                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                        State of New Jersey v. Kingkamau Nantambu (A-97-13) (073589)

Argued February 2, 2015 -- Decided April 29, 2015

SOLOMON, J., writing for a unanimous Court.

         In this interlocutory appeal, the Court addressed the admissibility of a recorded conversation where a
portion of the conversation was inadvertently omitted from the recording.

         Atlantic City police responded to reports of a domestic disturbance between defendant Kingkamau
Nantambu and his girlfriend, Crystal Aikens. Aikens told police that defendant had threatened her with a gun. After
police located a hidden handgun in defendant’s apartment, defendant was charged with fourth-degree possession of
a defaced firearm and second-degree possession of a weapon by a convicted person.

          Subsequently, Aikens called the Atlantic County Prosecutor’s Office alleging that defendant had engaged
in witness tampering. She agreed to call defendant on her cell phone and allow Detectives Ted DeSantis and Rich
Johannessen to record the conversation. Johannessen attached two earpieces to a digital audio recorder so that the
device could record the conversation while the detectives listened in. Aikens also used the “speaker phone” function
so the detectives could hear without headphones. During the conversation, defendant asked Aikens if she had been
to the Prosecutor’s Office. She replied that she had stalled them, and asked defendant for the money he had
promised her. Defendant, agreeing that he had promised her money, advised Aikens as to what to say when she was
questioned. During a discussion about the gun, defendant insisted that “[n]obody seen the gun that day.” Aikens
disagreed, claiming that she saw defendant put the gun in a case. Immediately after that statement, a beeping sound
interrupted the conversation. According to Johannessen, Aikens had moved the phone, causing the recording device
to fall and the wires to disconnect. Johannessen picked up the recorder, removed and replaced its batteries, and
replaced the wires. By the time recording resumed, approximately two minutes had passed and Aikens and
defendant were concluding their conversation. Based on the conversation, charges of third-degree bribery of a
witness, third-degree witness tampering, and fourth-degree tampering with physical evidence were added to
defendant’s existing weapons charges.

         The recording was offered as evidence demonstrating defendant’s intent to tamper with the State’s witness
and showing that defendant possessed the gun for which he was charged with unlawful possession. Defendant
moved to suppress the recording, asserting that the two-minute gap rendered it inadmissible. At the suppression
hearing, DeSantis explained that the detectives heard the unrecorded portion of the conversation, during which he
claimed nothing relevant was said. Although Johannessen stated that he only could hear Aikens’ side of the
discussion, he concurred that nothing was said relating to the recorded portion of the conversation.

          The trial court, relying State v. Driver, 38 N.J. 255 (1962), granted defendant’s motion, finding that the
two-minute gap rendered the recording inadmissible as substantive evidence. The court determined that it was
irrelevant whether the deletion was intentional. Rather, it only mattered that the recording was interrupted following
a very damaging statement regarding defendant’s alleged possession of the gun. On reconsideration, the judge noted
that flawed recordings may be admitted, but fundamental fairness required exclusion of this recording because the
interruption occurred at a particularly crucial point.

           The Appellate Division granted the State’s motion for leave to appeal, and reversed in an unpublished
decision. Since the detectives asserted that nothing important was said during the two-minute gap, the panel rejected
the trial court’s conclusion that the conversation was interrupted at a critical point. It concluded that the omitted
portion went to the weight and probative value of the evidence rather than its admissibility. The Court granted
defendant’s petition for certification. 217 N.J. 623 (2013).

HELD: When considering the admissibility of a recording containing a partial omission, the trial court must
employ a two-part analysis. First, the trial court must determine if the omission is unduly prejudicial, conducting an
objective analysis focused on the evidentiary purposes for which the recording is being offered. If the trial court, in
its discretion, finds the omission unduly prejudicial, it must then consider whether it renders all or only some of the
recording untrustworthy, and suppress only that portion deemed untrustworthy.

1. Relevant evidence is admissible under N.J.R.E. 402 unless “its probative value is substantially outweighed by the
risk of undue prejudice.” N.J.R.E. 403. Determinations on the admissibility of evidence are generally made outside
the presence of the jury in a Rule 104 hearing. A trial court’s evidentiary rulings are reviewed for abuse of
discretion, but no deference is accorded to the court’s legal conclusions. (pp. 13-14)

2. In State v. Driver, 38 N.J. 255 (1962), this Court set forth the standard for the admissibility of a recording in a
criminal trial, requiring analysis of whether: (1) the device could record the conversation or statement; (2) its
operation was competent; (3) the recording was authentic and correct; (4) no changes, deletions or additions were
made; and (5) any alleged confessions were elicited voluntarily. The second and fourth Driver factors are at issue
here. No prior case law exists in which this Court has defined what was meant by operator competence or parsed
the effect of an unintentional omission. Since determining whether the recording should have been excluded calls
for an application of the law to the facts, the Court reviews the trial court’s decision de novo. (pp. 14-16)

