Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Wednesday, June 30, 2010



In this appeal, appellant challenges the Department of
Corrections' decision finding him guilty of the prohibited act
of attempting to possess marijuana. In reversing, we determine
that the DOC's adjudication was not based on "substantial
evidence" in the record. In so doing, we reviewed the proofs
necessary to establish that the appellant committed the
prohibited act under the substantial evidence standard. We
construed the term "possession," not otherwise defined in the
definitional sections of the Administrative Code governing
inmate discipline, by applying the same construction as the term
is defined for the purpose of imposing criminal liability under
statutes charging individuals with possession of controlled
dangerous substances. State v. Pena, 178 N.J. 297, 305 (2004).

Police Could Not Lift Up Shirt for Terry Frisk. State v. Privott 203 NJ 16 (2010)

Police Could Not Lift Up Shirt for Terry Frisk. State v. Privott 203 NJ 16 (2010)

Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop and to frisk defendant Privott. However, the officer’s conduct in lifting defendant’s shirt exceeded the scope of a reasonable intrusion that is permitted as part of a Terry stop.

WALLACE, J., writing for a majority of the Court.

The issue before the Court is whether the police had a reasonable suspicion to subject defendant, Tysen R. Privott, to an investigatory detention and, if so, whether the resultant search was conducted in a reasonable manner.

A Union County Grand Jury indicted defendant for third-degree possession of cocaine, third-degree possession of cocaine with intent to distribute, and second-degree possession to distribute cocaine within 500 feet of a public park. Defendant moved to suppress the drugs seized from his person at the time of his arrest. At the suppression hearing, Officer Jeffrey Plum was the sole witness on behalf of the State. He testified that on May 13, 2003, while on routine patrol with his partner, Officer Plum received a radio call from a police dispatcher that an anonymous caller reported a man with a handgun at the corner of Plainfield Avenue and West Third Street. The anonymous caller had described the individual as a tall, thin, dark-skinned male wearing a black jacket and a black and red cap. Officer Plum quickly arrived at the location and observed three men standing on the corner, one of whom was wearing a red jacket and a black and red cap. Officer Plum also noticed that the man was wearing a red jacket instead of a black jacket the anonymous caller described. Officer Plum observed that the man, later identified as defendant Privott, matched the physical description relayed by the dispatcher. Privott's jacket was open and he wore a long white tee-shirt that hung well below his jacket.

Officer Plum further testified that he pulled the car up on the sidewalk next to where defendant stood with the other two men. Officer Plum knew defendant from prior narcotics investigations and arrests. The officer also knew that defendant lived in the area and associated with a local violent gang that had been involved in shootings in the area. Upon seeing Officer Plum approaching in the patrol car, the men began to walk away. The officer observed that defendant appeared nervous and saw defendant move his hand toward his waistband as he was turning to walk away. From his experience, the officer was aware that suspects hide their weapons in their waistbands and, therefore, he believed that defendant was hiding a gun there. Officer Plum exited the patrol car, approached defendant, and had him place his hands on a nearby chain-link fence. Defendant fully cooperated. Officer Plum then lifted defendant's shirt in the immediate area of his waistband where a gun might be concealed. The search uncovered a bag containing what was suspected to be crack cocaine. Defendant also testified, denying that he made any motion with his hand to lift his tee-shirt. He said that the officer had him put his hands on the fence, patted him down, came back to his waist, and then lifted his shirt.

The trial court denied defendant's motion to suppress the evidence seized in the search, finding that there was reasonable suspicion to conduct an investigatory stop and that the officer's actions in lifting the tee-shirt were appropriate under the circumstances presented. The matter was subsequently tried before a jury and defendant was found guilty only on the count charging third-degree possession of cocaine. He was sentenced to five years in prison with a two-year period of parole ineligibility.

On appeal, the Appellate Division reversed the conviction, concluding that an investigatory stop was not justified because the anonymous tip of a man with a gun was not corroborated.

The Supreme Court granted the State's petition for certification.

HELD: Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop and to frisk defendant Tysen R. Privott. However, the officer's conduct in lifting defendant's shirt exceeded the scope of a reasonable intrusion that is permitted as part of a Terry stop.

