                                                     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 v. DeShaun P. Wilson (A-42-15) (076609)

Argued October 11, 2016 -- Decided January 19, 2017

Solomon, J., writing for a unanimous Court.

         In this appeal, the Court determines whether the admission into evidence of a map, prepared and adopted
by a governmental entity pursuant to N.J.S.A. 2C:35-7.1(e), violates the Confrontation Clause of the Sixth
Amendment to the United States Constitution and the analogous New Jersey constitutional provision, which
guarantee an accused “the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; N.J.
Const. art. I, ¶ 10.

         Police detectives observed defendant DeShaun P. Wilson engage in the apparent sale of “crack cocaine” in
the area of a public park in Elizabeth. Wilson was charged with third-degree possession of a controlled dangerous
substance (CDS), third-degree possession of CDS with intent to distribute, and second-degree possession of CDS
with intent to distribute in or within 500 feet of a public park.

          During trial, the State sought to admit into evidence three related documents: a map of the park with a
legend noting that the map was certified in 1998 by “Armand A. Fiorletti, P.E., Union County Engineer”; an
affidavit by an assistant Union County prosecutor, Richard Rodbart, stating that he had personally worked with the
Engineer in contracting a third party to produce maps depicting each 500-foot zone within the county; and
Resolution No. 1513-99, passed by the Union County Board of Chosen Freeholders, which states that the purpose of
depicting the 500-foot areas was to “introduce[e] said map[s] as evidence of the locations and boundaries of those
areas within Union County in criminal prosecutions under N.J.S.A. 2C:35-7.1.”

         Wilson objected to the admission of the three documents, arguing that the map had not been properly
authenticated and that the affidavit was inadmissible hearsay. Wilson emphasized that he never had an opportunity
to cross-examine Rodbart. The trial court disagreed and admitted the documents into evidence. The jury was
unable to reach a unanimous verdict, and the court declared a mistrial.

          During the second trial, the State called a detective from the prosecutor’s office as a witness. The detective
testified that the map was “a standard 500-foot map” but admitted that he did not create the map or take the
measurements that establish the area it depicts and that he relied on the engineer’s work for accuracy. When the
State moved to enter the map and other documents into evidence, defense counsel objected that the map was
inadmissible. The trial court admitted all three documents into evidence. Wilson was convicted of all charges.

         The Appellate Division affirmed the conviction, holding that the map was nontestimonial and that its
admission did not violate Wilson’s confrontation rights. 442 N.J. Super. 224, 248 (App. Div. 2015). The panel
found the map admissible under New Jersey’s Rules of Evidence and N.J.S.A. 2C:35-7.1(e).

         The Court granted Wilson’s petition for certification “limited to the issue of whether defendant’s
confrontation rights were violated by the admission into evidence of a map to establish the crime of distribution of
CDS within 500 feet of a public park.” 224 N.J. 119 (2016).

HELD: The map commissioned and adopted by the Board pursuant to N.J.S.A. 2C:35-7.1(e) is nontestimonial and its
admission therefore did not violate Wilson’s confrontation rights. Further, such maps are admissible, if properly
authenticated, under N.J.S.A. 2C:35-7.1(e) and as public records pursuant to N.J.R.E. 803(c)(8). Because the map was
not properly authenticated, however, the Court is constrained to reverse the Appellate Division’s judgment that the map
was properly admitted into evidence at trial and to remand the matter for a new trial on the count of defendant’s
conviction that depended on the map.
1. Wilson’s Confrontation Clause objection was timely and adequate. The Confrontation Clause affords a
procedural guarantee that the reliability of evidence will be tested “in a particular manner” through “the crucible of
cross-examination.” Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199
(2004). Under the standard set forth in Crawford, a testimonial statement against a defendant by a non-testifying
witness is inadmissible under the Confrontation Clause unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine him or her. (pp. 9-12)

2. The Court reviews United States Supreme Court jurisprudence and its development of the “primary purpose” test
to determine whether an out-of-court statement is testimonial and, accordingly, falls within the ambit of the
Confrontation Clause. In Davis v. Washington, the Court noted that statements with the primary purpose of
“establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution” would be testimonial.
547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). (pp. 13-15)

3. This Court has applied the primary purpose test in various Confrontation Clause cases involving the admission of
forensic reports and medical examiner testimony. In State v. Michaels, 219 N.J. 1, 44, cert. denied, ___ U.S. ___,
135 S. Ct. 761, 190 L. Ed. 2d 635 (2014), the Court held that a blood test report prepared after a fatal motor vehicle
accident was testimonial because its primary purpose was to serve as “a direct accusation against [the] defendant.”
In State v. Bass, 224 N.J. 285, 316-17 (2016), the Court found an autopsy report to be testimonial because the
autopsy was conducted after a homicide investigation had begun; the defendant was a suspect in the homicide and
had already spoken with the police; the autopsy was conducted in the presence of the lead State investigator;
evidence collected during the autopsy was transmitted to the investigator; and the chain of custody was documented
in the report. Id. at 316-17. The primary purpose of the autopsy report was thus “to establish facts for later use in
the prosecution of [that] case.” Id. at 317. In State v. Chun, 194 N.J. 54, 147, cert. denied, 555 U.S. 825, 129 S. Ct.
158, 172 L. Ed. 2d 41 (2008), the Court considered “foundational documents,” or documents that establish the
operational status of a device, and concluded that they fell “outside of the definition of testimonial.” (pp. 16-19)