3. The second and fourth Driver factors are safeguards designed to ensure the trustworthiness of a recording. In
State v. Cusmano, 274 N.J. Super. 496 (App. Div. 1994), the Appellate Division examined the operator-competence
factor and concluded that trustworthiness is the polestar for the admissibility of a recording. Applying New Jersey
jurisprudence since Driver and federal decisional law considering the admissibility of incomplete recordings, the
panel held that determinations of operator competence must be viewed liberally. The Court agrees with this
conclusion, finding that courts should focus on the reliability of the recording rather than the actions or
qualifications of the operator. In light of technological advances since Driver, which have made recording devices
more reliable and easy to use, the operator competency factor no longer requires separate consideration. (pp. 16-18)

4. Turning to the fourth Driver factor, pursuant to the established standards governing the admissibility of
recordings, the Court finds no basis to conclude that the exclusion of a recording in its entirety is required merely
because an omission rendered a portion of the recording unduly prejudicial. Rather, in such circumstances a trial
court should conduct a Rule 104 hearing to determine whether the omission renders all or part of the recording
unreliable and inadmissible. The recording should be admitted to the extent that it contains competent and relevant
evidence, while the portion deemed unduly prejudicial should be redacted. (pp. 18-19)

5. Here, the Court finds no basis to disturb the trial court’s finding that the omission of defendants’ response to
Aikens’ accusatory statement was unduly prejudicial to defendant. Turning to the question of whether the defect
requires exclusion, the Court reiterates that this decision is entrusted to the trial court’s discretion, which must take
into account the evidential purpose served by the recording, including considering whether the recording is
probative of one or multiple theories of the case. Where, as here, the recording contains competent relevant
evidence relating to two distinguishable evidentiary purposes, the question becomes whether the recording must be
precluded in its entirety. Relying on N.J.R.E. 105 and the Appellate Division’s persuasive reasoning in State v.
Zicarelli, 122 N.J. Super. 225 (App. Div. 1973), the Court concludes that redaction is appropriate in such
circumstances. Here, although the omission renders a portion of the conversation unduly prejudicial with respect to
the weapons charge, nothing in the record suggests that the omission created a risk of undue prejudice with respect
to the bribery and witness-tampering charges. Thus, according appropriate deference to the trial court’s findings, the
Court holds that the recording was admissible up to and including the point at which defendant stated “[n]obody
seen the gun that day.” (pp. 19-25)

6. Where a recording contains a partial omission, trial courts must determine whether the omission is unduly
prejudicial and, if so, whether the omission renders all or only some of the recording inadmissible. Although the
Driver analysis remains relevant to these determinations, a recording’s shortcomings with respect to one factor do
not automatically necessitate exclusion of the entire recording. Rather, the court should consider the Driver factors
together, on a case-by-case basis, to determine whether and to what extent a recording contains competent relevant
evidence. (pp. 26-27)

         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.

       CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
                                                           2
                                       SUPREME COURT OF NEW JERSEY
                                         A-97 September Term 2013
                                                  073589

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

KINGKAMAU NANTAMBU,

    Defendant-Appellant.


         Argued February 2, 2015 – Decided April 29, 2015

         On certification to the Superior Court,
         Appellate Division.

         Joseph C. Liguori argued the cause for
         appellant (Mazraani & Liguori, attorneys).

         Deborah C. Bartolomey, Deputy Attorney
         General, argued the cause for respondent
         (John J. Hoffman, Acting Attorney General of
         New Jersey, attorney).

    JUSTICE SOLOMON delivered the opinion of the Court.

    In this interlocutory appeal, we address the admissibility

of a recorded conversation where a portion of the conversation

was inadvertently omitted from the recording.    The recording in

question is a phone conversation between defendant Kingkamau

Nantambu and his girlfriend, Crystal Aikens.    It was made during

a police investigation into allegations by Aikens that defendant

had engaged in witness tampering related to a prior indictment

for weapons offenses.   The recording was interrupted when the


                                 1
recording device fell to the ground, causing the wires to

disconnect and the device to shut off.    Critically, the

recording stopped directly after Aikens stated that she had seen

defendant with the gun that formed the basis of the weapons

charges against him; defendant’s response, if any, was not

recorded.

    The question presented is whether an inadvertent omission

that renders a portion of a recording unreliable requires

suppression of the entire recording.     Having carefully reviewed

the evidentiary concerns animating our decision in State v.

Driver, 38 N.J. 255 (1962), and accounting for the technological

advances that have taken place over the past half century since

that decision, we take this opportunity to emphasize that

reliability is the decisive factor in determining the

admissibility of a recording.   A review of Driver and its

progeny indicates that the decision whether to admit a recording

into evidence is a highly fact-sensitive analysis, requiring

consideration not only of any gaps or defects in the recording

but also the evidential purposes for which the recording is

being offered.   Nothing in our review of case law or evidentiary

rules requires suppression of an entire recording when only part

of that recording has been omitted or is found unreliable.

Instead, the trial court should conduct an N.J.R.E. 104 hearing

to evaluate which portions of a recording are reliable, and

                                 2
which portions must be redacted.       The trial court should admit

the recording to the extent it is deemed reliable, redacting

only the portion of the recording deemed unreliable due to an

omission or defect.    We therefore vacate the Appellate

Division’s order, which admitted the recording in its entirety,

and remand for further proceedings.

