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State ex rel S.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2010

STATE OF NEW JERSEY IN THE INTEREST OF S.R., JUVENILE-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FJ-08-761-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2010

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.

I.

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 the fingerprint comparison process was unduly suggestive.

D. The fingerprint comparisons were improperly admitted into evidence as the fingerprint comparison process was unduly suggestive.

POINT II - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE JUVENILE'S MOTION TO DISMISS THE CHARGES MADE AT THE END OF THE STATE'S CASE AS THE STATE FAILED TO ESTABLISH A PRIMA FACIE CASE WITH RESPECT TO THE CRIMES CHARGED.

POINT III - THE TRIAL JUDGE'S FINDING THAT S.R. WAS DELINQUENT OF THE CHARGES OF BURGLARY, THEFT AND CRIMINAL MISCHIEF WAS NOT SUPPORTED BY THE EVIDENCE PRESENTED (NOT RAISED BELOW).

POINT IV - THE DISPOSITION IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION AS IT FAILED TO PROPERLY WEIGH THE FACTORS SET FORTH IN N.J.S.A. 2A:4A-43 AND THEREFORE, THE DISPOSITION MUST BE MODIFIED BY THE REVIEWING COURT.

II.

S.R. contends in Point I that the judge improperly admitted an enlarged photograph Perticari prepared to show similarities between the latent fingerprint found at the scene of the crime and S.R.'s rolled fingerprint card because the State violated Rule 3:13-3(c)(9) by not providing it prior to trial. S.R. also contends that because Perticari was qualified as an expert, he should have provided an expert's report prior to trial. S.R. posits that this prejudiced his ability to attack Perticari's testimony, which was especially important because the fingerprint evidence was the only evidence the State offered against him. We disagree.

In deciding whether to admit evidence not provided by the State before trial, the court must determine (1) whether defendant will be prejudiced, (2) whether the State's failure to provide the discovery was based on a design to mislead, and (3) whether the testimony will burden the defendant with the element of surprise. State v. Labrutto, 114 N.J. 187, 205 (1989). We review the judge's decision to admit such evidence under an abuse of discretion standard. Ibid.

The judge ruled on S.R.'s contentions as follows:

This objection calls for the Court to apply the provisions primarily of Discovery [Rule 3:13-3(c)(9)], which calls for names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such witness or, if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case, if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial.

So, the decision here would be more straightforward if this were an application for the release of a report or . . . if there was a report that wasn't disclosed, or if [the prosecutor] had a verbal summary that wasn't provided in advance, but we have none of those situations, and so the question is how does this rule apply to this situation, and there is some case law interpreting how it should be applied and basically, similar to [c]ivil discovery and the general rule for correcting discovery failures, the Court is applying a number of factors to weighing what the remedy should be, and the Court is specifically citing [State v. Toro, 229 N.J. Super. 215 (App. Div. 1988), certif. denied., 118 N.J. 216 (1989), overruled on other grounds, State v. Velez, 119 N.J. 185 (1990) and State v. Dreher, 251 N.J. Super. 300 (App. Div. 1991), certif. denied, 127 N.J. 564], which held that the standard is whether the defendant will be prejudiced, whether the State's failure was based on a design to mislead and whether the testimony will burden the defendant with the element of surprise.

. . . . . . . I can't find bad faith on the part of the State . . . and I'm not necessarily ruling that defense has an obligation to make a request for more information, but the record should reflect in this case that request wasn't made except for whatever request led to the meeting and during the meeting the 14 points of comparison was provided in the form of a verbal report to counsel . . . . [W]ith respect to the element of unfair surprise, the circumstances leading to the surprise have been known for at least a week.

. . . [I]f [the prosecutor] had this information and [defense counsel] didn't, even if it was only verbal, I would be real concerned, but apparently both attorneys received it at about the same time verbally.

Therefore, I'm going to overrule the objection. I don't think sir, you're asking for a postponement to see if you want to get an expert, but, regardless, I'm overruling the objection, but certainly you could do that if you wished[.] (Emphasis added.)

We discern no abuse of discretion in this ruling. The facts easily support the judge's conclusion that there was no design to mislead on the State's part and no surprise to S.R. A week before the trial, S.R.'s attorney met with Perticari and discussed the fourteen points of identification. Accordingly, S.R. had all of the information about the fourteen points of identification, albeit not in enlarged form. He does not claim that the enlargement was misleading or contained information not discussed with his counsel. Also, S.R. declined the judge's offer to postpone the matter to permit him to obtain an expert.

S.R. also contends that he was denied the right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) by the admission of the AFIS examiner's report as a business record, and that the fingerprint comparison was unduly suggestive.