4. Applying the primary purpose test to determine whether the Confrontation Clause is implicated here, the Court
acknowledges that the map was created to be later used against those charged with violations of N.J.S.A. 2C:35-7.1
and that documents prepared for use in a prosecution are generally testimonial. Nonetheless, the Court considers the
map’s other characteristics as well and finds that the area it depicts is an objective measurement that requires no
“independent interpretation” of raw data. Although it is not a “foundational document,” the map shares the
objective and neutral qualities of such evidence. Because the map was not created for the primary purpose of
“establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution,” Bass, supra, 224 N.J. at
314, its admissibility “is the concern of state and federal rules of evidence, not the Confrontation Clause.” Michigan
v. Bryant, 562 U.S. 344, 358-59, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107-08 (2011). (pp. 19-22)

5. The map is hearsay but is a public record within the meaning of N.J.R.E. 803(c)(8). It would be admissible if it
satisfied “[t]he requirement of authentication or identification.” N.J.R.E. 901. N.J.S.A. 2C:35-7.1(e) affords a
separate basis for the map’s admission into evidence—“upon proper authentication.” Proper authentication of the
map required a witness who could testify to its authenticity and be cross-examined on the methodology of the map’s
creation and its margin of error. That was not done here. Because the map was thus inadmissible hearsay, the State
failed to offer competent evidence proving that the alleged drug transaction took place within 500 feet of a public
park, an essential element of N.J.S.A. 2C:35-7.1(a). The Court is thus constrained to reverse defendant’s conviction
for, and to remand for a new trial on the charge of, violating N.J.S.A. 2C:35-7.1. (pp. 22-25)

6. The Court authorizes use of a “notice and demand” procedure to bypass the production of a witness to
authenticate a map created pursuant to N.J.S.A. 2C:35-7.1(e) and refers to the Supreme Court Committee on
Criminal Practice the crafting of such a rule. (pp. 25-26)

          The judgment of the Appellate Division affirming defendant’s conviction of violating N.J.S.A. 2C:35-
7.1(a), count three of the indictment, is REVERSED, and the matter is REMANDED for further proceedings
consistent with this opinion.

       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.



                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-42 September Term 2015
                                                 076609

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

DESHAUN P. WILSON,

    Defendant-Appellant.


         Argued October 11, 2016 – Decided January 19, 2017

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 442 N.J. Super. 224 (App. Div.
         2015).

         Brian P. Keenan, Deputy Public Defender,
         argued the cause for appellant (Joseph E.
         Krakora, Public Defender, attorney; Kevin G.
         Byrnes, Designated Counsel, and Solmaz F.
         Firoz, Assistant Deputy Public Defender, on
         the briefs).

         Sara M. Quigley, Deputy Attorney General,
         argued the cause for respondent (Christopher
         S. Porrino, Attorney General of New Jersey,
         attorney).

    JUSTICE SOLOMON delivered the opinion of the Court.

    We are called upon to determine whether the admission into

evidence of a map, prepared and adopted by a governmental entity

pursuant to N.J.S.A. 2C:35-7.1(e), violates the Confrontation

Clause of the Sixth Amendment to the United States Constitution

and the analogous New Jersey constitutional provision, which


                                1
guarantee an accused “the right . . . to be confronted with the

witnesses against him.”   U.S. Const. amend. VI; N.J. Const. art.

I, ¶ 10.   In defendant’s trial, the map was used as prima facie

evidence that defendant DeShaun P. Wilson was within 500 feet of

a public park when he possessed for distribution “crack

cocaine,” in violation of N.J.S.A. 2C:35-7.1(a).

    We conclude that the map, commissioned and adopted by the

Union County Board of Chosen Freeholders (“Board”) pursuant to

N.J.S.A. 2C:35-7.1(e), is nontestimonial and that its admission

therefore did not violate defendant’s confrontation rights.      We

also find that such maps are admissible, if properly

authenticated, under N.J.S.A. 2C:35-7.1(e) and as public records

pursuant to N.J.R.E. 803(c)(8).       Because the map was not

properly authenticated, however, we are constrained to reverse

the Appellate Division’s judgment that the map was properly

admitted into evidence at trial and to remand the matter for a

new trial on the count of defendant’s conviction that depended

on the map.

                                  I.

    The facts germane to this appeal are as follows.       City of

Elizabeth detectives observed defendant engage in the apparent

sale of “crack cocaine” in the area of Leggett Park, a public

park in Elizabeth.   Defendant was charged with third-degree

possession of a controlled dangerous substance (CDS), N.J.S.A.