1. The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. An investigatory stop, also know as a "Terry" stop or a "stop and frisk," can be made by police without a search warrant if there are articulable facts which, taken together with rational inferences from those facts, reasonably justify an intrusion to search for a concealed weapon. Terry is narrowly drawn to permit only a reasonable search for weapons not for the purpose of discovering evidence of a crime but for the purpose of protecting the police officer where the officer has reason to believe that he is dealing with an armed and dangerous person. The search must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of a police officer. (Pp. 7-10)

2. A reviewing court must evaluate the totality of the circumstances surrounding the Terry stop, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions. Thus, in an attempt to uncover weapons which might be used to assault him, a police officer may conduct a carefully limited search or pat down of the outer clothing of a person the officer has an objectively reasonable suspicion may be armed and dangerous. Where an anonymous tip is involved, additional factors must be considered to generate the requisite level of reasonable and articulable suspicion, including: the tipster's veracity, reliability and basis of knowledge. The police must verify that the tip is reliable by some independent corroborative effort. (Pp. 10-14)

3. In this case, under the totality of the circumstances, there was a specific and particularized basis to support an investigatory stop of defendant. The relevant circumstances extend beyond the isolated anonymous tip of a man with a gun at a particular location. Here, defendant partially matched the description given by the anonymous informant, the officer recognized defendant from prior narcotics arrests, and defendant was associated with violent gangs that were responsible for shootings in the area. In addition, defendant began walking away when he saw the patrol car, appeared nervous, and moved his hand toward his waistband, an area commonly used by armed persons to conceal a weapon. When defendant walked away and placed his hands near his waistband, a reasonable officer with the background knowledge of the conditions in that area, and who had received an anonymous tip of a man with a gun, would have an objectively reasonable concern for his safety. Therefore, the totality of the circumstances justified the officer's decision to frisk defendant. (Pp. 14-18)

4. The investigative methods employed in a Terry stop should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. In addition, the frisk must be sufficiently limited in scope and duration. In this case, defendant was cooperative at all times. He had placed his hands against a fence as instructed by police. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been a traditional pat-down search of defendant's outer clothing. That did not occur. Rather, the officer lifted defendant's tee-shirt to expose his stomach, and in doing so, a plastic bag of cocaine in the waistband of his pants. That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search. (Pp. 18-21)

Judgment of the Appellate Division is AFFIRMED, but for different reasons.

JUSTICE ALBIN, DISSENTING, in which JUSTICE RIVERA-SOTO joins, is of the view that when there is a reasonable and articulable belief that a suspect is armed with a weapon concealed in a precise location on the suspect's body, neither the Federal nor State Constitutions impose an inflexible regime of pat-down first when doing so will jeopardize the life of a police officer. Here, the officer believed that lifting the shirt was the best means of gaining control of a gun that might be hidden in defendant's waistband. Therefore, it cannot be concluded that the officer in this case conducted an unreasonable search.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, and HOENS join in JUSTICE WALLACE'S opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUSTICE RIVERA-SOTO joins.

Wednesday, June 16, 2010

NJ Div of Youth and Family Services v. DM (A-6020-08T4)



  D.M. IN THE MATTER OF THE GUARDIANSHIP OF S.M.    (A-6020-08T4) 06-11-10 


 The issue presented on appeal is whether a parent's 

parental rights may be terminated when the New Jersey Division 

of Youth and Family Services (DYFS or Division) fails to prove 

all prongs of the best interests of the child standard, but 

nevertheless, the child may suffer serious psychological or 

emotional harm by severing the bond between the child and his or 

her foster parents.  We conclude that any harm the child may 

suffer from severing of that bond cannot, in and of itself, 

serve as a legally sufficient basis for termination of the 

parent's parental rights.  We hold that in such a case, DYFS 

must still prove by clear and convincing evidence that the 

parent's actions or inactions substantially contributed to the 

forming of that bond to where any harm caused to the child by 

severing the bond rests at the feet of the parent.  Because we 

found an absence of that proof, we reversed and remanded for 

further proceedings consistent with this opinion. 


 Judge Skillman filed a concurring opinion.forming of that bond to whe

PTI- Criminal Law- State v. Rodriquez (A-5013-07T4)

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County,
Indictment No. 06-06-0258.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse,
Designated Counsel, on the brief).

Patrick Barnes, Hunterdon County J.
Prosecutor, attorney for respondent (Charles
Ouslander, First Assistant Prosecutor, on
the brief).