                                 I.

    The following facts are derived from the evidentiary

hearings held in response to defendant’s pretrial motions.

Atlantic City Police Detective David Smith responded to reports

of a domestic disturbance at defendant’s residence.      Aikens

greeted Detective Smith outside defendant’s apartment and told

him that defendant had threatened her with a gun.      Detective

Smith arrested defendant and transported him to the police

station.

    En route to the police station, defendant consented to a

search of his apartment.   Detective Smith returned to the

apartment and, after a brief search, found a handgun hidden

under a child’s bed.   Defendant was subsequently charged with

fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-




                                   3
3(d), and second-degree possession of a weapon by a convicted

person, N.J.S.A. 2C:39-7.1

     After defendant filed an unsuccessful motion to suppress

the gun, Aikens left a voice mail with the Atlantic County

Prosecutor’s Office indicating that defendant had engaged in

witness tampering.   The next day, Aikens met with Detectives Ted

DeSantis and Rich Johannessen at the Prosecutor’s Office.    At

the detectives’ request, Aikens agreed to call defendant on her

cell phone and to allow the detectives to record the

conversation, a process commonly referred to as a “consensual

intercept.”2   To facilitate better cell phone reception and to

avoid background noise that might indicate to defendant that

Aikens was at the Prosecutor’s Office, the call was conducted in

the parking lot behind the Prosecutor’s Office.

     Detective Johannessen attached two earpieces to a digital

audio recorder, which allowed the recording device to record the

conversation while the detectives simultaneously listened to the


1The indictment also charged defendant with possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-5(d).     That charge was
omitted from the superseding indictment, discussed infra.

2 Consensual intercepts are governed by the New Jersey
Wiretapping and Electronic Surveillance Control Act, N.J.S.A.
2A:156A-1 to -34, which sets forth a variety of protocols. We
have held that the statute “demands strict adherence to its
protocols.” State v. K.W., 214 N.J. 499, 503 (2013). No
argument was raised regarding adherence to the statute’s
requirements.


                                 4
conversation using headphones.     The detectives also directed

Aikens to use the cell phone’s “speaker phone” function, which

allowed them to overhear the conversation without the

headphones.

    During the conversation, defendant asked Aikens if she had

gone to the Prosecutor’s Office.       Aikens replied that she had

“stalled” the Prosecutor’s Office by telling them she would

“come next week.”   She and defendant then had the following

discussion:

         [Aikens]: [Y]ou said yesterday you were
         going to give me some money.

         [Defendant]: What happen?

         [Aikens]: You said yesterday you was going
         to give me some money, [b]out when I come
         from the Prosecutor’s office.

         [Defendant]: I got you. . . . I told you
         yesterday.

         . . . .

         [Aikens]: Am I going to have to go to trial
         too? Cause they didn’t send me no subpoena
         or nothing.

         [Defendant]: Now another thing my lawyer
         was saying, was . . . if you let the
         prosecution know in advance that your
         statement is going to be that it wasn’t his
         gun I don’t know who[se] gun it was. Then
         there’s nothing they can do as far as
         charging anybody. You know what I am
         saying?

         [Aikens]: I did not tell them, I ain’t tell
         them I put the gun nowhere.

                                   5
    After defendant assured Aikens that he would get her money,

Aikens stated that she was concerned that she might “get in

trouble,” and that she was “really stressed out” about the

situation.   Defendant responded that he had spoken with his

lawyer, and that she would not “get in trouble . . . as long as

you don’t say [the gun is] yours.”   The following exchange

ensued.

          [Defendant]: They can’t charge you with
          nothing.

          [Aikens]: As long as I don’t say it’s mine?

          [Defendant]: Yeah, you go in there and say
          oh yeah, it’s my gun, then they going to
          charge you . . . .

          [Aikens]: Why the hell would I say it was
          mine?

          [Defendant]: It’s just a h[y]pothetical. We
          ain’t saying that you are going to say that
          shit. But what I am saying is that is the
          only way they would be able to charge you
          with anything. . . . He said they can’t
          charge you with perjury because you never
          made an official statement.

          . . . .

          [Defendant]: You didn’t see the gun that
          day.

          [Aikens]: Huh?

          . . . .

          [Aikens]: You said I didn’t see it that day?

          [Defendant]: Nobody seen the gun that day.

                                 6
          [Aikens]: Yes I did. I saw you putting it in
          the case when we was arguing in the room. I
          did. And Keisha heard us in there arguing.

    Immediately after Aikens stated that she saw defendant with

the gun, a beeping sound interrupted the conversation.

Detective Johannessen asked whether the recorder’s battery had

died.   Aikens indicated that she received an incoming call from

a friend, told her friend that she would call her back, and

resumed the conversation with defendant.    However, according to

Detective Johannessen at that moment Aikens moved the phone and

“pulled the wires down,” causing the recording device to fall

and the wires to disconnect from the cell phone.    Detective

Johannessen picked up the recorder, noticed that it appeared

“dead,” removed and replaced the battery, and replaced the wires

for the earpieces.    By the time recording resumed, approximately

two minutes had passed and Aikens and defendant were concluding

their conversation.

