                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0506-12T4


MARIA C. MANATA,

      Plaintiff-Respondent,            APPROVED FOR PUBLICATION

                                            June 20, 2014
v.
                                         APPELLATE DIVISION
FRANCISCO A. PEREIRA,

      Defendant-Appellant,

and

STATE FARM INSURANCE COMPANY,

     Defendant.
__________________________________

          Argued November 19, 2013 – Decided June 20, 2014

          Before Judges Reisner, Ostrer and Carroll.1

          On appeal from the Superior Court of New
          Jersey, Law Division, Essex County, Docket
          No. L-5822-10.

          David Della-Badia argued the cause for
          appellant    (Sellar     Richardson,    P.C.,
          attorneys; John M. Kearney, of counsel;
          Christopher W. Ferraro, on the briefs).

          John J. Megjugorac argued the cause for
          respondent   (Ginarte,  O'Dwyer,   Gonzalez,
          Gallardo & Winograd, LLP, attorneys; Michael

1
  Judge Carroll did not participate in oral argument. However,
with the consent of counsel he has joined this opinion.     R.
2:13-2(b).
            A. Gallardo and Mr. Megjugorac, of counsel
            and on the brief).

            The opinion of the court was delivered by

OSTRER, J.A.D.

    This      appeal      arises        out        of     an     automobile-pedestrian

collision.       It   requires      us     to      chart       limits    on     the    use    of

impeachment      by   omission      when       a    cross-examiner            references       a

third-party report to discredit a witness, without seeking to

introduce the report into evidence.

    Defendant Francisco A. Pereira, the driver, appeals from a

$350,000   judgment      after      a    jury      found        him    solely    liable       in

negligence      for   causing      plaintiff            Maria    C.     Manata    permanent

injury.      Defendant also appeals from the trial court's order

denying    his   motion      for    a    new       trial,       and     remittitur.           In

addition, he challenges the award of attorney's fees under the

offer of judgment rule.            R. 4:58-2.             Defendant argues that the

trial   court    committed        evidentiary           errors    pertaining          to   both

liability, and the nature and permanence of plaintiff's injury.

    We     agree      that    a    new     trial         is     required        because       of

evidentiary errors pertaining to the issue of liability.                                      In

particular,      plaintiff's       counsel         engaged        in    improper       cross-

examination when he confronted defendant with a police report

that counsel did not offer in evidence, but whose substance he

communicated     to   the    jury.        The       report       did    not    contain       any



                                              2                                       A-0506-12T4
statements from defendant conveying his version of the accident.

Yet,    counsel       attempted     to       demonstrate     that       defendant,     in

discussions with police, omitted the version of the collision

that   he     later    asserted    at    trial.       This    improper     attempt     to

impeach by omission was capable of producing an unjust result.

                                             I.

       Defendant's car struck plaintiff as she attempted to cross

Ferry Street near Christie Street in Newark around 6:45 a.m. on

August 8, 2008.         Ferry Street is one-way at that point, with two

lanes of traffic traveling east-bound.

       Only     plaintiff       and      defendant         testified       about      the

circumstances of the accident.                     Plaintiff maintained she was

struck while walking in the crosswalk.                     Defendant asserted that

plaintiff had darted out from between two buses, attempting to

cross in the middle of the block.

       Plaintiff testified that she exited a bus that stopped at

the southwest corner.             With the Ferry Street traffic facing a

red    light,    she    proceeded       in   the    crosswalk      in   front   of    the

stopped bus, attempting to cross Ferry on her way to work.                            She

asserted      she     saw   defendant    turn      left,    onto    Ferry.      As    she

crossed in front of the lanes of traffic, she saw defendant

again proceeding toward the crosswalk.                  Fearful he was not going

to stop in time, she turned around, and tried to return to the




                                             3                                  A-0506-12T4
corner.    Defendant's vehicle struck plaintiff on the right side

of her body, knocking her down.

       Plaintiff testified that she was not rushing, as she had

arrived with ample time before she was due at work.                  She said

that defendant offered to take her to a hospital.              She declined,

asking him to take her home.        She then went to the hospital with

her    adult   daughter.         Plaintiff       testified   that   defendant

apologized, both at the scene and a few days later when he

visited her at home with his mother.                Plaintiff also asserted

that   defendant   stated   he    could    not    see   plaintiff   cross   the

street because of sun glare.              Plaintiff's daughter testified

about defendant's visit to their home, and confirmed his apology

and reference to sun glare.

