                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2097-12T4

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                              September 10, 2015
v.                                            APPELLATE DIVISION

DESHAUN P. WILSON,

     Defendant-Appellant.
___________________________________________

            Submitted December 9, 2014 – Decided September 10, 2015

            Before Judges Messano, Hayden and Sumners.

            On appeal from the Superior Court of New
            Jersey,   Law    Division, Union  County,
            Indictment No. 09-05-0454.

            Joseph E. Krakora, Public Defender, attorney
            for appellant (Kevin G. Byrnes, Designated
            Counsel, on the brief).

            John J. Hoffman, Acting Attorney General,
            attorney for respondent (Sara M. Quigley,
            Deputy Attorney General, of counsel and on
            the brief).

     The opinion of this court was delivered by

MESSANO, P.J.A.D.

     The Union County grand jury returned an indictment charging

defendant   DeShaun    Wilson   with   third-degree    possession      of   a

controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count

one);   third-degree     possession    of    a    controlled       dangerous
substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

(b)(3) (count two); and second-degree possession of a controlled

dangerous substance with intent to distribute within 500 feet of

a public park, N.J.S.A. 2C:35-7.1 (count three).                    Following an

evidentiary      hearing,    the   judge    denied      defendant's      pre-trial

motion to suppress evidence seized during a warrantless search.

Defendant proceeded to trial before a different judge, but, a

mistrial   was    declared    when   the    jury    was    unable   to    reach    a

unanimous verdict.1

     Before retrial, defendant moved for reconsideration of his

motion to suppress, contending that certain testimony at trial

contradicted testimony by the same witnesses at the pre-trial

hearing.      The    judge    denied       that    motion,    defendant      again

proceeded to trial, and the jury convicted him of all counts.

At sentencing, the judge merged counts one and two into count

three   and   sentenced       defendant      to    an     eight-year     term     of

imprisonment with a four-year period of parole ineligibility.

     Defendant raises the following points on appeal:




1
  The record originally did not contain transcripts from this
trial, nor did the parties directly discuss the first trial in
their briefs.   We ordered the transcripts since defendant has
raised arguments that necessarily implicate testimony at the
first trial.



                                       2                                  A-2097-12T4
POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not
Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. 1,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED   WHEN  THE   STATE'S  LAY  WITNESS
RENDERED A HIGHLY PREJUDICIAL OPINION THAT
SHOULD HAVE BEEN EXCLUDED.

POINT III

THE DEFENDANT'S RIGHT TO CONFRONTATION AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART I., PAR.
10 OF THE NEW JERSEY CONSTITUTION, AND THE
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE
VIOLATED.

A.    THE TRIAL COURT ERRONEOUSLY ADMITTED
ACCUSATIONS AND OTHER EVIDENCE FROM ABSENTEE
WITNESSES.

B.    THE TRIAL COURT ERRONEOUSLY ADMITTED
HEARSAY PAPER EVIDENCE PREPARED BY THE
GOVERNMENT TO PROVE AN ESSENTIAL ELEMENT OF
THE CRIME.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS



                     3                         A-2097-12T4
         VIOLATED BY THE ERRONEOUS, CONTRADICTORY,
         AND PREJUDICIAL INSTRUCTION ON THE LAW OF
         CONSTRUCTIVE POSSESSION. (Not Raised Below)

         POINT V

         THE DEFENDANT WAS DENIED THE RIGHT TO
         EFFECTIVE    ASSISTANCE   OF   COUNSEL   AS
         GUARANTEED BY THE SIXTH AMENDMENT TO THE
         UNITED STATES CONSTITUTION AND ART. I, PAR.
         10 OF THE NEW JERSEY CONSTITUTION. (Not
         Raised Below)

         POINT VI

         THE DEFENDANT'S RIGHT TO BE FREE FROM
         UNREASONABLE   SEARCHES  AND   SEIZURES, AS
         GUARANTEED BY ART. I, PAR. 7 OF THE NEW
         JERSEY CONSTITUTION, WAS VIOLATED.

         POINT VII

         THE DEFENDANT'S MOTION TO RECONSIDER THE
         DECISION TO DENY HIS MOTION TO SUPPRESS
         EVIDENCE SHOULD HAVE BEEN GRANTED.

         POINT VIII

         THE DEFENDANT'S SENTENCE IS EXCESSIVE.

         A.   THE TRIAL COURT IMPROPERLY BALANCED THE
         AGGRAVATING AND MITIGATING FACTORS.

         B.     THE TRIAL COURT ERRONEOUSLY MADE
         FINDINGS OF FACT THAT ELEVATED THE SENTENCE
         BEYOND THE MINIMUM TERM THAT COULD HAVE BEEN
         AND SHOULD HAVE BEEN IMPOSED BASED ON THE
         JURY'S FINDINGS. (Not Raised Below)

Having considered these arguments in light of the record and

applicable legal standards, we affirm.




                               4                        A-2097-12T4
                                                 I.

       In Points VI and VII, defendant contends that the first

judge erred in denying his motion to suppress, and the trial

judge erred in denying his motion for reconsideration.                            At the

pre-trial hearing on the motion to suppress, the State called

Elizabeth police officer James Szpond as its sole witness.                              On

January    30,     2009,       he     and        officer      Louis   Garcia     received

information from a citizen regarding possible narcotics sales at

a   certain      address        in         a     "[h]igh      narcotic    trafficking"

neighborhood.         The       information            also    provided    a     "unique"

detailed description of a suspect and the clothing he wore.

