On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-12-1699.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Axelrad, Fisher and Sapp-Peterson.
We review a conviction based on the mistaken admission of a material witness's videotaped deposition. The deposed witness was only absent from the State; he was not "unable to testify because of death or physical or mental incapacity," as required by Rule 3:13-2(c). Even though defense counsel failed to object to this misapplication of Rule 3:13-2(c), we reverse and remand for a new trial because the admission of the deposition was clearly capable of producing an unjust result.
Defendant was indicted and charged with a number of weapons offenses. Prior to trial, the State indicated its intention to seek a conviction only on a single count of second-degree possession of a weapon by a person not so permitted, N.J.S.A. 2C:39-7.
At trial, the State offered the deposition testimony of Ofptop Khan,*fn1 who worked at the Kennedy Fried Chicken store in Paterson. The deposition was videotaped a few months prior to the impaneling of a jury. The judge presided over the deposition, defendant was present and defense counsel cross-examined Khan at length.
Khan testified in his deposition that during the early morning hours of September 4, 2004, defendant approached the rotating window and requested a cheeseburger. When Khan responded that the grill was closed, defendant displayed a handgun and knocked on the window with it. Khan offered defendant a beverage and placed it in the rotating window, whereupon defendant placed the handgun in the rotating window and spun it with sufficient force as to cause the weapon to fall to the floor of the store. Defendant then made threatening statements and told Khan to hold the weapon for him. Khan threw it into a nearby cardboard box. This deposition testimony represented the only direct evidence that defendant was in possession of a handgun, an essential element of the offense charged.
The only live witnesses were the investigating police officers. Officer Jose Torres testified that, in response to an anonymous call, he arrived at the chicken store at approximately the same time of the events that took place between defendant and Khan. Officer Torres arrived in a police vehicle, with his overhead lights on, and as he arrived, he saw defendant walking in his direction. According to Officer Torres, when defendant saw him he returned to the store and shoved a dark object into the rotating window. Upon questioning Khan as to what was passed through the window, Khan advised the officer that defendant just placed change in the window; he did not tell Officer Torres that a weapon was passed through the window or that the weapon remained in the store.
Officer Torres left, but soon thereafter received a radio dispatch about a handgun being passed to the store clerk. He returned and this time, upon further questioning, Khan acknowledged that defendant had previously passed a handgun through the window. Khan gave the officer a description of defendant and also showed him where the weapon was. Officer Torres retrieved a loaded nine-millimeter Lugar P-89 handgun. Defendant, who was still outside the store with other suspects, was arrested.
A search of defendant's person uncovered four nine millimeter bullets. In searching the area, another officer found a spent nine millimeter round approximately twenty-five feet from the store.
Defendant was convicted of being a person not permitted to be in possession of a handgun, N.J.S.A. 2C:39-7, at the conclusion of a five-day trial. Following an unsuccessful motion for a new trial, defendant was sentenced to a seven-year prison term with a five-year period of parole ineligibility.
Defendant appealed, raising the following arguments:
I. THE TRIAL COURT ERRED WHEN IT PERMITT[ED] MR. KHAN TO TESTIFY VIA VIDEOTAPE DEPOSITION ...