    Aikens also provided the detectives with text messages sent

by defendant to Aikens over a four-day period.   In those text

messages, defendant asked, “Do you prefer the Wii or the cash?”;

and stated, “My lawyer said he’s going to call you in a bit, . .

. I really need you to help me out here.”

    Based on defendant’s communications with Aikens, an

Atlantic County Grand Jury returned a superseding indictment


                                 7
charging defendant with third-degree bribery of a witness,

N.J.S.A. 2C:28-5(d); third-degree witness tampering, N.J.S.A.

2C:28-5(a); and fourth-degree tampering with physical evidence,

N.J.S.A. 2C:28-6(1); in addition to the weapons offenses.

    Defendant moved to suppress the recording, asserting among

other arguments that the two-minute gap rendered the recording

inadmissible.   At the suppression hearing, the prosecutor argued

that the recording, considered together with defendant’s text

messages to Aikens, was relevant to show that defendant offered

Aikens either a video-game system or cash to change her

testimony.   The assistant prosecutor also argued that defendant

admitted in the recorded conversation to possessing the gun that

formed the basis of the weapons charge against him.

    The prosecutor then presented the testimony of Detectives

DeSantis and Johannessen.   Detective DeSantis stated that he had

never conducted a consensual recording before, and that

Detective Johannessen handled the technical aspects of the

operation.   Johannessen confirmed that he managed the recording,

including connecting the recorder to the phone and reconnecting

the device after it fell.   Johannessen stated that he used the

recording device “somewhat frequently,” and that before using it

he “always check[s] it to make sure the battery[ is] fresh.

Usually I’ll play it safe and put a fresh battery in each time.”

Johannessen also stated that it took “approximately 15 or 20

                                 8
seconds” to reconnect the device after it fell, and speculated

that the recording did not resume for another minute and forty

seconds because “the [digital audio] file wasn’t closed

properly.”

    Detective DeSantis testified that, because the phone was

“on speaker the entire time,” he could hear both sides of the

conversation during the period the phone was disconnected from

the recorder, and that “[a]s far as anything pertaining to our

case, nothing was mentioned.”   Detective Johannessen similarly

testified that, “to [his] recollection,” nothing was said in the

unrecorded portion of the conversation that related to the

recorded portion of the conversation.   However, at variance with

DeSantis’s testimony, Johannessen stated that he was only able

to hear Aikens’ side of the conversation after the recorder fell

“because the cords were disconnected from the recorder.”

    The motion judge considered the factors for admissibility

of a recording set forth in Driver, and determined that the two-

minute gap rendered the recording inadmissible as substantive

evidence and granted defendant’s motion.   The judge determined

that it was irrelevant whether the deletion was intentional; it

mattered only that the recording was interrupted just after

Aikens made a “very damaging” statement regarding defendant’s

possession of the gun, depriving the listener of an opportunity

to hear defendant’s response.   The judge added that although he

                                 9
was not making a finding that the detectives were incompetent,

“[a] competent operator wouldn’t” have allowed the recorder to

fall.

     At the hearing on the prosecutor’s motion for

reconsideration, the judge acknowledged that recordings may be

admitted even when there are gaps in the recording.   He

nevertheless determined that the recording was inadmissible

because the recording stopped “at a particularly crucial point

of that conversation,” when Aikens stated that she saw defendant

with the gun.3   The judge affirmed his previous order, concluding

that the recording did not include “substantially all” of the

pertinent conversation and therefore is inadmissible as a matter

of “fundamental fairness.”

     The Appellate Division granted the State’s motion for leave

to appeal, and reversed in an unpublished decision.   The panel,

noting that the trial judge did not find the omission in the

recording was the result of intentional misconduct,




3 The judge was also concerned that admitting Aikens’ accusation
“with absolutely no response from [defendant]” would require
defendant to “give up his Fifth Amendment rights” because his
only opportunity to respond would be “to get on the stand and
say this is what I would have said.” Defendant does not raise
this argument and, given our resolution of this matter, we need
not address its applicability here. See In re Civil Commitment
of D.Y., 218 N.J. 359, 379 (2014) (“As a general principle, ‘we
strive to avoid reaching constitutional questions unless
required to do so.’” (quoting Comm. to Recall Menendez v. Wells,
204 N.J. 79, 95 (2010))).
                                10
characterized the question presented as “whether an inadvertent

failure to record one portion of a conversation justifies the

exclusion of the entire tape.”     The panel, relying on State v.

Dye, 60 N.J. 518, 531, cert. denied, 409 U.S. 1090, 93 S. Ct.

699, 34 L. Ed. 2d 675 (1972), and State v. Cusmano, 274 N.J.

Super. 496 (App. Div. 1994), determined that the recording

should be admitted.   The panel explained:

         [T]he only types of deletions, omissions,
         gaps, and unintelligible or inaudible parts
         in the recording of a conversation that will
         warrant the recording’s exclusion from
         evidence are those that raise the questions
         concerning whether the recording is a
         trustworthy record of statements actually
         uttered during a conversation by the parties
         to it.

