                                NOT FOR PUBLICATION WITHOUT THE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-4988-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELLICK D. WRIGHT, JR.,

     Defendant-Appellant.
________________________

                    Submitted September 9, 2019 – Decided November 4, 2019

                    Before Judges Rothstadt and Mitterhoff.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Gloucester County, Indictment No. 14-
                    11-1005.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Seon Jeong Lee, Designated Counsel, on
                    the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      A jury convicted defendant Ellick D. Wright, Jr. of a second-degree

weapons possession charge and the fourth-degree charges of obstruction and

resisting arrest. The trial court sentenced him to an aggregate term of eight

years, subject to a forty-two month period of parole ineligibility under the

Graves Act, N.J.S.A. 2C:43-6(c). Defendant now appeals from his conviction,

contending that the trial court improperly denied his motion to suppress, in

which he claimed his encounter with the arresting police officer was not a

lawful field inquiry and that there was no reasonable suspicion to justify an

investigatory stop. He also argues that the trial court erroneously barred him

from playing recordings of two 911 calls to the jury that were made on the

night he was arrested.    For the reasons that follow, we reject defendant's

contentions and affirm.

                                      I.

      We summarize the facts as developed at the suppression hearing as

follows. Late at night, prior to the incident at hand, Monroe Township Canine

Officer William Yorio responded to another officer, who observed a black man

in dark clothing walking near a closed business in one part of the Township.

When Yorio attempted to locate the man to see what he was doing, he could




                                                                     A-4988-16T1
                                     2
not find the individual. Yorio stopped searching for the man and continued his

usual patrol that night.

      Later, at 2:42 a.m. on August 25, 2014, while on patrol in another part of

town, about two or three miles away from the area he patrolled earlier, Yorio

encountered defendant walking alone on an empty street where the nearby

businesses were closed, except for a bar.       Previously, the department had

designated the area as a "point of information," due to increased criminal

activity. When Yorio observed defendant, the weather "was clear and warm,"

but defendant was wearing dark clothing, including a black sweatshirt.

      After Yorio made the stop, he radioed to dispatch. The other officer,

who saw the first individual earlier in the other part of town, heard the call and

asked if it was the same person.      Yorio replied that he did not know and

proceeded with the stop.

      Yorio approached defendant, without being accompanied by his dog or

removing his weapon.       He asked defendant, "[h]ey, how you doing?" and

whether he was from the Township. Defendant explained that he was from

Philadelphia and was in the area visiting his child's mother. He voluntarily

provided the officer with his Pennsylvania-issued identification and told the




                                                                         A-4988-16T1
                                       3
officer that he did not have any outstanding warrants. The officer verified this

information and held onto defendant's identification.

      During the encounter, defendant "kept reaching into his waistband." In

addition to his hand movements, defendant appeared nervous and was avoiding

eye contact, which prompted the officer to ask if he could conduct a pat-down

search for a weapon. Defendant consented and during his search, Yorio "felt a

bulge" in the front waistband, lifted defendant's sweatshirt, and "saw a

handgun."

      When Yorio went to take the handgun, defendant pushed him away and

ran, despite being told to stop and that he was under arrest. Yorio radioed to

dispatch that defendant was "running" and "ha[d] a gun." There was then

discussion about defendant's location.     During Yorio's ensuing pursuit of

defendant, the officer saw defendant reach into his waistband while running,

drop the gun, and pick it up to throw it. Eventually, Yorio subdued defendant

and arrested him. After defendant was arrested, a search incident to arrest was

conducted, which yielded narcotics. The gun was also recovered.

      A grand jury later returned an indictment charging defendant with one

count of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b); one count of fourth-degree obstruction of the administration of law,


                                                                       A-4988-16T1
                                      4
N.J.S.A. 2C:29-1(a); and one count of fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a). After the trial court denied defendant's suppression motion and

ruled on the admission of the tape recordings, the matter was tried before a

jury that convicted defendant on each count. Later, after the trial court denied

defendant's motion for a new trial, the court sentenced defendant. This appeal

followed.

