The opinion of the court was delivered by: Long, J.
On certification to the Superior Court, Appellate Division.
This appeal concerns N.J.S.A. 2C:35-19, a "notice and demand" statute that provides that upon the satisfaction of certain requirements, a laboratory certificate may be admitted into evidence in a drug case without the presence of the laboratory employee. More particularly, we are called on to determine whether the trial court denied defendant, Timothy Miller, his rights under that statute and under the Constitution when it admitted a laboratory certificate over his objection.
In 1997, Timothy Miller was arrested for a drug offense. A certified laboratory report (lab certificate), issued by the State Police Forensic Science Bureau, concluded that the item seized from Miller was cocaine. Miller was subsequently charged by indictment with one count of third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35- 10a(1).
On May 29, 1998, Monmouth County Assistant Prosecutor Thomas J. Catley notified Miller's counsel, Adam Weisberg, by letter that the Prosecutor intended to proffer the lab certificate at trial pursuant to N.J.S.A. 2C:35-19c in place of producing a witness. A copy of the certificate was attached to the letter but none of the data underlying it was included.
On the same date, Weisberg wrote to Catley:
Pursuant to N.J.S.A. 2C:35-19(c), and in reply to your Notice of Intention to Rely on the Laboratory Certificate, please be advised that this office objects to the admissibility of said certificate. The reason for said objection is that the certificate fails to address the nature and the condition of the equipment used in the analysis. Since the nature and the condition of the equipment used is unknown, it is likely that the analysis of the composition, quality and quantity of the substance submitted to the laboratory may be inaccurate, and may be contested at trial.
Based on the foregoing objection, kindly advise the undersigned as to whether the State will request a Pretrial Hearing two (2) days before the trial, or will present the laboratory employee at the time of trial.
A copy of that letter also was forwarded to the trial court.
Weisberg never received a direct response to his letter. However, the Prosecutor's Office did forward to him the name of the laboratory employee along with her curriculum vitae, an action that led him to believe that the State intended to call the lab employee as a trial witness as he had requested.
At trial, the State sought to introduce the lab certificate into evidence. Weisberg objected. Because the state had failed to respond to his demand letter or to ask for a hearing, he argued that the certificate was inadmissible under State v. Kittrell, 279 N.J. Super. 225 (App. Div. 1995).
In response, the Assistant Prosecutor also claimed surprise:
Judge, that letter from Mr. Weisberg that he, referred to objecting to the lab series [is] not contained in my file [and] I do not know whether my office has ever received it. There is no indication in my file that my office has ever received it which is why it was never responded to.
I was relying on the fact that it was not responded to which is why I did not call the chemist who I was in touch with this morning and was available to testify but I was completely unaware and completely surprised that this letter is now in existence. [Emphasis added.]
At a hearing outside the presence of the jury that focused on notice, an Assistant Prosecutor testified that "said notice is not contained in our case file. It is not in any of our filed correspondence on the trial team for either Judge Kennedy or Judge Labrecque. Beyond that, I can't speculate what happened to it...."
Weisberg's secretary, Loretta Petrone, specifically recalled mailing the demand letter, inscribed with the Prosecutor's file number and the Indictment number, on May 29, 1998, with a copy to the court. She also acknowledged that it was the policy of her office to object to the admission of any lab certificate that was not accompanied by underlying reports and data. Ms. Petrone further indicated that the letter to the Prosecutor had not been returned by the post office.
After noting that it had received a copy of Weisberg's letter and that it found the testimony of both the Assistant Prosecutor and Petrone to be credible, the court allowed the lab certificate to be admitted without a hearing:
In this case I'm satisfied that the notice both was sent but was not received and was not contained in the prosecutor's file. Therefore, the State would not have been put on notice that this evidentiary issue was still at large, so as to ensure that either the preliminary hearing would take place or that the State would have a witness available to testify as to the accuracy of the test, what equipment was used, reliability of the certificate etc., etc.,. Also, no mention of such pretrial issue was set forth in the plea cutoff order marked as C-2. If it was[,] the State once again could have been on notice of the requirement for preliminary hearing or at least the necessity of having a witness available here for trial to testify as to the disputed reliability. No application to amend the pretrial or the plea cutoff order was made.
Number two, State v. Kittrell, the statute and other case law I've seen require the defendant to make more than just a vague and ambiguous objection to the admissibility of the certificate. In State in the Interest of J.H., 244 N.J. Super. 207 [(App. Div. 1990)], the Appellate Division upheld the constitutionality of N.J.S.A. 2C:35-19 and held that "if defendant does object, he must state specific grounds of objections under the criteria of admissibility set forth in State v. Matulewicz, [101 N.J. 27 (1985)]." I do not find the defendant's, admittedly, standard letter of objections met this criteria of specificity.
The jury convicted Miller of possession of cocaine. His motion for a new trial based on the erroneous admission of the certificate was denied. He was sentenced to a custodial term and appealed.
The Appellate Division affirmed, on the basis that N.J.S.A. 2C:35-19c requires that the party contesting the admission of a lab certificate demonstrate that there is a "bona fide challenge to the composition, quality or quantity of the substance." Furthermore, the court observed that "unless specific grounds for objection are shown to exist, the laboratory certificate shall be admitted. No such showing was made here." Ibid. (citations omitted). The panel also concluded that even if it was error to admit the laboratory certificate in lieu of live testimony without a hearing, the error was harmless under Rule 2:10-2.
We granted certification limited to the issue of the trial court's admission of the laboratory certificate into evidence, 168 N.J. 290 (2001), and allowed the Attorney General to participate as amicus curiae. We now reverse.
Miller argues that his objection letter was adequate and timely filed; that its effect was to put the state on notice that it needed to produce the lab employee for trial or prove at a hearing why the certificate would suffice; and that the trial court's order allowing the admission of the lab certificate over his objection denied him his Sixth Amendment right to confront the witnesses against him. The state counters that where there is a challenge to the admissibility of a lab certificate, it is the challenging party who must make a ...