    Citing the detectives’ testimony that nothing important was

said during the unrecorded portion of the conversation, the

panel rejected the motion judge’s finding that the conversation

was cut off at a critical point.      The panel concluded that the

omitted portion goes to the weight and probative value of the

evidence rather than its admissibility.

    We granted defendant’s petition for certification.       State

v. Nantambu, 217 N.J. 623 (2013).

                                 II.

    Defendant maintains that the recording should be suppressed

because two factors of the test set forth in Driver, supra, 38

N.J. at 287, were not met, namely: (1) the operators were not

                                 11
competent, and (2) the recording contained omissions.    He argues

that the detectives operating the recorder were not competent

because they chose to conduct the recording “outside in a non-

secure area.”   That decision, defendant contends, led to an

interruption in the recording at “the most important aspect of

the conversation.”

    Defendant asserts that the recording was interrupted at a

critical point in the conversation because the recording stopped

just after Aikens stated that she saw defendant with the gun on

the day of his arrest.   Defendant argues that Aikens’ statement

was clearly designed to elicit an admission from him that the

gun was his, and that the omission of his response renders the

recording unduly prejudicial because it asks the jury to

speculate as to what, if any, reply he gave.    Defendant further

notes that the omission relates to the most serious offense with

which he has been charged.

    The State responds that the existence of an audible

recording alone establishes the competency of both the operators

and the recording device.    The State argues that the

unintentional omission of a “small segment” of an eighteen-

minute conversation does not render the entire recording

inadmissible under Driver.   The State echoes the appellate

panel’s conclusion that, unless the recording was rendered

untrustworthy by the omission, the recording should be deemed

                                 12
admissible.    The State adds that suppression of the entire

recording was an abuse of discretion because it deprived the

jury of the most reliable proof available.

    Put succinctly, the issue before this Court is whether an

omission rendering only a portion of a recording untrustworthy

requires exclusion of the entire recording.     Whether the

recording in this case is admissible requires this Court to

refine the meaning and application of two factors from the

Driver test: operator competency and omission from the recorded

conversation.

                                 III.

    We begin by acknowledging fundamental evidentiary

principles.     “Once evidence is deemed relevant, it is

admissible, N.J.R.E. 402, unless ‘its probative value is

substantially outweighed by the risk of [] undue prejudice,’

N.J.R.E. 403, or some other bar to its admission is properly

interposed.”    Brenman v. Demello, 191 N.J. 18, 34-35 (2007)

(alteration in original).     This determination is generally made

outside the presence of the jury in a N.J.R.E. 104 hearing.

See, e.g., State v. Wakefield, 190 N.J. 397, 482 (2007), cert.

denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817

(2008); State v. Collier, 316 N.J. Super. 181, 196 (App. Div.

1998), certif. denied, 158 N.J. 71 (1999).     The trial judge has

broad discretion to exclude evidence as unduly prejudicial

                                  13
pursuant to N.J.R.E. 403.   See State v. Nelson, 173 N.J. 417,

470 (2002); State v. Swint, 328 N.J. Super. 236, 253 (App.

Div.), certif. denied, 165 N.J. 492 (2000).

    “‘[A] trial court’s evidentiary rulings are entitled to

deference absent a showing of an abuse of discretion, i.e.,

there has been a clear error of judgment.’”     State v. Harris,

209 N.J. 431, 439 (2012) (alteration in original) (quoting State

v. Brown, 170 N.J. 138, 147 (2000)).   However, we accord no

deference to the trial court’s legal conclusions.    See, e.g.,

State v. Mann, 203 N.J. 328, 337 (2010).     Thus, we uphold the

facts found by the motion judge to the extent they are supported

by sufficient credible evidence in the record, but “apply the

law as [we] understand[] it” to those facts.     Ibid.; State v.

Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145,

125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

                               IV.

                                A.

    With these standards in mind, we briefly review the state

of the law on admissibility of incomplete recordings.    This

Court in Driver, supra, set forth the standard for the

admissibility of a recording in a criminal trial:

         [T]he speakers should be identified and it
         should be shown that (1) the device was
         capable of taking the conversation or
         statement, (2) its operator was competent,
         (3) the recording is authentic and correct,

                                14
         (4) no changes, additions or deletions have
         been made, and (5) in instances of alleged
         confessions, that the statements were
         elicited voluntarily and without any
         inducement.

         [38 N.J. at 287.]

    In Driver, we considered the admission of a taped recording

of the defendant’s statement to the police that was so “garbled”

and “full of static and other foreign sounds” that “it was

unintelligible and inaudible for the most part.”      Id. at 288.

Indeed, the trial judge acknowledged the recording was

inaudible, but admitted it nonetheless.      Ibid.   We noted that,

in most situations, an audio recording “may be an invaluable

aid,” and “may be more satisfactory and persuasive evidence than

[a] written and signed document.”    Id. at 287.     Thus, even a

flawed audio recording is “not inadmissible per se, so long as

its capacity to record accurately, and the other conditions

precedent [are] established.”   Id. at 288.    Nevertheless, the

audio recording in that case was so unintelligible that “[b]asic

fairness demanded its exclusion.”    Ibid.

