                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2820-13T2

STATE OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
            Plaintiff-Respondent,
                                            January 27, 2016
    v.
                                           APPELLATE DIVISION

KASON D. HOCKETT,

          Defendant-Appellant.
_____________________________________________________

            Submitted September 22, 2015 – Decided January 27, 2016

            Before Judges Fisher, Espinosa and Currier.

            On appeal from the Superior Court of New
            Jersey,   Law   Division,   Hudson County,
            Indictment No. 08-08-01376.

            Joseph E. Krakora, Public Defender, attorney
            for appellant (Lon Taylor, Assistant Deputy
            Public Defender, of counsel and on the
            brief).

            Esther Suarez, Hudson County Prosecutor,
            attorney for respondent (Rookmin Cecilia
            Beepat, Assistant Prosecutor, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    In this appeal, defendant argues the trial judge erred in

excluding    photographs   that     purported    to   demonstrate    an

eyewitness falsely testified on a collateral issue.         The judge's

ruling was based in part on his belief that the defense, or
persons    sympathetic    to    the   defense,   engaged   in   chicanery    to

create     or   procure   the     photographs.     We   find    the    judge's

speculation about the defense's motives to be irrelevant to the

admissibility of the photographs, and we reverse and remand for

a new trial.

     In 2010, defendant was tried on charges of first-degree

murder, N.J.S.A. 2C:11-3, third-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree

unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5(d),

in connection with the death of Jason Sharpe in Jersey City on

May 13, 2008.     At the conclusion of a five-day trial, defendant

was acquitted of murder and the weapons offenses, but convicted

of   the    lesser-included       offense   of    second-degree       reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1), and sentenced to a nine-

year prison term subject to an eighty-five percent period of

parole ineligibility.

     In this appeal, defendant argues:

            I. THE TRIAL COURT'S EXCLUSION OF PICTURES
            SHOWING A KEY WITNESS RECENTLY SMOKING
            DRUGS, CONTRARY TO HER TESTIMONY, MANDATES
            REVERSAL OF DEFENDANT'S CONVICTION.

            II.   DEFENDANT'S   NEAR  MAXIMUM  NINE-YEAR
            SENTENCE OF IMPRISONMENT FOR SECOND-DEGREE
            MANSLAUGHTER, SUBJECT TO THE 85% NERA PAROLE
            BAR, WAS EXCESSIVE.




                                        2                             A-2820-13T2
Because we agree with the argument contained in Point I, we do

not reach Point II.

     In   a     nutshell,    the    State         presented    a   simple    story    to

support   its     theory    that   defendant         knowingly     and    purposefully

murdered Sharpe.           The State presented evidence                  that at 6:30

a.m., on May 13, 2008, on Wegman Parkway near Ocean Avenue in

Jersey    City,    defendant       and   a       companion    encountered      Sharpe.

According to the State, defendant and Sharpe had some sort of

disagreement,      and     defendant's           companion    egged    him   on     until

defendant approached Sharpe and stabbed him in the chest with a

knife, causing Sharpe's death.                   In its case-in-chief, the State

called    police      officers       who          investigated,        as    well     as

toxicologists, but the only witness the State called who claimed

to have seen the stabbing was Martha Rush.1

     After the State rested, defendant testified, explaining how

Sharpe had pulled a knife on him and, as he acted in self-

defense, the knife ended up in Sharpe's chest.                        In short, there

was no dispute that Sharpe died as a result of a knife wound to

the chest and that the stabbing occurred while he and defendant

1
  The State also called Sheila Bullock, who was in the vicinity
at the time, as she explained, "to cop . . . some drugs."
Bullock testified she saw defendant put his arm around Sharpe in
what looked to her "like a friendly gesture," but that she
thereafter "focus[ed]" her attention "elsewhere," did not see
defendant in that area again, and only later noticed that "[i]t
looked like" Sharpe was bleeding from his stomach.



                                             3                                A-2820-13T2
were engaged in some sort of altercation.               The question for the

jury was the degree, if any, to which defendant was culpable.

As a result, Rush's testimony was highly critical.

