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State v. McDuffie

Superior Court of New Jersey, Appellate Division

June 13, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DAMMEN D. MCDUFFIE, a/k/a BUCKEY MCDUFFIE, DAMEN MCDUFFY, DAMEN MCDUGGY, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
HAKEEM A. CHANCE, a/k/a HAKIM CHANCE, Defendant-Appellant.

          Submitted May 4, 2017

         On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-12-1785.

          Joseph E. Krakora, Public Defender, attorney for appellant Dammen D. McDuffie (Alison Perrone, Designated Counsel, on the brief).

          Joseph E. Krakora, Public Defender, attorney for appellant Hakeem Chance (Gilbert G. Miller, Designated Counsel, on the brief).

          Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Lihotz, O'Connor and Mawla.

          OPINION

          LIHOTZ, P.J.A.D.

         In these back-to-back appeals, co-defendants Dammen D. McDuffie and Hakeem A. Chance, jointly tried before a jury, separately appeal from a July 29, 2014 judgment of conviction. Co-defendants argue the trial judge impermissibly denied their motions requiring the State to release information regarding a global positioning system (GPS) tracking device used to prove their involvement in two burglaries. Also, co-defendants argue the judge erroneously admitted testimony regarding the prior military training of a police officer, who identified McDuffie as the passenger in the vehicle driven by Chance. More specifically, each defendant articulates these challenges, seeking to vacate his conviction:

         POINT ONE

         THE TRIAL COURT DEPRIVED DEFENDANT OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WITH A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE BY SUSTAINING DETECTIVE ECKERT'S REFUSAL TO DISCLOSE INFORMATION REGARDING THE MODEL NUMBER OF THE GPS TRACKING DEVICE INSTALLED ON THE BMW, THE LOCATION WHERE IT WAS INSTALLED, THE TYPE OF BATTERY WHICH POWERED THE DEVICE, AND THE LENGTH OF TIME IT COULD BE EXPECTED TO HOLD A CHARGE SUFFICIENT TO TRANSMIT RELIABLE DATA.

         POINT TWO

         TESTIMONY THAT DETECTIVE AROCHAS WAS A TRAINED MILITARY SHARPSHOOTER AND THUS HAD SPECIAL TRAINING AND EXPERTISE IN MAKING RELIABLE SPLIT-SECOND IDENTIFICATIONS WAS NOT RELEVANT, AND ITS POTENTIAL FOR PREJUDICE FAR OUTWEIGHED WHATEVER PROBATIVE VALUE IT MIGHT HAVE HAD.

         Finally, each defendant challenges the imposed sentence as manifestly excessive.

         We have reviewed these arguments in light of the record and applicable law. We affirm each conviction. However, insufficient factual findings require we remand for resentencing and correction of the judgments of conviction.

         We recite the facts related to the issues on appeal, taken from the record of the ten-day trial. After obtaining a warrant, Detective James Eckert, of the Bergen County Prosecutor's Office (BCPO), installed a tracking device on a dark blue BMW X6 (BMW) registered to Chance's mother. The designated device is available only to law enforcement; however, components of the device, including the GPS chip, are sold commercially. The GPS records location data on the device itself, and transmits its position via cell towers, which allows police to track the device location in real time on a laptop.

         On July 12, 2012, a joint surveillance team commenced the operation. The team consisted of detectives from the BCPO Special Investigation Squad who were assisted by local police, operating three unmarked vehicles. BCPO Sergeant John Booth was in charge of the team. He occupied the tracking vehicle, which was driven by Detective Jonathan Arochas and contained Detective James Eckert, the GPS expert, and Detective Michael Falotico. The first of two trailing vehicles contained only BCPO Detective Elliott Cookson; the other vehicle, driven by Detective Edward Young of the Fort Lee Police Department, was also occupied by undercover officers from Hackensack and Teaneck. The officers in the three vehicles communicated with one another using portable radios. Detective Eckert tracked the BMW in real time via the GPS data transmitted to his laptop, and the officers in the trailing vehicles maintained intermittent visual contact with the BMW.

         In the days leading up to the investigation under examination, the accuracy of the GPS device was checked, using visual observations. Immediately prior to the events on the evening of July 12, 2012, Detective Eckert confirmed the GPS device was functioning properly and accurately recording the BMW's location. Specifically, Detective Eckert observed the BMW in the parking lot of the Hilton Hotel in Hasbrouck Heights, the same location the GPS pinpointed the BMW.

         At 7 p.m. Detective Young observed Chance enter the BMW, still parked at the Hilton in Hasbrouck Heights, and drive off. Detective Eckert used the GPS device while occupying the tracking vehicle, and the trailing vehicles confirmed the BMW, driven by Chance, traveled to Englewood and stopped on William Street, across from McDuffie's address, at 7:32 p.m. Chance returned to the Hilton and again began to travel at 8:42 p.m. The BMW was tracked to the vicinity of Dubois Court, Englewood, where it stopped for two minutes. Detective Eckert acknowledged Dubois Court, which is not a public street, was not specifically displayed on the laptop map. No officer physically observed McDuffie enter the BMW. However, Detectives Cookson and Eckert noted Chance and a black male passenger in the BMW when it stopped for gas on Route 4.

         The police continued to track the BMW as it headed North on the Garden State Parkway and exited in Nutley at 9:31 p.m. After driving around Nutley, at 9:40 p.m., the BMW drove down Spatz Avenue, a cul-de-sac, turned around, drove one block over and parked on Margaret Avenue. The BMW remained parked on Margaret Avenue for eleven minutes. During this time, the three law enforcement vehicles were parked approximately three blocks away, and the officers did not observe the BMW parked on Margaret Avenue or see defendants.

         A few minutes after 10 p.m., Sergeant Booth received a call from the Nutley Police Department, informing him police received notice an alarm was triggered from a home on Spatz Avenue. Later that evening or early the next morning, Nutley police also received information regarding the robbery of a second home on Spatz Avenue.

         Spatz Avenue is a short dead end street, with the dead end abutting the Garden State Parkway. The two vandalized homes on Spatz Avenue sit adjacent to one another. The first owner testified his residence, from which the alarm call was sent, was ransacked, but nothing was stolen. The second owner, a Newark Police Officer, reported his home was broken into some time while he was at work and listed missing items as a laptop, an iPod, $400 cash, and $14, 500 in jewelry.

         After receiving the call from the Nutley police, Detective Booth instructed the trailing vehicles to stop the BMW. Detective Cookson pulled behind the BMW. The BMW, followed by Cookson, passed the parked second trailing vehicle, which joined the pursuit. Finally, the tracking vehicle followed behind the other two police vehicles.

         When the BMW stopped at a traffic light located at the intersection of Centre Street and East Passaic Avenue, Detective Arochas pulled alongside the BMW and activated the police lights and siren to commence a motor vehicle stop. Detective Cookson attempted to pull in front of the BMW to block its lane of travel. Before he could do so, the traffic signal changed, the BMW accelerated, and collided with Detective Cookson's vehicle. The BMW then slammed into Detective Arochas's vehicle. As a result, the laptop was jarred from ...


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