       Defendant agreed that he made a left turn onto Ferry Street

and shifted into the right lane.             He was on his way home from

work after a late-night shift as a truck driver.                    Defendant

insisted that two buses had stopped on the right side of the

street.    There were also two cars between him and the corner in

the right lane.     He testified that as he slowed for the stopped

traffic, plaintiff darted out from behind the first bus, and in

front of the second bus.           Defendant was unable to avoid her.

Defendant conceded that there was some sun glare, but he denied

that caused the accident.




                                      4                               A-0506-12T4
     Plaintiff's main effort to discredit defendant's version of

events was based on a police report that was not introduced into

evidence.      It also was not marked for identification although,

as we discuss below, plaintiff's counsel made liberal use of the

document.2     However, without objection, the report is included in

the record before us.

     The police did not respond to the scene of the accident.

Defendant testified that he went to the police station later

that day and provided the police with his version of events.                   He

stated that when he arrived at the police station, plaintiff was

already present.           Plaintiff did not address her visit to the

police station or her interview with an officer.               In response to

the judge's inquiry, defendant testified that he believed he

spoke    to   the   officer   who   prepared   the   report.     The   undated

police    report     did    not   include   defendant's   version      of    the

accident.     Defendant contended that after he received a copy, he

asked the police to correct it, to no avail.

     The police report was made on the standard form NJTR-1.

See N.J.S.A. 39:4-131 (directing the Motor Vehicle Commission


2
  A court should generally mark an exhibit to which reference is
made, even if it is not offered in evidence. See R. 1:2-3; N.J.
Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264
(App. Div. 2002) (stating that the failure to properly identify
documents "not only violate[s] basic rules of trial practice
. . . but inhibit[s] the appellate process").



                                       5                               A-0506-12T4
(MVC)   to   prepare     standard       forms       for    motor     vehicle         accident

reports).       The     "Crash    Description"             section     of      the    report

referred only to the victim's version of events:

             Event #291668 Victim states she was crossing
             the street on Ferry St/Christie, on her way
             to work when Veh (2) made a stop on a
             Traffic   Light,   but  strucked    [sic]   the
             Pedestrian, causing minor, bruises on her
             right hip, and right thighs [sic].          The
             victim[']s   daughter    was   notified,    and
             transported the victim to St. Michaels
             Medical Center for further treatment.        No
             EMS   was   notified,   No   Police    Pursuits
             conducted at this time.

    The      report     included        a    crash        diagram     consistent         with

plaintiff's version of events.                    It depicted defendant's car at

the head of the line of cars in the right lane, with the front

of the car touching the crosswalk, and a stick figure of a

pedestrian     within    the     crosswalk.               According       to    the     codes

inserted in various boxes, the report indicated in the "pre-

crash   action"   section        that       the    pedestrian       was     "Crossing       At

'Marked' Crosswalk" and the vehicle was "Slowing or Stopping."3


3
  To understand the meaning of the codes, we take judicial notice
of the MVC guide to police for preparing motor vehicle crash
reports: N.J. Motor Vehicle Comm'n, Police Guide for Preparing
Reports of Motor Vehicle Crashes 41 (rev. 2011), available at
http://www.state.nj.us/transportation/refdata/accident/pdf/NJTR1
-Police_Guide.pdf; and Police Technical Assistance Program,
NJTR-1 Form Field Manual 53 (rev. Jan. 23, 2009), available at
http://www.state.nj.us/transportation/refdata/accident/pdf/NJTR-
1Field_Manual.pdf.   See N.J.R.E. 201(a) (providing for judicial
notice of "ordinances, regulations and determinations of all
                                                      (continued)


                                             6                                       A-0506-12T4
"Apparent contributing circumstances" of the crash were "Driver

Inattention"   and   "None"      for    defendant,    and    "Other   Pedestrian

Factors" for plaintiff.         The report did not reference such other

possible   circumstances        as   "Failed   To    Yield   Right    of    Way     to

Vehicle/Pedestrian"       and    "Sun    Glare,"     to   support     plaintiff's

version, or "Crossing where prohibited" to support defendant's

version.    The report indicated "No visible injury noted, but

victim   complains   of    pain,"      although,    as    noted,    under    "Crash

Description," the report stated that plaintiff suffered minor

bruises on her right side.             Also, the form left blank box 15,

where the officer could have indicated the accident occurred at

the intersection.