While conducting surveillance from an undisclosed location, the

officers     observed      a        man        who    fit   the   description,      later

identified    as   defendant,             standing      outside   a   bodega.      Szpond

testified that the officers also had a clear view of defendant's

"stash spot."

       Szpond saw two men approach defendant and engage in a brief

conversation, after which defendant walked a short distance away

and down the alley of a nearby residential building.                           Szpond saw

defendant bend down, return toward the street and motion to the

men.    Defendant received money and gave the men a small object.

Fifteen minutes later, defendant was approached by a female, and

Szpond observed similar activity.                     Other officers were called to




                                                 5                               A-2097-12T4
the    scene    and   arrested    defendant.        Szpond   proceeded    to   the

alley, walked to the area where he had seen defendant bend down,

and found a plastic bag containing vials of cocaine hidden in a

drainpipe.2

       Defendant called Garcia as a witness.                 His testimony was

largely consistent with Szpond's.               Garcia acknowledged that the

alley was part of a private home, albeit not defendant's, and

that   the     officers   did    not   secure   a   search   warrant   prior    to

seizing the narcotics.

       The judge placed his oral decision on the record.                 He found

both officers credible and, based upon the anonymous tip they

received and observations they made, the judge concluded there

was probable cause to arrest defendant.                 The judge held that

defendant lacked any possessory interest in the drainpipe, and

he "could not have had a subjective expectation of privacy as he

could not expect that the zip-loc bag and its contents would be

safe from detection in this area."

       Before us, defendant argues that the warrantless search of

the drainpipe and seizure of the drugs was not justified by any

exception to the warrant requirement.                The State contends that

the judge properly determined that defendant had no reasonable


2
  During his trial testimony, Szpond claimed some drugs were in
the drainpipe and some were not.



                                         6                               A-2097-12T4
expectation of privacy in the drainpipe area of a stranger's

home.

       We think a case decided after the briefs were submitted in

this appeal is fully dispositive of the issue.                         In State v.

Brown, 216 N.J. 508, 535 (2014), the Court made clear that a

defendant has "no standing to challenge a search if an officer

had an objectively reasonable basis to believe [defendant] was a

trespasser."        It is apparently undisputed that defendant was a

trespasser, in that he did not live at the premises and received

no permission from the owner to repeatedly walk down the alley.

Because the record is unclear as to whether the officers knew

this beforehand, we assume arguendo that defendant had standing

to bring the motion to suppress and consider whether the search

and seizure without a warrant was justified.

       "Even when a defendant has automatic standing, if . . . the

merits       rest   on     whether     defendant     possesses     a     reasonable

expectation of privacy, the court must address that issue as

part    of    the   substantive      constitutional    analysis."         State    v.

Hinton,      216    N.J.    211,     234   (2013).     In   this       regard,    our

constitution "requires only that an expectation of privacy be

reasonable."        Id. at 236 (quoting State v. Hempele, 120 N.J.

182, 200 (1990)) (internal quotation marks omitted).                       However,

our courts "have recognized circumstances in which no reasonable




                                           7                               A-2097-12T4
expectation     of   privacy    can   be   found,   notwithstanding       the

residential setting of the police activity."              Ibid. (citations

omitted); see also State v. Gibson, 318 N.J. Super. 1, 10-11

(App. Div. 1999) (holding that the defendant's movements in a

driveway "whether it was owned by him, his mother or any other

person, was within the public view and observed from the public

thoroughfare . . . . Accordingly, [he] could have no reasonable

expectation of privacy in the driveway.").

    The facts in this case are most similar to those presented

in State v. Ford, 278 N.J. Super. 351 (App. Div. 1995).              There,

officers on surveillance observed the defendant walk down the

side of a nearby house, kneel down, take something out of a

hidden plastic bag, return the bag to a location on the outside

of the house and complete a drug transaction with his cohort.

Id. at 353.     After arrests were made, an officer retrieved a bag

containing cocaine from the side of the house.         Id. at 353-54.

    We   held    that   the    "defendants[']   privacy    rights   in    the

contraband had already been forfeited."         Id. at 357.      We upheld

the warrantless seizure, reasoning,

          Given the knowledge that a crime had been
          committed,   given   both  officers'   visual
          observations of the defendants during its
          commission, and given the observation of the
          contraband  and    its  place  of   attempted
          concealment in an exterior portion of the
          house accessible by anyone from the outside
          without entering the house, no compelling



                                      8                             A-2097-12T4
            constitutional interests require suppression
            of the seized contraband from its known
            location.

            [Ibid. (citation omitted); see also State v.
            Jessup, ___ N.J. Super. ___, ___ (App. Div.
            2015)   (holding   the   defendant   had  no
            reasonable expectation of privacy regarding
            drugs left on top of the tire of a car).]

We believe the same rationale applies here.           The judge properly

denied defendant's motion to suppress.