    Driver did not, however, elaborate on the two factors at

issue in this appeal -- factor two, relating to the operator’s

competence, and factor four, whether the recording contained

changes or deletions.   Specifically, this Court has neither

defined what was meant by operator competence nor parsed the

effect of an unintentional omission or deletion.

                                15
                                B.

    Both the motion judge and the Appellate Division understood

the standards governing the admission of an audio recording to

require an absolute conclusion: either the recording contains an

omission that is unduly prejudicial to defendant and therefore

the recording must be excluded in its entirety, or the omission

in the recording is not unduly prejudicial and must be admitted

in its entirety.   As stated above, the motion judge determined

that the omission, though inadvertent, was unduly prejudicial

and ruled the recording inadmissible.   The appellate panel, for

its part, disagreed that the omission was prejudicial and held

that the recording should have been admitted.    As an application

of law to the facts, we review this determination de novo.    See

State v. Brown, 216 N.J. 508, 545 (2014) (“When a case involves

mixed questions of law and fact, the Court provides deference to

the supported factual findings of the trial court, but reviews

de novo the application of legal principles to such factual

findings.”).

                                V.

    The second and fourth Driver factors disputed here are

interrelated in that both are safeguards designed to ensure the

trustworthiness of the recording.    The Appellate Division

examined the operator-competence factor in Cusmano, supra, and

concluded that trustworthiness is the polestar for the

                                16
admissibility of a recording.    274 N.J. Super. at 514-17.     In

that case, the motion judge determined that a ninety-minute

recording of a taped conversation between the defendants and the

witnesses to the crime, in which defendants attempted to

persuade the witnesses not to testify, was inadmissible because

the operator of the recording device was not competent and the

recording contained omissions.    Id. at 498-99.   The panel,

looking to New Jersey jurisprudence since Driver and federal

decisional law considering the admissibility of incomplete

recordings, held that “[a] determination of operator competence

must be viewed liberally.”   Id. at 499-502, 509-12.

    The panel cited the Court of Appeals for the Eighth

Circuit, stating that “‘[t]he fact that [the operator]

successfully made the tape recordings [] satisfies the

competency requirement.’”    Id. at 511 (second alteration in

original) (quoting United States v. Franklin, 747 F.2d 497, 498

(8th Cir. 1984)); see also United States v. Hughes, 658 F.2d 317

(5th Cir. 1981) (holding because “the paramount purpose of the

inquiry is to insure the accuracy of the recording[,] . . . the

government’s failure to show the competency of either the

operator or the machine was overshadowed by the evidence which

demonstrated the reliability of the tapes.” (citation omitted)),

cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463

(1982).   Thus, the panel determined that the question was not

                                 17
whether, as the motion judge found, the operators “approached

their responsibilities seriously” or “performed their task

haphazardly,” but whether they “produce[d] substantially audible

tape recordings of the telephone conversations with

insignificant omissions.”    Cusmano, supra, 274 N.J. Super. at

513.

       We agree with Cusmano and the federal cases interpreting

the operator-competency factor liberally, focusing on the

reliability of the recording rather than the actions or

qualifications of the operator.4      In light of technological

advances in the forty years since Driver, which have made

recording devices more compact, reliable, and easy to use, the

second Driver factor -- the operator’s competence -- no longer

requires separate consideration.

       Also, as in Cusmano, this case is distinguishable from

Driver in that the momentary disruption in the recording did not

create a “continuous audibility problem [that] rendered the




4 In any event, unlike in Cusmano, the motion court here stopped
short of finding the interruption in the recording was the
result of operator incompetence. And properly so, as the record
indicates the recording was interrupted not because of a
technical mistake on the part of the operators but because
Aikens unexpectedly pulled the connecting wires taut, causing
the recorder to fall. Thus, even if the operators’ choices and
qualifications were valid considerations, we would reject
defendant’s suggestion that the detectives incompetently
operated the recorder because they made the strategic choice to
conduct the consensual intercept outside.
                                 18
entire tape incomprehensible.”    Id. at 512-13.   Applying the

established standards governing the admissibility of recordings,

we find no basis to conclude that exclusion of a recording in

its entirety is required merely because an omission rendered a

portion of the recording unduly prejudicial.    Rather, we hold

that a trial court should conduct a hearing pursuant to N.J.R.E.

104 to determine, in his or her discretion, whether an omission

or similar flaw in the recording renders all or part of that

recording unreliable and therefore inadmissible as unduly

prejudicial under N.J.R.E. 403.    The trial court should admit

the recording to the extent that it contains competent and

relevant evidence and redact the portion of the recording deemed

unduly prejudicial.    The recording here, though incomplete, was

entirely audible.     We turn then to the question of whether and

to what extent the omission requires exclusion.     This inquiry

proceeds in two parts.

