Submitted May 4, 2017
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Indictment No. 12-12-1785.
E. Krakora, Public Defender, attorney for appellant Dammen D.
McDuffie (Alison Perrone, Designated Counsel, on the brief).
E. Krakora, Public Defender, attorney for appellant Hakeem
Chance (Gilbert G. Miller, Designated Counsel, on the brief).
S. Grewal, Bergen County Prosecutor, attorney for respondent
(Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on
Judges Lihotz, O'Connor and Mawla.
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
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.
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.
each defendant challenges the imposed sentence as manifestly
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.
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
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.
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.
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.
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.
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.
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.
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.
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 ...