      Defendant next argues that the trial judge erred in denying

his motion for reconsideration because the testimony of Szpond

and Garcia at the first trial differed significantly from their

testimony during the pre-trial suppression hearing.               The trial

judge stated "there was a discrepancy between what [they] said

at trial, what they said in their police reports, and what they

said . . . at the hearing."          He concluded, however, that while

this presented significant credibility issues for the jury, it

did   not   affect   whether   the   seizure   of   the   drugs   without    a

warrant was constitutional.          He denied defendant's motion for

reconsideration.3


3
   We have noted that motions for reconsideration are not
expressly provided for by Part III of the Rules of Court
governing practice in the criminal courts, but we have
nevertheless applied the standards contained in Rule 4:49-2 to
such applications.  State v. Fitzsimmons, 286 N.J. Super. 141,
147 (App. Div. 1995), certif. granted, and remanded, 143 N.J.
482 (1996). Under that Court Rule, motions for reconsideration
are addressed to "the sound discretion of the Court, to be
                                                    (continued)


                                      9                             A-2097-12T4
    The general rule that a "defendant cannot refer to evidence

developed other than at the motion to suppress[] applies when

[the] defendant challenges the denial of a motion to suppress."

State v. Tavares, 364 N.J. Super. 496, 502 (App. Div. 2003).

"The court's decision becomes the law of the case and is binding

on whatever judge ultimately tries the case."             State v. Jordan,

115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293

(1971); see also State v. K.P.S., 221 N.J. 266, 277-79 (2015)

(holding that "law of the case" is not applicable to appeals

filed by co-defendants).

    Of   course,   there   are   exceptions      to    this   general    rule.

"Presumably, if [a] defendant could show that the motion was

denied   because   of   fraud,   or    that    the    interest   of   justice

required a new hearing on the merits (e.g., perjury), such would

be permissible under the rules."           Jordan, supra, 115 N.J. Super.

at 76-77.

    Any inconsistencies and discrepancies between the officers'

testimony at the hearing and the first trial do not suggest

fraud or perjury, nor do the interests of justice compel the




(continued)
exercised in the interest of justice." Cummings v. Bahr, 295
N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (internal
quotation marks omitted).



                                      10                              A-2097-12T4
conclusion     that       the    trial     judge      mistakenly          exercised       his

discretion in denying defendant's motion for reconsideration.

                                           II.

    At the second trial, the State called Szpond and Garcia as

witnesses.         Their    testimony       generally            conformed      with     that

referenced    above,       although      they    were       subject       to    impeachment

through inconsistencies in their reports and prior testimony.

Utilizing an enlargement of a certified map, see N.J.S.A. 2C:35-

7.1(e),     Detective       Brendan       Sullivan          of     the     Union       County

Prosecutor's Office testified that the location where the drug

transactions occurred was within 500 feet of a public park.

Detective     Gary       Webb    testified       as    an        expert    in    narcotics

transactions.        The State also called a masonry contractor who

testified regarding work done on the house near the drainpipe.

Defendant    presented          the    testimony      of    Edward        Fitzgerald,      an

investigator who visited and photographed the alleyway and the

general     area    of     the    transactions.             Fitzgerald's         testimony

impeached    that     of    the       officers   regarding          their       ability   to

observe what defendant was doing at the end of the alley.


            [At the court's direction Subsections A, B,
            and C of Section II of its opinion, which
            concern discrete issues, have been redacted
            from the published opinion, because they do
            not meet the criteria set by R. 1:36-2(d)
            for publication. The published parts of the
            opinion continue as follows.]


                                           11                                      A-2097-12T4
                                            III.

       As previously mentioned, Detective Brendan Sullivan of the

Union County Prosecutor's Office testified at trial.                                   Sullivan

identified an exhibit as "a standard 500-foot map," depicting an

area within a five-hundred foot radius around Legget Park in

Elizabeth.        Sullivan identified the location where the drugs

were    found     as      being    within      the      circle.           Defense       counsel

vigorously cross-examined Sullivan, eliciting that the map was

prepared by an engineer in 1998, and Sullivan could not verify

the    accuracy      of    its     measurements           or    add   much        by    way    of

description of the park itself.

       Near the close of the State's case, the prosecutor sought

to     move   the      map,   an    affidavit           authored      by     an        assistant

prosecutor who met with county engineers to prepare the map, and

a    resolution      approved      by    the    Union      County     Board        of    Chosen

Freeholders       accepting        the    map      as     official         into        evidence.

Defense counsel objected, arguing that the State failed to lay

an adequate foundation and the affidavit and resolutions were

hearsay.      The judge overruled defendant's objection and admitted

the items into evidence.

       Before us, defendant argues that the map was "testimonial"

because it was "prepared for the purpose of prosecuting drug

criminals,"         and    its     admission         in        evidence     violated          the




                                             12                                         A-2097-12T4
Confrontation     Clause    of   the   United   States    and   New    Jersey

Constitutions.     See U.S. Const. amend. VI; N.J. Const. art, I, ¶

10) (recognizing a criminal defendant's right "to be confronted

with the witnesses against him").4          The State counters by arguing

that, pursuant to N.J.S.A. 2C:35-7.1(e), the map was admissible

as a business or government record, N.J.R.E. 803(c)(6); N.J.R.E.

803(c)(8), was properly authenticated pursuant to N.J.R.E. 902

and,   for    purposes     of    the   Confrontation     Clause,   was      not

"testimonial."

                                       A.

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

             Any person who violates subsection a. of
             N.J.S.A. 2C:35-5 by distributing, dispensing
             or possessing with intent to distribute a
             controlled substance or controlled substance
             analog while in, on or within 500 feet of
             the   real  property  comprising   a  public
             housing facility, a public park, or a public
             building is guilty of a crime of the second
             degree . . . .

