STATE OF NEW JERSEY VS. SIWAN R. BROWN (15-09-1253, HUDSON COUNTY AND STATEWIDE) (A-2838-16T1)

STATE OF NEW JERSEY VS. SIWAN R. BROWN (15-09-1253, HUDSON COUNTY AND STATEWIDE) (A-2838-16T1)

Among other things, the panel holds that trial courts in our State have the discretion, in appropriate circumstances, to grant requests by deliberating jurors to have the closing arguments of all counsel played back or read back to them, in full or in part. In recognizing this discretionary authority, the panel follows other jurisdictions that have acknowledged the discretion of judges to allow such summation playbacks or readbacks. The panel rejects, however, defendant's contention that the denial of the jury's playback request in this case was unduly prejudicial and requires a new trial.

State v. Laurie Wint (079660) (Camden County and Statewide) (A-28/29-17

State v. Laurie Wint (079660) (Camden County and Statewide) (A-28/29-17; 079660)

The Pennsylvania detectives violated Edwards by attempting to question Wint in Camden after his earlier request for counsel, and Wint did not initiate the interrogation that occurred in Bucks County. The giving of repeated Miranda warnings did not cure the Edwards violation. Wint remained in continuous pre-indictment custody for six months before the questioning in Bucks County. Pre-indictment, pretrial detainment does not qualify as a break in custody under Shatzer, and none of the exceptions set forth in Edwards apply here. Edwards requires suppression of Wint’s incriminating statement concerning the shooting in Camden. The admission of that statement was not harmless error.

State v. Shaquan Hyppolite (080302) (Hudson County and Statewide) (A-48-17;

State v. Shaquan Hyppolite (080302) (Hudson County and Statewide) (A-48-17; 080302)

When exculpatory evidence is disclosed after a detention hearing, judges should use a modified materiality standard to decide whether to reopen the hearing. If there is a reasonable possibility that the result of the detention hearing would have been different had the evidence been disclosed, the hearing should be reopened. Applying that standard in this case, the Court reverses and remands to the trial court to reopen the detention hearing.

Attorney General Memo Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses

Attorney General Memo Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses 

Attorney General Gurbir S. Grewal in August 2018 released new guidance addressing the scope and appropriate use of prosecutorial discretion in municipal court prosecutions of marijuana-related offenses. The guidance reaffirms that municipal prosecutors are not permitted to adopt their own policies to decriminalize marijuana. Instead, prosecutors handling marijuana cases may appropriately exercise prosecutorial discretion on a case-by-case basis, as they would when prosecuting any other type of criminal offense.

In July, 2018 Attorney General Grewal had requested that all municipal prosecutors in New Jersey pause marijuana-related prosecutions in municipal court until September 4, 2018, while his office solicited advice from a working group representing a broad spectrum of criminal justice stakeholders and developed statewide guidance. The request to pause prosecutions will now expire as scheduled, and municipal court prosecutions will proceed in accordance with the Attorney General’s guidance.

According to the guidance, “a municipal prosecutor may not adopt a categorical policy or practice of refusing to seek convictions for statutory offenses related to marijuana.” This prohibits policies like the one adopted in Jersey City in July, and is consistent with the Attorney General’s initial determination that Jersey City’s policy was void.

Instead, the Attorney General’s guidance states: “Municipal prosecutors should exercise their prosecutorial discretion in marijuana-related cases as they would in any other case—based on the particular facts and applicable law, and consistent with their ethical obligations.” 

The Supreme Court has prohibited plea bargains for certain marijuana-related offenses, but municipal prosecutors have some discretion to determine unilaterally, and based on the facts of individual cases, whether charges should be dismissed or amended. In addition, at sentencing, municipal prosecutors may seek to lessen a defendant’s punishment or the collateral consequences of a conviction.

The guidance states that insufficiency of the evidence usually will be the basis for amending or dismissing of a municipal court complaint, but that other reasons also might justify amendment or dismissal. For example, according to the guidance, “a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court,” to the extent permitted by law. 

“The guidance that I am issuing today confirms that municipal prosecutors can responsibly exercise discretion to deal with minor marijuana possession offenses in a progressive, equitable manner, while respecting the rule of law, including the authority of the Legislature and the Courts,” said Attorney General Grewal. “Municipal prosecutors cannot decriminalize conduct that the Legislature has criminalized. They cannot adopt blanket policies of non-prosecution. But municipal prosecutors can and should strive to ensure that individual justice is done in individual cases.”

In addition to discussing the scope and appropriate use of prosecutorial discretion in marijuana-related cases, the working group responded to the Attorney General’s request to identify other policy changes to improve the equal, impartial, and uniform administration of justice in our municipal courts.

Based in part on the working group’s input, the Attorney General will be directing the Division of Criminal Justice to prepare recommendations for future action on several issues relating to municipal court prosecutions. Questions to be addressed by the Division may include:

• Should the Code of Ethics for County Prosecutors be extended to apply to municipal prosecutors?
• Should prosecutors adopt practices and policies to address criminal justice issues raised in the recent Report of the Supreme Court Committee on Municipal Court Operations, Fines, and Fees?
• Is there an appropriate role for prosecutors to play in advising defendants of potential collateral consequences of convictions?
• Do Municipal Prosecutor Supervisors or Liaisons in County Prosecutors’ Offices require additional guidance as to their duties?

“Today’s guidance on marijuana-related prosecutions is only one step toward improving the administration of justice in our municipal courts,” said Attorney General Grewal. “I look forward to addressing in the near future other, more fundamental issues affecting public confidence in our criminal justice system.”

https://nj.gov/oag/newsreleases18/pr20180829a.html

    Below is the memorandum:

Gurbir S. Grewal, Attorney General 

August 29, 2018 

This Memorandum of Guidance (hereinafter “Memorandum”) addresses the scope and appropriate use of prosecutorial discretion by municipal prosecutors handling complaints in municipal court. The Memorandum focuses in particular on how municipal prosecutors may permissibly exercise their discretion in cases involving marijuana-related offenses. 

The first part of this Memorandum addresses whether a municipal prosecutor may adopt a policy or practice of “marijuana decriminalization,” under which the prosecutor and/or his subordinates categorically will not pursue convictions for statutory offenses related to marijuana. The adoption of such a policy or practice would be an abuse of discretion and is therefore prohibited. 

The second part of this Memorandum discusses permissible exercises of prosecutorial discretion by municipal prosecutors at different points in the course of a prosecution. Municipal prosecutors necessarily exercise prosecutorial discretion in discharging the duties of their office. Marijuana-related cases are not unique in this regard. In exercising their discretion, however, prosecutors must be mindful of the need to consider the particular facts and applicable law in each individual case; to justify their decisions to the courts; to make a record that permits review for arbitrariness or discrimination; and to adhere to applicable rules of professional conduct. 

The Legislature is considering changes to how marijuana is treated under state law— including changes that may significantly reduce the number of low-level marijuana cases prosecuted in municipal court. Although legislation may soon make this Memorandum unnecessary or require its amendment, nothing in this Memorandum is intended to reflect upon the Legislature’s ongoing deliberations.

Pursuant to the authority granted to me under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State to secure the benefits of uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I, Gurbir S. Grewal, hereby provide the following guidance to all prosecutors operating under the authority of the laws of the State of New Jersey as to the prosecution of marijuana offenses in municipal court. 

I. A Municipal Prosecutor May Not Adopt a Categorical Policy or Practice of Refusing to Seek Convictions for Statutory Offenses Related to Marijuana. 