Defendant Angelo R. Rodriguez, Jr. appeals from an order
entered on October 22, 2007, terminating his participation in
the Pretrial Intervention Program (PTI), and the judgment of
conviction dated January 18, 2008. We affirm the order
terminating defendant's place in PTI but reverse the
judgment of conviction, and remand the matter to the trial court
to permit defendant to withdraw his plea.
The following procedural history and facts are pertinent to
our decision. Defendant was charged under Indictment No. 06-06-
258 with possession of a controlled dangerous substance (CDS)
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A.
C:2-6(c) and N.J.S.A. 2C:35-5(b)(11) (count one); possession of
CDS, N.J.S.A. 2C:35-10(a)(3) and N.J.S.A. 2C:2-6(c) (count two);
obstructing the administration of the law, N.J.S.A. 2C:29-1
(count three); and resisting arrest, N.J.S.A. 2C:29-2(a)(2)
(count four). Defendant was also separately charged with
possession of drug paraphernalia, N.J.S.A. 2C:36-2; and
resisting arrest, N.J.S.A. 2C:29-2(a).

On November 2, 2006, defendant pled guilty to count one in
Indictment No. 06-06-258, "[i]n exchange" for the prosecutor's
agreement to allow defendant to apply for admission to PTI and
the dismissal of the other charges. At the plea hearing, the
assistant prosecutor stated that the PTI program would be:

for a term of one year with [fifty] hours of
community service, drug testing every week
for the first two months. If all negative
then every two weeks after that. If the

defendant is terminated from PTI he will be
sentenced to three years of probation, non-
custodial. Judge, just on that issue of the
drug testing. The drug testing will occur
through PTI but that will be random. What
the defendant will be required to do is
obtain the outside services . . . through
. . . [Somerset County's probation
department]. But he'll have to get
independent drug testing from whichever
agency is going to be approved by PTI. . . .
In addition there is no loss of license with
PTI if the defendant completes it. And the
municipal charges or the motor vehicle
violations will be remanded to Municipal
Court. So that is my understanding of the
plea agreement in its entirety.

The plea form stated, among other things, that if defendant were
terminated from PTI, he would be sentenced to three years of
On May 18, 2007, the trial court considered defendant's
application for admission to the PTI program. The court
questioned defendant concerning the program:

Q. Mr. Rodriguez, you have been recommended
the pretrial for participation in
intervention program and if you successfully
complete the program the charge or charges
will be dismissed. Do you understand that?

A. Yes.

Q. But to accomplish that you will have to
various program
comply with all the
conditions. I assume that those conditions
have been reviewed with you, is that

A. Yes.
Q. And any questions at this time?

A. No.

The court entered an order of postponement dated May 18,
2007, which deferred further proceedings in the case for twelve
months and authorized defendant's participation in PTI. The
second page of the order set forth the conditions for PTI
supervision. A check was placed alongside of the following
DURATION OF PTI TERM[.] Defendant signed the second page of the
order, beneath the following statement:

I have received a copy of the Special
Conditions of PTI Supervision which have
been read and explained to me. . . . I
understand the conditions of PTI Supervision
and that they apply to me, and I further
understand that failure to comply on my part
constitutes a violation of PTI Supervision
and may cause my termination from the
program and prosecution of the charges
against me.

By letter dated August 8, 2007, the Somerset County
probation officer Lorena DuQue (DuQue) informed defendant that a
to the court to terminate his recommendation would be made
participation in PTI because he failed to schedule a substance
the probation officer. The
abuse evaluation, as directed by
trial court conducted a hearing on the matter on October 22,


At the hearing, DuQue testified that, after the case was
transferred from Hunterdon County, defendant reported to her on
June 19, 2007. She went over defendant's "case plan" with him.
DuQue noted that, as stated on the order of postponement, the
special conditions for PTI required defendant to undergo a
substance abuse evaluation and follow the treatment

recommendations resulting from that evaluation.