4
  At trial, defense counsel never clearly articulated an argument
under the Confrontation Clause, although he alluded to an
inability to cross-examine the individual who had made the
measurements. Since the trial in this case, our Court has held
that a Confrontation Clause argument not advanced at trial may
be deemed waived on appeal. See State v. Williams, 219 N.J. 89,
93 (2014) (holding that the "defendant's failure to object on
confrontation grounds and his decision to cross-examine the
[witness] constituted a waiver of his confrontation right").
However, whether admission of a drug-zone map violates the
Confrontation Clause has been the subject of at least five
unpublished opinions of our court, and therefore we conclude
that the issue needs to be addressed in a published opinion.



                                       13                             A-2097-12T4
The purpose of the statute, and N.J.S.A. 2C:35-7,

           is essentially the same: to protect those,
           predominantly    children,   in    and    around
           schools and public parks from exposure to
           the   drug   culture   and   perils    of   drug
           trafficking. In furtherance of that purpose,
           the Legislature mandated severe punishment
           for those who possess or distribute drugs in
           the   safety   zones   established   by    those
           statutes.

           [State v. Lewis, 185 N.J. 363, 370 (2005).]

We have upheld the statute against a constitutional challenge

alleging   its     disparate    impact   upon   "minority     and   poor

populations that make up a large percentage of the residents of

public housing."     State v. Brooks, 366 N.J. Super. 447, 457-58

(App. Div. 2004); see also State v. Ogar, 229 N.J. Super. 459,

471-72   (App.   Div.   1989)   (rejecting   constitutional   vagueness

challenge to N.J.S.A. 2C:35-7).

    N.J.S.A. 2C:35-7.1(e) provides in pertinent part:

           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 on
           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   housing



                                   14                           A-2097-12T4
             facility, a public                   park,     or      a    public
             building . . . .

             [N.J.S.A. 2C:35-7.1(e); see also N.J.S.A.
             2C:35-7(f) (containing similar provisions
             with respect to one thousand-feet school-
             zone maps.]

When an official map is admitted into evidence, the ordinance or

resolution         adopting        the    map     should     also       be   entered       into

evidence, as it was in this case.                      State v. Collins, 262 N.J.

Super.      230,    240       (App.      Div.    1993).      Such       maps     are    "self-

authenticati[ng]"             pursuant      to    N.J.R.E.       902,    which    provides,

"[e]xtrinsic evidence of authenticity as a condition precedent

to admissibility is not required with respect to . . . [a]ny

.   .   .   document      .    .   .     declared     by   state    .    .   .   law     to   be

presumptively or prima facie genuine or authentic."

        Statutes like N.J.S.A. 2C:35-7 and 2C:35-7.1 that impose

enhanced penalties for acts committed within specified distances

from schools, playgrounds, public parks, and other areas are

common       throughout             the         country,      and        generally            the

constitutionality of these statutes has been upheld.                              See Tracy

A. Bateman, Annotation, Validity, Construction, and Application

of State Statutes Prohibiting Sale or Possession of Controlled

Substances Within Specified Distance of Schools, 27 A.L.R.5th

593 (1995); Jay M. Zitter, Annotation, Validity, Construction,

and Application of State Statutes Enhancing Penalty for Sale or




                                                 15                                    A-2097-12T4
Possession of Controlled Substances Within Specified Distance of

Playgrounds,       23     A.L.R.6th     679      (2007);   see    also     William     G.

Phelps, Validity and construction of 21 U.S.C.A. § 860 enhancing

penalty for drug distribution if offense occurs within 1,000

feet of school, college, or university, 108 A.L.R. Fed. 783

(2008)      (discussing      enhanced       penalties      under       federal      law).

However, statutory provisions that allow a governmental entity

to generate and adopt an official map depicting the location and

boundaries of the specified areas, and provide for the admission

of   that    map   as     "prima    facie     evidence     of    the     location     and

boundaries of those areas," are far less common.

      Our research uncovered similar statutory provisions only in

Texas, Tex. Health & Safety Code Ann § 481.135; Tex. Penal Code

§§ 46.12, and 71.029, Georgia, Ga. Code Ann. § 16-13-32.6(e) and

Washington,       Wash.    Rev.    Code.    § 69.50.435(5),        and    no   reported

case from those jurisdictions addresses whether admission of an

official map, generated pursuant to these statutory provisions,

violates a defendant's Sixth Amendment rights.

      One case from Washington did address a related issue                              —

whether     the    admission       of   an       unofficial      map     violated     the

defendant's right to confrontation.                  See State v. Pearson, 321

P.3d 1285 (Wash. Ct. App.), review denied, 337 P.3d 327 (2014).

In Pearson, the defendant was tried for selling drugs within




                                            16                                 A-2097-12T4
1000 feet of a school bus stop.                    Id. at 1286.        Yakima County,

where    the    offense        occurred,    had    never     adopted       a       "complying

resolution        or     ordinance"     adopting       an    official              map      under

Wash. Rev Code. § 69.50.435.                  Id. at 1287-88.              Instead, the

county's director of Geographic Information Systems (GIS), which

maintained "a digital legal map library for the county and all

its departments," testified at trial.                 Id. at 1286.             The witness

explained that GIS would receive information supplied by the

local school districts, including the location of bus stops.

Id. at 1286-87.          For the defendant's trial, GIS "created a map,"

using the location of the drug sale "as the center point and

depicting a 1,000 foot radius around that center point," with

the reported bus stop locations also depicted.                             Id. at 1287.

