Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ: Failure to activate body worn cameras (BWCs) not a constitutional violation State v Seligman

Failure to activate body worn cameras (BWCs) not a constitutional violation State v Seligman 480 N.J. Super. 509 (App. Div 2025)

Defendant appeals from the denial of his motion to suppress evidence seized during the search of his residence pursuant to a “knock and announce” warrant. The police officers executing the warrant did not activate their body worn cameras (BWCs) until the moment they forcibly breached the door with a battering ram, and therefore, did not electronically record their compliance with the knock-and-announce rule as required by Attorney General directives. Defendant asks us to create a new rule of law whereby evidence is suppressed when an officer violates an Attorney General directive while executing a knock-and-announce search warrant. In the alternative, defendant contends the trial court should have drawn an adverse inference against the State and, ultimately, erred in finding that police complied with the knock-and-announce rule based on an officer’s testimony that was not supported by a BWC recording.

The court agrees with the motion judge that the failure to comply with an Attorney General directive does not constitute a constitutional violation. Defendant cites no authority for the proposition that a violation of an Attorney General directive triggers the exclusionary rule when, as in this instance, the directive imposes a procedural requirement that neither the United States nor New Jersey Constitutions impose. The court declines defendant’s invitation to create any such new legal principle.

In reaching that conclusion, the court notes the Legislature did not include a suppression remedy in the statute that now governs police use of BWCs, N.J.S.A. 40A-118.5. That statute incorporates guidelines or directives promulgated by the Attorney General about when BWCs should be activated. See N.J.S.A. 40A:14-1-118.5©(1). Instead of requiring suppression, the statute creates a “rebuttable presumption that exculpatory evidence was destroyed or not captured in favor of a defendant” when a law enforcement officer fails to adhere to BWC recording requirements. N.J.S.A. 40A:14-118.5(q).

The court holds this rebuttable presumption applies in suppression hearings and not just trials but concludes it does not apply in this case because the BWC statute applies prospectively and did not take effect until after the present search warrant was executed. The court ultimately concludes there is sufficient credible evidence in the record to support the motion judge’s finding that police did in fact knock and announce their identity and intent before using force to execute the search warrant.

January 3, 2025

APPELLATE DIVISION

State v. SELIGMAN,

Defendant-Appellant.

__________________________

Argued October 8, 2024 – Decided January 3, 2025

Before Judges Sumners, Susswein and Bergman.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 22-10-1309.

Brian J. Neary argued the cause for appellant (Neary

Law, LLC, attorneys; Brian J. Neary, of counsel and on

the briefs; Caitlin Kenny and Braden B. Couch, on the

briefs).

Khyzar Hussain, Legal Intern, argued the cause for

respondent (Esther Suarez, Hudson County Prosecutor,

attorney; Stephanie Davis Elson, Assistant Prosecutor,

of counsel and on the brief; Khyzar Hussain, on the

brief).

The opinion of the court was delivered by

SUSSWEIN, J.A.D.Defendant Yonathan Seligman appeals his guilty plea conviction for

possession with intent to distribute methylenedioxymethamphetamine

(MDMA), also known as Ecstasy. He contends the trial court erred in denying

his motion to suppress evidence seized from his apartment pursuant to a search

warrant. Defendant does not challenge the validity of the warrant but rather

contends the State failed to prove the officers who executed the search complied

with the "knock-and-announce" rule. Specifically, defendant asserts that

officers failed to comply with Attorney General Law Enforcement Directive No.

2015-1, which requires activation of their body worn cameras (BWCs) in a

timely manner1. Off. of the Att'y Gen., Law Enf't Directive No. 2015-1, Law

Enforcement Directive Regarding Police Body Worn Camera (BWCs) and

Stored BWC Recordings (Jul. 28, 2015) [hereinafter BWC Directive].

Defendant asks us to create a new rule of law whereby evidence is

suppressed when an officer violates the BWC Directive while executing a

knock-and-announce search warrant. In the alternative, defendant contends the

trial court should have drawn an adverse inference against the State and,

1 The BWC Directive was revised in 2021 and 2022. Off. of the Att'y Gen.,

Law Enf't Directive No. 2021-5, Body Worn Camera Policy (May 25, 2021)

[hereinafter Body Worn Camera Policy]; Off. of the Att'y Gen., Law Enf't

Directive No. 2022-1, Update to Body Worn Camera Policy (Jan. 19, 2022).