    The report did not explicitly indicate that the officer

spoke to defendant.         No reference is made to the version of

events to which defendant testified at trial.                      Nor does the




(continued)
governmental subdivisions and agencies thereof"); N.J.R.E.
202(b) (stating that an appellate court may take judicial notice
of any matter specified in N.J.R.E. 201); State v. Marquez, 408
N.J. Super. 273, 286 n.5 (App. Div. 2009) (taking judicial
notice of MVC manuals), rev'd on other grounds, 202 N.J. 485
(2010); see also State v. Gandhi, 201 N.J. 161, 200 n.18 (2010)
(taking judicial notice of Division of Criminal Justice training
manual   for  police   officers  conducting   domestic  violence
interviews); Twp. of Dover v. Scuorzo, 392 N.J. Super. 466, 474
n.4 (App. Div. 2007) (taking judicial notice of Handbook of New
Jersey Assessors although not introduced into evidence before
trial court).



                                         7                                  A-0506-12T4
report attribute to defendant a version of events consistent

with plaintiff's.

    Plaintiff's     counsel   attempted   to    impeach    defendant    by

demonstrating that defendant's claim that plaintiff darted out

from between two buses was a recent fabrication.          Counsel relied

on the absence of defendant's version of events in the police

report.      However,   plaintiff's   counsel     made    no   effort   to

introduce the police report into evidence, and did not call the

police officer who prepared the report.          Questioning about the

police report formed a major part of the cross-examination of

defendant.   We quote it at length:

          Q    And when you went to the Police Station
          and you told them your . . . version of the
          accident, did you tell them that Ms. Manata
          darted out from between two buses and that
          she want [sic] in the crosswalk?

          A   I — I told them that — that she darted
          out. Exactly.

Counsel also attempted to elicit that there was no language

barrier between defendant and the officer, apparently because

defendant had previously testified that he spoke to plaintiff in

Portuguese, but he also spoke English.         Defense counsel objected

that the police report was hearsay.

          Q    And you understand [sic] him well and
          he understand [sic] you well; right?

          A    I — I don't think he understood me well
          because when I got the — the report — excuse



                                  8                              A-0506-12T4
         me.    When   I   got    the   report,      the    report
         states —

         [DEFENSE COUNSEL]:   Objection.              The Police
         report is hear say [sic].                   The Police
         Officer's not coming in.

         THE COURT:        Well, understood but, I mean
         —

         [PLAINTIFF'S COUNSEL]:  — I'm not going to
         admit it into evidence. Ask him what — and
         —.

         THE COURT:        Yea.    I — I didn't stop you.

         [PLAINTIFF'S COUNSEL]:         Okay.    Thank you.

         Q    Is there —

         THE COURT:        Start again.

         Q    Okay. I'll start again.                What — what
         language did you speak to                   the Police
         Officer?

         A    I spoke      in    English   —    to   the    Police
         Officer.

         Q    And he spoke to you in English?

         A    Correct.     Yea.

         Q    Was there any communication                  problem
         between you and the Police Officer?

         A    I don't know if there was communicate
         [sic] — you know, I don't know if there was
         a mis-understanding or what but, you know.

    Although the police report did not attribute any statement

to defendant, plaintiff's counsel asked defendant if he recalled




                                    9                                A-0506-12T4
telling the officer that he struck plaintiff while she was in

the crosswalk.

         Q    Do you remember saying that you were
         making a stop at the light and you struck
         Ms. Manata?

         A    I was coming to a stop because you
         know, the light was red and there was [sic]
         two cars in front of me.

         Q    Do you remember telling the Police
         Officer that you were the first one coming
         in to — to the stop light?

         A    No.   I — I did not tell the Police
         Officer that.

         Q    Do you remember telling the Police
         Officer that — that Ms. Manata was hit in
         the crosswalk?

         A       I did not tell the Police Officer that.

         Q    You're saying that you told the Police
         Officer that she darted out from in between
         two buses? Is that what your testimony is?
         Did you tell the Police Officer that?   Yes
         or no?

         A    I told — you know, that she darted out
         between two buses.    I don't you know — I
         don't know, you know what he understood.

