                                    RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-1683-17T4

STATE OF NEW JERSEY IN THE
INTEREST OF K.B., a Juvenile.
_____________________________

                 Argued May 2, 2019 – Decided May 28, 2019

                 Before Judges Simonelli, Whipple and Firko.

                 On appeal from Superior Court of New Jersey,
                 Chancery Division, Family Part, Hudson County,
                 Docket No. FJ-09-0830-17.

                 Susan L. Romeo, Assistant Deputy Public Defender,
                 argued the cause for appellant K.B. (Joseph E. Krakora,
                 Public Defender, attorney; Susan L. Romeo, of counsel
                 and on the brief).

                 Alanna M. Jereb, Assistant Prosecutor, argued the
                 cause for respondent State of New Jersey (Esther
                 Suarez, Hudson County Prosecutor, attorney; Alanna
                 M. Jereb, on the brief).

PER CURIAM

       Defendant, K.B., a juvenile, appeals from a June 5, 2017 Family Part order

of disposition for delinquency entered after a bench trial. For the reasons that

follow, we reverse.
      Based on a review of the record, we discern the following facts. Early in

the morning on January 22, 2017, police responded to a report of gunshots on a

residential street in Jersey City. No one identified or described the shooter.

Detective Michael Burgess of the Jersey City Police Department responded to

the scene and found shell casings from a nine-millimeter handgun on the

sidewalk. He noticed two parked cars were struck by bullets. There were no

witnesses and the police did not recover a gun. The evidence presented to the

judge during the subsequent bench trial included surveillance videos from the

neighborhood and police testimony about them.

      Officer Jesse Hilburn obtained surveillance video from home cameras on

the residential street where the shots were fired. The cameras faced east and

west down the street. The west-facing video showed a group of people leaning

against a parked car, but only their legs were visible. The video showed flashes

of light, which caused the people to scatter. A parked car immediately pulled

out and backed down the street. Another video showed two men running east.

The video did not show the shooter.

      The east-facing video, at the same time stamp as the west-facing video,

showed small flashes of light from across the street. After the gunfire, one or




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                                       2
two people ran across the street. No weapons or faces were visible, but the same

car can be seen driving in reverse down the street.

      The next set of videos came from a multi-family apartment building

located one street east of where the shots were fired. One camera faced north

and another faced south. A third camera faced west and a fourth camera showed

the interior of the building's laundry room. The north- and south-facing cameras

clearly showed two men in dark clothing running, later walking, south and away

from the street where the shots were fired. Their faces were partially covered.

The videos did not show weapons. The third camera showed the men turn right

and then enter an alleyway adjacent to the apartment building.

      The video from the apartment's laundry room showed a young man,

dressed in black and wearing a black cap, step into the laundry room with

something brown in his hand. He was visible for less than two seconds before

he turned around and left. The video is blurry and dim.

      One of the officers, Michael Sanchez, believed he recognized the person

in the laundry room video as K.B., someone he had previously encountered in

other investigations. Based on Sanchez's identification, K.B. was charged in a

juvenile delinquency complaint alleging conduct, which if committed by an

adult would constitute: second-degree unlawful possession of a weapon,


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                                       3
N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a)(1); fourth-degree possession of a firearm by a

minor, N.J.S.A. 2C:58-6.1(b); and third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(2).

      A trial was held in the Family Part on April 25 and May 16, 2017. Four

police officers testified for the State. Detective Burgess testified that on January

22, 2017, he received a call about shots fired on a residential street. During

Burgess's testimony, the State introduced, and later moved into evidence, photos

of the cars struck by bullets and the shell casings scattered at the scene.

      During Hilburn's testimony, the State played the east- and west-facing

videos recovered from the street where the shots were fired. Hilburn testified

the police could not locate any witnesses or victims of the shooting. On cross -

examination, he acknowledged neither a shooter nor a gun was visible on the

street-view videos.

      Jersey City Police Officer Gilberto Vega also testified he recovered the

four surveillance videos from the apartment building. Vega was unable to

identify any individuals or point to any weapons in the three videos showing the

street view. Vega testified as to what he believed the laundry-room video

depicted, and the following exchange took place.