      On appeal, defendant argues the following points:

            POINT I

            THE COURT'S DENIAL OF THE SUPPRESSION
            MOTION    WAS    ERROR    BECAUSE    THE
            PATROLMAN'S        ENCOUNTER       WITH
            DEFENDANT AT 2:42 A.M. NEITHER MEETS THE
            FIELD INQUIRY TEST, THAT AN OBJECTIVELY
            REASONABLE      PERSON     UNDER     THE
            CIRCUMSTANCES WOULD NOT HAVE FELT HIS
            RIGHT TO MOVE HAD BEEN RESTRICTED, NOR
            WAS THERE REASONABLE SUSPICION FOR AN
            INVESTIGATORY STOP. (RAISED BELOW).

            POINT II

            THE COURT ERRED IN BARRING THE AUDIO
            RECORDINGS OF THE ANONYMOUS 9-1-1
            CALLS CONTEMPORANEOUS TO DEFENDANT'S
            ENCOUNTER WITH THE POLICE, A CLASSIC
            PRESENT SENSE IMPRESSION OR EXCITED
            UTTERANCE, AS INADMISSIBLE HEARSAY
            AND VIOLATIVE OF THE CONFRONTATION
            CLAUSE, THEREBY DENYING DEFENDANT A


                                                                       A-4988-16T1
                                      5
            MEANINGFUL OPPORTUNITY TO PRESENT A
            COMPLETE DEFENSE. (RAISED BELOW).

                  A.  THE CONFRONTATION CLAUSE
                  OF THE SIXTH AMENDMENT DOES
                  NOT APPLY TO THE STATE.

                  B.  HEARSAY EVIDENCE WHERE
                  THE DECLARANT IS UNAVAILABLE
                  AS A WITNESS IS ADMISSIBLE IF IT
                  IS A PRESENT SENSE IMPRESSION
                  OR EXCITED UTTERANCE.

                  C.  THE COURT'S ERRONEOUS
                  AND   CONFUSED     EVIDENTIARY
                  RULING DEPRIVED DEFENDANT OF
                  A MEANINGFUL OPPORTUNITY TO
                  PRESENT A DEFENSE.

      We are not persuaded by defendant's contentions as we conclude the trial

court did not abuse its discretion in denying the suppression motion or in its

ruling regarding the admission of the recordings.

                                      II.

                                      A.

      We turn first to defendant's challenge to the denial of his suppression

motion. After defendant filed a motion to suppress, the trial court conducted a

hearing at which Yorio was the only witness. The officer testified that his

responsibilities included community caretaking activities, which involved

investigating suspicious activity and assisting other units with his canine

                                                                      A-4988-16T1
                                      6
partner. As described above, Yorio also testified to the details of his encounter

with defendant, in addition to his experience and training as a police officer as

it related to, among other subjects, firearms, concealed weapons, and narcotics.

He testified that during the course of his training, he learned various places

where weapons or contraband could be hidden on a person, including in one’s

waistband and the front of jeans.

       Describing his initial stop of defendant, the officer explained that

defendant was free to not answer his questions and noted that when he asked

defendant if he would consent to a pat-down search, defendant was not under

arrest. Yorio also explained that he became concerned about his safety based

on his observations of defendant's nervousness and hand movements, which

prompted his request to search defendant for weapons. Yorio also stated that

he checked for warrants because of defendant's insistence that he did not have

any.

       After Yorio testified, and during oral argument, defendant maintained

that he did not consent to the search and there was "no warning of the right to

refuse consent in this case." Defendant also argued there was no articulable

suspicion of any criminal activity or that he was nervous during his encounter

as he was "just walking."      The State argued that it was clear from the


                                                                        A-4988-16T1
                                       7
testimony that Yorio's field inquiry was not motivated by anything other than

defendant's presence, the time of night, and his sweatshirt despite the warm

weather. In addition, the State added that defendant's conduct of touching his

waistband and avoiding eye contact made Yorio fear for his safety, thus

justifying the pat-down.

      On May 4, 2015, the trial court denied defendant's motion, setting forth

its reasons in a thorough nine page written decision. Initially, the court stated

it found Yorio to be credible as he testified consistently with his original report

of the events.

      According to the trial court, "the threshold question [was] whether . . .

the initial stop . . . was a field inquiry, or whether it . . . [was] an unlawful

investigatory stop," and it concluded the initial interaction was a lawful field

inquiry. The court relied upon the fact that Yorio approached defendant while

he was walking, defendant was free to not answer questions, and was not under

arrest. The court also noted that Yorio was asking "foundational questions"

and defendant was willing to respond. The court added that there was no

inference in the record "that an objectively reasonable person would have fel t

his right to move ha[d] been restricted." Ibid.