         Q    So, you said you're traveling down
         Ferry Street in the right lane when all of a
         sudden she darts out from between two buses
         in front of your car?

         A       Hmm mmm.

         Q    Was that — when you reviewed the report
         did you find it accurate in that regard?




                                 10                        A-0506-12T4
            A    No, I did not find the report accurate.
            As a matter of fact, I went back to the
            Police Station to have that changed.

    Over defense objection, plaintiff's counsel elicited the

substance   of   the   police   report   —    that   it    did   not   contain

defendant's version of the collision.

            Q    There's no mention          of   that    in   this
            report; is there?

            A    No mention of what?

            Q    That — anybody darting in between two
            buses.    There's no mention of that; is
            there?

            A    No, because –

            [DEFENSE COUNSEL]:    Objection.

            THE COURT:      I'll allow it.

            Q    There's no mention of that; is there?

            A    No.   The report is erroneous.     That
            report was [sic] written was erroneous. The
            lady did not cross in the crosswalk; okay?
            And I went back to the Police Station to
            have that changed.    The — the Officer did
            not want to change it. He said when you go
            to court, you explain it to them.     He did
            not want to change it.    That — that — that
            was wrong. That report. It was erroneous.
            About the crosswalk.

            Q    And how about — how about the fact that
            it doesn't mention, at all that her darting
            out from between buses — do you remember —
            did you remember being asked about what you
            disagreed with about the Police report when
            — when you testified?




                                   11                                  A-0506-12T4
         THE COURT:     This is not a memory contest.
         If you're going to use a deposition, I'll
         tell you again, you use it the way it should
         be used.

              . . . .

         Q    Question was posed to you at — at your
         deposition on October 21st, 2011 when you
         testified under oath. And the question was,
         ["]did you notice whether they included your
         version of the accident in the Police report
         or not?["] Your answer, ["]I looked at the
         Police report when I got it after and after
         that I didn't — I haven't touched it since
         and right now I don't even remember — my
         version.    I would imagine it's there — you
         know, one thing. I did not notice.["] And
         then later . . . you say, "what I noticed
         was that on it, it states on there that the
         lady was walking on the crosswalk; okay?
         And that's not the way it happened, you
         know?    That is erroneous right there, you
         know?   I went back to the Precinct to the
         Officer, you know, could change that but, he
         was unwilling to do it". And then the — the
         next question that was posed to you is,
         ["]was there anything else? Any other error
         that you saw in the Police report that you
         thought should be changed?["]    Your answer,
         ["]no, I believed it was that she — the
         crosswalk I know was erroneous and I haven't
         read the Police report since when I first
         got it — got it, so I don't remember, you
         know if there was anything else.["] Do you
         remember saying that?

         A    Yea, I do.    Yea.

    Plaintiff's   counsel   again       established   that   defendant's

version was omitted from the police report not in evidence.           The

court sustained an objection only as to a question regarding the

police officer's credibility.



                                   12                           A-0506-12T4
          Q    Any mention what so ever of — of Ms.
          Manata darting out from between two buses?

          A    Any mention of it on here?           No.

          Q    No.   This Officer got that wrong too
          you're saying.

          [DEFENSE COUNSEL]: Objection, Your Honor.
          He's — now, he's testifying to what the
          Police Officer did and did not do.

          THE COURT:       Yea.    Sustained.

      Plaintiff's counsel returned to the police report later in

the   cross-examination,    conveying       to   the   jury   the   accident

diagram contained in the report.

          Q    Okay.     Here's the Police report again.

          A    Hmm mmm.

          Q    It shows — you see the diagram?

          A    Right.     yea.    I saw —

          [DEFENSE COUNSEL]: Objection.     The diagram
          was — can I approach, Your Honor?

          THE COURT:       Yes.

                        (SIDEBAR – INAUDIBLE)

          Q    All right.  Just take a look at that
          diagram. You see the diagram —?

          A    Uh huh.     Yes.

          Q    See how it shows a little person inside
          the crosswalk?

          A    — I saw that already.         Yes.




                                    13                              A-0506-12T4
          Q    You . . . deny that the Police Officer
          got the information placing her in the . . .
          crosswalk from you; correct?

          A    That he got — from me, he didn't get it
          because I didn't — I didn't state that —
          that she was in the crosswalk.     He didn't
          get it from me.