DuQue stated that defendant "seemed to be a little
surprised" when she told him that he had to have a substance
abuse evaluation and follow the recommendations for treatment.
Defendant said that his attorney told him that he did not have

to go for treatment. DuQue gave defendant the names of two
agencies and told him to call one of them to set up an
appointment for an evaluation before their next meeting.
Defendant met with DuQue on July 3, 2007. He had not
scheduled a substance abuse evaluation. She told him he had to
make an appointment for the evaluation by the date of their next
scheduled meeting, July 24, 2007. Defendant did not appear on
that date because he was working overtime, and the meeting was
rescheduled for July 31, 2007. At the meeting on July 31,
defendant informed DuQue that he had not scheduled the substance
abuse evaluation. Defendant said that he was going to call his
attorney to discuss the matter.
DuQue testified that defendant "was pretty much in denial."
He said that he was not using drugs, and did not have time for
treatment because he had a full-time job. DuQue showed defendant
the court's order of postponement, which stated that he had to
submit to a substance abuse evaluation and any treatment
On August 8, 2007, DuQue issued the letter advising
defendant that an application would be made to the court to

terminate his participation in PTI. Defendant contacted DuQue on
August 21, 2007, and said that he would go for the substance
abuse evaluation. Defendant stated that he did not want to
return to court, but DuQue told him she intended to proceed with
the termination application.

Defendant went to Guided Life Structures (GLS) for an
evaluation on August 30, 2007. GLS thereafter reported to DuQue
that defendant had "displayed a great deal of denial" and did
not agree with the substance abuse evaluation. According to GLS,
defendant was "arrogant and defiant in his attitude." He refused
treatment and said it was a "waste of time[.]" GLS said that, if
defendant had agreed to treatment, it would have recommended
anger management; drug/alcohol group counseling sessions for a
minimum of ten weeks; and random drug and alcohol screens.

Defendant again reported to DuQue on September 4, 2007.
Defendant told DuQue that he had gone for the evaluation and
said that he did not know whether any treatment had been
recommended. DuQue told him that GLS had reported to her that
he had denied treatment. According to DuQue, defendant became
"agitated[.]" He indicated that he did not need treatment and
was going to seek another evaluation.

Defendant met again with DuQue on October 2, 2007. He said
that he had another evaluation performed by a counseling center
in Woodbridge. Defendant later provided DuQue with a copy of

the evaluation report by Rama Jiandani (Jiandani), in which
Jiandani stated that, based on the information that defendant
had provided to him, he had no reason to believe that defendant
was currently abusing substances. Jiandani suggested, however,
that defendant should be monitored weekly for substance abuse.
DuQue noted that Jiandani's evaluation was "just based on
[defendant's] answers."

Defendant also testified at the hearing. He said that there
had been a misunderstanding about the conditions of PTI. On
cross examination, he conceded that he signed the second page of
the order of postponement with the conditions for the PTI
program. He said, however, that he did not "really read" the
order before signing it. He stated that he "listened to what
[his] lawyer" told him about the order. According to defendant,
his attorney told him that he would be required to have drug
tests but did not mention treatment.

Defendant additionally testified that he did not have a
problem with the evaluation. He said that he was going to get
the evaluation but spoke to his lawyer and asked his advice.
The attorney told him that he was not required to have the
evaluation. Defendant acknowledged that DuQue told him that the
court's order required the evaluation; however, after DuQue
issued the termination letter, the attorney told him that he had
to have the evaluation.

Defendant testified that he went to GLS for the evaluation. Defendant acknowledged that he disagreed with GLS's assessment. He stated that the reason why he refused treatment was because
his attorney told him that he did not have to go through with
it. He denied telling GLS that he did not feel that he needed
treatment. Defendant said that he was not satisfied with the
manner in which GLS had evaluated him.

On re-direct, defendant stated that he did not agree with
GLS's treatment recommendations because it was "hard" for him
"to take off work" for the time required by the treatment. He
asserted, however, that he would make the time for treatment, if
the court agreed to let him continue in the PTI program.
Defendant testified that it was very important for him to avoid
a criminal conviction because, if he were terminated from PTI,
"the rest of [his] life will be really down the drain."
The court placed its decision on the record. The court
determined that defendant's participation in PTI should be
terminated. The court found that defendant was not a credible
witness. The court also found that the there was a "clear
requirement that [defendant] undergo a substance abuse
evaluation and follow any recommendations."

The court additionally stated that defendant had been given
multiple opportunities to comply with that requirement but he
failed to comply and acted in an arrogant, defiant and negative
manner. The court found that defendant had determined that the
treatment program was "a waste of time[,]" and said that

defendant was not someone who would benefit from the PTI
program. The court noted that, while defendant ultimately had a
substance abuse evaluation, he only did so "grudgingly . . . and
after much prodding[.]"