    First, trial courts must determine in a N.J.R.E. 104

hearing whether an omission renders a recording unduly

prejudicial.   As Driver and its progeny make clear, the

existence of an omission or defect in a recording does not

automatically warrant suppression.     Rather, “if a tape is

partially intelligible and has probative value, it is admissible

even though substantial portions thereof are inaudible.”       State

v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.), certif.

                                  19
denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71,

38 L. Ed. 2d 120 (1973).

    Whether an omission renders a recording unduly prejudicial

depends upon the extent to which the omission adversely affects

the evidentiary purpose or purposes for which the recording has

been offered.   Where, for example, the trial judge determines in

his or her discretion that the omission reduces the probative

value of the balance of the recording to such an extent that it

is substantially outweighed by the risk of undue prejudice, then

the recording should be excluded under N.J.R.E. 403.      See Dye,

supra, 60 N.J. at 531; Driver, supra, 38 N.J. at 288; Cusmano,

supra, 274 N.J. Super. at 514-15.      The motion judge here

determined that the omission of defendant’s response to Aikens’

accusatory statement was unduly prejudicial to defendant.      We

find no basis to disturb that finding.

    The Appellate Division rejected the motion judge’s finding

that the gap in the recording was unduly prejudicial for three

reasons.   First, the panel characterized as speculative the

motion judge’s finding that the recording was cut off at a

“crucial point.”   We disagree.   The recording cut out before

defendant could respond to Aikens’ statement that she saw

defendant “putting [the gun] in the case when we was arguing.”

Defendant’s response to that accusatory statement was critical

to assessing that statement’s probative value.

                                  20
    Second, the panel found that Detective DeSantis’ testimony

that nothing of consequence was said during the unrecorded

portion of the conversation “flatly contradicted” the motion

judge’s finding.   However, Detective DeSantis testified that he

was unable to recall what specifically was said after the

recorder was disconnected and gave no indication what, if any,

response defendant gave to Aikens’ accusatory statement.

Further, Detective Johannessen testified that after the recorder

became disconnected he was able to hear only Aikens’ side of the

conversation.   Thus, despite his testimony to the contrary, he

could not corroborate DeSantis’ assertion that nothing of

consequence was said during the fifteen to twenty seconds it

took to reconnect the recording device.

    Finally, the panel stated that defendant admitted in the

recording to possessing the gun, which ameliorated any prejudice

resulting from the gap in the recording.    However, at no point

in the recorded conversation did defendant admit to possessing a

gun; nor did he directly ask Aikens to claim that the gun was

hers.   We therefore find the motion judge did not abuse his

discretion in concluding that the omission of defendant’s

response to Aikens’ accusatory statement casts serious doubts

about the admissibility of the recording.

    We therefore proceed to the second part of the inquiry:

whether the omission, if unduly prejudicial, requires

                                21
suppression of all or part of the recording.      We reaffirm that

the question of whether a defect in a recording warrants

exclusion is a matter entrusted to the trial judge’s discretion.

Driver, supra, 38 N.J. at 288; see also Daniel E. Feld,

Annotation, Omission or Inaudibility of Portions of Sound

Recording as Affecting its Admissibility in Evidence, 57

A.L.R.3d 746 (1974) (“Many courts, with or without expressly

stating the general rule, have stated that the admission of a

recording that is partially inaudible or that reproduces only

part of a statement or conversation is largely a matter within

the trial court’s discretion.”).      However, that discretion must

take into account “the evidential purpose which the tape

served.”   Zicarelli, supra, 122 N.J. Super. at 239.

    When assessing the evidential purpose of the recording, the

trial court must consider whether it is probative of one or

multiple theories of the case.     Only then can the court properly

determine whether the omission “was so substantial as to render

the recording as a whole untrustworthy.”      Dye, supra, 60 N.J. at

531 (citations and internal quotation marks omitted); see

Cusmano, supra, 274 N.J. Super. at 514-15.      Where, as here, the

recording contains competent relevant evidence relating to two

distinguishable evidentiary purposes, the question becomes

whether the recording must be precluded in its entirety.



                                 22
Although we have not squarely addressed this question before,

our rules of evidence provide some guidance.

    Where evidence is admissible for one purpose but not for

another, the trial court “upon request[] shall restrict the

evidence to its proper scope and shall instruct the jury

accordingly.”   N.J.R.E. 105.   Thus, to the extent it remains

competent and relevant, the trial court may admit an otherwise

admissible recording while redacting a portion deemed

inadmissible due to an omission or defect.     See Wakefield,

supra, 190 N.J. at 482-83 (approving trial court’s admission of

victim impact statement with redaction of “inflammatory

comments”); State v. Figueroa, 358 N.J. Super. 317, 325-26 (App.

Div. 2003) (approving trial court’s admission of confession with

redaction of references to other crimes).

    The Appellate Division’s reasoning in Zicarelli, which we

find persuasive, further suggests redaction is appropriate in

this case.   There, the Appellate Division addressed Zicarelli’s

contention that the trial court erred in admitting taped

conversations between Zicarelli and Policastro, the State’s

witness, because the taped recording was “largely inaudible and

unintelligible.”   Zicarelli, supra, 122 N.J. Super. at 238-39.