    In   his   summation,   plaintiff's   counsel   returned   to    the

police report, arguing that defendant's version did not appear

in it, reflecting that it was a recent fabrication.

          And when is the first   time that that version
          of the accident comes   up? Not when he spoke
          to the police.     In   this case; after the
          police come to court.    Is that credible?

               He had the opportunity to speak to the
          police officers at the very moment of the
          accident.   And his testimony was basically,
          not that what he told plaintiff before going
          to the police station — there was sun-glare;
          that he didn't see her — and went back where
          he told plaintiff and her daughter          —
          daughter present — mother — there was sun-
          glare; he just didn't see her; he was sorry.

               And — and I'm sure this gentleman was
          sorry.   But it was an accident.     And he
          struck her with his vehicle.        And the
          accident happened for a reason.    And that
          reason is something that had changed from –
          from that time to now.   And — and your job
          is to decide is that credible.   Why did he
          make that change?

               Was the police officer asked why — you
          know, why — why doesn't anything that you're
          saying now show up in the police report that
          [sic]. Which was taken that very night when
          you   went  down   for  the   police  report
          together.   Why was the police officer left




                                  14                           A-0506-12T4
            with the impression that Ms. Manata, Maria —
            she was in the crosswalk?

                 Why isn't there any mention of Ms.
            Manata darting out from between two buses?

    During deliberations, the jury submitted a request, "'May

we see the police report?'"             Defense counsel objected, stating

it was not in evidence.          The court agreed.            The judge restated

the request and then responded,

            The answer      to   that    is    no.     It's    not   in
            evidence.

                 You may recall the police did not
            respond to the scene. And this was prepared
            after the event. And to the extent that it
            contains conversations with the parties it's
            not proper; it's not evidentiary at this
            point.    So you will have to get along
            without it.

    The jury of seven unanimously found defendant was negligent

in the operation of his vehicle, which proximately caused the

collision with plaintiff, and plaintiff was not negligent in

crossing    the   street.        The    jury    also   found     that     plaintiff

suffered     permanent      injuries         and,    six   to     one,      awarded

compensatory damages of $350,000.              As plaintiff had made a pre-

trial offer of judgment of $30,000, plaintiff sought attorney's

fees.      The court awarded $28,000, accepting counsel's hourly

rate of $350, but reducing the hours submitted from ninety to

eighty.    The court later denied a motion for a new trial.




                                        15                                 A-0506-12T4
       On appeal, defendant raises the following points4 for our

consideration:

            POINT    II.   The   police   report    was
            impermissibly used during cross-examination
            of defendant.

            POINT   III.    The   plaintiff    improperly
            introduced the radiologist and neurologist's
            opinions concerning the diagnostic studies.

            POINT IV. The photographs depicting bruising
            were   improperly  admitted   as  they   are
            prejudicial.

            POINT V. Defendant is entitled to a new
            trial on damages or a remitter because the
            award shocks the conscience and is against
            the weight of the evidence.

            POINT VI. Plaintiff's request for counsel
            fees   was   not   supported   by   . .   .
            contemporaneous   records   and   the court
            impermissibly relied on law that has never
            been adopted in New Jersey.

                                        II.

       We review trial courts' evidentiary decisions for an abuse

of discretion.     Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).                  In

particular, "[c]ourts have a broad discretion in determining the

scope of cross-examination."            State v. Silva, 131 N.J. 438, 444

(1993).       Although    we        generously    review   a   trial   court's

evidentiary    rulings,        we     may     overturn   the   trial   court's

evidentiary decision if there is a clear error of judgment or


4
    Point I pertains only to the standard of review.



                                         16                            A-0506-12T4
the    decision      lacks    the    support        of    credible      evidence       in    the

record.       Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202

N.J. 369, 384 (2010); see also State ex rel. J.A., 195 N.J. 324,

340 (2008) (finding abuse of discretion in admitting hearsay

statement as present sense impression); State v. Kemp, 195 N.J.

136,    149    (2008)      (finding     abuse        of    discretion         in    admitting

N.J.R.E. 404(b) evidence).                 However, even if we discern error,

we will reverse a judgment based on an evidentiary error only if

we    are   convinced        that    the    error         "was    'clearly         capable    of

producing an unjust result.'"                Green v. N.J. Mfrs. Ins. Co., 160

N.J. 480, 502 (1999) (quoting R. 2:10-2); see also Kemp, supra,

195    N.J.    at    149-50        (finding        admission      of       N.J.R.E.     404(b)

evidence to be harmful error).