"The Confrontation Clause of the Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" State v. Castagna, 187 N.J. 293, 308-09 (2006) (quoting U.S. Const., amend. VI); accord Crawford, supra, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed. 2d 177, 187 (2004). It is "applicable to the states through the Fourteenth Amendment.*fn3 " Id. at 309 (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed. 2d 923, 927-28 (1965)). Our Constitution provides the same guarantee. Ibid. (citing N.J. Const. art. I, § 10). "'The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.'" Ibid. (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed. 2d 666, 678 (1990)). "The primary interest advanced by the Confrontation Clause is the right of cross-examination." State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994) (citing Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2662, 96 L.Ed. 2d 631, 641 (1987)). Cross-examination gives "the accused an opportunity to test the recollection of and sift the conscience of the witness[,]" and "compels the witness to stand face to face with the jury in order that it may observe him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Ibid. (citing Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895)).

Prior to Crawford and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006), the United States Supreme Court had construed the Confrontation Clause to permit out-of-court statements to be admitted for their truth against the accused provided they were based upon "firmly rooted" hearsay exceptions, or had other "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed. 2d 597, 608 (1980).

In Crawford, supra, the Court outlined a new approach to Confrontation Clause issues regarding hearsay statements: if the statement is "testimonial," such statement may not be admitted unless the declarant is legally unavailable and defendant had a prior opportunity for cross-examination of the statement. 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. However, if the statement is "non-testimonial," the statement is exempted from Confrontation Clause scrutiny. Ibid. Although the Court did not precisely define "testimonial," it stated that such term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Ibid. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id., 541 U.S. at 68-69, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203.

In Davis v. Washington, supra, the Court elaborated on Crawford. It fashioned the following test for differentiating between testimonial and non-testimonial hearsay statements:

Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [Id., 547 U.S. at 822, 126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237.]

Our courts have decided, in contexts related to the present case, that admission of technical evidence violates the Confrontation Clause. For example, in State v. Berezanski, 386 N.J. Super. 84 (App. Div. 2006), appeal dismissed, 196 N.J. 82 (2008), we held that the municipal court denied a defendant convicted of drunk driving the right of confrontation by the admission of a State Police laboratory certificate reflecting that the defendant's blood-alcohol level (BAC) exceeded the statutory limit without the testimony of the lab technician who prepared the certificate. Id. at 89-95. We found the document testimonial because it was "prepared specifically in order to prove an element of the DWI charge and offered in lieu of producing the qualified individual who actually performed the test." Id. at 94.

In State v. Kent, 391 N.J. Super. 352 (App. Div. 2007), another DWI case concerning the admissibility of a lab report and blood sample certificate, we held that the primary purpose of the lab certificate was to prove past events relevant to defendant's DWI conviction. Id. at 369. We rejected the State's argument that such reports are non-testimonial because they involve merely technical analysis of objective facts. Id. at 373. Compare Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005) (finding that chemical analysis certificate identifying substance seized from defendant as cocaine was non-testimonial).

Finally, in Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed. 2d 314 (2009), the Supreme Court held that a laboratory technician's certificate concluding that evidence found on petitioner was cocaine and admitted into evidence violated the Confrontation Clause in the absence of the technician's testimony. Id., 557 U.S. at ___, 129 S.Ct. at 2542, 174 L.Ed. 2d at 332. The Court stated that there is "little doubt" that the certificate was testimonial, 557 U.S. at ___, 129 S.Ct. at 2532, 174 L.Ed. 2d at 321, and noted that the case was "little more than the application of our recent holding in [Crawford]." 557 U.S. at ___, 129 S.Ct. at 2542, 174 L.Ed. 2d at 332.

Here, the purpose of the AFIS examiner's fingerprint comparison was to prove past events, specifically that S.R. had left the print in the manager's office during the robbery. Accordingly, the admission of the AFIS examiner's report violated the Confrontation Clause.

However, this does not end our inquiry. It is well-settled that Confrontation Clause violations are subject to harmless error. Delaware v. Van Ardsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438 89 L.Ed. 2d 674, 687 (1986). Factors to consider include "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Id., 475 U.S. at 684, 106 S.Ct. at 1438, 89 L.Ed. 2d at 686-87.

Applying these principles, we conclude that the Confrontation Clause violation constituted harmless error under the facts of this case. First, although defense counsel objected to the admission of the AFIS examiner's report, he stipulated to the admissibility of the AFIS computer printout containing the list of the twenty-five candidates and their SBI numbers. Even if counsel had not done so, the list posed no Confrontation Clause violation because it is not hearsay, as there is no declarant. Obviously, S.R.'s SBI number was on the list.

To be sure, Perticari received a report from the AFIS examiner indicating that the latent print matched S.R.'s right middle finger and that the AFIS examiner found fourteen points of identification between S.R.'s fingerprint and the latent fingerprint. However, Perticari did not know what points of identification the AFIS examiner had found and he was free to develop his own opinion as to whether the fingerprints matched. "Hearsay statements upon which an expert relies are admissible, not for the purpose of establishing the truth of their contents, but to apprise the jury of the basis of the opinion reached." State v. Humanik, 199 N.J. Super. 283, 305 (App. Div.), certif. denied, 101 N.J. 266 (1985), habeas corpus conditionally granted, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed. 2d 25 (1989).

