On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FJ-08-761-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Simonelli.
Appellant S.R. appeals from the order of disposition entered by the Family Part on June 11, 2008, adjudicating him delinquent on certain charges, and imposing a disposition of supervisory probation for a period of eighteen months subject to certain conditions. We affirm S.R.'s delinquency adjudication but vacate the order of disposition and remand for a new dispositional hearing.
On November 20, 2007, S.R. was charged with committing acts which, if committed by an adult, would constitute third-degree burglary, N.J.S.A. 2C:18-2a; theft, N.J.S.A. 2C:20-3, a disorderly persons offense; and fourth-degree criminal mischief, N.J.S.A. 2C:17-3. The charges stemmed from the 4:00 a.m. burglary of a convenience store in Woodbury. The store's security cameras videoed the perpetrators throwing a cement block through the front window to gain entry. The perpetrators could not be identified from the video.
At the time of the burglary, the store's manager was counting the previous day's receipts in his office located behind the front counter where the cash registers are located. The office is not open to the general public. The manager heard but did not see the perpetrators, nor did he see them take the money he was counting.
Sergeant Michael Duffy of the Woodbury Police Department, who was trained in fingerprinting techniques, obtained three latent fingerprints from the countertop located in the manager's office. The latent fingerprints were then sent to the Gloucester County Prosecutor's office to determine whether they were suitable for comparison.
Detective Brian Perticari from the Prosecutor's office, an expert in fingerprint comparison procedures, subsequently concluded that the latent fingerprints matched S.R.'s fingerprints. He explained that upon obtaining latent fingerprints, he visually examines them to determine if there are enough points of identification to compare to other prints. Upon finding enough points of identification, he sends the prints to an examiner with New Jersey State Police Automated Identification System (AFIS) for analysis.*fn1 The AFIS examiner scans the latent fingerprint into the AFIS system to check for a match. If the system identifies a match, it then gives the examiner a list of twenty-five possible candidates, in descending order of their likelihood of being a match. The list contains no names, only State Bureau of Identification (SBI) numbers. The AFIS examiner then individually examines each of the twenty-five possible candidates to determine which set of fingerprints belongs to the person whose fingerprints are in the system. Each of the twenty-five candidates has a fingerprint card containing ten inked or "rolled" fingerprints.*fn2 Thus, the AFIS examiner compares two hundred and fifty fingerprints to the latent fingerprint.
After completing this analysis, the AFIS examiner sends a report of his results to the sending agency along with the original index card containing the latent fingerprint, a copy of the inked fingerprint card of the matched candidate, and the printouts of the unmatched candidates. Because the specific points of identification the AFIS examiner found are not included in the report, the sending agency's reviewing detective conducts an independent analysis to determine those points.
Perticari testified that of the three latent fingerprints sent to the AFIS examiner, only one was deemed suitable for comparison. Perticari knew that the AFIS examiner had found fourteen points of identification between the latent fingerprint and the match; however, he did not know the specific points the AFIS examiner found. As such, Perticari conducted an independent analysis and confirmed the match, finding fourteen points of identification between the latent fingerprint and S.R.'s right middle finger. The AFIS examiner did not testify. There is no evidence that the fourteen points of identification Perticari found were the same as those the AFIS examiner found.
The trial judge found S.R. delinquent on the charges. At sentencing, the judge merged the criminal mischief charge with the burglary charge and imposed an eighteen-month probationary period subject to the following conditions: that S.R. (1) cooperate with whatever social services programs the court may set up; (2) attend school with no unexcused absences and obtain his high school diploma before the probationary term expires; (3) abide by curfew; (4) make full restitution; and (5) serve 180 hours of community service over the course of the probationary term. The judge also imposed the appropriate penalties and assessment. This appeal followed.
On appeal, S.R. raises the following contentions:
POINT I - THE FINGERPRINT COMPARISONS WERE IMPROPERLY ADMITTED INTO EVIDENCE BECAUSE A) THE DEFENSE WAS NOT PROVIDED WITH CERTAIN DISCOVERABLE ITEMS PRIOR TO TRIAL; B) PROPER PROTOCOL WAS NOT FOLLOWED IN OBTAINING THE FINGERPRINT EVIDENCE; C) THE JUVENILE'S RIGHT TO CROSS-EXAMINATION WAS VIOLATED AS HE WAS NOT AFFORDED THE OPPORTUNITY TO CROSS-EXAMINE THE "AFIS" OPERATOR; AND D) THE FINGERPRINT COMPARISON PROCESS WAS UNDULY SUGGESTIVE.
A. The fingerprint comparisons were improperly admitted into evidence because the defense was not provided with certain discoverable items prior to trial.
B. The fingerprint comparisons were improperly admitted into evidence because proper protocol was not followed in obtaining the fingerprint evidence.
C. The fingerprint comparisons were improperly admitted into evidence because the juvenile's right to cross-examination was violated as he was not afforded the opportunity to cross-examine the "AFIS" operator and ...