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State ex rel C.M.

Superior Court of New Jersey, Appellate Division

July 12, 2013



Submitted July 2, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-843-12, FJ-20-1127-12.

Joseph E. Krakora, Public Defender, attorney for juvenile appellant C.M. (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Melissa A. Tirone, Special Deputy Attorney General/Acing Assistant Prosecutor, of counsel and on the brief).

Before Judges Sapp-Peterson and Sabatino.


After a February 2012 bench trial, a Family Part judge found appellant C.M., a juvenile, to have committed the delinquency offense charged in Docket No. FJ-20-843-12. The offense, if committed by an adult, would comprise second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following that disposition, C.M. pled guilty to a separate delinquency complaint (FJ-20-1127-12) charging him with the juvenile equivalent of simple assault, N.J.S.A. 2C:12-1a, which the court downgraded to a petty disorderly persons offense. The court sentenced C.M. to a three-year placement with the Juvenile Justice Commission in FJ-20-843-12, and a concurrent thirty-day placement in FJ-20-1127-12.

C.M. now appeals, alleging trial error, insufficiency of the State's proofs, and excessiveness of his sentence. For the reasons that follow, we remand this matter for the trial court to address, in the first instance, certain significant evidentiary issues raised by C.M. on appeal.

The State's proofs at trial keyed upon its central allegation that C.M. illegally possessed a .380 caliber handgun in Elizabeth on November 14, 2011. The allegation was based upon circumstantial evidence and the statements of two other youths, one of whom testified and the other who told the police prior to trial that such a handgun had been in appellant's possession that day. Notably, no such gun was ever recovered from appellant or admitted into evidence at trial.

The State presented three witnesses at trial: N.O., a juvenile who had been with C.M. on the day in question; C.M.'s minor sister, I.M.; and an Elizabeth police detective who had taken a statement from I.M. at the stationhouse. C.M. elected not to testify in his own defense, and did not call any witnesses.

N.O. testified pursuant to a plea agreement he had made with the State concerning his own involvement in this incident. According to N.O., on November 14, 2011 he walked past C.M.'s house after leaving school. He saw C.M. standing there with several girls, including C.M.'s sister I.M., and one or more other boys. After the group mingled together for several minutes, I.M. went back into her house and the other girls left. A boy then asked C.M. a question and, according to N.O., C.M. pulled a handgun out of his pants pocket. N.O. described the gun as "short, dark blue and looked black[.]" He stated that it "looked like a '380'[caliber handgun], " noting that his stepfather owned a "380." According to N.O., C.M. let him briefly hold the gun, and then took it back.

C.M. then allegedly asked the boys if they wanted to make some money. According to N.O., the boys walked to a nearby street corner, while C.M. went briefly into his house. The boys shortly thereafter returned to the house and then C.M. came back outside. In N.O.'s presence, C.M. made a call on his cell phone to an unidentified older man. C.M. then gave the gun to a third person. N.O. and that third person then walked to another location, where they were paid $100 for the gun, $20 of which was given to N.O.[1] The purchaser of the gun was not identified by name or otherwise. N.O. and C.M. were thereafter each charged with juvenile weapons offenses.

In her own testimony, I.M. acknowledged that she had been on the front porch of her house on the day in question, and that she had seen a group of boys outside in front of the house. At one point her brother C.M. came outside, but she testified that he just walked past the group and went to the store. She denied seeing her brother show the other boys anything. Moreover, I.M. stated that she had never seen C.M. with a gun. According to I.M., at some point she went back into the house to charge her cell phone. By the time that she returned outside her brother and the other boys had left. She admitted that she had gone to the police station in the latter part of November 2011, but asserted that she only remembered going to make a complaint about N.O. She testified that N.O. had spit on her, and added that N.O. had also pushed someone into her, which made her head hit against a brick wall at school and caused her to go to the hospital.

After I.M. testified, the trial court permitted the State to present, over defense counsel's objection, a typed sworn statement signed by I.M. that she had provided to the police detective at the stationhouse. I.M. had given the statement while in the company of her mother. In that statement, I.M. recounted that she had seen C.M. pull a black handgun out of his pants pocket on November 14, 2011 while standing in front of their house with the other boys. She allegedly saw one of the boys, "D, "[2] also handle the gun. After C.M. and several of the boys ran to the corner, I.M. went back inside her house.