Prosecutors necessarily exercise some discretion in carrying out the duties of the office. A prosecutor’s discretion is not unlimited, however, and when a municipal prosecutor exceeds the scope of his or her discretion, the County Prosecutor or the Attorney General may intervene. See N.J.S.A. 2B:12-27; see also N.J.S.A. 2A:158-5; N.J.S.A. 2B:25-7. 

It would exceed the scope of a municipal prosecutor’s discretion to adopt a policy or practice of refusing to seek convictions for statutory offenses related to marijuana, notwithstanding the particular facts and applicable law in the individual case before the prosecutor. By categorically suspending enforcement of a State law, a municipal prosecutor impermissibly assumes a role that properly belongs to the Legislature. As explained below, a categorical policy or practice of amending marijuana-related statutory offenses to ordinance violations – or dismissing the charges outright – is impermissible, as is any substantially similar policy or practice. 

Categorical enforcement policies and practices adopted at the county or municipal level may impair one of the objectives of New Jersey’s criminal justice system: to promote the reasonably uniform administration of state laws. See, e.g., N.J.S.A. 2B:25-1. Our system aims to treat similarly situated offenders similarly, without regard to where in the State their conduct allegedly occurred. The discretion of county and municipal prosecutors to adopt categorical may be limited in service of that goal.

Categorical enforcement policies and practices adopted at the county or municipal level also raise questions of preemption. A local governmental unit may not “decriminalize” or 

specific standardized plea offers and policies due to the resulting arbitrary and unreviewable differences between different localities); State v. Baynes, 148 N.J. 434 (1997) (holding that a prosecutor’s rejection of a defendant’s admission into a Pretrial Intervention (PTI) Program “was a patent and gross abuse of discretion” because the prosecutor had “abandoned] his discretion in favor of a per se rule . . . unsupported by the legislative purpose behind both the PTI Statute and the Comprehensive Drug Reform Act, by the Guidelines, and by the caselaw.”); Attorney General’s Directive to Ensure Uniform Enforcement of the “Graves Act” (Oct. 23, 2008; corrected Nov. 25, 2008). 

otherwise license conduct, which violates the State’s criminal code. See N.J.S.A. 2C:1-5(d). Any policy or practice of a municipal prosecutor’s office—or any local governmental ordinance, law, or between permissible and impermissible exercises of discretion is not always a clear one. For that reason, among others, municipal prosecutors should confer with the Municipal Prosecutor Supervisor/Liaison in the County Prosecutor’s Office before adopting a policy or practice that approaches the line. 

Judicial decisions shed light on the difference between prosecutorial discretion and abdication. For example, in State v. Winne, 12 N.J. 152 (1953), the Supreme Court sustained the indictment of the Bergen County Prosecutor for criminal nonfeasance in office due to his alleged failure to enforce state laws against gambling. A county prosecutor, the Court concluded, does not “have it within his power to cripple or nullify the enforcement of the criminal law in his county or to choose at his pleasure the portion of the criminal law he would enforce.” Id. at 170- 71. A “prosecutor winking at and tolerating the violation of the laws” is not properly exercising whatever discretion he possesses. Id. 

“The duty of a prosecuting officer necessarily requires that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other, and that he intelligently weigh the chances of successful termination of the prosecution . . . .” State v. Ward, 303 N.J. Super. 47, 57 (App. Div. 1997) (citing Winne, 12 N.J. at 172). When a prosecutor does not weigh the facts and the applicable law in the case before him, but instead rests his decision- making on categorical policies or practices not grounded in the law, he has not yet begun to exercise his prosecutorial discretion. See Winne, 12 N.J. at 173; see also Baynes, 148 N.J. at 451. 

For these reasons, a municipal prosecutor may not adopt a “decriminalization” policy or practice of refusing to seek convictions for statutory offenses related to marijuana, without regard to the particular facts and applicable law in the individual case before him. This policy applies, but is not limited to, charges of possession of marijuana or hashish, N.J.S.A. 2C:35- 10(a)(4), being under the influence of a controlled dangerous substance or its analog, N.J.S.A. 2C:35-10(b), use or possession with intent to use drug paraphernalia, etc., N.J.S.A. 2C:36-2, and loitering to obtain or distribute a controlled dangerous substance, N.J.S.A. 2C:33-2.1. 

II. Municipal Prosecutors Must Exercise Prosecutorial Discretion on a Case-by-Case Basis, Considering the Particular Facts and Applicable Law in Each Case. 

Municipal prosecutors should exercise their prosecutorial discretion in marijuana-related cases as they would in any other case—based on the particular facts and applicable law, and consistent with their ethical obligations to the State, the defendant, and the courts. The applicable 

 (Jan. 24, 2005) (citing State v. Paserchia, 356 N.J. Super. 461 (App. Div. 2003)) (“[A] plea to a violation of an ordinance, when the underlying charge or charges are governed by State statutes is not permitted.”); see also Memorandum to All County Prosecutors re: Training Powerpoint Presentation for Municipal Prosecutors (Apr. 5, 2011); Memorandum to All Municipal Court Prosecutors re: Plea Agreements in Municipal Courts (Nov. 18, 1998). law in marijuana-related cases may include the Supreme Court’s Guidelines to Part VII of the Rules, which include restrictions on plea agreements involving certain drug-related offenses. Although the law places significant limits on municipal prosecutors’ discretion, the law also grants municipal prosecutors the latitude necessary to see that individual justice is done in individual cases. 

Please consider this additional guidance as to how municipal prosecutors might appropriately exercise their discretion at different points in the prosecution of marijuana-related offenses. 

A. Case Selection and Initiation 

Municipal prosecutors do not have the discretion to decide which cases will be initiated or which offenses will be charged within their jurisdiction. See N.J.S.A. 2B:25-5. The municipal court accepts for filing “every complaint made by any person,” R. 7:2-1(b), and the complaining witness—who may be a private citizen, a law enforcement officer, or another official— determines which offenses to charge in the complaint. R. 7:2-1(a). Unlike a county prosecutor, whose exercise of discretion in deciding which charges to pursue is an important part of their prosecutorial duties, the initial charging decision is not the municipal prosecutor’s to make. Accordingly, a municipal prosecutor has no latitude to use any discretionary authority at this stage of the proceedings to dispense or otherwise deal with statutory offenses related to marijuana. 

B. Plea Agreements, Amendments, and Dismissals 

After a complaint is filed, the municipal prosecutor is “responsible for handling all phases of the prosecution of an offense.” N.J.S.A. 2B:25-5(a). As explained in the Commentary on the Guidelines to Part VII of the Rules, the municipal prosecutor is not duty bound to pursue a conviction on every offense charged in every complaint: 

It is recognized that it is not the municipal prosecutor’s function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be individual justice in individual cases. 

In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. . . . 

[Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII cmt. (2018) [Part VII Guidelines].] 

Municipal prosecutors therefore have discretion in appropriate cases to recommend that the court accept a plea to a lesser or other offense, N.J.S.A. 2B:25-11, to move to amend an original charge, N.J.S.A. 2B:25-5(c); N.J.S.A. 2B:25-12, and to request dismissal of a charge, N.J.S.A. 2B:25-5(c). In exercising their discretion, municipal prosecutors must adhere: to constitutional, statutory, and ethical restrictions; to rules, guidance, and decisional law adopted by the Judiciary; and to supervisory instructions of the County Prosecutor and the Attorney General. 

a. Plea agreements 

From 1974 to 1990, all plea-bargaining in municipal courts was prohibited, pursuant to a Supreme Court directive. See State v. Hessen, 145 N.J. 441, 446-49 (1996). That prohibition has been relaxed, but the Court’s Part VII Rules and Guidelines still impose significant limits on municipal prosecutors’ discretion to enter into plea agreements, and prohibit the use of plea agreements to resolve certain marijuana and other offenses. See id. at 451-54. 