The     Pearson        court    noted      that    while     Washington's                statute

specifically allowed for the use of an unofficial map that was

"otherwise      admissible,"        "the    map    [here]     [wa]s    not          otherwise

admissible."           Id. at 1288.        Citing Crawford v. Washington, 541

U.S. 36, 68, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192

(2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-

11, 129 S. Ct. 2527, 2531-32, 174 L. Ed. 2d 314, 321 (2009), the

court    held     that     the    map   fell       "within    the     core          class       of

testimonial       statements,"      and     that    defendant       "had       a    right       to




                                            17                                           A-2097-12T4
confront the school district official" who provided information

regarding the location of the school bus stops.                      Id. at 1288.

      We do not consider Pearson to be particularly informative,

since the holding focused on the hearsay nature of information

given to the county director, who had no personal knowledge of

the   bus    stop    locations,         and        the   defendant's      inability      to

confront the source of that information.                        No reported decision

in New Jersey has considered a Confrontation Clause challenge to

the evidentiary provisions contained in either N.J.S.A. 2C:35-

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

                                                   B.

      We    need    not    recount       in    great       detail   the     sea    change

occasioned by the Supreme Court's decision in Crawford,                           prior to

which hearsay statements were admitted without running afoul of

the Confrontation Clause if they fell "under a firmly rooted

hearsay     exception      or     [bore]           particularized      guarantees        of

trustworthiness."         541 U.S. at 40, 124 S. Ct. at 1358, 158 L. Ed.

2d at 186 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.

2531, 2539, 65 L. Ed. 2d 597, 608 (1980)).                        Instead, the Court

in Crawford held, "[w]here testimonial statements are at issue,

the   only     indicium      of        reliability         sufficient      to     satisfy

constitutional       demands      is    the    one       the   Constitution       actually

prescribes:        confrontation."        Id. at 68-69, 124 S. Ct. at 1374,




                                              18                                  A-2097-12T4
158 L. Ed. 2d at 203 (emphasis added).                          Thus, admission of an

out-of-court         testimonial         statement      violates       the     Confrontation

Clause unless the witness is unavailable and the defendant had an

opportunity to cross-examine that witness.                       Id. at 68, S. Ct. at

1374, 158 L. Ed. 2d at 203.                   By contrast, "[w]here nontestimonial

hearsay    is    at     issue,"      the      States    have    "flexibility         in   their

development of hearsay law" and are not required to afford the

defendant an opportunity for cross-examination.                         Ibid.

      "[T]he         question       of     whether       a     hearsay       statement       is

testimonial or nontestimonial defies facile definition."                                  State

v. Buda, 195 N.J. 278, 300 (2008).                      Quoting Crawford, our Court

has     said    that     testimonial           statements       are     those        in   which

"witnesses       bear    testimony            against   the     accused."            State   v.

Cabbell,       207    N.J.    311,      329    (2011)     (emphasis      added)       (quoting

Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed.

2d at 192).          In Davis v. Washington, 547 U.S. 813, 126 S. Ct.

2266, 165 L. Ed. 2d 224 (2006), while declining to "produce an

exhaustive classification of all conceivable statements," the

Court    endeavored          to   provide       greater      clarity     for    determining

whether    a    statement         was    "testimonial,"        adopting        the    "primary

purpose" test:

               Statements are nontestimonial when made in
               the course of police interrogation under
               circumstances objectively indicating that
               the primary purpose of the interrogation is



                                                19                                    A-2097-12T4
           to enable police assistance to meet an
           ongoing emergency.     They are testimonial
           when the circumstances objectively indicate
           that there is no such ongoing emergency, and
           that    the    primary   purpose   of    the
           interrogation is to establish or prove past
           events   potentially   relevant   to   later
           criminal prosecution.

           [Id. at 822, 126 S. Ct. at 2273-74, 165 L.
           Ed. 2d at 237 (emphasis added).]

    The Supreme Court has recently reiterated, "the question is

whether, in light of all the circumstances, viewed objectively,

the 'primary purpose' of the conversation was to 'creat[e] an

out-of-court substitute for trial testimony.'"                Ohio v. Clark,

___ U.S. ___, ___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306, 315

(2015) (quoting Michigan v. Bryant, 562 U.S.                   344, 358, 131

S. Ct.    1143,   1155,   179   L. Ed. 2d    93,   107       (2011)).        "[A]

statement cannot fall within the Confrontation Clause unless its

primary purpose was testimonial.          '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.'"

Ibid. (quoting Bryant, supra, 562 U.S. at 359, 131 S. Ct. at

1155, 179 L. Ed. 2d at 107-08).

    "Our    state   confrontation    jurisprudence       has    followed      the

federal    approach,      focusing    on    whether      a     statement       is

testimonial[,]"     State v. Roach, 219 N.J. 58, 74 (2014), cert.

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




                                     20                                 A-2097-12T4
through application of the "primary purpose test."                            State v.

Michaels, 219 N.J. 1, 30-32, cert. denied, ___ U.S. ___, 135 S.