In addition, the court stated that, after he was
dissatisfied with the result, defendant had another evaluation
with the hope that there would be "a different result." The
court concluded that defendant's participation in PTI should be
terminated because of his unwillingness to comply with the
directions of the probation officer and his attitude of
resistance. The court entered an order dated October 22, 2007,
memorializing its decision.

Defendant was sentenced on January 18, 2008. The court
found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk
that defendant will commit another offense); and nine, N.J.S.A.
2C:44-1(a)(9) (need to deter defendant and others from violating
the law). The court also found mitigating factors six, N.J.S.A.
2C:44-1(b)(6) (defendant will participate in a community service
program); and ten, N.J.S.A. 2C:44-1(b)(10) (defendant is likely
to respond affirmatively to probationary treatment). The court
sentenced defendant to three years of probation; and ordered
defendant to submit to drug screens at specified intervals,
perform community service, and pay various fines and penalties.
Defendant filed an appeal from the judgment of conviction
dated January 18, 2008. On March 31, 2009, the appeal was heard

on our excessive sentencing calendar. We entered an order
affirming the sentence but transferred the portion of the appeal
relating to the defendant's termination from PTI to the plenary


Defendant first argues that the trial court abused its
discretion by terminating his participation in PTI. Defendant
contends that a substance abuse evaluation and treatment were
not included in the PTI program requirements that were set forth
on the record when he entered his plea. He maintains that he
fulfilled all of the "legitimate conditions" of PTI, including
the performance of community service and submission to drug
tests. Defendant contends that he was wrongly terminated from
PTI for non-compliance with conditions that were never supposed
to have been imposed in the first place. We disagree with these

We note initially that we must defer to the findings of the
trial court when those findings "'could reasonably have been
reached on sufficient credible evidence present in the record.'"
State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)). Deference to the trial
court's factual findings is especially appropriate, as in this
case, when the court's findings were "'substantially
influenced'" by the court's "'opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (quoting Johnson, supra,
42 N.J. at 161).

Here, the trial court found that a substance abuse
evaluation and compliance with treatment recommendations were
requirements of the PTI program. Although those requirements
were not clearly spelled out on the record when defendant
entered his plea, defendant implicitly agreed to comply with all
PTI program requirements when he chose to seek admission to that
program. Moreover, by signing the court's order of postponement,
defendant acknowledged that a substance abuse evaluation and
treatment were PTI program requirements and he was required to
comply with them.

As we stated previously, defendant testified that he did
not read the court's order of postponement before he signed it.
Defendant asserted that his attorney did not explain that he was
required to have a substance abuse evaluation and follow the
treatment recommendations resulting from the evaluation. The
trial court found, however, that defendant's testimony was not
credible. We are satisfied that there is sufficient credible
evidence in the record to support the court's determination that
a substance abuse evaluation and treatment were PTI conditions
and defendant was required to comply with those conditions when
he was admitted to the program.
We are also satisfied that there is sufficient credible
evidence in the record to support the trial court's finding that
defendant failed to comply with the conditions of the PTI
program. It is undisputed that defendant initially refused to
have the substance abuse evaluation, despite clear directions
from the probation officer that he do so. Defendant had the
first evaluation only after DuQue informed him that she would
make an application to the court to terminate his participation
in the PTI program. The testimony at the hearing established
that GLS had recommended treatment and defendant refused to
comply with that recommendation. Although defendant had Jiandani
perform another substance abuse evaluation, and Jiandani did not
conclude that defendant required treatment, the trial court
properly noted that the results of Jiandani's evaluation were
questionable because it was unclear what information defendant
had provided to Jiandani.

In any event, the record established that defendant
initially failed to have a substance abuse evaluation despite
several directives from his probation officer that he do so. The
record also established that although defendant was eventually
evaluated by GLS, he refused to comply with GLS's treatment
recommendations. We are convinced that, under these
circumstances, the court did not abuse its discretion by
terminating defendant's participation in PTI.
Accordingly, we affirm the trial court's order of October
22, 2007, terminating defendant's participation in the PTI


Defendant also argues that the State violated the rules
governing PTI admission when it required him to enter a guilty
Rule 3:28, Guideline 4, provides in pertinent plea. We agree.
part that, "[e]nrollment in PTI programs should be conditioned
upon neither informal admission nor entry of a plea of guilty."
"As the language of the Guideline makes clear, prosecutors are
forewarned not to condition PTI enrollment upon admissions of
guilt." State v. Maddocks, 80 N.J. 98, 106 (1979).