Plea agreements in municipal court are now governed by Rule 7:6-2; the Court’s Guidelines to Part VII and accompanying Commentary; case law; and guidance from the Office of the Attorney General. When a plea agreement is reached, its terms and the factual basis that supports the charge(s) must be fully placed on the record by the prosecutor, so that the court may review the plea agreement under the “interests of justice” standard. See R. 7:6-2(d). 

The prohibition on resolving certain marijuana and other offenses through plea agreements appears in the Guidelines located in the Appendix to Part VII of the Court Rules. Guideline 4 currently states: 

No plea agreements whatsoever will be allowed in drunken driving or certain drug offenses. 

A. Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and 

B. Possession of marijuana or hashish (N.J.S.A. 2C:35-10a(4)), being under the influence of a controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b), and use, possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A. 2C:36-2). 

.... 

Nothing contained in these limitations shall prohibit the judge from considering a plea agreement as to the collateral charges arising out of the same factual transaction connected with any of the above enumerated offenses in Sections A and B of this Guideline. 

The judge may, for certain other offenses subject to minimum mandatory penalties, refuse to accept a plea agreement unless the prosecuting attorney represents that the possibility of conviction is so remote that the interests of justice requires the acceptance of a plea to a lesser offense. 

under Chapter 35 or 36 of the Code of Criminal Justice arising from the same factual transaction and the defendant pleads guilty to one charge or seeks a conditional discharge under N.J.S.A. 2C:36A-1, all remaining Chapter 35 or 36 charges arising from the same factual transaction may be dismissed by the judge on the recommendation of the prosecutor. See Part VII Guideline 4. Prosecutors should exercise their discretion on a case-by-case basis in evaluating whether to recommend dismissal in this context, and dismissal often will be appropriate. 

b. Amendments and dismissals 

The Guidelines’ prohibitions on certain drug- and alcohol-related plea agreements do not “affect in any way the prosecutor’s discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant.” Part VII Guideline 3; see also Part VII Guidelines Comment (“Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter.”). Municipal court complaints charging marijuana-related offenses are subject to the usual rule that a municipal prosecutor may move to amend or dismiss all or part of the complaint “for good cause.” See N.J.S.A. 2B:25-5(c); R. 7:8-5 (dismissal); see also N.J.S.A. 2B:25-12 (amendment); R. 7:14-2 (amendment). 

A municipal prosecutor’s well-founded determination that the State lacks sufficient evidence to proceed ordinarily will constitute “good cause” to amend or dismiss a charge. The Commentary to the Part VII Guidelines states that “a prosecutor should not prosecute when the evidence does not support the State’s charges.” Therefore, insufficient evidence “usually” will be the “cause” for a motion to dismiss a pending charge, and that “the prosecutor should have the ability to amend the charges to conform to the proofs.” Dismissal and amendment on these grounds are the examples of appropriate uses of Guidelines and in guidance from the Division of Criminal Justice. 

 The prohibition of plea agreements for certain marijuana and other drug offenses encompasses any agreement between the prosecutor and the defense “as to the offense or offenses to which a defendant will plead guilty on the condition that any or all of the following occur: (a) the prosecutor will recommend to the court that another offense or offenses be dismissed; (b) the prosecutor will recommend to the court that it accept a plea to a lesser or other offense (whether included or not) than that originally charged; (c)the prosecutor will recommend a sentence(s), not to exceed the maximum permitted, to the court or remain silent at sentencing.” Part VII Guideline 2. A plea agreement includes “all of those traditional practices, utilized by prosecutors and defense counsel, including ‘merger’, ‘dismissal’, ‘downgrade’ or ‘amendment.’” Part VII Guidelines Comment. 

 “No Point” Violations for Graduated Drivers Licensees (Sept. 17, 2008) (“Nothing in this Directive should be construed to limit the authority of the prosecutor to dismiss any charge(s) where the prosecutor represents to the court on the record, either in camera, or in open court, that there is 

While insufficiency of the evidence “usually” will be the basis for an amendment or dismissal, other reasons might justify amendment or dismissal of a complaint. The relevant statutes and Court Rules do not specifically address what other circumstances might constitute “good cause.” To the extent permitted by law, however, a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court. Such circumstances or factors may include, but are not limited to: 

1.   The age of the defendant, and the nature and extent of the defendant’s prior criminal record; 

2.   The nature and circumstances of the offense and the arrest; 

3.   Adverse employment or military enlistment consequences (including hindering or precluding future employment, access to professional/occupational licensing, or ability to enlist in the armed services); 

4.   Adverse immigration consequences; 

5.   Adverse educational consequences (including potential removal from school or student housing and hindering or precluding access to student financial assistance); 

6.   Adverse housing and other government benefit consequences (including hindering or precluding future access to public housing and monetary benefits from the government); 

7.   Adverse familial consequences (including parenting/family status changes and financial or other burdens for family members); and 

8.   Other factors identified in the National Prosecution Standards published by move to amend or dismiss a complaint, a municipal prosecutor should be guided by the Court’s admonition that “the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case.” See Commentary to Part VII Guidelines. “The goal should be to achieve individual justice in individual cases.” Ibid. 

insufficient evidence to warrant a conviction, or that the possibility of acquittal is so great that dismissal of the charge(s) is warranted in the interests of justice.”). 

 (3d ed.), https://ndaa.org/wp-content/uploads/NDAA-NPS-3rd-Ed.-w-Revised-Commentary.pdf. 

The reasons for any amendment or dismissal must be acceptable to the municipal court. If a municipal prosecutor moves to amend or dismiss a complaint, the prosecutor must personally represent on the record the reasons in support of the motion. See Part VII Guideline 3. The prosecutor should anticipate that the court will question the basis for the motion to prevent an improper amendment or dismissal. See, e.g., Memorandum from Philip S. Carchman, J.A.D., to Municipal Court Judges re: Sample Questions for Use in Drunk Driving Cases (Dec. 2, 2004). At all times, the prosecutor should remain mindful of his ethical obligations to the State and the court. See, e.g., In re Norton, 128 N.J. 520, 533-40 (1992); In re Whitmore, 117 N.J. 472, 475-80 (1990). 

C. Sentencing 

Municipal court judges exercise considerable discretion at sentencing. For statutory offenses, the court’s discretion is subject to any statutory maximum or minimum penalties and based on the criteria prescribed by N.J.S.A. 2C:44-1 to -3 and N.J.S.A. 2C:51-2. See R. 7:9-1(b). A municipal prosecutor seeking to mitigate the consequences of a marijuana conviction may make favorable sentencing recommendations or not object to the defendant’s requests. The prosecutor also may support the defendant’s application for a “compelling circumstances” exception to the driver’s license suspension penalty under N.J.S.A. 2C:35-16 and/or the defendant’s application for relief from the Drug Enforcement and Demand Reduction penalty under N.J.S.A. 2C:35-15. 