Based upon these proofs, the trial judge adjudicated C.M. delinquent of the charged weapons offense. In his oral opinion, the judge found N.O.'s testimony to be credible, noting that it was consistent on both direct and cross examination. The judge found truthful N.O.'s claim that he had personally observed C.M. take out a handgun from his person. In addition, the judge accepted N.O.'s belief that it was a real gun "because [N.O.] had experience with a family member who had a similar firearm." The judge was mindful of the related weapons charges that N.O. faced with respect to this incident, and that if, as defense counsel had argued in summation, N.O. had given false testimony, he would have placed himself in jeopardy. Moreover, the judge further noted that N.O.'s credibility was bolstered by the fact that N.O. had not claimed that C.M. had accompanied him to sell the gun.

The judge did not rely upon the testimony of I.M., whom he characterized as an "unwilling" witness. However, the judge did rely on I.M.'s police statement, which he regarded as voluntary and non-coercive. That sworn statement corroborated N.O.'s assertion that C.M. had pulled a handgun out of his pants.

On appeal, C.M. raises the following points:


We first address appellant's second listed point, i.e., that the judge erroneously allowed N.O., a lay witness, to testify that C.M. had pulled what appeared to be a .380 caliber handgun out of his pocket, and further erred in accepting that assertion. Although defense counsel did not contemporaneously object to N.O.'s testimony on this subject, in his closing argument counsel did question N.O.'s competence to attest that he had observed C.M. with a real handgun, rather than an imitation one. Counsel noted in this regard that the weapon was never recovered or tested, and that no witness had testified about the weapon's capability, as the second-degree statute requires. See N.J.S.A. 2C:39-1k; N.J.S.A. 20:39-5b. If, in fact, N.O. was mistaken about the genuine nature of the firearm and it was actually an imitation gun, then C.M. potentially might only be liable for the juvenile equivalent of a fourth-degree weapons offense. See N.J.S.A. 2C:39-4e.

C.M. argues that the cursory testimony of N.O., a lay witness, was insufficient to establish beyond a reasonable doubt that he possessed an actual, operable firearm. He contends that the State did not lay an adequate foundation for N.O.'s opinion that the gun "looked like a 380." According to appellant, the mere fact that the item allegedly seemed similar to a gun that N.O.'s stepfather owned is not enough. There is no proof, for example, of how N.O. knew that his stepfather's gun was truly a .380. Nor did N.O. have expert credentials to render an opinion.

Consequently, appellant contends that the court should have disregarded N.O.'s lay opinion and that, at most, the evidence only supported an adjudication of a lesser-degree weapons offense. The State's brief counters that testimony from a witness who sees a portion of a gun "and believ[es] it to be real based on his experience with guns is sufficient to prove unlawful possession of a weapon." (Citing State v. Schultheis, 113 N.J.Super. 11, 16 (App. Div.), certif. denied, 58 N.J. 390 (1971), and State v. Gantt, 101 N.J. 573, 586-90 (1985)).

A recent Supreme Court precedent on lay opinion, State v. McLean, 205 N.J. 438 (2011), is relevant to the analysis. In McLean, the Court set forth certain restrictions upon the admissibility of lay opinion from testifying individuals who have not been proffered by the State as expert witnesses. The Court specifically considered in McLean testimony given by a police officer who had participated in an investigation that led to the defendant's prosecution for possession of CDS and possession of CDS with intent to distribute. Id. at 443-47. The officer testified that he had observed the defendant engage in two transactions, in both instances some unidentified item had been exchanged for money. Id. at 443-44. Over defense counsel's objection, the prosecutor asked the officer, "[s]o based on your own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The trial court permitted the officer, who had not been qualified as an expert witness, to testify that, based on his experience, he believed he had observed a drug transaction. Ibid.