Here, the State erred by requiring defendant to plead
guilty to count three of Indictment No. 06-06-258, "[i]n
exchange" for the prosecutor's agreement to allow defendant to
seek admission to PTI. In our judgment, defendant should not be
bound to a plea entered into contravention of the PTI
guidelines. Accordingly, the judgment of conviction must be
vacated and defendant should be given the opportunity to
withdraw the plea.

Affirmed in part, reversed in part and remanded to the
trial court for further proceedings in conformity with this


Friday, June 11, 2010

Evidence - Criminal Law -STATE OF NJ IN THE INTEREST OF D.H. ( A-1654-08T)



DOCKET NO. A-1654-08T41654-08T4



Submitted January 5, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Gloucester County,

Nos. FJ-08-858-08, FJ-08-927-08, FJ-08-1331-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant D.H. (Gilbert G. Miller, Designated

Counsel, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor,

attorney for respondent State of New Jersey

(Joseph H. Enos, Jr., Assistant Prosecutor,

on the brief).


D.H., a juvenile, was charged with acts which, if committed by an adult, would constitute burglary and theft. Following trial, he was found not guilty of burglary but guilty of theft. He appeals. After reviewing the record in light of the contentions advanced on appeal, we reverse.

On the morning of July 23, 2007, John Rooney walked to his car, parked in front of his residence, intending to drive to work. He found that the car doors had been opened and the interior ransacked. In the trunk was a box in which he had stored a GPS navigation system he had only recently obtained; the box was empty. Mr. Rooney summoned the police and the officer who responded to the scene carefully removed the box from the trunk and later delivered it to an investigator in his department. The investigator dusted the box and found several latent fingerprints. He did not attempt to lift the prints himself but forwarded the box to the county prosecutor's office to complete the process.

Detective Nicholas Kappre of the prosecutor's Crime Scene Unit took the box and lifted eight partial latent prints which he forwarded to the New Jersey State Police AFIS (Automated Fingerprint Identification System) unit. Of those eight, only two were found to be suitable for purposes of comparison. Detective Kappre received back a card containing ten prints that had been selected by AFIS, together with a computer print-out containing an enlargement of the latent print and the known print. Detective Kappre compared the latent print with the known print he had received from AFIS and testified that they were a match.

Detective Kappre also received from AFIS a list of twenty-five potential matches, identified by SBI number. Detective Kappre did not investigate any of those other potential matches to perform a comparison. There was testimony from which it could be inferred that D.H. headed this list, with the word "hit" next to his identification. There was no testimony to explain the significance of the term "hit" and no testimony linking D.H. to that SBI number. Nor did Detective Kappre take defendant's fingerprints to compare them either to the latent prints retrieved from the box or the ten-print card or enlargements he had received from AFIS.

Although Detective Kappre had received some training in fingerprint identification, he had never testified before on the question of fingerprint comparison. There was no attempt to qualify Detective Kappre to testify as an expert with respect to the workings of AFIS.

The trial was unfortunately protracted and heard in segments over eight days from May through September, 2008. Detective Kappre was the last witness for the prosecution. At the conclusion of his testimony on July 10, 2008, the prosecutor stated that the State was resting its case, and she then began to move documents into evidence, including the AFIS print screens Kappre had received from the State Police. Defense counsel objected, asserting they were hearsay, and that no foundation had been laid for their admission.

The trial court permitted the prosecution to recall Detective Kappre to the stand. For unavoidable reasons, the trial did not resume until August 7. Over defendant's objection, Detective Kappre took the stand. He testified that he had received from AFIS the latent prints he had taken from the box, the print screen AFIS had prepared comparing the latent prints and the known prints stored in the AFIS system and the ten-print card. Defendant objected to Kappre's testimony that the ten-print card contained D.H.'s name; he also testified that he believed the latent prints on the GPS box belonged to D.H.