Perticari testified at length over his independent analysis and what points of identification he had found. The trial judge relied upon this testimony in finding that the fingerprints were a match. Perticari was subject to cross-examination on his findings and the judge was free to accept or reject his conclusions.

Thus, on balance, the Confrontation Clause violation constituted harmless error, as the AFIS examiner's conclusion was not important to the judge's findings, was cumulative of Perticari's independent findings, and he was subject to cross-examination. Under the circumstances here, Perticari was able to independently arrive at his own conclusion that the fingerprint was a match.

S.R. remaining contentions in Point I are that: (1) the judge erred in admitting the fingerprint evidence because Duffy failed to follow proper protocol in obtaining the latent fingerprints by not indicating on the back of the fingerprint card the location from where he harvested the fingerprints, and not obtaining a fingerprint sample from the store manager in order to eliminate his fingerprints from the suspect pool; and (2) Perticari's fingerprint comparison was unduly suggestive because the officer knew about the AFIS examiner's comparison, about the examiner's conclusion that there was a match, and that the examiner found fourteen points of identification. These contentions lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

We reach the same conclusion about S.R.'s contention in Point II that the judge abused her discretion in denying his motion to dismiss at the close of the State's case. However, we make the following comments.

Duffy testified that he harvested the prints from the manager's office in the store, and noted this on his evidence sheet. In addressing this issue, the judge concluded that

[W]hile Det. Duffy could have made a more precise record of the location of prints that he took, the issue of where the prints were located was irrelevant as the only harvested prints were taken from a location which was not accessible to the general public and from where the proceeds of the theft were taken by the perpetrator(s). Thus, the failure to make contemporaneous notes of exactly where the harvested prints were located has no relevance or bearing on the admissibility or materiality of the print comparison evidence.

This conclusion is sound. Also Duffy's failure to fingerprint the store manager is irrelevant. The latent print Duffy found was an absolute match to S.R.

Contrary to S.R.'s view, Perticari did not "rubber stamp" the AFIS examiner's conclusion. He did not know what fourteen points of identification the AFIS examiner had found, he conducted an independent analysis, and he testified at length about, and was subject to extensive cross-examination on, his independent findings of the fourteen points of identification. The judge was able to observe the officer's demeanor and was free to give his testimony proper weight. State v. Locurto, 157 N.J. 463, 474 (1999) (great deference accorded judicial trier of fact in matters of character and demeanor of witness).

III.

S.R. contends in Point III that the evidence presented at trial did not establish guilt beyond a reasonable doubt. He argues that the State presented no eyewitness testimony identifying him as one of the perpetrators, the police did not find in his possession the proceeds of the robbery or the clothing the perpetrators were wearing, the police could not identify him from the surveillance videotape, there were inconsistencies in the store manager's testimony about the amount of money stolen from the store, and there was no evidence, other than the fingerprint evidence, establishing his guilt.

This contention lacks merit, as the fingerprint evidence was sufficient to establish S.R.'s guilt beyond a reasonable doubt. In State v. Watson, 224 N.J. Super. 354 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S.Ct. 535, 102 L.Ed. 2d 566 (1988), we held that a conviction may be based solely upon fingerprint evidence as long as the attendant circumstances establish that the object upon which the prints are found was generally inaccessible to the defendant and, thus, a jury could rationally find beyond a reasonable doubt such object had been touched during the commission of the crime. [Id. at 361.]

We upheld the defendant's conviction because his fingerprint was found on an area not generally accessible by the public and was not consistent with an accidental touching. Ibid. This is the case here.

Viewing the State's evidence in its entirety, and giving it the benefit of all favorable inferences which reasonably could be drawn therefrom, there was more than ample admissible evidence upon which the judge could reasonably have found S.R. guilty of the charges beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).

IV.

S.R. contends in Point IV that the disposition imposed is excessive and that the trial judge failed to weigh the factors set forth in N.J.S.A. 2A:4A-43.

The New Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, governs juvenile dispositions. In "determining the appropriate disposition for a juvenile adjudicated delinquent the court shall weigh" the factors set forth in N.J.S.A. 2A:4A-43a. When considering whether a custodial sentence is appropriate, the judge must weigh the aggravating and mitigating factors set forth in N.J.S.A. 2A:4A-44a. The judge must then state on the record the reasons for imposing the disposition and the factual basis supporting the findings of the particular factors affecting the sentence. R. 3:21-4(g).

The judge adjudicated S.R. delinquent on the charges of burglary, theft and criminal mischief. She found and weighed the applicable aggravating and mitigating factors, and decided to impose an eighteen-month probationary term instead of a custodial term. In so doing, however, the judge failed to consider the factors set forth in N.J.S.A. 2A:4A-43a. Accordingly, we vacate the order of disposition and remand for a new dispositional hearing.

We affirm S.R.'s delinquency adjudication, vacate the order of disposition, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.


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