                                                                          A-4988-16T1
                                        8
      The trial court also stated that an investigatory stop "would have been

unlawful" because, based on Yorio's testimony, "there was no reasonable and

particularized suspicion to believe that [d]efendant" was going to or "had just

engaged in criminal activity." However, it concluded that the frisk was proper

based upon the officer's concern that developed from the time of night and

defendant's behavior, which created reasonable suspicion that defendant was

armed. The court also found that because the initial search was lawful, so too

was the search that followed defendant's arrest.

      Later, during an in limine motion hearing, the trial court revisited its

ruling, considered new evidence in the form of a transcript of Yorio's

conversation with the officer who spotted the unidentified black male earlier

on the same night, and additional testimony from Yorio before it again denied

the motion. The issue arose when defendant contended had the trial court

heard the newly produced tape recording during the suppression hearing, it

would not have found that Yorio's stop of defendant was a lawful field inquiry

because the recording confirmed the officer was actually conducting an

investigation. In the call with Yorio, a county operator, and the other officer,

after being asked whether it is "possibl[y] him" by the other office, Yorio

responded that he was not sure.


                                                                       A-4988-16T1
                                      9
      After reviewing a transcript of the call, the trial court had Yorio recalled

to testify. Under questioning by defense counsel, Yorio stated that prior to

stopping defendant, he was not looking for anyone in particular in that area,

including the unidentified man from earlier that evening. He described how

earlier in the evening the other officer saw a black man dressed similarly to

defendant, who walked past a closed business two or three miles away from

where he stopped defendant.

      Yorio confirmed the contents of his call.         According to Yorio, he

stopped defendant because "[i]t was a point of information to make contact

with the public on . . . [the street] and also [defendant] was by businesses in

dark colored clothing . . . ." He emphasized that defendant was not wanted for

anything and he was not investigating anything about the man the other officer

saw earlier in the night. Yorio confirmed that he did not mention the other

individual in his report.

      Yorio was also asked by defense counsel if he recalled that he made a U-

turn when the other officer initially spotted the first man earlier in the night.

He testified that after the other officer called in the presence of that man on the

street near a closed business, he turned his car around to see where the man

was. Yorio did not stop or get out of his car to pursue anyone and did not let


                                                                          A-4988-16T1
                                      10
his dog out. Yorio stated that when he could not find anyone, he resumed his

normal patrol duties and was no longer searching for that man or anyone

specific.

      Yorio noted his stop of defendant was not related to the earlier

conversation or the search for the individual spotted in a different location by

the other officer. Yorio further explained that when he made the initial contact

with defendant and when defendant fled, no other officers were present.

      Following Yorio's testimony, the trial court considered the parties'

arguments about whether the stop was an investigatory stop. After considering

their arguments, the trial court placed its oral decision on the record. The

court found Yorio to be "extremely credible" and again found that the initial

encounter was a field inquiry. It concluded that Yorio was not "searching for

this individual or any other individual" while on patrol following his

conversation with the other officer. The court reiterated that the frisk was also

lawful, for the reasons stated in its earlier decision.

                                         B.

     Defendant argues on appeal that the trial court's denial of his

"suppression motion must be reversed" because the facts did "not support [its]

findings and conclusion." He contends that Yorio's "assertive and persistent


                                                                        A-4988-16T1
                                       11
engagement" made him stop and become nervous.               He argues that the

circumstances of the encounter were such that a reasonable person in his

situation would not feel free to walk away, namely after being approached in

the "dead of night" while walking alone and being asked probing questions by

an officer who had a large dog in his police car. Defendant maintains that

there is no support in the record that this encounter could be a field inquiry but

rather, was an investigatory stop. We disagree.

     Our review of a trial court's denial of a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). In our review, we defer to a trial

court's factual findings "because the trial court has the 'opportunity to hear and

see the witnesses and to have the "feel" of the case, which a reviewing court

cannot enjoy.'"   State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v.

Elders, 192 N.J. 224, 244 (2007)).         We will "uphold the factual findings

underlying the trial court's decision, provided that those findings are 'supported

by sufficient credible evidence in the record.'"     State v. Sencion, 454 N.J.