D. Diversion Programs and Community Court 

A number of programs offer eligible defendants in municipal court cases diversionary treatment as an alternative to traditional prosecution. These include conditional discharge and conditional dismissal programs. In addition, the Cities of Newark and Jersey City operate innovative Community Solutions (or community court) programs focused on remedying some of the underlying causes of low-level crime. Municipal prosecutors may be called upon to recommend whether eligible defendants should be accepted into these programs. Nothing in this Memorandum should deter any municipal prosecutor from freely recommending that any eligible defendant be accepted into any of these diversion programs. 

Recent decisions from the Appellate Division have addressed whether marijuana-related offenses pending against the same defendant in different municipal courts may be consolidated with the defendant’s consent, pursuant to Rule 7:8-4, in order to maintain the defendant’s eligibility for a diversion program. See State v. Whooley, No. A-3395-15T2, 2017 N.J. Super. Unpub. LEXIS 2016 (App. Div. Aug. 8, 2017); State v. Sokolovski, No. A-4734-15T2, 2017 N.J. Super. Unpub. LEXIS 2537 (App. Div. Sept. 17, 2017). The Appellate Division concluded that consolidation was permissible in these cases even though the marijuana-related offenses pending in each municipal court did not “arise] out of the same facts and circumstances.” R.  

7:8-4. Based on the Appellate Division’s decisions, municipal and county prosecutors should consider consenting to consolidation in similar cases to allow defendants to qualify for diversion. 

III. Effective Date 

On July 24, 2018, I asked all municipal prosecutors to seek an adjournment until September 4, 2018, or later, of any matter involving a marijuana-related offense pending in municipal court, while the Office of the Attorney General developed guidance for prosecutors. That request will expire on September 4, 2018. 

This Memorandum of Guidance shall take effect immediately upon issuance. 

OK for Rutgers University police officer to stop and arrest a defendant for DWI State v. Goines, N.J. Super. Law Div. Docket NO. MA-37-2016

OK for Rutgers University police officer to stop and arrest a defendant for DWI   

State v. Goines, N.J. Super. Law Div. Docket NO. MA-37-2016 

 The state appealed the ruling of a municipal court judge that determined a Rutgers University Police Officer lacked jurisdiction to stop and arrest defendant for DUI. The officer allegedly observed defendant illegally cross a double-yellow line, after which she activated her lights and pulled over defendant in the city of New Brunswick. Defendant was transported to the police station for an Alcotest, which revealed a BAC of 0.14%. Before the municipal court, defendant moved to dismiss the DUI summons for lack of jurisdiction. Defendant cited a memorandum of understanding between Rutgers and New Brunswick that permitted Rutgers police officers to enforce motor vehicle laws on certain streets; because defendant's arrest did not occur on one of those streets, the municipal court judge granted defendant's motion. On appeal, the court reversed the ruling of the municipal court. The court noted that, in isolation, Title 18A appeared to preclude university police officers from enforcing traffic laws off-campus except at the request of municipal authorities. However, the court found that the Motor Vehicle Code also permitted "any law enforcement officer" to arrest someone for DUI. The court noted that this provision had been interpreted to permit municipal police officers to arrest drivers for DUI outside of those officers' territorial jurisdiction. The court interpreted the legislature's use of the term "any law enforcement officer" to mean that the legislature intended to expand the number of officials with authority to arrest drunk drivers. The court therefore held that it was consistent with the statute to give university police jurisdiction to enforce DUI laws. The court read this statute with Title 18A as preventing university police officers from being overtaxed, while not preventing those officers from stopping crimes occurring right before their eyes. Source https://www.law.com/njlawjournal/almID/1541469624NJMA372016/

School Zone map admissible if properly authenticated State v. Wilson 227 NJ 34 (2017)

The map commissioned and adopted by the Board pursuant to N.J.S.A. 2C: 35-7.1(e) is nontestimonial and its admission therefore did not violate Wilson’s confrontation rights. Further, such maps are admissible, if properly authenticated, under N.J.S.A. 2C: 35-7.1(e) and as public records pursuant to N.J.R.E. 803(c)(8).

 Because the map was not properly authenticated, however, the Court is constrained to reverse the Appellate Division’s judgment that the map was properly admitted into evidence at trial and to remand the matter for a new trial on the count of defendant’s conviction that depended on the map. 

State v. DeShaun P. Wilson (A-42-15) (076609)

Argued October 11, 2016 -- Decided January 19, 2017

Solomon, J., writing for a unanimous Court.

In this appeal, the Court determines whether the admission into evidence of a map, prepared and adopted by a governmental entity pursuant to N.J.S.A.2C:35-7.1(e), violates the Confrontation Clause of the Sixth Amendment to the United States Constitution and the analogous New Jersey constitutional provision, which guarantee an accused the right . . . to be confronted with the witnesses against him. U.S. Const.amend. VI; N.J. Const.art. I, 10.

Police detectives observed defendant DeShaun P. Wilson engage in the apparent sale of crack cocaine in the area of a public park in Elizabeth. Wilson was charged with third-degree possession of a controlled dangerous substance (CDS), third-degree possession of CDS with intent to distribute, and second-degree possession of CDS with intent to distribute in or within 500 feet of a public park.

During trial, the State sought to admit into evidence three related documents: a map of the park with a legend noting that the map was certified in 1998 by Armand A. Fiorletti, P.E., Union County Engineer ; an affidavit by an assistant Union County prosecutor, Richard Rodbart, stating that he had personally worked with the Engineer in contracting a third party to produce maps depicting each 500-foot zone within the county; and Resolution No. 1513-99, passed by the Union County Board of Chosen Freeholders, which states that the purpose of depicting the 500-foot areas was to introduce[e] said map[s] as evidence of the locations and boundaries of those areas within Union County in criminal prosecutions under N.J.S.A.2C:35-7.1. 

Wilson objected to the admission of the three documents, arguing that the map had not been properly authenticated and that the affidavit was inadmissible hearsay. Wilson emphasized that he never had an opportunity to cross-examine Rodbart. The trial court disagreed and admitted the documents into evidence. The jury was unable to reach a unanimous verdict, and the court declared a mistrial.

During the second trial, the State called a detective from the prosecutor s office as a witness. The detective testified that the map was a standard 500-foot map but admitted that he did not create the map or take the measurements that establish the area it depicts and that he relied on the engineer s work for accuracy. When the State moved to enter the map and other documents into evidence, defense counsel objected that the map was inadmissible. The trial court admitted all three documents into evidence. Wilson was convicted of all charges.

The Appellate Division affirmed the conviction, holding that the map was nontestimonial and that its admission did not violate Wilson s confrontation rights. 442 N.J. Super.224, 248 (App. Div. 2015). The panel found the map admissible under New Jersey s Rules of Evidence and N.J.S.A.2C:35-7.1(e).

The Court granted Wilson s petition for certification limited to the issue of whether defendant s confrontation rights were violated by the admission into evidence of a map to establish the crime of distribution of CDS within 500 feet of a public park. 224 N.J.119 (2016).

HELD: The map commissioned and adopted by the Board pursuant to N.J.S.A.2C:35-7.1(e) is nontestimonial and its admission therefore did not violate Wilson s confrontation rights. Further, such maps are admissible, if properly authenticated, under N.J.S.A.2C:35-7.1(e) and as public records pursuant to N.J.R.E.803(c)(8). Because the map was not properly authenticated, however, the Court is constrained to reverse the Appellate Division s judgment that the map was properly admitted into evidence at trial and to remand the matter for a new trial on the count of defendant s conviction that depended on the map.