Zicarelli and Policastro had known each other for fifteen years,

during which time Policastor “acted as a courier for Zicarelli



                                 23
in carrying ‘pay-offs’ to certain public officials.”      Id. at

238.

       The Appellate Division held that, although “a substantial

part” of the recording was inaudible,

           the tape of the conversation between
           Policastro and Zicarelli . . . proved the
           intimacy between them and, considered with
           Policastro’s direct testimony, the
           relationship of that intimacy to the central
           conspiracy of suppressing prosecution of the
           gambling enterprise headed by Zicarelli.
           Therefore, it had probative value to that
           extent, and was admissible for that purpose.

           [Id. at 239.]

The Appellate Division then distinguished Driver, noting that

           the inaudibility of the tape [in Driver] was
           central to the purpose for which it was
           offered and, because it was largely
           inaudible . . . it would have been grossly
           unfair to admit it. As said above, the
           Policastro-Zicarelli tape had probative
           value for reasons other than what was said.
           Inaudibility had no relevance to those
           reasons.

           [Id. at 239-40.]

       Similarly, the recorded conversation between defendant and

Aikens was probative in more than one respect: (1) defendant’s

responses to Aikens’ claim that he owed her money creates an

inference that defendant was offering Aikens money to alter her

testimony; (2) defendant’s statements about what Aikens’

testimony might be suggests he was coaching her to deceive the

prosecution; and (3) Aikens’ statement that she saw defendant

                                 24
with a gun supports the State’s assertion that defendant

possessed the gun for which he has been charged.   The failure to

record defendant’s response, if any, to Aikens’ statement that

she saw defendant with a gun renders that portion of the

conversation unduly prejudicial with respect to the weapons

charge.   However, there is nothing in the record to suggest that

the omission created a risk of undue prejudice with respect to

the bribery and witness-tampering charges.   Nor does it appear

that the omission has any impact on defendant’s response that

“[n]obody seen the gun that day.”

    According appropriate deference to the motion judge’s

findings, we hold that the recording was admissible up to and

including the point at which defendant stated: “Nobody seen the

gun that day.”   Admitting the recording beyond that point

unfairly asks the jurors to speculate about the content of

defendant’s reply, see State v. Frost, 158 N.J. 76, 86 (1998)

(finding prosecutor’s comments that “unfairly invite[] the jury

to speculate” improper); see also McKnight v. State, 1 N.E.3d

193, 202-03 (Ind. Ct. App. 2013) (finding tape recording “must

be of such clarity and completeness to preempt speculation in

the minds of jurors as to its content” (quoting Dearman v.

State, 743 N.E.2d 757, 762 (Ind. 2001)); whereas excluding the

recording before that point needlessly deprives the State of

competent, relevant, and admissible evidence.

                                25
                                  VI.

    In conclusion, we hold that a trial court must employ a

two-part analysis when considering the admissibility of a

recording containing partial omissions.   The court must first

determine if the omission is unduly prejudicial; that is, does

the omission adversely impact the trustworthiness of the

recording.   That is an objective analysis that should focus on

the evidentiary purposes for which the recording is being

offered.   If the trial court in its discretion finds the

omission unduly prejudicial, it must then consider whether the

omission renders all or only some of the recording

untrustworthy, and suppress only the portion of the recording

that is rendered untrustworthy.

    While the Driver analysis remains relevant to the above

determinations, a recording’s shortcomings with respect to one

factor do not automatically necessitate exclusion of the entire

recording.   Rather, the court should consider the factors set

forth in Driver together, on a case-by-case basis, to determine

whether and to what extent the recording contains competent

relevant evidence.

    The recording here was offered for two evidentiary

purposes: to demonstrate defendant’s intent to tamper with the

State’s witness and to show that defendant possessed the gun for

which he was charged with unlawful possession.   The

                                  26
unintentional omission rendered untrustworthy and unduly

prejudicial only the portion of the recording in which Aikens

accused defendant of possessing the gun; it did not adversely

affect the balance of the recording.

                                VII.

    Accordingly, the judgment of the Appellate Division

admitting the recording in its entirety is reversed, and the

matter is remanded to the trial court for further proceedings

consistent with this opinion.



     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.




                                 27
               SUPREME COURT OF NEW JERSEY

NO.   A-97                                  SEPTEMBER TERM 2013

ON CERTIFICATION TO           Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

KINGKAMAU NANTAMBU,

      Defendant-Appellant.




DECIDED              April 29, 2015
               Chief Justice Rabner                       PRESIDING
OPINION BY                Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                      REVERSE AND
 CHECKLIST
                                        REMAND
 CHIEF JUSTICE RABNER                      X
 JUSTICE LaVECCHIA                         X
 JUSTICE ALBIN                             X
 JUSTICE PATTERSON                         X
 JUSTICE FERNANDEZ-VINA                    X
 JUSTICE SOLOMON                           X
 JUDGE CUFF (t/a)                          X
 TOTALS                                    7