Super. 25, 31 (App. Div. 2018) (quoting State v. Boone, 232 N.J. 417, 425-26

(2017)). We also defer to the court's credibility findings. State v. Locurto,

157 N.J. 463, 472 (1999). "We owe no deference, however, to conclusions of

law made by trial courts in suppression decisions, which we instead review de


                                                                         A-4988-16T1
                                      12
novo." Sencion, 454 N.J. Super. at 31-32; see also State v. Hubbard, 222 N.J.

249, 263 (2015).

      Applying that standard of review, we conclude that the trial court

properly determined that the officer's initial stop of defendant was a lawful

field inquiry, during which the officer developed a reasonable suspicion that

his safety might be threatened.    This justified the ensuing lawful frisk, to

which defendant consented.

     "A field inquiry is essentially a voluntary encounter between the police

and a member of the public in which . . . police ask questions and do not

compel an individual to answer." State v. Rosario, 229 N.J. 263, 271 (2017).

Generally, in order to conduct a field inquiry, an officer does not need to have

a well-grounded suspicion of criminal activity. Elders, 192 N.J. at 246 (citing

State v. Rodriguez, 172 N.J. 117, 126 (2002)). It is permissible as long as the

individual's freedom is not restricted, he is free to not respond and leave, see

Rodriguez, 172 N.J. at 126; State v. Maryland, 167 N.J. 471, 483 (2001), and

the questions are "not harassing, overbearing, or accusatory in nature." State

v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510

(2003)); see also Rodriguez, 172 N.J. at 126.




                                                                       A-4988-16T1
                                     13
     The conduct of the police officer has significant weight in determining

whether a field inquiry has become an investigative stop. "[T]he tenor of the

police questions" can contribute to a finding that an encounter had progressed

"beyond a mere field inquiry."     Rodriguez, 172 N.J. at 129. The "critical

inquiry" is "whether the policeman" has "conducted himself in a manner

consistent with what would be viewed as a non-offensive contact if it occurred

between two ordinary citizens." State v. Davis, 104 N.J. 490, 497 n.6 (1986)

(quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment, § 9.2 at 53 (1978)).

     "[A]uthoritative questions that presuppose criminal activity or are

otherwise indicative of criminal suspicion, thus making the suspect aware he is

the focus of a particularized investigation, may be considered as part of the

totality of circumstances in determining whether a field inquiry has escalated

into an investigatory stop." State v. Sirianni, 347 N.J. Super. 382, 389 (2002).

On the other hand, if an officer puts his questions "in a conversational manner,

if he did not make demands or issue orders, and if his questions were not

overbearing or harassing in nature," his manner would not result in a seizure of

the person. Davis, 104 N.J. at 497 n.6. "While most citizens will respond to a

police request, the fact that people do so, and do so even without being told


                                                                       A-4988-16T1
                                     14
that they are free not to respond, hardly eliminates the consensual nature of the

response." Sirianni, 347 N.J. Super. at 389 (quoting State v. Hickman, 335

N.J. Super. 623, 635 (App. Div. 2000)).

       On the other hand, an investigatory or Terry stop1 is characterized by a

detention in which the person approached by a police officer would not

reasonably "feel free to leave," even though the encounter falls short of a

formal arrest. See State v. Stovall, 170 N.J. 346, 355-56 (2002). A police

officer has a right "to conduct a brief, investigatory stop," State v. Morrison,

322 N.J. Super. 147, 151-52 (App. Div. 1999); see also Terry, 392 U.S. at 20-

21, if that stop is "based on 'specific and articulable facts which, taken together

with rational inferences from those facts,' give rise to a reasonable suspicion of

criminal activity." Rodriguez, 172 N.J. at 126 (quoting Terry, 392 U.S. at 21);

see also Davis, 104 N.J. at 504. Reasonable suspicion "involves a significantly

lower degree of objective evidentiary justification than does the probable cause

test," Davis, 104 N.J. at 501, and "innocent circumstances in the aggregate can

support a finding of reasonable suspicion." Stovall, 170 N.J. at 368; see also

Nishina, 175 N.J. at 510-11.