      In delving further into Rush's testimony, we note she had

given prior statements, which contained various inconsistencies,

as   the   defense   pointed   out   during     cross-examination.       In    the

midst of cross-examining Rush about where the knife came from,

the following occurred:

            Q. Do you know if [defendant] was in fear of
            his life because Jason [Sharpe] had a knife
            and came after him?

            A. Jason didn't have any knife. He didn't
            have no knife.

            Q. And the knife that was used in this case
            just appeared out of nowhere. You don't
            remember ever seeing Jason with a knife[?]

            A. Jason didn't have no knife.

            Q. Were you high that day?

            [THE PROSECUTOR]; Objection, Your Honor.

            A. No, I just woke up.

            THE COURT:     Overruled,         she     answered     the
            question.

            A. I don't get       high,    I    been    clean     since
            March 23rd, '07.

            Q. What about before that?

            A. Before that?

            Q. Yeah.



                                      4                                  A-2820-13T2
          A. What do you mean before that?

          Q. Well, what happened before that?

          A. I used to get high.  Like I said, I was
          clean since '07. This happened after I been
          clean.

          Q.   This happened in 2008.      Now are you
          saying you don't get high at all?

          A. No, I don't.

          Q.    You don't get high now?

          A. No, I don't.

          [Emphasis added.]

    In light of this testimony, defense counsel requested a

sidebar during which he expressed a desire to introduce during

cross-examination     photographs   purporting      to   show   the   witness

using drugs.     The prosecutor objected, asserting there was "no

foundation"     for   the     photographs.    The    judge      barred     this

anticipated line of cross-examination because of the need for

"some foundation as to when these [photographs] were taken."

Defense counsel responded he could "have a witness here tomorrow

to testify in terms of who took the picture."                The trial was

adjourned for the day.

    The next morning, outside the presence of the jury, the

trial   judge   heard   the    testimony     of   Dawanna    Williams,      who

identified three photographs depicting Rush "smoking coke" that




                                     5                                A-2820-13T2
were taken with her camera "two or three days ago."              At one

point during the N.J.R.E. 104 hearing, the judge questioned the

witness in a way that revealed his suspicion the photographs

were taken for the sole purpose of aiding the defense:

           THE COURT:    So    you   know   the   defendant's
           father.

           THE WITNESS: Yes.

           THE COURT: You took pictures of the only
           factual witness in his murder case getting
           high. You gave them to the father, correct?

           THE WITNESS: No, it was like a whole crowd
           of us around and I was showing the pictures
           around, Your Honor.

           THE COURT:   Why did you take the pictures?

           THE WITNESS: Because I wanted to keep
           pictures from the – you know, to take with
           me to have a whole album book that I was
           going to take with me to [a substance abuse]
           program, you know, to keep for memories.
           Because I'm trying to get myself together,
           Your Honor.

After additional testimony during this hearing, defense counsel

continued to urge the right to use the photographs to impeach

Rush regarding her claim a day earlier that she had not used

drugs since March 23, 2007.

       The judge first analyzed the controversy in the following

way:

           Mr. Hockett was scheduled for trial on April
           27[, 2010]. A good friend of Mr. Hockett's
           father, this woman, just happens to get high



                                     6                          A-2820-13T2
             for the second time in three years on the
             evening of April 27th. Okay? Just happens to
             have a camera she bought a month ago.
             Happens to take pictures that night ingest-
             ing drugs. Happens to get them developed the
             next day, even though she had the camera for
             a month. Happens by chance to provide them
             to her good friend whose son is on trial for
             murder this week. And just happens to get
             high with – only for the second time in
             three years on that night of April 27th, the
             week of the murder trial.

In response, defense counsel recounted that Rush had testified

"she hadn't taken drugs since 2007," and that the photographs

deeply impacted her credibility because they showed her "getting

high . . .         the day before she's about to be a prosecution

witness in a homicide."