       The cross-examination of defendant was designed to impeach

him by highlighting his evident failure to convey to police the

version of the accident he asserted at trial — that plaintiff

entered     the     street    behind    a    bus,        and    not   in    the    crosswalk.

Plaintiff's         counsel        argued     defendant's             apparent        omission

demonstrated        that     his    version        of     the    accident      was     a    late

fabrication.

       "Impeachment          by    omission"        is     a     recognized         means     of

challenging a witness's credibility.                           "A statement from which

there has been omitted a material assertion that would normally




                                              17                                      A-0506-12T4
have   been      made      and    which     is    presently     testified       to    may    be

considered a prior inconsistent statement."                             State v. Provet,

133 N.J. Super. 432, 437 (App. Div.), certif. denied, 68 N.J.

174 (1975); see also Silva, supra, 131 N.J. at 444-45; State v.

Marks, 201 N.J. Super. 514, 531-32 (App. Div. 1985), certif.

denied, 102 N.J. 393 (1986).                  This principle is widely accepted.

Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 2129,

65    L.   Ed.   2d     86,      95   (1980)      ("Common    law       traditionally       has

allowed witnesses to be impeached by their previous failure to

state a fact in circumstances in which that fact naturally would

have been asserted."); Kenneth S. Broun, McCormick on Evidence §

34 (7th ed. 2013) ("[I]f the prior statement omits a material

fact presently testified to and it would have been natural to

mention      that     fact    in      the   prior     statement,        the   statement      is

sufficiently         inconsistent.");            3A   Wigmore      on    Evidence     §     1042

(Chadbourn rev. 1970) ("A failure to assert a fact, when it

would have been natural to assert it, amounts in effect to an

assertion of the non-existence of the fact.")

       Under     appropriate          circumstances,         the    prior     inconsistent

omission       can    be      offered       solely    to     discredit,       or     also    as

substantive evidence.                 See Provet, supra, 133 N.J. Super. at

437.       A trial judge retains the authority under both N.J.R.E.

403    and    N.J.R.E.        611     to    guard     against      unfair     use     of    the




                                                 18                                  A-0506-12T4
technique.      See, e.g., Jenkins, supra, 447 U.S. at 239, 100 S.

Ct. at 2129, 65 L. Ed. 2d at 95 (stating that in federal courts,

"silence cannot be used for impeachment where silence is not

probative of a defendant's credibility and where prejudice to

the defendant might result").                      A proper foundation must be laid

to establish that it would be natural for the witness to have

made the omitted statement.                  Silva, supra, 131 N.J. at 447-48.

       In this case, defendant denied that he omitted his version

of the accident to police.                  He testified that he told the police

that plaintiff darted between the two buses.                                 Plaintiff could

have    attempted        to    offer     extrinsic            evidence       of   the    alleged

omission by trying to introduce into evidence the police report.

See N.J.R.E. 607 (authorizing introduction of extrinsic evidence

relevant to issue of credibility); N.J.R.E. 613(b) (authorizing

court   to    exclude         extrinsic      evidence         of   a    prior     inconsistent

statement      unless     the        witness       is    afforded       an    opportunity       to

explain or deny the statement).                         Generally, a police report is

admissible      as   a    record        of     a    regularly          conducted        activity,

commonly known as a business record, N.J.R.E. 803(c)(6), and as

a public record, N.J.R.E. 803(c)(8).

       A police report may be admissible to prove the fact that

certain statements were made to an officer, but, absent another

hearsay      exception,        not    the     truth      of    those     statements.           See




                                               19                                        A-0506-12T4
Estate     of   Hanges,       supra,       202     N.J.          at    375    n.1;       State    v.

Lungsford,      167    N.J.    Super.       296,      310        (App.    Div.      1979)    ("[A]

police record is admissible to prove, for example, that a report

of crime was made by a member of the public and when the report

was made and received.").                 Likewise, evidence of the absence of

an entry in a business record may be offered to prove the non-

occurrence or nonexistence of a matter.                           N.J.R.E. 803(c)(7).             In

the case of the absence of a public record entry, the rule

requires    a    certification            that    a    diligent          search      failed       to

disclose the record or entry.                N.J.R.E. 803(c)(10).