1
    Terry v. Ohio, 392 U.S. 1, 21-22 (1968).


                                                                          A-4988-16T1
                                      15
     "[I]t is clear that a proper field inquiry . . . may escalate into a situation

justifying a Terry protective search if the suspect is reasonably suspected of

being armed and dangerous." Maryland, 167 N.J. at 489; see Rosario, 229 N.J.

at 279-80 (Solomon, J., dissenting). "[W]here there is an insufficient basis for

a protective search at the threshold of an encounter between an officer and a

suspect, events occurring subsequent . . . may give rise to an objectively

justified suspicion that the suspect is armed." State v. Thomas, 110 N.J. 673,

681 (1988).

     Here, there was no evidence that Yorio conducted an investigatory stop

instead of a lawful field inquiry. Stopping defendant was neither the result of

any ongoing investigation nor any demonstrable suspicion that a crime had

been or was about to be committed. Rather, as the trial court found, Yorio

conducted a field inquiry before becoming concerned for his own safety based

on his observations of defendant in the context of the officer's training and

experience. The trial court's finding in this regard was well supported by the

evidence and the court's conclusions were legally correct.

     Moreover, Yorio did not ask any accusatory or authoritative questions

and he did not take out his weapon or his canine dog during his initial

encounter with defendant. There was no evidence that defendant was not free


                                                                          A-4988-16T1
                                      16
to decline Yorio's questions and there was nothing confrontational about the

encounter.

     The nature of the encounter only began to change when Yorio observed

defendant adjusting his waistband, appearing nervous and kept avoiding eye

contact.     This behavior during the lawful field inquiry, resulted in a

permissible frisk. See State v. Privott, 203 N.J. 16, 29 (2010) (concluding a

frisk was lawful based upon, among other factors, "[d]efendant appear[ing]

nervous, walk[ing] away from the officer, and mov[ing] one hand towards his

waistband"). Yorio's concern about his safety was justified based upon "his

extensive experience in the field, [that made him] aware that the waistband is

an area commonly used by armed persons to conceal a weapon." Ibid. As

such, Yorio developed a fear for his safety and a reasonable suspicion that

defendant may have a weapon based on his behavior during the encounter and

his presence alone around closed businesses at 2:42 a.m. The officer's search

of defendant was lawful.

                                         III.

                                         A.

      Next, we consider defendant's contentions about the trial court's ruling

regarding the two 911 calls. The admissibility of the tapes was raised by


                                                                      A-4988-16T1
                                    17
defendant as part of an in limine motion. In his motion, defendant sought

permission to use the contents of the recordings as substantive evidence that

the police were harassing defendant and it was the officer and not defendant

who had a weapon at the scene.

         Initially, the trial court ruled that the recordings could be used, but not

as substantive evidence because the recordings contained hearsay that was not

admissible as present sense impressions under Rule 803(c)(1), or as excited

utterances under Rule 803(c)(2), and admitting them as substantive evidence

would be a violation of the Confrontation Clause. The trial court indicated

that it would deliver a corresponding limiting instruction to the jury. Despite

that ruling, during trial, the trial court barred defendant from pla ying the tapes,

but indicated it would allow defendant to ask Yorio questions about the 911

calls.

         The two 911 calls were evidently made by either one or two unidentified

citizens after the police subdued defendant and they related to the caller's or

callers' observations of the events that transpired between Yorio and

defendant. In one call, the caller stated he saw a "kid had just walked right

past here, a cop had just pulled him over. Something had went down. And

now there's lots -- a bunch of cops jumping on one guy down here on Main


                                                                           A-4988-16T1
                                        18
Street."   According to the caller, the police were "harassing the guy real

badly." The dispatcher confirmed the caller's location and the call terminated

when the caller indicated he did not want to identify himself.

      During the second 911 call, the caller described his location as being the

same as the first caller. He then confirmed that he saw police at the scene.

The caller described what he believed was a "young guy" who "had just

walked past" the caller. The caller stated that he saw a police officer "with a

dog circling around the block" before the officer "all of a sudden got the boy,"

who then "start[ed] running." He then described how the police "pulled up

with" and then "pulled a gun out on the boy." In response to questions from

the dispatcher, the caller confirmed it was the police who pulled out a gun and

not the boy. He stated he did not know the young boy. The second caller also

wanted to remain anonymous and the call terminated.