                                  2
2C:35-10(a)(1) (count one); third-degree possession of CDS with

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count

two); and second-degree possession of CDS with intent to

distribute in or within 500 feet of a public park, N.J.S.A.

2C:35-7.1 (count three).    Defendant was indicted on those

charges and, following pretrial motions, was tried before a jury

in the Union County Superior Court.

    During trial, the State sought to admit into evidence three

related documents:   a map of Leggett Park and the surrounding

area (“map”); an affidavit by an assistant Union County

prosecutor, Richard Rodbart; and Resolution No. 1513-99, passed

by the Board in 1999 to adopt a book of drug-free-zone maps.

    The map, titled “UNION COUNTY DRUG FREE ZONES,” illustrates

with a circle a 500-foot radius around Leggett Park.     The legend

notes that the map was certified in 1998 by “Armand A.

Fiorletti, P.E., Union County Engineer.”

    The affidavit, offered by the State to authenticate the

map, states that Rodbart personally worked with the Union County

Engineer in contracting a third party, T&M Associates, to

produce maps depicting each public housing facility, public

park, and public building, as those terms are defined in

N.J.S.A. 2C:35-7.1(f).     The affidavit notes that the maps were

contained in a master notebook.



                                  3
    The third document presented by the State, Resolution No.

1513-99, indicates that Union County contracted with T&M

Associates to create maps of all 500-foot drug-free zones within

the county in coordination with, and under the supervision of,

Fiorletti.   The resolution states that the purpose of depicting

the 500-foot areas was to “introduc[e] said map[s] as evidence

of the location and boundaries of those areas within Union

County in criminal prosecutions under N.J.S.A. 2C:35-7.1.”

Through the resolution, the Board adopted the maps “as an

official finding and record of the location and boundaries of

the area or areas on or within 500 feet of public housing

facilities, public parks, and public buildings” within Union

County.

    Defendant objected to the admission of the map, affidavit,

and resolution.   He stressed that the police detective called by

the State to testify about the map did not work for one of the

city’s parks, zoning, or recreation departments and could not

identify Leggett Park as a public park or authenticate the map

as accurate.   Defendant also asserted that Rodbart’s affidavit

was inadmissible as hearsay and did not qualify as a self-

authenticating document.   Defendant emphasized that he never had

an opportunity to cross-examine Rodbart.




                                 4
    The court disagreed and admitted the documents into

evidence.   The jury was unable to reach a unanimous verdict, and

the court declared a mistrial.

    A second trial commenced, during which the State called as

a witness a detective from the prosecutor’s office.   The

detective described the map as “a standard 500-foot map” and

explained that the circle it displays represents a 500-foot

radius from a public building or park.   He testified that

Leggett Park is in the center of the circle and that the alleged

narcotics transaction occurred within 500 feet of the park.

Defense counsel did not object during the State’s direct

examination.

    On cross-examination, the detective confirmed that the map

was drafted in 1998, that it was certified by an engineer, and

that the prosecutor’s office relies on the city or county

engineers for the production and provision of such maps.     The

detective also testified that he did not create the map or take

the measurements that establish the circle on the map.      With

respect to the map’s accuracy, he stated that he “can only go by

what the city engineer has made.”

    Later, outside the presence of the jury, the State

attempted to move the map and other documents into evidence.

The State asserted that the map, affidavit, and resolution

qualified as self-authenticating documents under N.J.R.E. 902

                                 5
and as public records under N.J.R.E. 803(c)(8).    The State also

contended that the map was admissible under N.J.S.A. 2C:35-7.1.

Defense counsel objected, claiming that the affidavit refers to

a book of maps but does not specifically identify the map as

part of that book.    The defense also asserted that the affidavit

was hearsay and that it was unclear whether the county engineer

referred to therein was the same engineer who certified the map.

Finally, defense counsel challenged the foundational basis for

the map’s admission, maintaining that the detective’s testimony

was insufficient.    Over those objections, the court admitted the

documents into evidence.

       Defendant was convicted of all charges, including count

three of the indictment, which charged distribution of CDS

within 500 feet of a public park in violation of N.J.S.A. 2C:35-

7.1.    The Appellate Division affirmed the conviction, holding

that the map was nontestimonial and that its admission did not

violate defendant’s confrontation rights.    State v. Wilson, 442

N.J. Super. 224, 248 (App. Div. 2015).   Although the panel

recognized that the map was hearsay, it found the map admissible

under our Rules of Evidence and N.J.S.A. 2C:35-7.1(e).    Ibid.

       This Court granted defendant’s petition for certification

“limited to the issue of whether defendant’s confrontation

rights were violated by the admission into evidence of a map to



                                  6
establish the crime of distribution of CDS within 500 feet of a

public park.”   State v. Wilson, 224 N.J. 119 (2016).

                                 II.

    Defendant contends that the Confrontation Clause is

implicated here because the map is testimonial under New

Jersey’s primary purpose test.   He maintains that the map serves

no purpose other than to prosecute individuals charged with

violating N.J.S.A. 2C:35-7.1 and was created to prove an element

of that criminal offense.    He characterizes the map as

“functionally identical” to live, in-court testimony that drug

distribution at a specific location was measured to be within

500 feet of a public park.    Defendant argues that his

confrontation rights were violated because the State failed to

produce a witness who either prepared the map or otherwise had

sufficient knowledge of the map’s accuracy.