      However, to secure its receipt into evidence, the proponent

is   required    to    present       a     custodian         of       records,      if    not    the

particular      officer       who    prepared         the    report.          See     Dalton      v.

Barone, 310 N.J. Super. 375, 377-78 (App. Div. 1998).                                    Defendant

argues that Statham v. Bush, 253 N.J. Super. 607, 615 (1992),

bars admission of a police report absent the testimony of the

particular officer who prepared it.                     As did the panel in Dalton,

supra,   310    N.J.    Super.       at    377-78,          we    reject      such    a    literal

reading.        "If    the    police       officer          who       wrote   the    report       is

unavailable, any other police official who could state that the

report was a record made in the regular course of the officer's

duties   and    was    made     at    or    near       the       time    of   the    event       may

establish the report's admissibility."                       Id. at 378.




                                             20                                           A-0506-12T4
      However, the court retains the power to bar a business

record if "the sources of information or the method, purpose or

circumstances        of       preparation        indicate       that      it     is    not

trustworthy."            N.J.R.E.    803(c)(6);        Dalton,       supra,     310    N.J.

Super. at 378.           Similar authority applies to the absence of an

entry, where "the sources of information or other circumstances

indicate that the inference of nonoccurrence or nonexistence is

not   trustworthy."             N.J.R.E.        803(c)(7);      see     also     N.J.R.E.

803(c)(10) (authorizing the court to exclude a certification to

prove the nonexistence or nonoccurrence of a matter based on the

absence of a public record, "where the sources of information or

other circumstances indicate that the inference of nonoccurrence

or nonexistence is not trustworthy").                      Consequently, the court

may   exclude      the    report     from      evidence    if    the    authenticating

testimony of the police witness indicates that a report did not

satisfy the preconditions of admissibility; for example, it was

prepared contrary to regular practice, or under circumstances

indicating it was not trustworthy.

      In    this     case,     the      court    made      no   finding        about   the

reliability     or   trustworthiness            of   the   police      report,    because

plaintiff     made       no    effort     to     introduce      it     into     evidence.

Moreover, it is uncertain, at least based on the record before

us, that plaintiff could have laid a sufficient foundation for




                                            21                                   A-0506-12T4
admission     of    the   report      as    a     business      record.        Without     an

officer's     testimony,       it    is     unclear       whether       the    report     was

prepared in accordance with regular practice including governing

guidelines.        We note that the current manual for preparing motor

vehicle     crash    reports      requires         an    investigating         officer     to

include     the    versions    of    the     collision       from      all    pedestrians,

operators and witnesses.             See Police Guide, supra, at 41 ("At a

minimum describe the following 3 basic elements:                        . . . A summary

of    the     accounts        from        all      operators,          pedestrians       and

witnesses. . . .").           The Police Guide's "Recommended Procedures

for the Handling of Motor Vehicle Crashes Not Investigated at

the Scene" also recommends the preparation of reports by the

reporting individuals on a separate SR-1 form.                         Id. at 7.

      One may reasonably question whether the circumstances of

the   report's       preparation          indicate       that    the    inference        that

defendant     omitted      his       trial       version        of   the      accident    is

trustworthy.        See N.J.R.E. 803(c)(6); N.J.R.E. 803(c)(7); see

also N.J.R.E. 803(c)(10).                 The officer failed to attribute any

version of the accident to defendant.                      Even if the report were

otherwise     admissible,        the       police       officer's      diagram     of    the

accident     was    not   based      on    his    personal       observations      at    the

scene; rather, it relied on what another person told him.                                  It

therefore    constituted       either       the     inadmissible        opinion    of    the




                                             22                                    A-0506-12T4
officer   or   inadmissible       embedded     hearsay      of    plaintiff.        Cf.

Brown v. Mortimer, 100 N.J. Super. 395, 405-06 (App. Div. 1968).

    Instead        of   seeking     to    introduce         the    police    report,

plaintiff's counsel engaged in a form of "phantom impeachment."

See James McElhaney, Phantom Impeachment, 77 A.B.A.J. 82 (Nov.

1991) (describing "phantom impeachment" as the contradiction of

a witness on "key testimony——by someone who never takes the

stand and who never says a word in court"); see also State v.