      As   the     judge   expressed   his       concern      about   the    defense's

perceived     conduct       in    obtaining          the     photographs,      counsel

persisted that "[t]he pictures are the pictures."                           He further

argued     there    was    no    evidence       of    a    "nefarious"   purpose     in

obtaining the photographs, to which the judge responded: "it's

so obvious . . . phenomenally obvious." Defense counsel pressed

the point further, rhetorically asking, "[w]hat information do

you have to suggest [Williams] did anything improper or that I

did   anything     improper      introducing         those   [photographs]?"        The

judge responded:           "Her demeanor when she testified."                    After

additional argument, the judge concluded:




                                            7                                 A-2820-13T2
          [t]he fact that Ms. Rush ingested or became
          high on April 27th, 2010[,] is not relevant
          at all to this trial as to her observations
          that took place on May 13th, 2008[.] It is a
          collateral issue. It just clouds the issue
          before the jury. It's not relevant in my
          mind. It's not going to be permitted. And
          in all due respect, this [c]ourt . . .
          believes    the    motives    behind   those
          photographs were clearly for litigation
          purposes for this trial.     No doubt in my
          mind.

For the reasons that follow, we conclude that the judge's ruling

was erroneous and a new trial is required.

                                      I

    The   judge's    reasons    for   excluding    the     photographs   was

multi-faceted.      We    discern   from   the   judge's    comments   three

separate grounds for their exclusion: (a) the judge found the

authenticating witness was not credible; (b) the jury would be

misled or confused by the use of the photographs; and (c) the

photographs were created or procured through unlawful acts or

chicanery.

                                      A

    As to the first aspect, we start with the fact that a

photograph is a "writing," N.J.R.E. 801(e), and, therefore, must

be authenticated.        See State v. Mays, 321 N.J. Super. 619, 628

(App. Div.), certif. denied, 162 N.J. 132 (1999).            Consequently,

a proponent of such evidence is required to make "a prima facie

showing of authenticity." State v. Joseph, 426 N.J. Super. 204,



                                      8                            A-2820-13T2
220 (App. Div.) (quoting Mays, supra, 321 N.J. Super. at 628),

certif.    denied,         212    N.J.   462     (2012).       This    burden     was    not

designed to be onerous.              It is enough that the record contains

"evidence sufficient to support a finding that the matter is

what its proponent claims." N.J.R.E. 901. The testimony of a

photographer is unnecessary; "[a]ny person with knowledge of the

facts     represented        in    the    photograph          may    authenticate       it."

Joseph, supra, 426 N.J. Super. at 220 (citing State v. Wilson,

135   N.J.      4,   14     (1994)).           Here,    the    defense    elicited       the

testimony of Williams, who claimed she was present a few days

earlier when the photographs of Rush using drugs were taken by

another      friend.        N.J.R.E.       901      required         nothing     more     to

authenticate the photographs.

      We recognize that, as gatekeeper, the judge has some degree

of latitude when testimony in support of authentication is found

unworthy of credit. See State v. Tormasi, __ N.J. Super. __, __

(App. Div. 2015) (slip op. at 11-14).                     But the items in question

were photographs, and N.J.R.E. 901 required only the witness's

assertions        about     the    approximate         date   they    were     taken,    the

identity of the person or persons in the photographs, and the

nature       of      the     conduct       depicted.           In     considering        the

authenticating        testimony,         the    judge    was    not    being    asked     to

accept    the     truth     of     the   witness's       description      of    something




                                                9                                 A-2820-13T2
intangible, incorporeal, imprecise or impalpable that might have

warranted some consideration of the witness's credibility.                    For

example, if Williams had testified only that two nights earlier

she saw Rush using narcotics — but did not have photographs to

support that contention — the judge would have been within his

rights as gatekeeper to preclude that testimony if he found the

witness lacked credibility.          But here, Williams was only asked

to authenticate something tangible — photographs that supported

the contention that Rush was not truthful when she claimed she

had not used narcotics since March 23, 2007.                    Her testimony

about the photographs sufficed to authenticate them.                 There was

no credibility call to make; as defense counsel put it, "[t]he

pictures are the pictures."

    Apparently recognizing this, the prosecution did not argue

the witness's testimony about what the photographs depicted was

not credible; the prosecution argued only that "this type of

testimony will have a highly prejudicial effect, that it will

clearly mislead the jury, [that] it amounts to essentially an

undue     consumption    of    the   [c]ourt's        time,"   and   that     the

photographs      were   otherwise    lacking     in    probative     value.    By

failing     to     otherwise     object,       the     prosecution      tacitly

acknowledged the photographs actually depicted what the defense

claimed.    That was all N.J.R.E. 901 required.