1. Wilson s Confrontation Clause objection was timely and adequate. The Confrontation Clause affords a procedural guarantee that the reliability of evidence will be tested in a particular manner through the crucible of cross-examination. Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199 (2004). Under the standard set forth in Crawford, a testimonial statement against a defendant by a non-testifying witness is inadmissible under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him or her. (pp. 9-12)

2. The Court reviews United States Supreme Court jurisprudence and its development of the primary purpose test to determine whether an out-of-court statement is testimonial and, accordingly, falls within the ambit of the Confrontation Clause. In Davis v. Washington, the Court noted that statements with the primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution would be testimonial. 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). (pp. 13-15)

3. This Court has applied the primary purpose test in various Confrontation Clause cases involving the admission of forensic reports and medical examiner testimony. In State v. Michaels, 219 N.J.1, 44, cert. denied, ___ U.S.___, 135 S. Ct. 761, 190 L. Ed. 2d 635 (2014), the Court held that a blood test report prepared after a fatal motor vehicle accident was testimonial because its primary purpose was to serve as a direct accusation against [the] defendant. In State v. Bass, 224 N.J.285, 316-17 (2016), the Court found an autopsy report to be testimonial because the autopsy was conducted after a homicide investigation had begun; the defendant was a suspect in the homicide and had already spoken with the police; the autopsy was conducted in the presence of the lead State investigator; evidence collected during the autopsy was transmitted to the investigator; and the chain of custody was documented in the report. Id.at 316-17. The primary purpose of the autopsy report was thus to establish facts for later use in the prosecution of [that] case. Id.at 317. In State v. Chun, 194 N.J.54, 147, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Court considered foundational documents, or documents that establish the operational status of a device, and concluded that they fell outside of the definition of testimonial. (pp. 16-19)

4. Applying the primary purpose test to determine whether the Confrontation Clause is implicated here, the Court acknowledges that the map was created to be later used against those charged with violations of N.J.S.A.2C:35-7.1 and that documents prepared for use in a prosecution are generally testimonial. Nonetheless, the Court considers the map s other characteristics as well and finds that the area it depicts is an objective measurement that requires no independent interpretation of raw data. Although it is not a foundational document, the map shares the objective and neutral qualities of such evidence. Because the map was not created for the primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution, Bass, supra, 224 N.J.at 314, its admissibility is the concern of state and federal rules of evidence, not the Confrontation Clause. Michigan v. Bryant, 562 U.S. 344, 358-59, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107-08 (2011). (pp. 19-22)

5. The map is hearsay but is a public record within the meaning of N.J.R.E.803(c)(8). It would be admissible if it satisfied [t]he requirement of authentication or identification. N.J.R.E.901. N.J.S.A.2C:35-7.1(e) affords a separate basis for the map s admission into evidence upon proper authentication. Proper authentication of the map required a witness who could testify to its authenticity and be cross-examined on the methodology of the map s creation and its margin of error. That was not done here. Because the map was thus inadmissible hearsay, the State failed to offer competent evidence proving that the alleged drug transaction took place within 500 feet of a public park, an essential element of N.J.S.A.2C:35-7.1(a). The Court is thus constrained to reverse defendant s conviction for, and to remand for a new trial on the charge of, violating N.J.S.A.2C:35-7.1. (pp. 22-25)

6. The Court authorizes use of a notice and demand procedure to bypass the production of a witness to authenticate a map created pursuant to N.J.S.A.2C:35-7.1(e) and refers to the Supreme Court Committee on Criminal Practice the crafting of such a rule. (pp. 25-26)

The judgment of the Appellate Division affirming defendant s conviction of violating N.J.S.A.2C:35-7.1(a), count three of the indictment, is REVERSED, and the matter is REMANDED for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVecchia, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON s opinion.

SUPREME COURT OF NEW JERSEY

A- 42 September Term 2015

076609

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DESHAUN P. WILSON,

Defendant-Appellant.

Argued October 11, 2016 Decided January 19, 2017

On certification to the Superior Court, Appellate Division, whose opinion is reported at 442 N.J. Super. 224 (App. Div. 2015).

JUSTICE SOLOMON delivered the opinion of the Court.

We are called upon to determine whether the admission into evidence of a map, prepared and adopted by a governmental entity pursuant to N.J.S.A.2C:35-7.1(e), violates the Confrontation Clause of the Sixth Amendment to the United States Constitution and the analogous New Jersey constitutional provision, which guarantee an accused the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI; N.J. Const. art. I, 10. In defendant s trial, the map was used as prima facie evidence that defendant DeShaun P. Wilson was within 500 feet of a public park when he possessed for distribution crack cocaine, in violation of N.J.S.A. 2C:35-7.1(a).

We conclude that the map, commissioned and adopted by the Union County Board of Chosen Freeholders ( Board ) pursuant to N.J.S.A.2C:35-7.1(e), is nontestimonial and that its admission therefore did not violate defendant s confrontation rights. We also find that such maps are admissible, if properly authenticated, under N.J.S.A.2C:35-7.1(e) and as public records pursuant to N.J.R.E.803(c)(8). Because the map was not properly authenticated, however, we are constrained to reverse the Appellate Division s judgment that the map was properly admitted into evidence at trial and to remand the matter for a new trial on the count of defendant s conviction that depended on the map.

I.

The facts germane to this appeal are as follows. City of Elizabeth detectives observed defendant engage in the apparent sale of crack cocaine in the area of Leggett Park, a public park in Elizabeth. Defendant was charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A.2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A.2C:35-5(a)(1) and (b)(3) (count two); and second-degree possession of CDS with intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). Defendant was indicted on those charges and, following pretrial motions, was tried before a jury in the Union County Superior Court.

During trial, the State sought to admit into evidence three related documents: a map of Leggett Park and the surrounding area ( map ); an affidavit by an assistant Union County prosecutor, Richard Rodbart; and Resolution No. 1513-99, passed by the Board in 1999 to adopt a book of drug-free-zone maps.

The map, titled UNION COUNTY DRUG FREE ZONES, illustrates with a circle a 500-foot radius around Leggett Park. The legend notes that the map was certified in 1998 by Armand A. Fiorletti, P.E., Union County Engineer. 

The affidavit, offered by the State to authenticate the map, states that Rodbart personally worked with the Union County Engineer in contracting a third party, T&M Associates, to produce maps depicting each public housing facility, public park, and public building, as those terms are defined in N.J.S.A.2C:35-7.1(f). The affidavit notes that the maps were contained in a master notebook.

The third document presented by the State, Resolution No. 1513-99, indicates that Union County contracted with T&M Associates to create maps of all 500-foot drug-free zones within the county in coordination with, and under the supervision of, Fiorletti. The resolution states that the purpose of depicting the 500-foot areas was to introduc[e] said map[s] as evidence of the location and boundaries of those areas within Union County in criminal prosecutions under N.J.S.A. 2C:35-7.1. Through the resolution, the Board adopted the maps as an official finding and record of the location and boundaries of the area or areas on or within 500 feet of public housing facilities, public parks, and public buildings within Union County.

Defendant objected to the admission of the map, affidavit, and resolution. He stressed that the police detective called by the State to testify about the map did not work for one of the city s parks, zoning, or recreation departments and could not identify Leggett Park as a public park or authenticate the map as accurate. Defendant also asserted that Rodbart s affidavit was inadmissible as hearsay and did not qualify as a self-authenticating document. Defendant emphasized that he never had an opportunity to cross-examine Rodbart.

The court disagreed and admitted the documents into evidence. The jury was unable to reach a unanimous verdict, and the court declared a mistrial.