    Defendant also contends that the map is inadmissible

hearsay.   He maintains that the public records exception to the

hearsay rule, N.J.R.E. 803(c)(8), does not apply.    He argues

that T&M Associates, as a private company, does not constitute a

public official.   Defendant adds that the record is unclear as

to whether the former county engineer who oversaw the map-making

process was a public official at that time, acting within his

official duties while supervising the map’s creation.



                                  7
    Defendant also asserts that the business records exception

to the rule against hearsay, N.J.R.E. 803(c)(6), is inapplicable

because the map is not relied upon by a business or government

for any regularly conducted business activity other than

investigations and prosecutions under N.J.S.A. 2C:35-7.1.

    The State argues that defendant waived his Confrontation

Clause challenge because, at trial, defense counsel objected

only on evidentiary grounds.   The State maintains that this

objection was untimely and improper because it did not refer

specifically to the Confrontation Clause, the Sixth Amendment,

or Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.

Ed. 2d 177 (2004).

    The State also claims that, even if we find the

Confrontation Clause challenge properly raised, defendant’s

rights were not violated.   The State contends that the map is

nontestimonial, claiming no difference between the map and a

certified map of New Jersey used for jurisdictional purposes.

    In support, the State analogizes the map to an Alcohol

Influence Report (AIR) held to be nontestimonial in State v.

Chun, 194 N.J. 54, 142-43, cert. denied, 555 U.S. 825, 129 S.

Ct. 158, 172 L. Ed. 2d 41 (2008), because, like the AIR, the map

here does not report a past event.   In addition, the State

argues that this case lacks the common characteristic of

documents held to be testimonial in State v. Michaels, 219 N.J.

                                 8
1, cert. denied, ___ U.S. ___, 135 S. Ct. 761, 190 L. Ed. 2d 635

(2014), State v. Roach, 219 N.J. 58 (2014), cert. denied, ___

U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015), and State

v. Bass, 224 N.J. 285 (2016), where the documents were “prepared

after the commencement of a criminal investigation to be used

against a particular individual at his trial.”

    Additionally, the State claims that the map is admissible

as a public record under N.J.R.E. 803(c)(8) or, alternatively,

as a business record under N.J.R.E. 803(c)(6).

                               III.

                                  A.

    Before addressing the law applicable to the parties’

arguments, we must first decide whether defendant waived his

Confrontation Clause objection.

    In the context of Confrontation Clause jurisprudence, each

state has the authority “to adopt procedural rules governing

objections.”   Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327,

129 S. Ct. 2527, 2541, 174 L. Ed. 2d 314, 331 (2009).   In the

exercise of this authority, this Court has held that a defendant

does not waive a Confrontation Clause objection merely because

he waits until a witness’s testimony is underway to object,

“particularly where . . . the objection is premised on the form

and content of the witness’s testimony.”   Bass, supra, 224 N.J.

at 311-12.   Furthermore, we do not require a defendant to

                                  9
specifically use the terms “Confrontation Clause” or “Sixth

Amendment” or to refer to Crawford, supra, to preserve a

Confrontation Clause challenge.    Id. at 312.   Nevertheless, “a

defendant [generally] must attempt to exercise his confrontation

right and object when necessary, if he wishes later to claim

that he was denied that right.”    State v. Williams, 219 N.J. 89,

93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L.

Ed. 2d 565 (2015).

    Here, unlike the defendant in Williams, supra, 219 N.J. at

100-01, who raised no objection to the testimony he later

claimed violated his confrontation rights, defendant asserted

his objection before the trial court.   He cited an objection

made at his first trial and “alluded to an inability to cross-

examine the individual who had made the [map’s] measurements.”

Wilson, supra, 442 N.J. Super. at 235 n.4.    Defendant also

highlighted the State’s failure to present an adequate witness

to testify about the map, asserting that the detective’s

testimony was insufficient.

    Although defendant did not object to the map during the

detective’s testimony, the map was not admitted into evidence

until the trial judge requested that the parties review the

materials offered.   When the State attempted to admit the map,

defense counsel immediately objected.    Our Court Rules require

only that the objection be raised “at the time the ruling or

                                  10
order is made or sought.”    R. 1:7-2.   Therefore, we find that

defendant’s objection was timely.

       We also find the substance of defendant’s objection to be

sufficient.    In addition to a hearsay objection, defense counsel

contended that the detective’s testimony was inadequate -- the

State “could have brought someone in to testify to [the map or

affidavit]” -- and the foundation for the map’s admission was

deficient.    We find that this was an objection as to form and

content.   See Bass, supra, 224 N.J. at 311-12.