2 A-0496-23ultimately, erred in finding the State's sole witness at the suppression hearing

was credible when he testified that the officers knocked and announced their

identity and intent twenty to twenty-five seconds before deploying a battering

ram to enter the apartment.

In addition to challenging the execution of the search warrant, defendant

contends the trial court misapplied the relevant aggravating and mitigating

factors when imposing sentence. After carefully reviewing the record in light

of the arguments of the parties and governing legal principles, we affirm the

conviction and sentence.

We discern the following facts and procedural history from the record. In

February 2021, Customs and Border Protection notified the Homeland Security

Investigation Newark Airport Border Enforcement Security Task Force (HSI) of

a package intercepted at the John F. Kennedy airport. The package contained

two plastic bags filled with green pills that tested positive for MDMA. The

package was addressed to "Yoni Seligman" at a street address number on 22nd

Street in Union City. That street address does not exist. After investigation,

authorities determined that defendant lived at a similarly numbered street

address on 22nd Street.

3 A-0496-23On February 16, 2021, HSI and the Port of New York/Newark Intelligence

and Analytics Branch alerted the Union City Police Department that a second

package had been intercepted. That package was also addressed by name to

defendant but this time to his correct street address.

On February 18, 2021, a Superior Court judge signed a warrant

authorizing police to enter and search defendant's apartment. The warrant

expressly directed officers to make this search "[a]fter knocking and announcing

[their] intent."

On February 19, 2021, Union City Police Department and HSI officers

executed the search warrant and arrested defendant. They seized 520 Ecstasy

tablets (1,163 grams of MDMA), cocaine, 25.47 grams of Ketamine, 370

milligrams of LSD, 120 Alprazolam tablets, over $51,000, and drug

paraphernalia including a scale and pill crusher.

In October 2022, defendant was charged by indictment with first-degree

maintaining/operating a controlled dangerous substance (CDS) production

facility, N.J.S.A. 2C:35-4 (count 1); first-degree possession with intent to

distribute MDMA, N.J.S.A. 2C:35-5(a)(1) and 5(b)(1) (count 2); first-degree

possession with intent to distribute LSD, N.J.S.A. 2C:35-5(a)(1) and 5(b)(6)

(count 3); second-degree possession with intent to distribute cocaine, N.J.S.A.

4 A-0496-232C:35-5(a)(1) and 5(b)(2) (count 4); third-degree possession with intent to

distribute ketamine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(13) (count 5); second-

degree possession with intent to distribute alprazolam, N.J.S.A 2C:35-10.5(a)(4)

(count 6); five counts of second-degree possession of CDS with intent to

distribute within five-hundred feet of a public housing facility, N.J.S.A. 2C:35-

7.1 (counts 7 to 11); five counts of third-degree possession with intent to

distribute CDS within one-thousand feet of a school, N.J.S.A. 2C:35-7(a)

(counts 12 to 16); and four counts of third-degree possession of CDS, N.J.S.A.

2C:35-10(a)(1) (counts 17 to 20).

Defendant filed a motion to suppress the evidence seized during the

execution of the search warrant. Union City Police Department Detective Jefte

Pichardo testified that he was a part of the "stack" of officers who entered

defendant's apartment pursuant to the warrant. The State presented the

following testimony regarding the knock-and-announce procedure during

Pichardo's direct examination:

Prosecutor: You said that part of the stack is to knock

and announce; is that correct?

Pichardo: That's correct.

Prosecutor: And did that happen in this execution?

Pichardo: It did.

5 A-0496-23Prosecutor: Who did that?

Pichardo: from HSI.

Sergeant Rodriguez and one of the agents

Prosecutor: And where were [you] when . . . Sergeant

Rodriguez knocked on the door?

Pichardo: Arm's length from the door.

Prosecutor: . . . [H]ow did Sergeant Rodriguez knock

and announce?

Pichardo: He knocked several times while stating,

"Police! Search warrant!" as well as the HSI agent.

Prosecutor: And how long—well what happened after

Sergeant Rodriguez and the HSI agent knocked and

announced?

Pichardo: Approximately 20 to 25 seconds, then the

ram was used to enter the apartment, breach the

apartment.