                                      10                               A-2820-13T2
       Moreover,    even   if    there    was       some    legitimate     reason   for

questioning the witness's veracity about what the photographs

depicted,     the    better      course       was     for    the    judge,    in    his

gatekeeping role, to acknowledge the photographs appeared to be

what they were purported to be and leave for the factfinder a

"more intense review" of the photographs and the credibility of

the authenticating witness. Biunno, Weissbard & Zegas, Current

N.J. Rules of Evidence, comment 1 on N.J.R.E. 901 (2015), quoted

with approval in Konop v. Rosen, 425 N.J. Super. 391, 411 (App.

Div.     2012).    We,   thus,    conclude          that    the    judge   mistakenly

exercised his discretion in finding the photographs were not

sufficiently authenticated.

                                          B

       To the extent the evidence ruling was based on N.J.R.E. 403

grounds, we conclude the judge abused his discretion.                        N.J.R.E.

403(a)    permits    the   exclusion       of       relevant      evidence   "if    its

probative value is substantially outweighed by the risk of . . .

undue prejudice, confusion of issues, or misleading the jury."

We find no support for the invocation of N.J.R.E. 403(a) as the

means for excluding this evidence.

       The evidence was offered for the purpose of challenging

Rush's credibility.        Rush testified she had not engaged in the

use of narcotics since March 23, 2007.                     Had the judge permitted




                                          11                                  A-2820-13T2
defense counsel's course of attack on Rush's credibility, she

would have been confronted with the photographs and, in some

manner, asked to confirm that she was depicted in the photograph

using drugs and that the event photographed occurred after March

23, 2007.    We have no way of knowing what Rush's responses would

have been, but whether she confirmed, denied or explained what

the photographs were claimed to have depicted, the proposed line

of questioning would hardly have been confusing or misleading.

If Rush confirmed what the defense was attempting to show, then

counsel would have been armed with another reason for urging the

jury's rejection of Rush's credibility, in order to create doubt

about her version of what occurred between defendant and Sharpe.

The prosecution could have argued in response, as it argues now,

that Rush's false claim of sobriety was insignificant in the

overall picture or otherwise attempt to mitigate or minimize the

significance of this line of inquiry.            This information would

not   have   been   too   complicated   or   confusing   for   the   jury   to

handle.2




2
   The prosecution also argued that the admission of the
photographs and the additional cross-examination of Rush would
have unduly delayed the trial or wasted time. N.J.R.E. 403(b).
We find no merit in this argument. What little time would have
been expended in this regard was a small matter when considering
defendant was on trial for first-degree murder.




                                    12                               A-2820-13T2
      The excluded evidence was relevant, having been made so by

Rush's volunteered assertion that she had not gotten high since

March 23, 2007.3      The evidence provided a basis by which the jury

might doubt the credibility of the only witness who provided

direct evidence that defendant did not act in self-defense; its

exclusion was prejudicial to the defense.

                                       C

      Finally,   the    judge   precluded      the    photographs,   and     the

cross-examination of Rush based on the photographs, because he

believed the defense acted improperly in obtaining them.               At the

outset, we agree, as defendant argued to the trial judge, that

the   record   does    not   support   a    finding   that   the   defense   or

persons sympathetic to the defense acted illegally or with a

nefarious intent in procuring this evidence. Even if there was

support for the judge's assumption that the circumstances by

which the photographs were procured were somehow orchestrated

3
  The State argues in response to this appeal that N.J.R.E.
608(a) also impedes admission of the photographs. The State did
not make this argument at trial, and the judge's ruling did not
encompass such a determination. Because of the State's failure
to properly preserve this contention, it would be unfair to
consider it further on appeal. See State v. Witt, __ N.J. __, __
(2015) (slip op. at 9-10). In any event, we find the argument
has no merit because the photographs were not offered for the
purpose of suggesting Rush was a drug addict, which might impact
her ability to perceive what occurred and relate it to the
court. The photographs were intended to demonstrate, pursuant to
N.J.R.E. 607, that Rush testified falsely when she claimed she
had not used narcotics since March 23, 2007.



                                       13                             A-2820-13T2
for   the    defendant's   benefit,        the   photographs    would   still     be

admissible.