On appeal, D.H. raises the following contentions for our consideration:





Hearsay is a "statement, other than one by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Admissibility of hearsay evidence is governed both by the hearsay exceptions set forth in N.J.R.E. 803 and 804, in criminal matters, by analysis of whether the proffered evidence is "testimonial" in nature under Crawford v. Washington541 U.S. 36,124 S. Ct. 1354158 L. Ed.2d 177 (2004).

The trial court ruled that the print screens Detective Kappre received from AFIS were admissible under the business records exception to the hearsay rule.

Under N.J.R.E. 803(c)(6), Records of Regularly Conducted Activity, business records are an exception to the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose, or circumstances of preparation indicate that it is not trustworthy.

New Jersey does not require that the custodian of the records testify as a condition to their admission. Supreme Court Committee Comment toN.J.R.E. 803(c)(6) (1991). However, a foundation must be laid establishing that the documents are admissible. Ibid.

Under the old rule, "the custodian or other qualified witness" had to testify as to the identity and mode of preparation of the business record. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2009) (quoting N.J.S.A. 2A:82-35). The new rule is "substantially similar." Ibid. The primary difference is requiring the document be made in regular business practice. Ibid. (cited with approval in State v.Sweet195 N.J. 357, 370 n.8 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2858174 L. Ed.2d 601 (2009)).

The New Jersey Supreme Court in State v. Matulewicz101 N.J. 27, 29 (1985), found that in order for evidence to be admitted under the business records exception: "First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." (finding State Police chemist's laboratory report inadmissible as a business record because the factual record below was "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the . . . report"). Although Matulewicz was decided under the old statute, it has been held as the standard by the New Jersey Supreme Court after the current rule for business records was adopted in 1991. See, e.g.Sweetsupra, 195 N.J. at 370; Feldman v. Lederle Labs. (Feldman III)132 N.J. 339, 354 (1993).

No foundation was ever laid for entry of the AFIS documents. The writing must be made in the regular course of business and made by someone with actual knowledge, or someone who with actual knowledge supplied the information. N.J.R.E. 803(c)(6). While the person with "actual knowledge" need not be the person who lays the foundation for entry of the business record, Hahnemann University Hospital v. Dudnick292 N.J. Super. 11, 17-18 (App. Div. 1996), the foundation must be laid by someone with personal knowledge that the records were kept in the ordinary course of business and the circumstances in which the records were made. N.J.R.E. 803(c)(6); N.J.R.E. 602 (a witness can only testify to matters he or she has personal knowledge of).

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H.

In addition to the enlargements, Detective Kappre also received two 10-print cards, one from AFIS, and one from the municipal police which, testimony indicates, bore D.H.'s name. Those cards were never received in evidence, however. And, even if they had been proffered, they would suffer from the same evidential deficiency as the enlargements; Detective Kappre lacked the knowledge to testify that the cards in fact contained D.H.'s prints for he had no knowledge of their preparation or recordation.

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, "The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original." N.J.R.E. 1005 specifies, however, that the document must be "otherwise admissible." Here, the AFIS records were not "otherwise admissible" in the absence of a proper foundation, which Kappre was not equipped to provide.

We also note, although defendant does not explicitly raise it in his brief, that Kappre testified that the prints received from AFIS were computer-generated and that the process of taking fingerprints by computer, as opposed to by a manual ink roll, involves certain distortions. Kappre was not asked to explain the significance of these distortions and their effect, if any, on his comparison of these prints. We recently addressed an analogous situation in Rodd v. Raritan Radiologic Associates, P.A.373 N.J. Super. 154 (App. Div. 2004), in which we held inadmissible, in the absence of foundational testimony, a computer-generated blow-up of a mammogram. We noted that the radiologist, who testified about this blow-up, "offered no account of how the films were scanned into the computer, or how the computer program operated. Consequently, he added very little to explain the circumstances surrounding the computer images' creation. . . ." Id. at 169. Here, there was no testimony as to the creation of AFIS's records.

Because we are satisfied that these records were improperly admitted into evidence, and they are the only link between D.H. and the theft, his adjudication must be reversed. This makes it unnecessary to address his remaining contentions.

The order adjudicating D.H. a delinquent is reversed.We note for the sake of completeness that we are not called upon to consider whether the trial court's determinations should be upheld under the principles of "invited error" recently articulated by the Supreme Court in Division of Youth & Family Services v. M.C. III, __ N.J. __ (2010) (slip op. at 23-25); here defense counsel objected to the admission of these documents.