Pichardo further testified that he was wearing his BWC during the

execution of the search warrant and activated it "prior to entering

the . . . doorway." Pichardo explained that to activate the BWC, "you press [the

center button] twice and it starts recording. The first 20 to 30 seconds of the

6 A-0496-23body cam is just video only. After the 30 seconds, 20, 30 seconds then the audio

starts recording."2

Pichardo testified he reviewed his BWC footage, including the initial

segment without audio, and stated the silent recording shows the officers

pausing before using a ram to open the door to the apartment. The prosecutor

called attention to the delay in recording audio and asked Pichardo, "in that

footage that we just saw there was a pause of the ram being used. Do you recall

2 Pichardo testified his BWC automatically and constantly captures video

images. Once physically activated, the BWC saves and stores the preceding 20

to 30 seconds of video images and begins saving and storing audio only after its

activation. We note the BWC Directive explains:

Some BWC models may be turned on and remain in a

standby or buffering mode, during which the device

does not make a permanent record of images/sounds

unless the officer activates the recording

mode/function. With respect to these models, when the

officer activates the recording mode/function, the

device automatically preserves an electronic recording

of the events that transpired a fixed period of time (e.g.,

30 seconds) before the recording mode/function was

activated. This time-delay or “buffering” feature

allows the device to capture data concerning the

event/circumstances that prompted the officer to

activate the BWC. When an officer does not activate

the recording mode/function, data captured while the

device is in standby/buffering mode is overwritten

automatically.

[BWC Directive at 2, n.1.]

7 A-0496-23why that was?" Pichardo responded, "I believe he was saying, again, 'Police!

Search warrant!'"

On cross-examination, Pichardo clarified that Sergeant Rodriguez was

knocking and announcing whereas the HSI agent was only announcing.

Pichardo testified that he did not activate his BWC until the ram was used to

open the apartment door and acknowledged that he should have activated it

earlier.

The State stipulated that the other participating officers also activated

their BWCs after entering the apartment and that none of the BWCs were

recording audio when the knock-and-announce warning was issued.

On May 31, 2023, the trial court denied defendant's motion to suppress,

issuing an eleven-page written opinion. The trial court found that "there is

credible testimony to support law enforcement's compliance with the knock and

announce requirement." Specifically, the trial court explained, "[t]here is

credible testimony from Detective Pichardo that he witnessed Officer Rodriguez

knock and announce the presence of law enforcement. The officers then waited

twenty to twenty-five seconds before forcibly entering the apartment. Officer

Pichardo's body camera was activated immediately prior to entering the

apartment . . . ."

8 A-0496-23In July 2023, defendant pled guilty pursuant to a negotiated plea

agreement to count two of the indictment charging first-degree possession with

intent to distribute MDMA. The plea agreement provided that "sentence [is] to

be treated in second degree range." The plea agreement further provided that

the remaining charges would be dismissed.

On October 13, 2023, in accordance with the plea agreement, the trial

court sentenced defendant to a seven-year prison term. The trial court did not

impose a period of parole ineligibility. Defense counsel had argued for a five-

year prison term.

This appeal followed. Defendant raises the following contentions for our

consideration:

POINT I

THE TRIAL JUDGE ERRED IN DENYING

DEFENDANT'S MOTION TO SUPPRESS

EVIDENCE YIELDED FROM THE EXECUTION OF

A SEARCH WARRANT.

POINT II

DEFENDANT IS ENTITLED TO A RESENTENCING

BECAUSE THE TRIAL JUDGE FAILED TO

FOLLOW THE REQUIREMENTS OF THE CODE OF

CRIMINAL JUSTICE IN IMPOSING SENTENCE.

9 A-0496-23SUBPOINT A

THE SENTENCING JUDGE FAILED TO

PROPERLY CREDIT WITH ALL THE

APPROPRIATE MITIGATING FACTORS.

Defendant raises the following additional contentions in his reply brief:

POINT I

THE STATE MIS[]APPLIES THE RELEVANT

CASELAW IN SUPPORT OF THE TRIAL COURT'S

ERROR IN FAILING TO SUPPRESS EVIDENCE

SEIZED PURSUANT TO NO KNOCK WARRANT.

POINT II

STATE'S ARGUMENT REGARDING CLAIM

DEFENDANT IS NOT ENTITLED TO A

RESENTENCING, IS UNAVAILING TO PRESENT

MATTER, BECAUSE THE TRIAL JUDGE FAILED

TO FOLLOW THE REQUIREMENTS OF THE CODE

OF CRIMINAL JUSTICE IN IMPOSING

SENTENCE.