                                                                              A-1683-17T4
                                         4
            Q: Okay, Officer Vega. What did we just see?

            A: We just saw the defendant with no mask on and a
            gun in his hand come into the laundry room, look
            directly at the camera, and then exit the laundry room.

            Q: Officer Vega, why do you think there's a gun in his
            hand?

            A: There's a gun in his hand, because it was the gun that
            I believe was used in the shooting that occurred
            approximately ten minutes prior to that.

Vega admitted he only knew defendant was the person who entered the laundry

room based on information from other officers, not his own perception. When

asked how he knew the object in the person's hand was a gun, he responded it

was based on his "training and experience." He did not explain what his training

and experience entailed.

      Officer Sanchez identified the individual in the laundry-room video as

defendant. During the course of his testimony, Sanchez only testified about the

laundry-room video and did not view or identify defendant in the videos showing

people scatter after flashes of light.     Sanchez testified, "based on [his]

observation," the object in the person's hand was a "small caliber handgun."

Sanchez admitted he could not determine the caliber of the handgun.

      Based on the evidence presented at trial, the judge found two men, one

being defendant, fired handguns at a group of individuals. The judge found the

                                                                        A-1683-17T4
                                       5
two individuals in the video wearing black and running down the street were the

shooters and one of them was defendant. The judge found that defendant was

the individual who entered the laundry room after running from the scene of the

shooting. The judge speculated the car that reversed after the flashes of light

was connected to the perpetrators of the shooting, though no testimony was

offered that linked the vehicle to the perpetrators. 1

      The judge credited Officer Sanchez's testimony, finding his identification

of defendant in the video believable, and he also relied on his own viewing of

the video, saying that it

             corroborates everything else. So it's – it's not just the
             face. It's not just the features. It's not just the clothing,
             the color of the clothing, the headgear. It's also the fact
             that holding of the gun and everything establishes, in
             my view, that the State proved . . . beyond a reasonable
             doubt . . . that the person in that laundry room was
             [defendant.]

The judge found defendant guilty of all charges. Despite the fact that K.B. was

only charged with third-degree aggravated assault, he was adjudicated

delinquent of second-degree assault. He was sentenced to a three-year term of

detention. This appeal followed.



1
  Testimony about this vehicle was used to establish continuity of the security
cameras because the time stamps on the cameras were not identical.
                                                                             A-1683-17T4
                                          6
On appeal, defendant argues the following:

     POINT I

     K.B.'S ADJUDICATIONS FOR DELINQUENCY
     MUST BE REVERSED BECAUSE THE TRIAL
     COURT ERRONEOUSLY ALLOWED TWO POLICE
     OFFICERS TO PROVIDE INADMISSIBLE OPINION
     TESTIMONY THAT THE BLURRY BROWN
     OBJECT SEEN FOR TWO SECONDS ON THE
     BASEMENT LAUNDRY ROOM VIDEO WAS A
     HANDGUN.

     POINT II

     K.B. IS ENTITLED TO JUDGMENT OF
     ACQUITTAL    ON    THE    CHARGES    OF
     AGGRAVATED ASSAULT AND POSSESSION OF
     A WEAPON FOR AN UNLAWFUL PURPOSE
     BECAUSE: 1) EVEN IF K.B. WAS THE PERSON
     DEPICTED ON THE LAUNDRY ROOM VIDEO,
     THE STATE PRESENTED NO EVIDENCE THAT HE
     WAS ONE OF THE SHOOTERS; 2) EVEN IF THE
     BLURRY BROWN OBJECT SEEN ON THE
     LAUNDRY ROOM VIDEO WAS A GUN, THE
     STATE PRESENTED NO EVIDENCE THAT IT WAS
     THE [NINE-MILLIMETER] HANDGUN USED IN
     THE SHOOTINGS, OR THAT IT WAS EVEN A
     [NINE-MILLIMETER] GUN.