      Indeed, on this third facet of the judge's ruling, we start

with a long-established general proposition that – except, of

course, when clashing with Fourth Amendment principles – "the

admissibility of evidence is not affected by the illegality of

the means through which the party has obtained the evidence."                      8

Wigmore on Evidence § 2183 (McNaughton rev. 1961), quoted with

approval in Tartaglia v. Paine Webber, Inc., 350 N.J. Super.

142, 151 (App. Div. 2002).4 Our Supreme Court recognized that,

prior to the adoption of the exclusionary rule, evidence seized

by the State through illegal means could be used against the

accused in a criminal prosecution.               State v. Macri, 39 N.J. 250,

263-64 (1963); see also Olmstead v. United States, 277 U.S. 438,

467, 48 S. Ct. 564, 569, 72 L. Ed. 944, 951 (1928) (recognizing

the "common law rule is that the admissibility of evidence is

not affected by the illegality of the means by which it was

obtained"). With the advent of the exclusionary rule, the common

law   rule    was   altered     —    but    only   through     imposition    of    a

limitation     on   the   use   of   illegally-obtained        evidence     by   the


4
  After the Tartaglia matter was tried and judgment entered, a
later unpublished decision by this court relating to other
issues was affirmed in part and reversed in part by the Supreme
Court. Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81 (2008).



                                           14                             A-2820-13T2
prosecution.      In other words, the exclusionary rule was designed

"'to   deter     future    unlawful        police    conduct'   by   denying      the

prosecution the spoils of constitutional violations," State v.

Shaw, 213 N.J. 398, 413 (2012) (emphasis added) (quoting State

v. Evers, 175 N.J. 355, 376 (2003)), and to prevent our courts

from   becoming    "a     forum     for    evidence    procured"     through      the

State's   violation       of   an   individual's       constitutional       rights,

ibid. (quoting State v. Williams, 192 N.J. 1, 14 (2007)).                      These

principles impose no impediment to the use of illegally-obtained

evidence by the accused.

       Absent application of the exclusionary rule or any other

curb placed on wrongful police conduct, public policy favors the

admission   of    all     probative       evidence   however    obtained.        This

policy favors an accused's offer of any relevant evidence, even

if obtained illegally.         See, e.g., Burdeau v. McDowell, 256 U.S.

465, 475, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921); State

v. Calcagno, 120 N.J. Super. 536, 537 (App. Div. 1972); People

v. Huang Qike, 700 N.Y.S.2d 640, 644 n.8 (Sup. Ct. 1999), aff’d,

726 N.Y.S.2d 294 (App. Div. 2001). There is no evidence in this

record to suggest the defense acted illegally in the creation or

procuring of the evidence in question, but the evidence would be

admissible even if there was. And it follows from our conclusion

that illegal conduct will not bar admission of evidence offered




                                           15                               A-2820-13T2
by   an   accused,    that   evidence    obtained   through      less   wrongful

means is also admissible.5

      Accordingly,      we    find      no    relevance     in    the    judge's

supposition    that    the   defense     or   persons     sympathetic    to   the

defense wrongfully obtained the photographs.                 Even if stolen,

the photographs would have been admissible.                 See, e.g., Huang

Qike, supra, 700 N.Y.S.2d at 644 n.8.               To be sure, those who

unlawfully or fraudulently create or acquire evidence can be

prosecuted or otherwise held answerable for that conduct; that,

however, has no bearing on the admissibility of the evidence.

Tartaglia, supra, 350 N.J. Super. at 150-51. We conclude the




5
  The prosecution's procuring of evidence through the wrongful
acts of a private party has not often posed an impediment to
admission. See, e.g., Colorado v. Connelly, 479 U.S. 157, 166,
107 S. Ct. 515, 521, 93 L. Ed. 2d 473, 483 (1986); State v.
Chen, 208 N.J. 307, 317-18 (2011). Courts have also recognized
the prosecution's right to use evidence produced by police lies
and trickery. See, e.g., Frazier v. Cupp, 394 U.S. 731, 737-38,
89 S. Ct. 1420, 1424, 22 L. Ed. 2d 684, 692 (1969) (finding a
confession to be voluntary and admissible where police lied to
defendant that his co-defendant had implicated him); State v.
Cooper, 151 N.J. 326, 355-56 (1997) (upholding confession where
police wrongly informed defendant he could be facing life in
prison rather than a death sentence); see generally State v.
Patton, 362 N.J. Super. 16, 28-38 (App. Div.), certif. denied,
178 N.J. 35 (2003). If the prosecution — limited by an
overriding duty "to see that justice is done" and to "refrain
from improper methods," State v. Frost, 158 N.J. 76, 83 (1999)
(internal quotations omitted) — may take advantage of lies,
chicanery and other wrongful conduct of law enforcement
personnel and private parties, certainly the accused may do the
same.