SUBPOINT A

THE SENTENCING JUDGE FAILED TO

PROPERLY CREDIT WITH ALL THE

APPROPRIATE MITIGATING FACTORS.

II.

We first address defendant's suppression argument. The scope of our

review of a trial court's decision on a motion to suppress is limited. State v.

Ahmad, 246 N.J. 592, 609 (2021). "Generally, on appellate review, a trial

10 A-0496-23court's factual findings in support of granting or denying a motion to suppress

must be upheld when 'those findings are supported by sufficient credible

evidence in the record.'" State v. A.M., 237 N.J. 384, 395 (2019) (quoting State

v. S.S., 229 N.J. 360, 374 (2017)). We defer to those factual findings because

of the trial court's "opportunity to hear and see the witnesses and to have the

'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192

N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Accordingly, we "ordinarily will not disturb the trial court's factual findings

unless they are 'so clearly mistaken "that the interests of justice demand

intervention and correction."'" State v. Goldsmith, 251 N.J. 384, 398 (2022)

(quoting State v. Gamble, 218 N.J. 412, 425 (2014)). However, legal

conclusions drawn from those facts are reviewed de novo. State v. Radel, 249

N.J. 469, 493 (2022).

Turning to substantive legal principles, the Fourth Amendment of the

United States Constitution and Article I, Paragraph 7 of the New Jersey

Constitution establish warrant requirements that protect against unreasonable

searches and seizures. U.S. Const. amend. IV.; accord N.J. Const. art. I, ¶ 7.

"There are two types of warrants police can request: a no-knock warrant and a

11 A-0496-23knock-and-announce warrant." State v. Caronna, 469 N.J. Super. 462, 486 (App.

Div. 2021). A knock-and-announce warrant requires police to knock on the door

and announce their presence before executing a search warrant. State v.

Johnson, 168 N.J. 608, 615-16 (2001). "The knock-and-announce rule protects

'human life and limb, because an unannounced entry may provoke violence in

supposed self-defense by the surprised resident.'" Caronna, 469 N.J. Super. at

499 (quoting Hudson v. Michigan, 547 U.S. 586, 594 (2006)). "Suffice it to say

that the rule safeguards against violence to occupants of the residence, and

importantly, likewise protects police officers themselves." Ibid.

It is long established under both the Fourth Amendment and Article I,

paragraph 7 of the New Jersey Constitution that the exclusionary rule bars the

State from admitting evidence obtained from an unconstitutional search or

seizure. Wong Sun v. United States, 371 U.S. 471, 485-88 (1963); State v.

Shaw, 213 N.J. 398, 412-13 (2012). It is also well-settled that the exclusionary

rule is invoked "following an unjustifiable entry into a dwelling in violation of

a knock-and-announce requirement contained in a search warrant." Caronna,

469 N.J. Super. at 495.

The suppression of evidence, it bears noting, is the appropriate remedy

when a defendant's constitutional rights have been violated. See State v.

12 A-0496-23Novemberino, 105 N.J. at 157-58 (1987); see also Caronna, 469 N.J. at 490. The

exclusionary rule ordinarily does not apply, however, when police violate a

statute rather than a constitutional rule. See State v. White, 305 N.J. Super. 322,

332 (App. Div. 1997) (holding that extra-jurisdictional search by local police in

violation of statute defining the powers of municipal police officers does not

rise to the level of a constitutional violation, and thus does not require invocation

of the exclusionary rule); State v. Gadsden, 303 N.J. Super. 491, 505 (App. Div.

1997) (holding that arrest of defendant in his Newark home by Hillside police

in violation of statute setting jurisdictional limits of municipal police does not

require suppression of evidence found in search incident to arrest). See also

State v. Gioe, 401 N.J. Super. 331, 342-44 (App. Div. 2008) (declining to apply

the exclusionary rule where search warrant was improperly issued by a

municipal court judge based on an application of a law enforcement officer who

had not appeared personally before the judge as Rule 3:5-3(a) required). As we

stressed in Caronna, "[s]uppression of evidence . . . has always been our last

resort, not our first impulse." 469 N.J. at 490 (quoting State v. Presley, 436 N.J.

Super. 440, 459 (App. Div. 2014)).