Ct. 761, 190 L. Ed. 2d 635 (2014).                    "In order to correctly apply

the Crawford analysis" a court "must consider first whether the

particular evidence is admissible under the ordinary rules of

evidence."      State v. Chun, 194 N.J. 54, 139, cert. denied, 555

U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).                       If so, the

next     inquiry       is     "whether          the     particular     evidence       is

'testimonial' within the meaning of the Confrontation Clause,

for if it is, then the fact of admissibility for purposes of the

exceptions      to   the    hearsay       rules   is    insufficient"    to    warrant

admission absent cross-examination.                     Id. at 138-39; see also

State v. Sweet, 195 N.J. 357, 368 (2008).

       Crawford, Davis and Clark involved verbal statements made

by a declarant to either law enforcement personnel or other

third parties where the declarant was not produced as a witness

at     trial.        Our    Court    has     considered      application       of    the

Confrontation Clause to similar scenarios, resulting in settled,

albeit fact-sensitive, precedent.                     See, e.g.,     State ex rel.

J.A.,     195   N.J.       324,     328    (2008)      (non-testifying     witness's

statements to police were testimonial and their admission under

the    circumstances        violated      the     Confrontation      Clause);       Buda,

supra, 195 N.J. at 304, 308 (holding child's statements to his




                                            21                                 A-2097-12T4
mother and a DYFS worker were nontestimonial).                  However, the

Confrontation Clause's application to statements contained in

documentary evidence has stirred muddier waters.

    Crawford      seemingly   made        clear   that   most     statements

contained in documentary evidence admitted under well-recognized

"hearsay exceptions . . . by their nature were not testimonial —

for example, business records."           541 U.S. at 55, 124 S. Ct. at

1367, 158 L. Ed. 2d at 195.     However, in a subsequent trilogy of

cases involving forensic testing reports, that ratio decidendi

has been obscured.

    In Melendez-Diaz, supra, 557 U.S. at 311, 129 S. Ct. at

2532, 174 L. Ed. 2d at 321, a five-four decision, the Court

concluded that certificates of analysis, "the sole purpose of

[which] was to provide prima facie evidence of the composition,

quality, and the net weight of the analyzed substance," were

testimonial statements, and the defendant "was entitled to be

confronted with the analysts at trial."              (Internal quotation

marks omitted).    The Court went on to say:

         Business and public records are generally
         admissible absent confrontation not because
         they qualify under an exception to the
         hearsay rules, but because — having been
         created   for  the   administration   of   an
         entity's affairs and not for the purpose of
         establishing or proving some fact at trial —
         they are not testimonial.     Whether or not
         they   qualify  as   business   or   official
         records, the analysts' statements here —



                                     22                             A-2097-12T4
             prepared    specifically    for     use   at
             petitioner's trial — were testimony against
             petitioner, and the analysts were subject to
             confrontation under the Sixth Amendment.

             [Id. at 324, 129 S. Ct. at 2539-40, 174 L.
             Ed. 2d at 329-30 (emphasis added).]

Justice      Kennedy     wrote   a     vigorous    dissent,     declaring     that

Crawford and Davis only applied to "formal statements made by a

conventional witness — one who has personal knowledge of some

aspect of the defendant's guilt."                 Id. at 330, 129 S. Ct. at

2543, 174 L. Ed. 2d at 334 (Kennedy, J., dissenting) (emphasis

added).

       In Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct.

2705, 2709-10, 180 L. Ed. 2d 610, 616 (2011), a subsequent five-

four decision, the Supreme Court concluded that the admission of

a standard lab report regarding the defendant's blood alcohol

level as a business record, in the absence of the preparer of

the    report   as   a   witness,    violated     the     Confrontation   Clause.

Although the state produced a witness who was generally familiar

with    laboratory       procedures,    testing     and    reports,    the   Court

concluded that "the formalities attending the" report qualified

the preparer's "assertions as testimonial." Id. at ____, 131 S.

Ct. at 2717, 180 L. Ed. 2d at 624.                      Justice Kennedy, again

writing for the dissent, argued that the Confrontation Clause

did    not   "impose     a   constitutional       bar    on   the   admission    of




                                         23                               A-2097-12T4
impartial lab reports . . . prepared by experienced technicians

. . . that follow professional norms and scientific protocols."

Id. at ____, 131 S. Ct. at 2726, 180 L. Ed. 2d at 634 (Kennedy,

J., dissenting).

       Lastly, in Williams v. Illinois, ___ U.S. ___, 132 S. Ct.

2221, 183 L. Ed. 2d 89 (2012), the majority of the Supreme Court

concluded there was no Confrontation Clause violation when a

testifying expert witness referenced a DNA report prepared by an

outside laboratory, from which no witness was produced.                          In his

plurality opinion, Justice Alito wrote that the report was not

testimonial,     in   part,      because    it    "was    not     prepared      for   the

primary purpose of accusing a targeted individual."                           Williams,

supra,       ___ U.S. at ___, 132 S. Ct. at 2243, 183 L. Ed. 2d at

115.

       Our    Court   found     Williams    to     provide      "at    best     unclear"

precedential      force,        and   specifically        rejected        the    above-

referenced      aspect     of    Justice        Alito's       analysis,    noting      it

diverged from "the primary purpose test that had been applied

previously."      Michaels, supra, 219 N.J. at 31.                     Both Michaels

and    Roach    considered      issues     similar       to    those   presented       in

Bullcoming and Williams.

