NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-1559.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Vincent C. Scoca, attorney for respondent (Robert Carter Pierce, of counsel and on the brief).
Before Judges Alvarez, Waugh and St. John.
Defendant Humberto Nieves stands indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count one), second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two), and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). He filed a motion in limine and requested an N.J.R.E. 104 hearing prior to trial with regard to three videos from three different sources purporting to portray his interaction with and alleged shooting of the victim, Jean Sanchez, killed during the early morning hours of December 25, 2009. Defendant also sought to bar admission of a composite video compiled from the three challenged videos by the State's expert, Eric Wagg. With the exception of one video, defendant's application was granted. On January 11, 2013, the Supreme Court remanded the matter for us to consider the interlocutory appeal by the State on the merits. After consideration of the record and the written submission of the parties, we affirm.
We briefly summarize the relevant facts developed during the hearing. Ernest Carpio, a Newark resident, called 9-1-1 after hearing gunshots at approximately 3:40 a.m. on December 25, 2009. When he looked out the window, he saw a man lying on the ground by railroad tracks near his home. When an officer from the Essex County Prosecutor's Office Crime Scene Technical Services Unit met with Carpio, he reviewed Carpio's surveillance system, copying to a disc footage depicting two people walking at a distance near the tracks. On the video, a light flashes after one individual shoots the other, who drops to the ground. The other person approaches, shoots a second time, and walks away. The time stamp on the footage was an hour off because it had not been adjusted when daylight savings time ended. The images on the film are not identifiable, basically only "stick figures."
Detectives also met with Raphael Concepcion, the owner of a restaurant called El Bachatipico, who informed them the establishment's four exterior cameras were working during the morning of the incident. Newark Police Detective Peter Chirico viewed footage, taken during the relevant time frame, provided by the owner on a thumb drive. He was unaware of how that footage was extracted from the system or by whom, or if any changes were made to it. In any event, no identification could be made from that film either.
A third set of recordings were obtained from the Player's Lounge, a bar also located near the crime scene. That analog tape clearly depicted the victim and defendant talking in the interior of the bar; however, it was not time stamped.
In order to create the composite film also at issue, four items were delivered to Wagg: (1) nine hours of footage from the VHS tape showing the interior of the Player's Club (video A); (2) a DVD containing digitized portions of the VHS tape created by the detective's office; (3) a thumb drive containing approximately one hour of footage taken from El Bachatipico restaurant cameras showing the exterior of the Player's Club from across the street (video B); and (4) the disc provided by Carpio of another exterior location behind the bar, Greenwood Lake Street, lasting approximately thirty-seven minutes (video C).
Wagg was unable to view the digitized DVD portions of the VHS tape (No. 2). He ended up digitizing the VHS tape himself, converting it from analog to digital format so that he could use his computer software on the project. The only one of the sources original to the actual video footage was the tape of the interior of the Player's Club. In compiling the video, Wagg used the VHS tape, the DVD, and the thumb drive. These films were taken from a total of eight different cameras — three for video A, four for video B, and one for video C. He did nothing to enhance the images on the composite except to adjust the contrast around the figures and place a brightened bubble around them to make them easier to track. Wagg was uncertain about the number of cuts he made in order to create the compilation.
The Grand Jury who indicted defendant viewed the composite video. The opening scene shows defendant and the victim inside the Player's Club early Christmas morning, switching focus to the exterior of the bar where it is dark outside and there is snow on the ground. An unidentifiable figure is seen backing up a Toyota owned by defendant's mother in front of the bar from an adjacent driveway. The suspect then exits the car and dons a dungaree jacket, which the State theorizes held the murder weapon. The suspect and another unidentifiable figure, allegedly the victim, are then seen outside walking together. The suspect was identified by his jacket and, according to witnesses, the ...