       Our courts will not find waiver of an objection unless

counsel’s declarations are in some way lacking.    See, e.g.,

State v. T.J.M., 220 N.J. 220, 231 (2015) (finding objection not

clearly raised when counsel made only “tepid complaint” before

dropping argument and proceeding to argue another issue); State

v. Nunez, 436 N.J. Super. 70, 76 (App. Div. 2014) (applying

plain error rule because counsel objected on incorrect grounds).

Here, the defense clearly asserted the correct grounds for its

objection at the time the trial court ruled on admission of the

map.   We therefore hold that defendant’s Confrontation Clause

challenge was timely and adequate.

                                 B.

       Having found that defendant did not waive his Confrontation

Clause challenge, we now address the substantive law applicable

to this appeal.    We begin by noting that the satisfaction of

                                 11
defendant’s confrontation rights is a question of law, which we

review de novo.   See State v. Jones, 224 N.J. 70, 85 (2016).

    The Sixth Amendment to the United States Constitution and

Article 1, Paragraph 10 of the New Jersey Constitution, in

nearly identical language, provide that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.”    U.S. Const. amend.

VI; N.J. Const. art. 1, ¶ 10.   The Confrontation Clause affords

a procedural guarantee that the reliability of evidence will be

tested “in a particular manner” through “the crucible of cross-

examination.”   Crawford, supra, 541 U.S. at 61, 124 S. Ct. at

1370, 158 L. Ed. 2d at 199; State ex rel. J.A., 195 N.J. 324,

342 (2008) (“[The] right embodied in the Confrontation

Clause expresses a preference for the in-court testimony of a

witness, whose veracity can be tested by the rigors of cross-

examination.”).

    Under the standard set forth in Crawford, a testimonial

statement against a defendant by a non-testifying witness is

inadmissible under the Confrontation Clause unless the witness

is unavailable and the defendant had a prior opportunity to

cross-examine him or her.   Crawford, supra, 541 U.S. at 59,

124 S. Ct. at 1369, 158 L. Ed. 2d at 197.     The threshold issue

is, thus, whether the proffered statement is “testimonial” in

nature.   Although the Crawford Court refrained from offering a

                                12
“comprehensive definition” of the term, it provided some initial

guideposts.   Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at

203.

       First, quoting an 1828 English dictionary, the Court noted

that “testimony” typically refers to “[a] solemn declaration or

affirmation made for the purpose of establishing or proving some

fact.”   Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192

(alteration in original).    From this definition, the Court

concluded that a formal out-of-court statement to government

officers “bears testimony” against the accused whereas “a casual

remark to an acquaintance does not.”    Ibid.

       Second, the Court provided the following as a non-

exhaustive list of testimonial statements:

           ex parte in-court testimony or its functional
           equivalent -- that is, material such as
           affidavits, custodial examinations, prior
           testimony that the defendant was unable to
           cross-examine, or similar pretrial statements
           that declarants would reasonably expect to be
           used prosecutorially[;] . . . extrajudicial
           statements . . . contained in formalized
           testimonial materials, such as affidavits,
           depositions,      prior     testimony,      or
           confessions[;] . . . statements that were made
           under circumstances which would lead an
           objective witness reasonably to believe that
           the statement would be available for use at a
           later trial.

           [Id. at 51-52, 124 S. Ct. at 1364, 158 L. Ed.
           2d at 193 (emphases added) (citations and
           internal quotation marks omitted).]



                                 13
       After Crawford, the United States Supreme Court “labored to

flesh out what it means for a statement to be ‘testimonial.’”

Ohio v. Clark, 576 U.S. ___, ___, 135 S. Ct. 2173, 2179, 192 L.

Ed. 2d 306, 314 (2015).   It developed the “primary purpose” test

to determine whether an out-of-court statement is testimonial

and, accordingly, falls within the ambit of the Confrontation

Clause.   Id. at ___, 135 S. Ct. at 2179-80, 192 L. Ed. 2d at

314.    In Davis v. Washington, the Court concluded that

statements made outside the stationhouse setting with the

primary purpose of enabling police assistance in an ongoing

emergency were nontestimonial.    547 U.S. 813, 822, 126 S.

Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).    The Davis

Court noted, however, that statements with the primary purpose

of “establish[ing] or prov[ing] past events potentially relevant

to later criminal prosecution” would be testimonial.       Id. at

822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.

       Later, in Michigan v. Bryant, the Court explained that

“[w]hen, as in Davis, the primary purpose of an interrogation is

to respond to an ‘ongoing emergency,’ its purpose is not to

create a record for trial and thus is not within the scope of

the [Confrontation] Clause.”     562 U.S. 344, 358, 131 S.

Ct. 1143, 1155, 179 L. Ed. 2d 93, 107 (2011).     The Court

recognized that, aside from ongoing emergencies, circumstances

may arise “when a statement is not procured with a primary

                                  14
purpose of creating an out-of-court substitute for trial

testimony.”   Ibid.    “Where no such primary purpose exists, the

admissibility of a statement is the concern of state and federal

rules of evidence, not the Confrontation Clause.”     Id. at 359,

131 S. Ct. at 1155, 179 L. Ed. 2d at 107-08.     Accordingly,

“standard rules of hearsay, designed to identify some statements

as reliable, will be relevant” to the application of the primary

purpose test.   Id. at 358-59, 131 S. Ct. at 1155, 179 L. Ed. 2d

at 107.