       In Michaels, supra, 219 N.J. at 5-6, the Court held the

Sixth Amendment was not violated by admission at trial of a




                                           24                                   A-2097-12T4
certified lab report indicating defendant's blood sample tested

positive    for     intoxicating         substances,            even   though    only       the

supervising analyst who had performed the test was the only

witness at trial.           In Roach, supra, 219 N.J. at 60, the Court

held the defendant's confrontation rights were not violated even

though the testifying DNA analyst "did not perform the testing

procedures that provided the basis for the DNA profile developed

from the perpetrator's evidence," but only reviewed those tests

and "matched" the defendant's DNA with that gathered from the

crime scene.

      Summing up the holdings in both cases, the                              Roach court

explained that the confrontation rights of a defendant will not

be violated if a supervisor, co-worker, or independent reviewer

testifies "based on his or her independent review of raw data

and   conclusions       .   .   .    based         on    that    data,"   provided          the

testimony    is   "provided         by   a    truly      independent      and    qualified

reviewer    of    the   underlying           data    and    report"     and     not    merely

"parrot[ed]" by a surrogate witness.                         Id. at 79.           Here, of

course, no witness testified regarding preparation of the park-

zone map or how its measurements were made.

      Our   Court    has    wrestled         with       Confrontation     Clause       issues

involving admission of purely documentary evidence both before

and since Crawford was decided.                     In State v. Simbara, 175 N.J.




                                              25                                      A-2097-12T4
37, 40 (2002), our Court considered the Confrontation Clause

implications     of   N.J.S.A.       2C:35-19(b),    which     permits    the

admission in evidence of a laboratory certification, very much

like the one at issue in Diaz-Melendez, without live testimony.

The Court concluded that "[t]he State's proffer of a certificate

whose form and content conform to the statute does not itself

preclude    a   defendant's    right    to    confront   the   certificate's

preparer at trial."     Id. at 48.      The Court explained:

            A laboratory certificate in a drug case is
            not of the same ilk as other business
            records, such as an ordinary account ledger
            or office memorandum in a corporate-fraud
            case. Those latter documents have not been
            prepared specifically for the government's
            use in a potential criminal prosecution. In
            contrast,    the   analyst   prepares   the
            laboratory certificate at a prosecuting
            agency's request for the sole purpose of
            investigating an accused.

            [Id. at 49 (emphasis added).]

We have applied similar analysis to lab reports prepared by

police     chemists   and    blood     test   certificates     issued    under

N.J.S.A. 2A:62A-11,5 finding in both instances that the document


5
    That statute provides:

            Any person taking a specimen pursuant to
            section 1 of this act shall, upon request,
            furnish to any law enforcement agency a
            certificate stating that the specimen was
            taken pursuant to section 1 of this act and
            in   a  medically  acceptable  manner.  The
                                                      (continued)


                                       26                           A-2097-12T4
was "testimonial" and triggered rights under the Confrontation

Clause.     State v. Kent, 391 N.J. Super. 352, 354-55 (App. Div.

2007); State v. Renshaw, 390 N.J. Super. 456, 468-69 (App. Div.

2007).

      In    Chun,     the   Court    considered        Crawford's   application      to

documentary evidence — the Alcotest's "foundational documents,"

relating to the good working order of the device, Chun, supra,

194 N.J. at 142, and the "Alcohol Influence Report" or AIR, that

"reports the results of a test which, in and of itself under our

statute, suffices to support a conviction."                    Id. at 145.        As to

the foundational documents, the Court said they were "business

records in the traditional sense."                Id. at 142.       Their admission

did not violate the Confrontation Clause because, although some

were "prepared by the police, . . . none of them relate[d] to or

report[ed]       a   past   fact    and    none   of    them   [was]     generated   or

prepared in order to establish any fact that is an element of

the offense."         Id. at 144 (citing Davis, supra, 547 U.S. at 821-

24,   126   S.       Ct.   at   2273-74,    165   L.     Ed.   2d   at    237).      The


(continued)
          certificate shall be signed under oath
          before a notary public or other person
          empowered to take oaths and shall be
          admissible in any proceeding as evidence of
          the statements contained therein.

             [N.J.S.A. 2A:62A-11.]




                                            27                                A-2097-12T4
foundational        documents      were     not    "testimonial         in    the

constitutional sense."          Ibid.; see also Sweet, supra, 195 N.J.

at     373-74   (reaching   same    conclusion     regarding     breathalyzer

foundational documents).

       The   Chun   Court   also    determined     that   the    AIR    was   not

testimonial, reasoning:

             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.

             [Chun, supra, 194 N.J. at 147.]

Nevertheless, the Court also "concluded that [with respect to

the AIR] defendants are entitled to certain safeguards that we

have    required    be   implemented      in   prosecutions     based    on   the

Alcotest[,] . . . through our requirement that the operator of

the device be made available to testify."            Id. at 148.

       We turn to the map at issue in this case, a piece of

documentary     evidence    not    readily     amenable   to    Confrontation

Clause analysis.




                                       28                               A-2097-12T4
                                           C.

       It is beyond peradventure, and defendant does not contend

otherwise, that the map "is admissible under the ordinary rules

of    evidence."       Id.     at   139;    see    N.J.R.E.     803(c)(8).6         We

acknowledge defendant's essential argument, however, that the

map    is   "testimonial"      because     its    primary,    and   perhaps    only,

purpose is to establish a fact that the State must prove as an

element     of   the   crime    charged,        i.e.,   in   this   case,   that     a

particular location is within five-hundred feet of Legget Park.

In this sense, the map is "an out-of-court substitute for trial

testimony."      Bryant, supra, 562 U.S. 344, 358, 131 S. Ct. 1143,

1155, 179 L. Ed. 2d 93, 107.

