Trooper John Silver, testified at the hearing. He indicated that on March 4, 1982, while on routine patrol on Route 130 in the township, he saw a white Ford make an unsafe lane change. The trooper pursued the vehicle. The Ford made a left turn onto Burlington Street, followed by the officer's vehicle. Trooper Silver activated his overhead lights and attempted to pull the Ford over to the side of the road. The witness noticed the operator of the Ford look into his rear-view mirror and throw a lighted cigarette out of the window. The operator then emptied the contents -- a greenish brown vegetation -- of five bags out of the window, as well as the bags themselves. Finding a safe place to pass, the trooper forced the Ford to the side of the road. Trooper Silver exited his vehicle and approached the Ford. He observed some of the greenish brown vegetation all over the fur-collared coat defendant was wearing, as well as being strewn throughout the interior of the car. The trooper collected these vegetative remains, which he sealed in two packages and had sent to the laboratory. A report was made by the laboratory indicating that the contents of the two bags were positive for marijuana, totalling 1.63 grams in weight. The report was received into evidence, pursuant to Evid.R. 63(15), despite defense counsel's objection.

There were four reasons given for the objection: (a) a copy of the report had not been provided to counsel in his pretrial request for discovery; (b) "there hasn't been a proper foundation laid"; (c) the testing of a substance for marijuana was too complicated a procedure to be accepted by way of report rather than through the testimony of a laboratory chemist and (d) the report was inappropriately received under the evidence rule. In addition, at oral argument on the appeal defense counsel asserted that the laboratory chemist was not a public official under Evid.R. 62(3) and, further, that the rule, as applied, denied defendant his confrontational rights.

An examination of these arguments must begin with an analysis of Evid.R. 63(15).

Evid.R. 63(15), captioned "Reports and Findings of Public Officials," provides:

Subject to Rule 64, a statement is admissible if it is in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his 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 made by a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

Obviously, it is subpart (a) of the rule which is applicable, if at all.

The rule commences its statement in a provisory manner: "Subject to Rule 64. . . ." This latter rule gives the court discretion to exclude a written statement at trial if the proponent did not advise the adverse party of an intention to offer the writing sufficiently in advance so as to provide that adverse party "with a fair opportunity to prepare to meet it."

Assuming no impediment under the conditional phrase, the rule authorizes the reception into evidence (as an exception to the general hearsay proscription of Evid.R. 63) of "a written statement of . . . [a] condition . . . observed. . . ." The Evidence Rules provide no definition of the word ...


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