           1. K.B.'s Motion For Judgment Of Acquittal.

         2. The State's Failure To Present Evidence To
         Establish Identity And Unlawful Purpose.
     POINT III

     K.B. IS ENTITLED TO REVERSAL OF HIS
     CONVICTION    IN  COUNT  FOUR   FOR

                                                         A-1683-17T4
                                7
            DELINQUENCY BASED ON ALLEGATIONS OF
            SECOND-DEGREE AGGRAVATED ASSAULT
            UNDER N.J.S.A. 2C:12-1(b)(1), BECAUSE THE
            COMPLAINT CHARGED HIM ONLY WITH
            DELINQUENCY BASED ON THIRD-DEGREE
            AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12-
            1(b)(2), AND THE ADJUDICATION BASED ON A
            HIGHER DEGREE CRIME VIOLATED HIS RIGHT
            TO DUE PROCESS. (U.S. CONST. AMENDS. V, VI,
            XIV; N.J. CONST. ART. 1, PAR. 10) (not raised
            below).

            POINT IV

            THE TRIAL COURT ERRED WHEN IT PERMITTED
            OFFICER SANCHEZ TO TESTIFY THAT K.B. WAS
            THE PERSON ON THE VIDEO (not raised below).

                                        I.

      Ordinarily, "[a] trial court's evidentiary rulings are entitled to deference

absent a showing an abuse of discretion" as a "clear error of judgment." State

v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431,

439 (2012)). When a trial court fails to apply the proper legal standard to

determine the admissibility of evidence, the court's decision is not entitled to

deference and appellate review is de novo. State v. Darby, 174 N.J. 509, 518

(2002).

      We focus our attention on the arguments in defendant's first point. After

a careful review of the record, we consider the admission of lay-opinion


                                                                          A-1683-17T4
                                        8
testimony in the present case as grounds for reversal.           Here, the officers

speculated that defendant possessed a gun and Officer Vega offered his opinion

that defendant was holding a gun because he had committed a shooting.

      When objections regarding the officers' opinion testimony were raised,

the judge overruled the objections stating, "you don't need to be an expert to

testify that someone was seen with a gun in his hand. And, you know, whether

. . . that is believable or not and whether, in fact, that happened is for the [c]ourt

to determine." Although the judge justified his decision by asserting credibility

determinations would balance the testimony, the judge did not consider whether

the testimony was admissible or inadmissible lay-opinion testimony. The judge

did discuss the application of Rule 701 for lay-opinion testimony, but he

characterized the identification of defendant as the person with the gun as fact

testimony. See N.J.R.E. 701. Given the failure to assess the admissibility of

the evidence, the judge's evidentiary decisions are reviewed de novo. Darby,

174 N.J. at 518.

      Lay-opinion testimony is admissible if it: "(a) is rationally based on the

perception of the witness and (b) will assist in understanding the witness'[s]

testimony or in determining a fact in issue." N.J.R.E. 701. "[L]ay opinion

testimony is limited to what was directly perceived by the witness and may not


                                                                              A-1683-17T4
                                          9
rest on otherwise inadmissible hearsay." State v. McLean, 205 N.J. 438, 460

(2011). On the other hand, expert testimony allows experts "to explain the

implications of observed behaviors that would otherwise fall outside the

understanding of ordinary people on the jury." Ibid. "The Rule does not permit

a witness to offer a lay opinion on a matter 'not within [the witness's] direct ken

. . . and as to which the jury is as competent as he to form a conclusion[.]'" Id.

at 459 (alterations in original) (quoting Brindley v. Firemen's Ins. Co., 35 N.J.

Super. 1, 8 (App. Div. 1955)).

      In McLean, our Supreme Court considered whether "there is a category of

testimony that lies between those two spheres, governed by the lay opinion rule,

that authorizes a police officer, after giving a factual recitation, to testify about

a belief that the transaction he or she saw was a narcotics sale." Id. at 461. The

Court declined to adopt such an approach, finding "we would be transforming

testimony about an individual's observation of a series of events, the significance

of which we have previously held does not fall outside the ken of the jury, into

an opportunity for police officers to offer opinions on defendants' guilt. " Ibid.

(citation omitted).

      The McLean Court focused on how the testifying officer had not been

qualified to testify as an expert. Id. at 461-62. "As a result, the reference in the


                                                                             A-1683-17T4
                                        10
question to his training and experience, coupled with the request that he testify

about his belief as to what had happened, impermissibly asked for an expert

opinion from a witness who had not been qualified to give one." Id. at 462. In

McLean, a police detective testified about a drug-dealing surveillance operation.