Metz, 636 N.W.2d 94, 98 (Iowa 2001).                 Plaintiff's counsel, over

defense objection, presented to the jury the substance of the

police report, which was represented to reflect the omission of

defendant's version of the collision.                Counsel accomplished that

by asking defendant himself what the report stated.                          Counsel

repeatedly     confronted      defendant      with    the    fact,       unproved   by

competent evidence received by the court, that "[t]here's no

mention   of   .   .    .   [defendant's      version]      in    this    report;   is

there?"

    After the court overruled the defense objection, defendant

was constrained to admit that his version was absent from the

report, and to discuss his efforts to correct it.                        Plaintiff's

counsel, over defense objection, was permitted to elicit from

defendant a description of the accident diagram in the report,

and his denial "that the Police Officer got the information




                                         23                                  A-0506-12T4
placing    her   in   the   .   .   .     crosswalk    from    you[.]"     In    his

summation, plaintiff's counsel asked rhetorically, "why doesn't

anything that [defendant was] saying now show up in the police

report"    and   "[w]hy     was     the    police     officer    left    with    the

impression that Ms. Manata . . . was in the crosswalk?"

    The    cross-examination         of    defendant    was    improper,   as    was

plaintiff's summation, which was based on the cross-examination.

We recognize that "[c]ross-examination relating to a witness's

credibility need not be based on evidence adduced at trial."

State v. Martini, 131 N.J. 176, 255 (1993).                   However, a question

in cross-examination is improper where "no facts concerning the

event on which the question was based were in evidence and the

[questioner] made no proffer indicating his ability to prove the

occurrence."     State v. Rose, 112 N.J. 454, 500 (1988); see also

Martini, supra, 131 N.J. at 255 (stating that a prosecutor could

not "ask questions about topics for which she had no basis in

truth").

    Put another way, "[i]t is improper 'under the guise of

"artful cross-examination," to tell the jury the substance of

inadmissible evidence.'"            United States v. Sanchez, 176 F.3d

1214, 1222 (9th Cir. 1999) (quoting United States v. Hall, 989

F.2d 711, 716 (4th Cir. 1993)); see also United States v. Check,

582 F.2d 668, 683 (2d Cir. 1978).              "The reason for this rule is




                                          24                               A-0506-12T4
that the question of the cross-examiner is not evidence and yet

suggests the existence of evidence . . . which is not properly

before the jury."       State v. Spencer, 319 N.J. Super. 284, 305

(App. Div. 1999); see also State v. Bowser, 297 N.J. Super. 588,

603-04 & n.3 (App. Div. 1997) (providing example of improper

cross-examination based on a police report not in evidence);

Biunno,   Weissbard     &   Zegas,    Current     N.J.     Rules    of    Evidence,

comment 4 on N.J.R.E. 803(c)(6) (2013).

    We are constrained to reverse on this ground.                        The police

report was essentially presented to the jury as evidence that

defendant omitted from the police the version of the collision

he presented at trial.       The error was significant.                The issue of

liability   was   close.      In     large    part,   it    was    a     credibility

contest between plaintiff and defendant.                   There were no other

witnesses   to    the   collision.           We   recognize       that    defendant

apologized, and admitted that there was sun glare.                         However,

that was not a clear admission of fault; defendant's vision

could have been affected by sun glare even if plaintiff darted

out from behind a bus.

    The impeachment by omission, which formed a major part of

the cross-examination of defendant, could well have tipped the

scales between the competing versions of events.                         The jury's

interest in the police report, evidenced by its request during




                                       25                                   A-0506-12T4
deliberations,     supports   our    view   that   the   extensive    cross-

examination   of     defendant   regarding     the   police   report       was

"clearly capable of producing an unjust result."           R. 2:10-2.

    Upon remand, if plaintiff seeks to make any use of the

police report, the trial court shall hold a N.J.R.E. 104 hearing

to determine its reliability, admissibility, and the propriety

of utilizing it in cross-examination.              At that hearing, the

parties would have an opportunity to explore the issues we have

raised   regarding    the   peculiarities    of    the   report,   and     its

compliance with any guidelines governing its preparation.

                                     III.

           [At   the   direction   of  the  court,  the
           published version of this opinion omits Part
           III, addressing issues pertaining to the
           evidence   of   permanent  injury,  and  the
           court's award of fees under the offer of
           judgment rule. See R. 1:36-3.]

                                     IV.

    Reversed and remanded.          We do not retain jurisdiction.




                                      26                             A-0506-12T4