The Court ruled that the police officer's statement in McLean was inadmissible as a lay opinion. Id. at 463; see also N.J.R.E. 701 (confining admissible lay opinion testimony to opinions or inferences that are "(a) rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue"). The Court ruled that an officer testifying as such a lay or fact witness may not testify about his belief that a transaction he observed was a narcotics sale. Id. at 461. The Court noted in McLean that admissible fact testimony by a police officer cannot express what the officer "believed, " "thought, " or "suspected." Id. at 460 (internal quotation marks omitted). Only if a police officer is properly qualified as an expert witness may he or she give testimony explaining the implications of observed behaviors that may be beyond the understanding of the trier of fact Id at 460-61; see also NJRE 702 (authorizing the admission of expert testimony by "a witness qualified as an expert by knowledge skill experience training or education") McLean thus signifies that an ordinary witness generally may not in the guise of lay opinion present specialized observations that only a qualified expert can render

Although the present case involves lay opinion from a youthful civilian NO rather than a police officer these principles from McLean are instructive The court must be satisfied that a proper foundation has been laid to allow reliance upon the lay witness's belief or perception particularly on a pivotal subject such as the one in this case the real or imitation quality of a perceived handgun Here the trial judge accepted NO's lay opinion that the gun was a 380 based upon NO's stated belief that his stepfather owned a similar gun but the record is not developed sufficiently as to the foundation for that belief In fairness to the judge we recognize that defense counsel did not cite McLean a relatively recent decision to the judge and the questioning of NO by both counsel on the subject was abbreviated at best

The State's citation on appeal to Schultheis supra 113 N.J. Super at 16 and Gantt supra 101 N.J. at 586-90 does not conclusively resolve the lay opinion issue, given the present limited record. In Schultheis, a minor who was being assaulted observed a handle of a gun and a part of the metal exposed from the holster worn by the defendant. Id. at 16. The minor testified that "he was positive, based upon his experience with guns, that this was a 'real gun.'" Ibid. Specifically, he had gained experience through his time in the Boy Scouts and observing various police gun exhibits. Id. at 14. Here, the record is murky as to whether N.O. had any personal experience with guns, other than his bare statement that he believed his stepfather owned a .380 handgun.

In Gantt, the Supreme Court upheld a weapons conviction under the Graves Act and noted in a footnote that "[i]nferring the authenticity of a weapon from its appearance or from the testimony of lay witnesses is entirely consistent with prior law in New Jersey and with a number of holdings from other jurisdictions." Id. at 590 n.8 (emphasis added). That proposition does not, of course, allow any lay witness to provide such an opinion but rather is impliedly subject to the general requirements for lay opinion testimony under Rule 701, as has been recently construed by the Court in McLean.

We do not believe that the Court intended in McLean to eliminate the ability of appropriate lay witnesses to identify a perceived handgun as a genuine one. What remains necessary is an adequate foundation for that belief. See State v. Lazo, 209 N.J. 9, 22 (2012) (excluding certain lay opinion testimony and citing N.J.R.E. 701 for the proposition that "witnesses may present relevant opinion testimony" that is "rationally based on the witness' perception" (internal quotation marks omitted)). The present record is too abbreviated to evaluate whether that foundation with respect to N.O. is present here. The separate circumstantial evidence that the item was allegedly sold for $100 may also bear upon the question of authenticity.

Given these circumstances, and the absence of any McLean analysis in the State's appellate brief to justify admission of N.O.'s lay opinion, we remand this matter to the trial court for reconsideration in light of McLean and the other cited case law. The court shall have the discretion to reopen the record on this discrete issue in a Rule 104 admissibility hearing if counsel request to do so.

Mindful that the matter is being remanded on the lay opinion issue, we further direct that the trial court also take the opportunity to address, with respect to the admission of I.M.'s police statement, the relevant criteria reiterated in State v. Gross, 121 N.J. 1, 10 (1990) for the admissibility of her prior inconsistent assertions.[3] Appellant and the State have presented competing arguments on appeal why certain factors under Gross should have led, respectively, to the exclusion or admission of IM's prior statement that she had seen her brother pull out a gun The trial judge was not presented with these specific arguments under Gross and it is preferable that he assess them in the first instance We thus expand the remand to include an analysis of the Gross factors again recognizing the judge's discretion to reopen the record in a Rule 104 hearing if he so chooses.

Following counsel's presentations the court shall issue a supplemental decision and as part of that decision reconsider whether the proofs continue to be sufficient beyond a reasonable doubt to support the second-degree disposition If so CM may file a new appeal The remand proceedings shall be completed by September 30 2013.

We need not address the remainder of appellant's points except to note that the three-year sentence imposed if his adjudication of delinquency continues was well within the court's discretion State v Bieniek 200 N.J. 601 607-08 (2010); State In Interest of R.M. 141 N.J. 434 449-50 (1995).

Remanded. We do not retain jurisdiction.

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