      According to defendant, the 911 recordings were admissible under either

Rule 803(c)(1) or (2) as excited utterances or present sense impressions.

Specifically, he asserted that the calls were made as someone was viewing a

startling condition. With regard to the right to confrontation under Crawford

v. Washington, 541 U.S. 36 (2004) and Rules 803(c)(1) and (2), there was no




                                                                       A-4988-16T1
                                     19
requirement that the declarant be available as the callers never identified

themselves.

       The State disagreed, and argued for a statement to be a present sense

impression it must be contemporaneous with no time to fabricate, which could

render the calls inadmissible in this case. In addition, the State also argued

that the callers were anonymous, which implicated the veracity of the calls. It

also argued the calls did not reflect observations of a startling event or

emergency as the police were already at the scene.

       In its oral decision, the trial court stated it found the 911 tapes not

admissible as the calls were not present sense impressions or an excited

utterances. It also explained that the concept behind the Confrontation Clause

applied "to everybody across the board. . . .        Everybody has a right to

confront[] . . . witnesses . . . ."

       The court concluded that the 911 calls were not admissible under Rule

803(c)(1), as a present sense impression, because they were made after the

police were already on the scene, they were not 911 "in nature in that they're

reporting an emergency," and it was unclear how long the callers waited before

making the calls. Likewise, the court did not find the calls to be excited




                                                                      A-4988-16T1
                                      20
utterances under Rule 803(c)(2) because "[t]his was not a startling event." The

callers "called [in just] to report something."

      Despite finding the 911 calls inadmissible, the court stated that it would

not prevent defendant from using the tapes in his case-in-chief, but stated that

it would instruct the jury that "it's not substantive evidence." It explained that

because the tapes were "not subject to cross-examination, [although defendant

could] use them on . . . cross-examination," the jury could not "take it as

gospel to establish that anything happened in regard to" them.

      However, during the trial, when defense counsel attempted to play the

tapes during Yorio's cross-examination, the trial court refused to allow it

because they contained "hearsay," the callers were never identified, and could

not be subjected to cross-examination.       The court made clear that counsel

could ask Yorio questions about the calls, but stated that the recordings could

not be played to the jury. The court also stated that defendant could, if he

chose, call Yorio as a witness during his case-in-chief and question him about

his recordings.   Rather than extensively questioning Yorio about the calls

during cross-examination, defense counsel only elicited from Yorio that he had

heard the recordings and that they related to the callers' concern that defendant




                                                                         A-4988-16T1
                                      21
was being harassed.    Defendant never called Yorio as a witness. Instead,

defendant rested without calling any witnesses.

                                       B.

     On appeal, defendant argues that the trial court's conclusion that the 911

recordings contained     inadmissible hearsay was incorrect and denied

defendant's "right to a fair trial."        He raises three issues:      that the

Confrontation Clause was wrongfully applied in favor of the State; that the

calls were present sense impressions or excited utterances; and that the trial

court's ruling deprived him of a meaningful "opportunity to present a complete

defense."   While we agree with defendant about the inapplicability of the

Confrontation Clause to a court's consideration of evidence being offered by a

defendant, we discern no abuse of discretion by the trial court barring the

tape's admission.

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

absent a showing of 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)). Accordingly, "absent a showing that the [trial] court abused

its discretion," this court will not reverse a decision concerning the admission

or exclusion of evidence unless it concludes that it "was so wide of the mark as


                                                                         A-4988-16T1
                                     22
to bring about a manifest injustice." E&H Steel Corp. v. PSEG Fossil, LLC,

455 N.J. Super. 12, 24-25 (App. Div. 2018) (citing Griffin v. City of E.

Orange, 225 N.J. 400, 413 (2016)). 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).

      At the outset, we agree with defendant that the Confrontation Clause

does not apply to the State's inability to cross-examine statements made by

declarants who do not testify at trial. Both the Federal and State constitutions

protect an accused's rights to due process and to confront the "witnesses

against him." U.S. Const. amends. V, VI, XIV, § 1; N.J. Const. art. I, ¶¶ 1, 10;

State v. Garron, 177 N.J. 147, 168-69 (2003). "In Crawford . . . the United

States Supreme Court declared that the Sixth Amendment's Confrontation

Clause prohibited the use of an out-of-court testimonial statement against a

criminal defendant unless the witness was unavailable and the defendant was

given a prior opportunity to cross-examine her." State v. Basil, 202 N.J. 570,

591 (2010) (emphasis added).