       A year after Bryant, the Supreme Court’s fractured decision

in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L.

Ed. 2d 89 (2012), created confusion as to the viability and

formulation of the primary purpose test.     See Michaels, supra,

219 N.J. at 25-28 (discussing Williams plurality opinion).        In

light of this uncertainty, we upheld the primary purpose test

originally announced in Davis and developed in pre-Williams case

law.   Id. at 31 (“We find Williams’s force, as precedent, at

best unclear.”).     The soundness of our decision to do so was

later affirmed by the Supreme Court’s decision in Ohio v. Clark,

where the Court confirmed that “the question is whether, in

light of all the circumstances . . . the ‘primary purpose’ of

the [evidence] was to ‘creat[e] an out-of-court substitute for

trial testimony.’”     Clark, supra, 576 U.S. at ___, 135 S. Ct. at

2180, 192 L. Ed. 2d at 315 (second alteration in original)

                                  15
(quoting Bryant, supra, 562 U.S. at 358, 131 S. Ct. at 1155, 179

L. Ed. 2d at 107).

    This Court has since applied the pre-Williams primary

purpose test in various Confrontation Clause cases involving the

admission of forensic reports and medical examiner testimony.

See Michaels, supra, 219 N.J. at 31-32; Roach, supra,

219 N.J. at 74-75; Bass, supra, 224 N.J. at 317.      In Michaels,

after a fatal motor vehicle accident, the police sent the

defendant’s blood sample to a private laboratory where

approximately fourteen analysts performed tests that revealed

that the sample contained traces of cocaine and other drugs.

Michaels, supra, 219 N.J. at 8-9.      The results of the blood test

were provided to a supervisor at the lab, who then wrote,

certified, and signed a report that concluded that the presence

of these toxins in the defendant’s blood “would have caused [the

defendant] to be impaired and unfit to operate a motor vehicle.”

Id. at 9.   We recognized that the report was testimonial because

its primary purpose was to serve as “a direct accusation against

[the] defendant.”    Id. at 44.

    Similarly, in Roach, we found that a DNA profile created by

a State forensic scientist from machine-generated data was

testimonial.   Roach, supra, 219 N.J. at 81.     We reasoned that it

was the scientist’s “subjective analysis” and “independent

interpretation” of the raw data that converted the DNA profile

                                  16
into “unmistakably testimonial material subject to the

Confrontation Clause.”     Ibid.

       Our opinion in Bass is particularly relevant to our

analysis here.     There, in a murder trial, the State’s expert was

permitted to read to the jury portions of an autopsy report that

had been prepared by a medical examiner who was deceased at the

time of trial.   Bass, supra, 224 N.J. at 292.    In deciding

whether that testimony violated the defendant’s confrontation

rights, we found the autopsy report to be testimonial.       Id. at

316.    The autopsy was conducted after a homicide investigation

had begun; the defendant was a suspect in the homicide and had

already spoken with the police; the autopsy was conducted in the

presence of the lead State investigator; evidence collected

during the autopsy was transmitted to the investigator; and the

chain of custody was documented in the report.     Id. at 316-17.

Therefore, we found that the primary purpose of the autopsy

report was “to establish facts for later use in the prosecution

of [that] case.”     Id. at 317.

       We conclude our review of Confrontation Clause

jurisprudence by noting that this Court has twice decided

whether a defendant’s confrontation rights are implicated by

“foundational documents,” or documents that establish the

operational status of a device, such as one that measures a

person’s blood alcohol content.     See, e.g., Chun, supra, 194

                                   17
N.J. at 64-65; State v. Sweet, 195 N.J. 357, 360 (2008), cert.

denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).

       Chun primarily involved the reliability of the Alcotest, a

device to measure a person’s blood alcohol level, and the

admissibility of the AIR, the printout on which the Alcotest

reports its readings.      Chun, supra, 194 N.J. at 64-65, 67, 77.

Applying the Davis primary purpose test and the principles set

forth in Crawford, we concluded that the AIR was admissible as a

business record pursuant to N.J.R.E. 803(c)(6).     Id. at 141-42,

147.    We found that “the AIR falls outside of the definition of

testimonial” for the following reasons:

           First, the AIR reports a present, and not a
           past, piece of information or data. Second,
           although given in the presence of a police
           officer who operates the device, nothing that
           the operator does can influence the machine’s
           evaluation of the information or its report of
           the data.   Third, although the officer may
           have a purpose of establishing evidence of a
           BAC in excess of the permissible limit, the
           machine has no such intent and may as likely
           generate a result that exonerates the test
           subject as convicts him or her.

           [Id. at 147.]

       In Sweet we addressed whether the Confrontation Clause

“bar[s] the introduction into evidence of foundational documents

concerning the operational status of a Breathalyzer[], a device

used to measure a subject’s blood alcohol content.”     Sweet,

supra, 195 N.J. at 360.     Relying on Chun, we held that the


                                   18
foundational documents at issue qualified as business records.