13 A-0496-23B.

The BWC Directive specifies when an officer equipped with a BWC is

required to activate the device. Section 5.2(h) specifically provides that a BWC

must be activated when "the officer is conducting any kind of search (consensual

or otherwise)." Id. at 9. Furthermore, Section 5.4 provides in relevant part, "[t]o

ensure that the entire encounter/event/episode is recorded, when feasible, a

BWC should be activated before a uniformed officer arrives at the scene of a

dispatched call for service or other police activity listed in section 5.2." Id. at

11.

Attorney General Directive 2021-12, titled Directive Regulating "No-

Knock" Warrants, cross-references the BWC Directive, explaining, "[p]ursuant

to [the BWC Directive], which established and implemented the statewide Body

Worn Camera Policy, officers are required to wear body worn cameras when

executing search warrants. That requirement provides a video record of search

warrant execution, should it become necessary to perform further review of no-

knock provisions in the future." Off. of the Att'y Gen., Law Enf't Directive No.

2021-12, Directive Regulating "No-Knock" Warrants, at 2 n.1 (Dec. 7, 2021)

[hereinafter No-Knock Directive].

14 A-0496-23Relevant to this appeal, the BWC Directive further provides:

Although BWCs record events accurately and

objectively, they do not replace the need for complete

and accurate police reports and testimony. The fact that

a BWC is not activated to record an encounter or event

does not, of course, preclude an officer from testifying

as to the circumstances of the encounter or event, or

affect the admissibility of evidence. Nor does it suggest

that the officer's written report or testimony is

inaccurate or incomplete. However, a BWC recording

can supplement and corroborate the accuracy of written

reports and testimony . . . .

[Id. at 3, §1.2.]

The BWC Directive also states:

Nothing in this Directive shall be construed in any way

to create any promises or any rights beyond those

established under the Constitutions, statutes, and

regulations of the United States and the State of New

Jersey. The provisions of this Directive are intended to

be implemented and enforced by law enforcement

agencies that deploy BWCs, and these provisions do not

create any promises or rights that may be enforced by

any other persons or entities.

[Id. at 23, §15.]

The BWC Directive's 2021 revision added:

If a law enforcement officer, employee, or agent fails

to adhere to the recording or retention requirements

contained in this Policy, intentionally interferes with a

BWC's ability to accurately capture audio or video

recordings, or violates any other provision of this

policy, the officer, employee, or agent shall be subject

15 A-0496-23to appropriate disciplinary action, in addition to any

judicial consequences outlined in the law.

[Body Worn Camera Policy, at 26, §13.]

The No-Knock Directive similarly explains:

This Directive is issued pursuant to the Attorney

General's authority to ensure the uniform and efficient

enforcement of the laws and administration of criminal

justice throughout the State. This Directive imposes

limitations on law enforcement agencies and officials

that may be more restrictive than the limitations

imposed under the United States and New Jersey

Constitutions, and federal and state statutes and

regulations. Nothing in this Directive shall be

construed in any way to create any substantive right that

may be enforced by any third party.

[No-Knock Directive, at §V(A).]

In rejecting defendant's challenge to the execution of the search warrant,

the trial court reasoned:

[T]he [officers'] failure to activate their body cameras

is not a constitutional violation. Law enforcement

knocked and announced their presence; the only issue

is the failure to record the audio demonstrating officers

knocked and announced. Suppression of narcotics and

other evidence of criminality discovered pursuant to a

valid warrant is a remedy saved for constitutional

violations. A remedy [is] not proscribed by any

precedent, nor the Attorney General directive which

Defendant relies upon.

16 A-0496-23We agree with the trial court that the failure to comply with the BWC

Directive does not constitute a constitutional violation. Defendant nonetheless

argues the "ever-expanding utilization and policy surrounding law enforcement

use of body worn cameras . . . warrants a change in the law as to what the

recourse is for failure to properly utilize body worn cameras." Defendant further

argues, "without requiring suppression . . . there is absolutely nothing to deter

law enforcement" from not activating their BWCs.

We are unpersuaded. Defendant cites no authority for the proposition that

a violation of an Attorney General directive triggers the exclusionary rule when,

as in this instance, the directive imposes a procedural requirement that neither

the United States nor New Jersey Constitutions impose. We decline defendant's

invitation to create any such new legal principle.

Importantly, the exclusionary remedy that defendant urges us apply to the

BWC Directive violations goes well beyond the remedy adopted by the

Legislature in the statute that now governs the use of BWCs, N.J.S.A. 40A-

118.5. That statute incorporates guidelines or directives promulgated by the

Attorney General about when body worn cameras should be activated. See

N.J.S.A. 40A:14-118.5(c)(1).

