November 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUCKY HARRIS, A/K/A LARRY SCHUMACHER, A/K/A LUCK, A/K/A LUCKY MCGEE HARRIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 93-05-0170.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Cuff and Simonelli.
A jury convicted defendant of third degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count one); and third degree altering a motor vehicle identification number (VIN) in his possession for the unlawful purpose of re-plating another motor vehicle, contrary to N.J.S.A. 2C:17-6 (count two). The trial judge sentenced defendant to five years imprisonment with a two and one-half year period of parole ineligibility on count one and a concurrent five years with a two and one-half year period of parole ineligibility on count two. The trial judge also imposed the appropriate assessments.
On appeal, defendant presents the following issues:
THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS, A FAIR JURY TRIAL, AND THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OTHER-CRIMES EVIDENCE WAS DIRECTLY PRESENTED TO THE JURY BY DEFENDANT'S OWN COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PARA. 1, 10. (NOT RAISED BELOW)
THE COURT COMMITTED REVERSIBLE ERROR IN ADMITTING NCIC [NATIONAL CRIME INFORMATION CENTER] RECORDS PURSUANT TO N.J.R.E. 803(c)6.
THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE VERDICT. (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A GROSSLY DISPROPORTIONATE MAXIMUM TERM.
Defendant owned and operated an auto repair business known as "Larry's Auto Repair" (Larry's) located at 1 Oyster Road, Burleigh (the Property). He leased the first two garage bays located on the Property from January to December 1992.*fn1
On July 6, 1992, detectives and police officers from the Middle Township Police Department executed a search warrant at the Property, the object of which was an alleged stolen "black Wrangler or Renegade type Jeep." They also had a warrant for defendant's arrest. Detective Gregg Taylor entered the first two garage bays and observed three vehicles, including one which had a "big . . . brown carpet over top of what you could see partially, a Jeep underneath it." After the carpet was removed, Taylor discovered a 1992 American Motors Jeep (Jeep), which was in excellent condition and had no license plates.
Detective Michael Parmenter read aloud to Taylor the VIN for the Jeep. Parmenter then made a NCIC inquiry, which revealed the Jeep had been reported stolen to New York City police before April 3, 1992.
While Parmenter was making NCIC inquiries on the other vehicles, Taylor and Patrol Officer Paul Loefflad observed defendant drive up to the Property and "abruptly [pull] out of the driveway and [proceed] west on Oyster Road." Loefflad and Detective Mark Devicco apprehended defendant about two miles from the Property, arrested him and brought him back to the Property. After Taylor issued defendant his Miranda*fn2 warnings, defendant agreed to speak to him. Defendant explained how he came into possession of the Jeep and denied it was stolen.
Defendant periodically stored cars on property owned by one of his workers, Walter Wimley. Defendant asked Wimley sometime in 1990 if he could store a 1998 Mercedes Benz, model 560SL (Mercedes), on Wimley's property. On November 25, 1992, Taylor and Detective Sergeant Blake Moore went to Wimley's property and found the Mercedes with no plates or radio. A NCIC inquiry revealed the Mercedes had been reported stolen to the New York City Police.
Defendant claimed he followed his wife to Wimley's property to drop off the Mercedes because she wanted to keep it there while she was on vacation. Defendant also claimed his wife drove the Mercedes; he never drove it; he did not know where she got it from or who owned it; he never worked on it or attempted to sell it; and he and his wife separated in about August 1992.
At the trial, the trial judge admitted the NCIC records into evidence. The jury found defendant guilty of receiving the stolen Jeep and Mercedes.
Defendant contends, and the State concedes, the trial judge committed reversible error by admitting the NCIC records into evidence. We agree.
The State sought to introduce the NCIC records into evidence over defendant's objection. Parmenter, the State's sole witness on this issue, testified about the meaning of certain acronyms and numbers on the NCIC reports and NCIC's protocol requiring the person entering the information to be either a police officer or other government official. He also testified the input method of the NCIC was universal throughout the United States. Based upon this testimony, the trial judge admitted the NCIC records into evidence as business and public records.
The NCIC reports are hearsay. N.J.R.E. 801(a) and (c). Therefore, they could only be admitted under an exception to the hearsay rule. N.J.R.E. 802. N.J.R.E. 803(c)(6) provides a business records exception:
A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, 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 and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
However, for the NCIC records to be admissible as business records under N.J.R.E. 803(c)(6), foundational testimony must establish: (a) "how and when the information furnished by the owner . . . was passed . . . to the . . . police"; (b) "how and who fed the information into the computer"; (c) "who programmed the computer and how it was done"; (d) "how the data was retrieved from the computer"; and (e) "the accuracy of those who operated the computer." State v. McGee, 131 N.J. Super. 292, 298 (App. Div. 1974); see also State v. Underwood, 286 N.J. Super. 129, 139 (App. Div. 1995) (NCIC records were inadmissible because the State could not establish how the information was furnished by the owner to the police.). Here, Parmenter did not provide the foundational testimony necessary to admit the NCIC records as business records.
In addition, N.J.R.E. 803(c)(8) provides a public records exception:
(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 is 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 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.
Here, Parmenter did not present any testimony as to who in New York filed the original police reports or inputted the stolen car information into the NCIC system. Even if he was correct that NCIC's input method is universal, he presented no testimony about who in New York was responsible for that input.
Accordingly, the NCIC records should not have been admitted into evidence as business or public records. Their admission, therefore, constitutes harmful error and sufficient grounds for reversal. R. 2:10-2.
Due to this disposition, we need not address the remaining issues presented by defendant.