Id. at 369-71.   We also noted that these documents were admitted

by the State “as proof that the Breathalyzer[] device in use was

in good working order.”     Id. at 370.   We reviewed the dictates

of Crawford and concluded that none of the offered documents

“relate[d] to or report[ed] a past fact [or were] generated or

prepared in order to establish any fact that [was] an element of

the offense.”    Id. at 373-74 (quoting Chun, supra, 194 N.J. at

144).

                                  IV.

    Having reviewed the applicable Confrontation Clause

precedent, we must determine whether the admission into evidence

of the map, prepared and adopted by a governmental entity

pursuant to N.J.S.A. 2C:35-7.1(e) and used as prima facie

evidence that defendant was within 500 feet of a public park

when he possessed for distribution “crack cocaine,” violates the

Confrontation Clause.     We acknowledge that there is no direct

precedent dealing with the kind of evidence under consideration

here and its Confrontation Clause implications.

    Our analysis requires a clear understanding of the language

of N.J.S.A. 2C:35-7.1(a) and (e).       N.J.S.A. 2C:35-7.1(a) makes

it a second-degree crime to “possess[] with intent to distribute

a controlled dangerous substance . . . while in, on or within

500 feet of the real property comprising . . . a public park.”

                                  19
The Legislature provided that “prima facie evidence of the

location and boundaries of” the places set forth in N.J.S.A.

2C:35-7.1(a) can be established by creating a map pursuant to

N.J.S.A. 2C:35-7.1(e):

         In a prosecution under this section, a map
         produced or reproduced by any municipal or
         county engineer for the purpose of depicting
         the location and boundaries of . . . the area
         in or within 500 feet of a public park, . . .
         or a true copy of such a map, shall, upon
         proper authentication, be admissible and shall
         constitute prima facie evidence of the
         location and boundaries of those areas,
         provided that the governing body of the
         municipality   or   county   has   adopted   a
         resolution or ordinance approving the map as
         official finding and record of the location
         and boundaries of the area or areas on or
         within 500 feet of . . . a public park . . . .
         The original of every map approved or revised
         pursuant to this section, or a true copy
         thereof . . . shall be maintained as an
         official record of the municipality or county.
         Nothing in this section shall be construed to
         preclude the prosecution from introducing or
         relying upon any other evidence or testimony
         to establish any element of this offense
         . . . .

         [N.J.S.A. 2C:35-7.1(e) (emphases added).]

    We must apply the primary purpose test reaffirmed in

Michaels to a map created pursuant to N.J.S.A. 2C:35-7.1(e) to

determine whether the Confrontation Clause is implicated here.

In doing so, we first acknowledge that the map was created to be

later used against those charged with violations of N.J.S.A.

2C:35-7.1 and that documents prepared for use in a prosecution


                               20
are generally testimonial.     Nonetheless, we consider as well the

map’s other characteristics.

    The map constitutes prima facie evidence of an element of

“possessi[on] with intent to distribute a controlled dangerous

substance . . . while in, on or within 500 feet of the real

property comprising . . . a public park,” a violation of

N.J.S.A. 2C:35-7.1(a).    Thus, the map creates a rebuttable

presumption of the proximity of the alleged drug transaction to

the park.   It does not conclusively establish defendant’s guilt.

    The map is unlike the forensic report in Michaels, which

opined that drugs found in the defendant’s blood rendered her

“impaired and unfit to operate a motor vehicle.”     Michaels,

supra, 219 N.J. at 9.    Nor is the map the product of “subjective

analysis” as was the DNA profile in Roach.     Instead, the 500-

foot area it depicts is an objective measurement that requires

no “independent interpretation” of raw data.     Roach, supra, 219

N.J. at 81.    The map is the raw data.

    Drawing from Chun and Sweet, we observe that the map is not

a nontestimonial foundational document -- it is not concerned

with the “operational status” of anything.     Nonetheless, it

shares the objective and neutral qualities of the evidence in

those cases.    Although the map is used in criminal prosecutions

and was created, in part, for that purpose, it does not target a

particular person.    It may establish a rebuttable presumption of

                                  21
proximity to the public park just as it may exonerate a person

charged with violating N.J.S.A. 2C:35-7.1(a).     Furthermore, the

map reports a present fact:    it reveals those locations within

500 feet of Leggett Park.

    Importantly, the map was not created in response to a

criminal event.    The map was created years before the commission

of any of the offenses alleged here.   When the map was produced,

there was no alleged crime committed by defendant.    Nor was the

map created to establish a fact relevant to an ongoing police

investigation.

    Therefore, the map was not created for the primary purpose

of “establish[ing] or prov[ing] past events potentially relevant

to later criminal prosecution.”    Bass, supra, 224 N.J. at 314

(alterations in original) (quoting Bullcoming v. New Mexico, 564

U.S. 647, 659 n.6, 131 S. Ct. 2705, 2714 n.6, 180 L. Ed. 2d 610,

620 n.6 (2011)).    “Where no such primary purpose exists, the

admissibility of a statement is the concern of state and federal

rules of evidence, not the Confrontation Clause.”    Bryant,

supra, 562 U.S. at 359, 131 S. Ct. at 1155, 179 L. Ed. 2d at

107-08.   Consequently, we must apply our evidence rules to

determine whether the map is admissible.