A second trial commenced, during which the State called as a witness a detective from the prosecutor s office. The detective described the map as a standard 500-foot map and explained that the circle it displays represents a 500-foot radius from a public building or park. He testified that Leggett Park is in the center of the circle and that the alleged narcotics transaction occurred within 500 feet of the park. Defense counsel did not object during the State s direct examination.

On cross-examination, the detective confirmed that the map was drafted in 1998, that it was certified by an engineer, and that the prosecutor s office relies on the city or county engineers for the production and provision of such maps. The detective also testified that he did not create the map or take the measurements that establish the circle on the map. With respect to the map s accuracy, he stated that he can only go by what the city engineer has made. 

Later, outside the presence of the jury, the State attempted to move the map and other documents into evidence. The State asserted that the map, affidavit, and resolution qualified as self-authenticating documents under N.J.R.E. 902 and as public records under N.J.R.E. 803(c)(8). The State also contended that the map was admissible under N.J.S.A. 2C:35-7.1. Defense counsel objected, claiming that the affidavit refers to a book of maps but does not specifically identify the map as part of that book. The defense also asserted that the affidavit was hearsay and that it was unclear whether the county engineer referred to therein was the same engineer who certified the map. Finally, defense counsel challenged the foundational basis for the map s admission, maintaining that the detective s testimony was insufficient. Over those objections, the court admitted the documents into evidence.

Defendant was convicted of all charges, including count three of the indictment, which charged distribution of CDS within 500 feet of a public park in violation of N.J.S.A. 2C:35-7.1. The Appellate Division affirmed the conviction, holding that the map was nontestimonial and that its admission did not violate defendant s confrontation rights. State v. Wilson, 442 N.J. Super. 224, 248 (App. Div. 2015). Although the panel recognized that the map was hearsay, it found the map admissible under our Rules of Evidence and N.J.S.A. 2C:35-7.1(e). Ibid.

This Court granted defendant s petition for certification limited to the issue of whether defendant s confrontation rights were violated by the admission into evidence of a map to establish the crime of distribution of CDS within 500 feet of a public park. State v. Wilson, 224 N.J. 119 (2016).

II.

Defendant contends that the Confrontation Clause is implicated here because the map is testimonial under New Jersey s primary purpose test. He maintains that the map serves no purpose other than to prosecute individuals charged with violating N.J.S.A. 2C:35-7.1 and was created to prove an element of that criminal offense. He characterizes the map as functionally identical to live, in-court testimony that drug distribution at a specific location was measured to be within 500 feet of a public park. Defendant argues that his confrontation rights were violated because the State failed to produce a witness who either prepared the map or otherwise had sufficient knowledge of the map s accuracy.

Defendant also contends that the map is inadmissible hearsay. He maintains that the public records exception to the hearsay rule, N.J.R.E. 803(c)(8), does not apply. He argues that T&M Associates, as a private company, does not constitute a public official. Defendant adds that the record is unclear as to whether the former county engineer who oversaw the map-making process was a public official at that time, acting within his official duties while supervising the map s creation.

Defendant also asserts that the business records exception to the rule against hearsay, N.J.R.E. 803(c)(6), is inapplicable because the map is not relied upon by a business or government for any regularly conducted business activity other than investigations and prosecutions under N.J.S.A. 2C:35-7.1.

The State argues that defendant waived his Confrontation Clause challenge because, at trial, defense counsel objected only on evidentiary grounds. The State maintains that this objection was untimely and improper because it did not refer specifically to the Confrontation Clause, the Sixth Amendment, or Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

The State also claims that, even if we find the Confrontation Clause challenge properly raised, defendant s rights were not violated. The State contends that the map is nontestimonial, claiming no difference between the map and a certified map of New Jersey used for jurisdictional purposes.

In support, the State analogizes the map to an Alcohol Influence Report (AIR) held to be nontestimonial in State v. Chun, 194 N.J. 54, 142-43, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), because, like the AIR, the map here does not report a past event. In addition, the State argues that this case lacks the common characteristic of documents held to be testimonial in State v. Michaels, 219 N.J. 1, cert. denied, ___ U.S. ___, 135 S. Ct. 761, 190 L. Ed. 2d 635 (2014), State v. Roach, 219 N.J. 58 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015), and State v. Bass, 224 N.J. 285 (2016), where the documents were prepared after the commencement of a criminal investigation to be used against a particular individual at his trial. 

Additionally, the State claims that the map is admissible as a public record under N.J.R.E. 803(c)(8) or, alternatively, as a business record under N.J.R.E. 803(c)(6).

III.

A.

Before addressing the law applicable to the parties arguments, we must first decide whether defendant waived his Confrontation Clause objection.

In the context of Confrontation Clause jurisprudence, each state has the authority to adopt procedural rules governing objections. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 2541, 174 L. Ed. 2d 314, 331 (2009). In the exercise of this authority, this Court has held that a defendant does not waive a Confrontation Clause objection merely because he waits until a witness s testimony is underway to object, particularly where . . . the objection is premised on the form and content of the witness s testimony. Bass, supra, 224 N.J. at 311-12. Furthermore, we do not require a defendant to specifically use the terms Confrontation Clause or Sixth Amendment or to refer to Crawford, supra, to preserve a Confrontation Clause challenge. Id. at 312. Nevertheless, a defendant [generally] must attempt to exercise his confrontation right and object when necessary, if he wishes later to claim that he was denied that right. State v. Williams, 219 N.J. 89, 93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).

Here, unlike the defendant in Williams, supra, 219 N.J. at 100-01, who raised no objection to the testimony he later claimed violated his confrontation rights, defendant asserted his objection before the trial court. He cited an objection made at his first trial and alluded to an inability to cross-examine the individual who had made the [map s] measurements. Wilson, supra, 442 N.J. Super. at 235 n.4. Defendant also highlighted the State s failure to present an adequate witness to testify about the map, asserting that the detective s testimony was insufficient.

Although defendant did not object to the map during the detective s testimony, the map was not admitted into evidence until the trial judge requested that the parties review the materials offered. When the State attempted to admit the map, defense counsel immediately objected. Our Court Rules require only that the objection be raised at the time the ruling or order is made or sought. R. 1:7-2. Therefore, we find that defendant s objection was timely.

We also find the substance of defendant s objection to be sufficient. In addition to a hearsay objection, defense counsel contended that the detective s testimony was inadequate -- the State could have brought someone in to testify to [the map or affidavit] -- and the foundation for the map s admission was deficient. We find that this was an objection as to form and content. See Bass, supra, 224 N.J. at 311-12.

Our courts will not find waiver of an objection unless counsel s declarations are in some way lacking. See, e.g., State v. T.J.M., 220 N.J. 220, 231 (2015) (finding objection not clearly raised when counsel made only tepid complaint before dropping argument and proceeding to argue another issue); State v. Nunez, 436 N.J. Super. 70, 76 (App. Div. 2014) (applying plain error rule because counsel objected on incorrect grounds). Here, the defense clearly asserted the correct grounds for its objection at the time the trial court ruled on admission of the map. We therefore hold that defendant s Confrontation Clause challenge was timely and adequate.

B.

Having found that defendant did not waive his Confrontation Clause challenge, we now address the substantive law applicable to this appeal. We begin by noting that the satisfaction of defendant s confrontation rights is a question of law, which we review de novo. See State v. Jones, 224 N.J. 70, 85 (2016).

The Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution, in nearly identical language, provide that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI; N.J. Const. art. 1, 10. The Confrontation Clause affords a procedural guarantee that the reliability of evidence will be tested in a particular manner through the crucible of cross-examination. Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199; State ex rel. J.A., 195 N.J. 324, 342 (2008) ( [The] right embodied in the Confrontation Clause expresses a preference for the in-court testimony of a witness, whose veracity can be tested by the rigors of cross-examination. ).

Under the standard set forth in Crawford, a testimonial statement against a defendant by a non-testifying witness is inadmissible under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him or her. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. The threshold issue is, thus, whether the proffered statement is testimonial in nature. Although the Crawford Court refrained from offering a comprehensive definition of the term, it provided some initial guideposts. Id.at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

First, quoting an 1828 English dictionary, the Court noted that testimony typically refers to [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. Id.at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192 (alteration in original). From this definition, the Court concluded that a formal out-of-court statement to government officers bears testimony against the accused whereas a casual remark to an acquaintance does not. Ibid. 

Second, the Court provided the following as a non-exhaustive list of testimonial statements

ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[;] . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[;] . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

[Id.at 51-52, 124 S. Ct.at 1364, 158 L. Ed. 2d at 193 (emphases added) (citations and internal quotation marks omitted).]

After Crawford, the United States Supreme Court labored to flesh out what it means for a statement to be testimonial. Ohio v. Clark, 576 U.S.___, ___, 135 S. Ct. 2173, 2179, 192 L. Ed. 2d 306, 314 (2015). It developed the primary purpose test to determine whether an out-of-court statement is testimonial and, accordingly, falls within the ambit of the Confrontation Clause. Id.at ___, 135 S. Ct.at 2179-80, 192 L. Ed. 2d at 314. In Davis v. Washington, the Court concluded that statements made outside the stationhouse setting with the primary purpose of enabling police assistance in an ongoing emergency were nontestimonial. 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). The Davis Court noted, however, that statements with the primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution would be testimonial. Id. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.

Later, in Michigan v. Bryant, the Court explained that [w]hen, as in Davis, the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause. 562 U.S. 344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107 (2011). The Court recognized that, aside from ongoing emergencies, circumstances may arise when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. Ibid. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Id. at 359, 131 S. Ct. at 1155, 179 L. Ed. 2d at 107-08. Accordingly, standard rules of hearsay, designed to identify some statements as reliable, will be relevant to the application of the primary purpose test. Id. at 358-59, 131 S. Ct. at 1155, 179 L. Ed. 2d at 107.

A year after Bryant, the Supreme Court s fractured decision in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), created confusion as to the viability and formulation of the primary purpose test. See Michaels, supra, 219 N.J. at 25-28 (discussing Williams plurality opinion). In light of this uncertainty, we upheld the primary purpose test originally announced in Davis and developed in pre-Williams case law. Id. at 31 ( We find Williams s force, as precedent, at best unclear. ). The soundness of our decision to do so was later affirmed by the Supreme Court s decision in Ohio v. Clark, where the Court confirmed that the question is whether, in light of all the circumstances . . . the primary purpose of the [evidence] was to creat[e] an out-of-court substitute for trial testimony. Clark, supra, 576 U.S. at ___, 135 S. Ct. at 2180, 192 L. Ed. 2d at 315 (second alteration in original) (quoting Bryant, supra, 562 U.S. at 358, 131 S. Ct. at 1155, 179 L. Ed 2d at 107).

This Court has since applied the pre-Williams primary purpose test in various Confrontation Clause cases involving the admission of forensic reports and medical examiner testimony. See Michaels, supra, 219 N.J. at 31-32; Roach, supra, 219 N.J. at 74-75; Bass, supra, 224 N.J.at 317. In Michaels, after a fatal motor vehicle accident, the police sent the defendant s blood sample to a private laboratory where approximately fourteen analysts performed tests that revealed that the sample contained traces of cocaine and other drugs. Michaels, supra, 219 N.J.at 8-9. The results of the blood test were provided to a supervisor at the lab, who then wrote, certified, and signed a report that concluded that the presence of these toxins in the defendant s blood would have caused [the defendant] to be impaired and unfit to operate a motor vehicle. Id. at 9. We recognized that the report was testimonial because its primary purpose was to serve as a direct accusation against [the] defendant. Id. at 44.

Similarly, in Roach, we found that a DNA profile created by a State forensic scientist from machine-generated data was testimonial. Roach, supra, 219 N.J. at 81. We reasoned that it was the scientist s subjective analysis and independent interpretation of the raw data that converted the DNA profile into unmistakably testimonial material subject to the Confrontation Clause. Ibid.

Our opinion in Bassis particularly relevant to our analysis here. There, in a murder trial, the State s expert was permitted to read to the jury portions of an autopsy report that had been prepared by a medical examiner who was deceased at the time of trial. Bass, supra, 224 N.J.at 292. In deciding whether that testimony violated the defendant s confrontation rights, we found the autopsy report to be testimonial. Id.at 316. The autopsy was conducted after a homicide investigation had begun; the defendant was a suspect in the homicide and had already spoken with the police; the autopsy was conducted in the presence of the lead State investigator; evidence collected during the autopsy was transmitted to the investigator; and the chain of custody was documented in the report. Id.at 316-17. Therefore, we found that the primary purpose of the autopsy report was to establish facts for later use in the prosecution of [that] case. Id.at 317.

We conclude our review of Confrontation Clause jurisprudence by noting that this Court has twice decided whether a defendant s confrontation rights are implicated by foundational documents, or documents that establish the operational status of a device, such as one that measures a person s blood alcohol content. See, e.g., Chun, supra, 194 N.J. at 64-65; State v. Sweet, 195 N.J. 357, 360 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).

Chun primarily involved the reliability of the Alcotest, a device to measure a person s blood alcohol level, and the admissibility of the AIR, the printout on which the Alcotest reports its readings. Chun, supra, 194 N.J. at 64-65, 67, 77. Applying the Davis primary purpose test and the principles set forth in Crawford, we concluded that the AIR was admissible as a business record pursuant to N.J.R.E. 803(c)(6). Id. at 141-42, 147. We found that the AIR falls outside of the definition of testimonial for the following reasons

First, the AIR reports a present, and not a past, piece of information or data. Second, although given in the presence of a police officer who operates the device, nothing that the operator does can influence the machine s evaluation of the information or its report of the data. Third, although the officer may have a purpose of establishing evidence of a BAC in excess of the permissible limit, the machine has no such intent and may as likely generate a result that exonerates the test subject as convicts him or her.

[Id. at 147.]

In Sweet we addressed whether the Confrontation Clause bar[s] the introduction into evidence of foundational documents concerning the operational status of a Breathalyzer[], a device used to measure a subject s blood alcohol content. Sweet, supra, 195 N.J. at 360. Relying on Chun, we held that the foundational documents at issue qualified as business records. Id. at 369-71. We also noted that these documents were admitted by the State as proof that the Breathalyzer[] device in use was in good working order. Id. at 370. We reviewed the dictates of Crawford and concluded that none of the offered documents relate[d] to or report[ed] a past fact [or were] generated or prepared in order to establish any fact that [was] an element of the offense. Id. at 373-74 (quoting Chun, supra, 194 N.J. at 144).

IV.

Having reviewed the applicable Confrontation Clause precedent, we must determine whether the admission into evidence of the map, prepared and adopted by a governmental entity pursuant to N.J.S.A. 2C:35-7.1(e) and used as prima facie evidence that defendant was within 500 feet of a public park when he possessed for distribution crack cocaine, violates the Confrontation Clause. We acknowledge that there is no direct precedent dealing with the kind of evidence under consideration here and its Confrontation Clause implications.