                                        16                              A-2820-13T2
judge erred in excluding the photographs and in thereby limiting

the scope of the defense's cross-examination of Rush.

                                            II

       The State has not argued harmless error as an alternate

ground for affirming. Notwithstanding the State's waiver in this

regard,    we    find   the    doctrine      inapplicable           for    the    following

reasons.

       Trial     judges     are     entrusted       with         broad    discretion         in

determining the proper limits of cross-examination, but "we have

repeatedly       expressed        our    adherence          to    the     critical,          and

constitutionally          required,       role    of    cross-examination               in     a

criminal trial."        State v. Wormley, 305 N.J. Super. 57, 66 (App.

Div. 1997), certif. denied, 154 N.J. 607 (1998).                            The right of

cross-examination,         often        described      as    "the        'greatest      legal

engine ever invented for the discovery of truth,'" California v.

Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d

489, 497 (1970) (quoting 5 Wigmore on Evidence § 1367 (3d ed.

1940)),      constitutes       "a       primary     interest"           secured    by        the

Confrontation Clause, Douglas v. Alabama, 380 U.S. 415, 418, 85

S. Ct. 1074, 1076, 13               L. Ed. 2d 934, 937 (1965); see also

Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662,

96 L. Ed. 2d 631, 641 (1987); State v. Laboy, 270 N.J. Super.

296,   303      (App.   Div.      1994),    and     critical        to     "ensuring         the




                                            17                                     A-2820-13T2
integrity of the fact-finding process," Stincer, supra, 482 U.S.

at 736, 107 S. Ct. at 2662, 96 L. Ed. 2d at 641.                       As we have

recognized:

              Cross-examination affords the accused an
              opportunity to test the recollection and
              sift the conscience of the witness. It also
              compels the witness to stand face to face
              with the jury in order that it may observe
              him, and judge by his demeanor upon the
              stand and the manner in which he gives his
              testimony whether he is worthy of belief.

              [Laboy, supra, 270           N.J.    Super.      at    303
              (citations omitted).]

Cross-examination necessarily includes the right to impeach or

discredit a witness.        Davis v. Alaska, 415 U.S. 308, 316, 94 S.

Ct. 1105, 1110, 39 L. Ed. 2d 347, 353-54 (1974).                    In considering

a restraint on an accused's right to cross-examine, a court must

recognize     that    it   "does    not   matter    that      the   likelihood     of

defendant's contention 'might be slim.'"                     Wormley, supra, 305

N.J. Super. at 66 (quoting State v. Crudup, 176 N.J. Super. 215,

221   (App.    Div.   1980));      see   also   State   v.    Zenquis,     251   N.J.

Super. 358, 367 (App. Div. 1991) (recognizing that "[t]he point

to be stressed is that under our system, a defendant is entitled

to fully test the State's proofs by challenging a witness's

perceptions and his ability to make observations"), aff’d, 131

N.J. 84 (1993).




                                          18                                A-2820-13T2
       Rush was a critical witness and the judge's ruling limited

the extent to which the defense could challenge her credibility.

The    exclusion     of     the   photographs       and   the    limitation     on    the

defense's cross-examination of Rush — a ruling which infringed

defendant's federal and state confrontation rights — was not

harmless beyond a reasonable doubt.                   State v. Cabbell, 207 N.J.

311,    338    (2011);      State    v.    Macon,    57   N.J.    325,    338   (1971).

Indeed,       even    if    we      view     the    judge's      error    as    lacking

constitutional        stature,        we     nevertheless        conclude       in    the

circumstances        that    it   had      the    clear   capacity   to    produce      an

unjust result.        See R. 2:10-2.

       Reversed and remanded for a new trial.




                                             19                                 A-2820-13T2