                                  V.

    “Hearsay is not admissible except as provided by [the Rules

of Evidence] or by other law.”    N.J.R.E. 802.   Under our

                                  22
evidence rules, the map is hearsay and is, therefore, admissible

if an exception to the prohibition against hearsay applies.

     One such exception allows for the admissibility of a

document that is a public record.       A document is admissible as a

public record if it is

          a statement contained in a writing made by a
          public official of an act done by the official
          or an act, condition, or event observed by the
          official if it was within the scope of the
          official’s duty either to perform the act
          reported or to observe the act, condition, or
          event reported and to make the written
          statement.

          [N.J.R.E. 803(c)(8).]

     We find that the map is a public record within the meaning

of N.J.R.E. 803(c)(8).   The map was certified by the Union

County Engineer, a “public official,” who supervised the mapping

process for which the county had contracted.       Observation of the

map’s creation thus fell “within the scope of [his] duty.”

Ibid.   Accordingly, the map would be admissible under N.J.R.E.

803(c)(8) if it satisfied “[t]he requirement of authentication

or identification,” which is “a condition precedent to

admissibility.”   N.J.R.E. 901.1




1  The State argues that the map is also admissible as a business
record. Because the map was created pursuant to N.J.S.A. 2C:35-
7.1, and not in Union County’s “regular course of business,”
N.J.R.E. 803(c)(6), we find the business record exception
inapplicable.
                                   23
    N.J.S.A. 2C:35-7.1(e) affords a separate basis for the

map’s admission into evidence.   See N.J.R.E. 802.   The statute

provides that a map “depicting the location and boundaries of .

. . the area in or within 500 feet of a public park” is

admissible as “prima facie evidence of the location and

boundaries of [the 500-foot] areas.”   N.J.S.A. 2C:35-7.1(e).

However, the statute explicitly conditions the map’s use as such

evidence “upon proper authentication” and requires that the

municipality have approved the map by “resolution or ordinance”

as an official finding and record of the 500-foot areas.     Ibid.

    Here, the Board adopted Resolution No. 1513-99 approving

the notebook of which the map was a part.   Therefore, the map

would be admissible in defendant’s prosecution for violating

N.J.S.A. 2C:35-7.1(a) if it were properly authenticated.

N.J.S.A. 2C:35-7.1(e).

    The State argues that, because the map’s legend contains a

certification by a county engineer, it is self-authenticating

under N.J.R.E. 902.   The State maintains that the assistant

prosecutor’s affidavit and the Board resolution therefore

provided a sufficient foundation for the map’s admission.      We

disagree.

    Proper authentication of the map required a witness who

could testify to its authenticity and be cross-examined on the

methodology of the map’s creation and its margin of error.      See

                                 24
State v. Simbara, 175 N.J. 37, 47-48 (2002) (noting that State

must prove reliability of public record).    That was not done

here.

    Because the map was admitted into evidence without proper

authentication, it did not satisfy the requirements of N.J.S.A.

2C:35-7.1(e) and constituted inadmissible hearsay.      The map was

the State’s sole evidence that the offense occurred within 500

feet of Leggett Park.   Therefore, because the map is

inadmissible, the State failed to offer competent evidence

proving that the alleged drug transaction took place within 500

feet of a public park, an essential element of N.J.S.A. 2C:35-

7.1(a).   We are thus constrained to reverse defendant’s

conviction for, and to remand for a new trial on the charge of,

violating N.J.S.A. 2C:35-7.1.

    We hereby authorize use of a “notice and demand” procedure

to bypass the production of a witness to authenticate a map

created pursuant to N.J.S.A. 2C:35-7.1(e).    See Williams, supra,

219 N.J. at 102.   At defendant’s retrial, and in any prosecution

under N.J.S.A. 2C:35-7.1, the State may give notice to a

defendant, at least thirty days before trial, that a map

prepared pursuant to N.J.S.A. 2C:35-7.1(e) will be offered at

trial for a violation of N.J.S.A. 2C:35-7.1 and may demand an

objection to its use within ten days.   An objection will require

the State to produce an authenticating witness who can testify

                                25
to the map’s authenticity and be cross-examined on the

methodology of the map’s creation and its margin of error.    If

there is no such objection, the map may be admitted without

production of an authenticating witness.   We refer to the

Supreme Court Committee on Criminal Practice the crafting of a

rule, with any necessary improvements, on pretrial notice and

demand in prosecutions under N.J.S.A. 2C:35-7.1.

                               VI.

    The judgment of the Appellate Division affirming

defendant’s conviction of violating N.J.S.A. 2C:35-7.1(a), count

three of the indictment, is reversed, and the matter is remanded

for further proceedings consistent with this opinion.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.




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