17 A-0496-23N.J.S.A. 40A:14-118.5(q)(2) provides:

If a law enforcement officer, employee, or agent fails

to adhere to the recording or retention requirements

contained in this act, or intentionally interferes with a

body worn camera's ability to accurately capture audio

or video recordings:

. . . .

(2) there shall be a rebuttable presumption that

exculpatory evidence was destroyed or not captured in

favor of a criminal defendant who reasonably asserts

that exculpatory evidence was destroyed or not

captured;

In State v. Jones, we rejected the trial judge's determination that the

rebuttable presumption set forth in N.J.S.A. 40A:14-118.5(q) is limited to trials

and does not apply to suppression hearings. 475 N.J. Super. 520, 531-32 (App.

Div. 2023). But nothing in the text of the statute, or in our interpretation of it

in Jones, suggests that a violation the BWC Directive, now incorporated by

reference in N.J.S.A. 40A:14-118.5, warrants automatic suppression of evidence

otherwise lawfully seized under our State and federal constitutions. We note

that the Legislature clearly knows how to prescribe the suppression remedy for

statutory violations, see, e.g., N.J.S.A. 2A:156A-21, but did not do so with

respect to BWC violations.

That leads us to consider whether the rebuttable presumption established

in the statute applies to the matter before us. Defendant contends the officers'

18 A-0496-23failure to timely activate their BWCs requires "suppression, or at a

minimum . . . a negative inference." Defendant argues again, without

suppression or a negative inference, "there is absolutely nothing to deter law

enforcement" from failing to timely activate their BWCs.

We hold that the rebuttable presumption established in N.J.S.A. 40A:14-

118.5(q) does not apply in this case because the statute did not take effect until

after the search warrant was executed on February 19, 2021. See N.J.S.A.

40A:14-118.5 (effective Jun. 1, 2021) (citing L. 2020, c. 129, §2 ("This act shall

take effect on the first day of the seventh month after enactment.")). In State v.

Boone, we held that "the rebuttable presumption of N.J.S.A. 40A:14-118.5 did

not take effect until after this stop, making it inapplicable at the suppression

hearing." 479 N.J. Super. 193, 197 n.1 (App. Div. 2023) (citing Jones, 475 N.J.

Super. at 530-31).

We add that "[t]he courts of this State have long followed a general rule

of statutory construction that favors prospective application of statutes."

Gibbons v. Gibbons, 86 N.J. 515, 521 (1981) (footnote omitted). A two-part

test is used to determine whether a statute may be applied retroactively. Matter

of D.C., 146 N.J. 31, 50 (1996) (quoting Phillips v. Curiale, 128 N.J. 608, 617

(1992)). Courts look to (1) "whether the Legislature intended to give the statute

19 A-0496-23retroactive application" and (2) "whether retroactive application of that statute

will result in either an unconstitutional interference with 'vested rights' or a

'manifest injustice.'" Ibid. (quoting Phillips, 128 N.J. at 617).

Relatedly, courts may infer a prospective intent when the Legislature is

silent on the issue because of the "knowledge that courts generally will enforce

newly enacted substantive statutes prospectively," absent a clear expression of

contrary intent from the Legislature. Maeker v. Ross, 219 N.J. 565, 578 (2014)

(emphasis omitted). Without a clear expression of contrary intent, a statute that

relates to substantive rights and changes settled law will be applied

prospectively. Ibid.

We emphasize that in this instance, we are not dealing with a statute that

is silent as to its prospective application. On the contrary, the Legislature

expressly delayed the effective date for seven months after enactment, making

even more clear the statute was not intended to have retroactive effect.

Accordingly, the trial court was not required to apply a "rebuttable

presumption" or draw a "negative inference" against the State. Even so, the trial

court did consider the "failure to record the audio demonstrating that officers

knocked and announced." As we have noted, Pichardo acknowledged that he

should have activated his BWC earlier. The record shows, moreover, Pichardo

20 A-0496-23was subjected to skillful cross-examination, after which the trial court found he

was credible. Cf., State v. Castagna, 187 N.J. 293, 309 (2006) (noting that cross-

examination has been described as "the 'greatest legal engine ever invented forNOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0496-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

APPROVED FOR PUBLICATION

AS REDACTED

January 3, 2025

APPELLATE DIVISION

YONATHAN Z. SELIGMAN,