Our analysis requires a clear understanding of the language of N.J.S.A. 2C:35-7.1(a) and (e). N.J.S.A. 2C:35-7.1(a) makes it a second-degree crime to possess[] with intent to distribute a controlled dangerous substance . . . while in, on or within 500 feet of the real property comprising . . . a public park. The Legislature provided that prima facie evidence of the location and boundaries of the places set forth in N.J.S.A. 2C:35-7.1(a) can be established by creating a map pursuant to N.J.S.A. 2C:35-7.1(e)

In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of . . . the area in or within 500 feet of a public park, . . . or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 500 feet of . . . a public park . . . . The original of every map approved or revised pursuant to this section, or a true copy thereof . . . shall be maintained as an official record of the municipality or county. Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense . . . .

[N.J.S.A. 2C:35-7.1(e) (emphases added).]

We must apply the primary purpose test reaffirmed in Michaels to a map created pursuant to N.J.S.A. 2C:35-7.1(e) to determine whether the Confrontation Clause is implicated here. In doing so, we first acknowledge that the map was created to be later used against those charged with violations of N.J.S.A. 2C:35-7.1 and that documents prepared for use in a prosecution are generally testimonial. Nonetheless, we consider as well the map s other characteristics.

The map constitutes prima facie evidence of an element of possessi[on] with intent to distribute a controlled dangerous substance . . . while in, on or within 500 feet of the real property comprising . . . a public park, a violation of N.J.S.A. 2C:35-7.1(a). Thus, the map creates a rebuttable presumption of the proximity of the alleged drug transaction to the park. It does not conclusively establish defendant s guilt.

The map is unlike the forensic report in Michaels, which opined that drugs found in the defendant s blood rendered her impaired and unfit to operate a motor vehicle. Michaels, supra, 219 N.J. at 9. Nor is the map the product of subjective analysis as was the DNA profile in Roach. Instead, the 500-foot area it depicts is an objective measurement that requires no independent interpretation of raw data. Roach, supra, 219 N.J. at 81. The map is the raw data.

Drawing from Chun and Sweet, we observe that the map is not a nontestimonial foundational document -- it is not concerned with the operational status of anything. Nonetheless, it shares the objective and neutral qualities of the evidence in those cases. Although the map is used in criminal prosecutions and was created, in part, for that purpose, it does not target a particular person. It may establish a rebuttable presumption of proximity to the public park just as it may exonerate a person charged with violating N.J.S.A. 2C:35-7.1(a). Furthermore, the map reports a present fact: it reveals those locations within 500 feet of Leggett Park.

Importantly, the map was not created in response to a criminal event. The map was created years before the commission of any of the offenses alleged here. When the map was produced, there was no alleged crime committed by defendant. Nor was the map created to establish a fact relevant to an ongoing police investigation.

Therefore, the map was not created for the primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution. Bass, supra, 224 N.J. at 314 (alterations in original) (quoting Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6, 131 S. Ct. 2705, 2714 n.6, 180 L. Ed. 2d 610, 620 n.6 (2011)). Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Bryant, supra, 562 U.S. at 359, 131 S. Ct. at 1155, 179 L. Ed. 2d at 107-08. Consequently, we must apply our evidence rules to determine whether the map is admissible.

V.

Hearsay is not admissible except as provided by [the Rules of Evidence] or by other law. N.J.R.E. 802. Under our evidence rules, the map is hearsay and is, therefore, admissible if an exception to the prohibition against hearsay applies.

One such exception allows for the admissibility of a document that is a public record. A document is admissible as a public record if it is

a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the official s duty either to perform the act reported or to observe the act, condition, or event reported and to make the written statement.

[N.J.R.E. 803(c)(8).]

We find that the map is a public record within the meaning of N.J.R.E. 803(c)(8). The map was certified by the Union County Engineer, a public official, who supervised the mapping process for which the county had contracted. Observation of the map s creation thus fell within the scope of [his] duty. Ibid. Accordingly, the map would be admissible under N.J.R.E. 803(c)(8) if it satisfied [t]he requirement of authentication or identification, which is a condition precedent to admissibility. N.J.R.E. 901.1

N.J.S.A. 2C:35-7.1(e) affords a separate basis for the map s admission into evidence. See N.J.R.E. 802. The statute provides that a map depicting the location and boundaries of . . . the area in or within 500 feet of a public park is admissible as prima facie evidence of the location and boundaries of [the 500-foot] areas. N.J.S.A. 2C:35-7.1(e). However, the statute explicitly conditions the map s use as such evidence upon proper authentication and requires that the municipality have approved the map by resolution or ordinance as an official finding and record of the 500-foot areas. Ibid.

Here, the Board adopted Resolution No. 1513-99 approving the notebook of which the map was a part. Therefore, the map would be admissible in defendant s prosecution for violating N.J.S.A. 2C:35-7.1(a) if it were properly authenticated. N.J.S.A. 2C:35-7.1(e).

The State argues that, because the map s legend contains a certification by a county engineer, it is self-authenticating under N.J.R.E. 902. The State maintains that the assistant prosecutor s affidavit and the Board resolution therefore provided a sufficient foundation for the map s admission. We disagree.

Proper authentication of the map required a witness who could testify to its authenticity and be cross-examined on the methodology of the map s creation and its margin of error. See State v. Simbara, 175 N.J. 37, 47-48 (2002) (noting that State must prove reliability of public record). That was not done here.

Because the map was admitted into evidence without proper authentication, it did not satisfy the requirements of N.J.S.A. 2C:35-7.1(e) and constituted inadmissible hearsay. The map was the State s sole evidence that the offense occurred within 500 feet of Leggett Park. Therefore, because the map is inadmissible, the State failed to offer competent evidence proving that the alleged drug transaction took place within 500 feet of a public park, an essential element of N.J.S.A. 2C:35-7.1(a). We are thus constrained to reverse defendant s conviction for, and to remand for a new trial on the charge of, violating N.J.S.A. 2C:35-7.1.

We hereby authorize use of a notice and demand procedure to bypass the production of a witness to authenticate a map created pursuant to N.J.S.A. 2C:35-7.1(e). See Williams, supra, 219 N.J. at 102. At defendant s retrial, and in any prosecution under N.J.S.A. 2C:35-7.1, the State may give notice to a defendant, at least thirty days before trial, that a map prepared pursuant to N.J.S.A. 2C:35-7.1(e) will be offered at trial for a violation of N.J.S.A. 2C:35-7.1 and may demand an objection to its use within ten days. An objection will require the State to produce an authenticating witness who can testify to the map s authenticity and be cross-examined on the methodology of the map s creation and its margin of error. If there is no such objection, the map may be admitted without production of an authenticating witness. We refer to the Supreme Court Committee on Criminal Practice the crafting of a rule, with any necessary improvements, on pretrial notice and demand in prosecutions under N.J.S.A. 2C:35-7.1.

VI.

The judgment of the Appellate Division affirming defendant s conviction of violating N.J.S.A. 2C:35-7.1(a), count three of the indictment, is reversed, and the matter is remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVecchia, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON s opinion.

1 The State argues that the map is also admissible as a business record. Because the map was created pursuant to N.J.S.A. 2C:35-7.1, and not in Union County s regular course of business, N.J.R.E. 803(c)(6), we find the business record exception inapplicable.