Id. at 445-46. A prosecutor asked what the detective believed happened "based

on [his] own experience . . . and . . . training[.]" Id. at 446. The Court found

this impermissibly elicited an expert opinion from a witness not qualified to give

one. Id. at 463.

      Our courts "have permitted police officers to testify as lay witnesses,

based on their personal observations and their long experience in areas where

expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114

N.J. 187, 198 (1989). But admissibility "must be[] firmly rooted in the personal

observations and perceptions of the lay witness in the traditional meaning of the

Rule 701." McLean, 205 N.J. at 459.

      Here, both Vega and Sanchez opined on the presence of a gun in the video.

Vega was given the opportunity to narrate the video, with the prosecutor asking,

"What did we just see?" and Vega responding, "We just saw the defendant with

no mask on and a gun in his hand." The prosecutor further asked Vega, "why

do you think there is a gun in his hand?" (Emphasis added). Vega then opined


                                                                          A-1683-17T4
                                       11
about events he did not personally observe and about which he had no personal

knowledge, stating, "[it] was the gun that I believe was used in the shooting that

occurred approximately ten minutes prior." (Emphasis added). Lay-opinion

testimony is limited to what was directly perceived by the witness. Id. at 460.

Vega was not familiar with defendant and did not observe the shooting. Rather,

he based his observation on his "training and experience."

      His statement was prejudicial because he opined on the ultimate issue of

the case: whether defendant was the shooter. See id. at 461. When defendant

objected to this testimony, the judge overruled the objection without considering

the admissibility of the statement, only its credibility. 2 The judge stated, "[t]his

is what this witness is saying and it has to be determined whether what he's

saying is correct, whether it will be given any weight.          He will be cross -

examined, but this is his testimony." As a result, the judge failed to perceive

Vega offered an inadmissible lay opinion.

                                             II.



2
   The credibility of Vega's conclusion is also somewhat dubious given that no
witness placed K.B. at the scene, no witness saw who fired the shots and even
if police identified K.B. as one of the two men running from the scene, which
they did not do, the video shows other men running in different directions after
the shots were fired.


                                                                             A-1683-17T4
                                        12
      The present case also raises an issue of whether the fact finder was able

to form his own conclusion about the alleged gun in the video. See id. at 459.

Officer Sanchez testified that the object in the video was a "small caliber

handgun."3 Opinion, either lay or expert, "is not a vehicle for offering the view

of the witness about a series of facts that the jury can evaluate for itself or an

opportunity to express a view on guilt or innocence." Id. at 462.

      The judge stated he repeatedly viewed the video of the laundry room and

that was part of his basis for concluding defendant was holding a gun. The State

contends this shows any erroneous admission was not harmful as the judge

would have determined there was a gun in the video regardless of the officer s'

testimony. We disagree. If the judge were able to determine the individual was

holding a gun based only on his own observation, then the officers' testimony

was admitted in error because lay-opinion testimony is not a vehicle for offering



3
   The State cites State v. Brown, an unpublished case, for the proposition that
an officer can testify regarding their belief a defendant possessed a weapon. No.
A-4860-14 (App. Div. Dec. 4, 2017) (slip op. at 3). Unpublished opinions are
not binding on any court and should not be relied upon for precedential
authority. Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 1:36-3
(2019). Reliance on Brown is also misguided. There, officers observed a
defendant carrying what appeared to be a machine gun, and a later traffic stop
allowed them to retrieve the gun from the defendant's vehicle. Brown, slip op.
at 3-4. In Brown, unlike the current case, the gun was recovered, there was no
video for the fact finder to review, and an objection was not raised below.
                                                                          A-1683-17T4
                                       13
information a factfinder could determine for themselves. Ibid. If the factfinder

could not have determined that a gun was present absent the officers' testimony,

then the State cannot argue the admission was harmless because the factfinder

would have relied on the testimony.

      Because the trial court's admission of impermissible lay opinion testimony

provides sufficient reason for reversal, we need not reach the other arguments

raised by defendant.

      The disposition of delinquency is reversed and vacated.




                                                                        A-1683-17T4
                                      14