      The Confrontation Clause protects criminal defendants by insuring they

have "the right to physically face those who testify against them," and the


                                                                       A-4988-16T1
                                     23
ability to cross-examine their accusers before the trier of fact. Pennsylvania v.

Ritchie, 480 U.S. 39, 51 (1987). The Confrontation Clause's central purpose

"is to ensure the reliability of evidence brought against a defendant by" testing

it under the rubric of four elements: physical presence, oath, cross-

examination, and observation of demeanor. Maryland v. Craig, 497 U.S. 836,

845-46 (1990) (emphasis added). For this reason, even "hearsay evidence that

falls within an exception to the hearsay rule, may still not be admissible"

against a defendant if any of the elements are not present. Biunno, Weissbard

& Zegas, Current N.J. Court Rules of Evidence, cmt. on N.J.R.E. 802 (Gann).2

      The same does not hold true for the State. A defendant is entitled to the

admission of relevant evidence that is not otherwise barred by our rules

without regard to the Confrontation Clause's protections. Here then, the only

determination is whether the hearsay evidence contained in the two calls were

admissible under our rules.

      "Hearsay is generally inadmissible, [Rule] 802, except if it falls within

one of the hearsay exceptions." State v. Outland, 458 N.J. Super. 357, 364

2
   However, the Clause "does not condemn all hearsay." State v. Branch, 182
N.J. 338, 349 (2005). "A defendant's confrontation right must accommodate
'legitimate interests in the criminal trial process,' such as established rules of
evidence and procedure designed to ensure the efficiency, fairness, and
reliability of criminal trials." Ibid. (quoting Garron, 177 N.J. at 169).


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(App. Div. 2019) (quoting State v. Williams, 169 N.J. 349, 358 (2001)).

Regardless of a declarant's unavailability, "[s]tatements that qualify as a

present sense impression, [Rule] 803(c)(1), or an excited utterance, [Rule]

803(c)(2), are two such exceptions." Ibid. A present sense impression is "[a]

statement of observation, description or explanation of an event or condition

made while or immediately after the declarant was perceiving the event or

condition and without [an] opportunity to deliberate or fabricate." N.J.R.E.

803(c)(1); Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 458 (App. Div.

2015). An excited utterance is a "statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused

by the event or condition and without [an] opportunity to deliberate or

fabricate." N.J.R.E. 803(c)(2); see Gonzales, 441 N.J. Super at 458 (quoting

N.J.R.E. 803(c)(2)) (concluding that a statement did not constitute an excited

utterance as "no foundation [was] laid that the declarant spoke 'under the stress

of excitement' without 'the opportunity to deliberate or fabricate'").

      911 calls made during an emergency are typically considered hearsay

statements and are only admissible in a criminal trial "subject to traditional

limitations upon hearsay evidence." Davis v. Washington, 547 U.S. 813, 821

(2006).   Generally, where the "911 call[] is . . . not designed primarily to


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'establis[h] or prov[e]' some past fact, but to describe current circumstances

requiring police assistance," it may be admissible. Id. at 827 (alterations in

original).   That is particularly so when "any reasonable listener would

recognize [the 911 caller] was facing an ongoing emergency." Ibid.

      Here, both 911 calls were made while police were already present at the

scene. There was no emergency that required police attention because the

police were already there. Whether it was the same caller or two different

individuals, there was no indication that the declarant was stressed or excited

by witnessing the interaction between the police and defendant or that he did

not have an opportunity to fabricate. Under these circumstances, the trial court

correctly determined that the 911 calls were inadmissible.

      Moreover, even though the trial court would not admit the calls, it

permitted defendant to question Yorio about them on cross-examination. Yet,

defense counsel who had already cross-examined Yorio for about four hours,

only asked limited questions about the calls once the judge prevented the

recordings from being played.      Without defendant making further inquiry

about the tapes as permitted by the trial court, we cannot discern how the trial

court's ruling, if erroneous, impacted defendant other than barring the calls

from being admitted as substantive evidence, a ruling with which we concur.


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Finally, even if we disagreed with the trial court, we conclude barring the

tapes' admission did not create a manifest injustice under these circumstances.

      Affirmed.




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