6
    The rule excepts from exclusion under the hearsay rule:

             (A) 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,   or   (B)
             statistical findings of a public official
             based upon a report of or an investigation
             of acts, conditions, or events, if it was
             within the scope of the official's duty to
             make such statistical findings, unless the
             sources     of     information     or    other
             circumstances indicate that such statistical
             findings are not trustworthy.

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




                                           29                               A-2097-12T4
    However, like the foundational documents found not to be

testimonial in Chun, the map is wholly objective, having been

prepared by an independent firm, under the direction of the

county engineer, and adopted by the freeholders as "properly

depict[ing] the location and boundaries of the area on or within

500 feet of a public housing facility or a public park or a

public building . . . within Union County."

    We acknowledge that Confrontation Clause analysis cannot

turn on whether a defendant is able to introduce evidence to

"challenge or verify" the testimonial statement.    Melendez-Diaz,

supra, 557 U.S. at 318, 129 S. Ct. 2527, 2536, 174 L. Ed. 2d

314, 326.   However, unlike out-of-court verbal statements made

by unavailable witnesses, or laboratory analysis conducted in

the past and perhaps unable to be replicated at the time of

trial, defendant is peculiarly capable of refuting the State's

proof regarding the map, because defendant may conduct his own

measurements and introduce them at trial.

    Additionally, and we believe more importantly, the map was

produced and adopted once in the past, without regard to this,

or any other, particular defendant's trial.        A common thread

throughout the cases cited is that the documentary testimonial

statement at issue was prepared specifically to be introduced at

the defendant's future prosecution.    Compare Williams, supra,




                               30                          A-2097-12T4
___ U.S. at ___, 132 S. Ct. at 2243, 183 L. Ed. 2d at 115 (DNA

lab report prepared by non-testifying lab technician "was not

prepared       for    the    primary          purpose       of    accusing         a    targeted

individual"), with Melendez-Diaz, supra, 557 U.S. at 324, 129 S.

Ct. at 2540, 174 L. Ed. 2d at 329-30                       (lab certificate "prepared

specifically         for    use    at        petitioner's        trial"      was       "testimony

against petitioner . . . subject to confrontation under the

Sixth Amendment"); see also Crawford, supra, 541 U.S. at 51, 124

S. Ct. at 1364, 158 L. Ed. 2d at 192) (Confrontation Clause

barred     formal      statement         taken       by    police      of    non-testifying

"witness[]       against         the     accused"         (internal       quotation           marks

omitted)); and compare Simbara, supra, 175 N.J. at 49 ("[T]he

analyst    prepares        the    laboratory         certificate        at    a    prosecuting

agency's    request         for    the        sole   purpose      of    investigating           an

accused.")      (emphasis         added),       with      State   v.    Dorman,         393    N.J.

Super. 28, 33 (App. Div. 2007), aff'd sub nom., Sweet, supra,

195 N.J. at 357 (2008), cert. denied, 557 U.S. 934, 129 S. Ct.

2858,    174    L.    Ed.    2d        601    (2009)      (noting      that       Breathalyzer

"certificates of operability . . . were not created with any

specific case in mind").

    The map in this case was not prepared to prosecute this

defendant, although it likely served no purpose except to be

evidence at the prosecution of a defendant.                            In this regard, we




                                                31                                       A-2097-12T4
find it closely analogous to the foundational documents in Chun,

which    the     Court      concluded          were     not      "testimonial           in    the

constitutional       sense"       even    if     they    proved       reliability            of   a

device    "used     to    conduct        the    breath        test    for    a    particular

defendant."       Chun, supra, 194 N.J. at 144.                      A number of out-of-

state    cases     have    similarly          concluded       that    the    admission            of

documentary      hearsay     evidence          not    generated       in    relation         to    a

specific   defendant        did    not    violate       the      Confrontation          Clause.

See, e.g., State v. Fischer, 726 N.W.2d 176, 183 (Neb. 2007)

(holding a simulator solution certificate that "was prepared in

a routine manner without regard to whether the certification

related to any particular defendant" non-testimonial); State v.

Dial,     998      N.E.2d     821,        825-26         (Ohio        Ct.        App.        2013)

(distinguishing cases involving a defendant's "individual blood-

test    results"    from    documents          related      to    machine     calibration,

which are "not prepared with an eye to prosecute a specific

defendant");       Jarrell        v.     State,       852      N.E.2d       1022,       1026-27

(Ind. Ct. App. 2006) (holding breath-test-machine certifications

nontestimonial       because           "not     prepared         in     anticipation              of

litigation in any particular case or with respect to implicating

any specific defendant").

       We find these cases, together with the Court's reasoning in

Chun, to be particularly persuasive in this instance.                               The park-




                                               32                                       A-2097-12T4
zone map, although hearsay, was not testimonial in nature, and

therefore     did   not   violate     the   Confrontation   Clause.

Additionally, it was admitted in a manner that complied with our

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

            [At the court's direction, Section IV of its
            opinion, which concerns discrete issues, has
            been redacted from the published opinion
            because the issues do not meet the criteria
            set by R. 1:36-2(d) for publication.]



    The judge did not abuse the broad discretion accorded to

him in imposing sentence upon defendant, and we therefore affirm

defendant's sentence.

    Affirmed.




                                 33                         A-2097-12T4
