                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4077-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD D. GRAY, JR.,

     Defendant-Appellant.
_____________________________

                    Submitted November 9, 2018 – Decided March 20, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 15-03-0170.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Margaret R. McLane, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for respondent (David M. Galemba, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an August 22, 2016 judgment of conviction after

a jury found him guilty of second-degree possession of a handgun, N.J.S.A.

2C:39-5(b); second-degree possession of a firearm during the course of

committing a drug offense, N.J.S.A. 2C:39-4.1(a); second-degree possession of

a Controlled Dangerous Substance (CDS) analog, N.J.S.A. 2C:35-10(a)(2); and

second-degree distribution of CDS under N.J.S.A. 2C:35-10.5(a)(3). On appeal,

defendant argues the trial judge erred when he denied suppression of defendant's

statement and overruled defendant's objection to hearsay statements made by the

arresting officer.   We reject defendant's arguments concerning his own

statements, but we are constrained to reverse and remand for a new trial because

of the admission of the officer's hearsay statements.

      We discern the following facts from the record. At around 1 a.m. on

November 8, 2014, Penns Grove Police Department Patrolman Christopher

Hemple went to the One Stop Deli for a property check. Inside the store, Hemple

recognized defendant. Hemple knew there was an outstanding warrant for

defendant. He told defendant he was under arrest, and placed a handcuff on his

right hand. Hemple called for backup, a struggle ensued, and defendant ran from

police.




                                                                        A-4077-16T1
                                        2
      Hemple chased after defendant, who ran through a driveway and jumped

over a wall. Sergeant John Stranahan joined the pursuit and caught up to

defendant when he was climbing a six-foot-tall metal fence.           Stranahan

attempted to grab defendant at the top of the fence, but instead pushed defendant

to the ground. Defendant allegedly reached into the front of his pants and

dropped what Stranahan said was a gun. Stranahan drew his weapon, scaled the

fence, caught, and handcuffed defendant. Defendant denies he had a gun and

said he stopped running because he got tired, and when the officer told him to

get on the ground, he complied.

      Stranahan searched defendant and found cash, three small vials of

marijuana, and a bottle of codeine cough syrup with the label scratched off.

Stranahan turned defendant over to Hemple who placed him in the patrol car.

Stranahan went back to recover the weapon defendant allegedly dropped and

found two guns, a black handgun and a smaller silver handgun. Stranahan

secured the guns and brought them back to his patrol car. Stranahan then asked

Hemple what route defendant took during the chase, followed it back towards

his patrol car, and found a larger container of codeine cough syrup. Both guns

recovered were operable, and the guns were not registered to defendant. Neither

gun was tested for fingerprints.


                                                                         A-4077-16T1
                                       3
       Stranahan read defendant his Miranda1 rights in the patrol car on the drive

to the station. While in the vehicle, Stranahan questioned defendant about the

guns and the cough syrup and defendant admitted he possessed the cough syrup

found on him. He denied knowledge of the guns and the larger bottle of cough

syrup. The police Mobile Video Recorders (MVR) recorded conversations

between Stranahan and the other officers prior to the interrogation, as well as

the interrogation of defendant.

       Defendant was charged in an indictment with two counts of second-degree

unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); second-degree

possession of a firearm during certain drug offenses, N.J.S.A. 2C:39-4.1(a); two

counts of second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4(a); fourth-degree possession of a large capacity magazine,

N.J.S.A. 2C:39-3(j); fourth-degree possession of a Schedule V controlled

dangerous substance (codeine/promethazine), N.J.S.A. 2C:35-10(a)(2); second-

degree possession of more than 100 dosage units of a prescription drug with

intent to distribute, N.J.S.A. 2C:35-10.5(a)(4); third-degree possession of

codeine/promethazine with intent to distribute within 1000 feet of a school,

N.J.S.A. 2C:35-7(a); fourth-degree tampering, N.J.S.A. 2C:28-6(1); third-


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-4077-16T1
                                        4
degree resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree aggravated assault

on a law enforcement official, N.J.S.A. 2C:12-1(b)(5)(a).

      Defendant moved to suppress the statements he made in the police car and

also argued the jury should not be permitted to hear Stranahan's conversations

with the other officers because the conversations were not relevant and would

impermissibly bolster Stranahan's testimony at trial. On June 2, 2016, the first

day of trial, the court conducted a hearing to determine the admissibility of

statements from the MVR. The trial judge determined defendant knowingly and

voluntarily waived his rights, and found that the police officers ' statements

preceding defendant's statement were admissible because they were relevant.

      The case was tried before a jury between June 2 and 9, 2016. Portions of

the MVR were played to the jury and a transcript with some redactions was

provided to the jury.    At the close of the State's case, the court granted

defendant's motion to dismiss the charges of fourth-degree possession of a large

capacity magazine, N.J.S.A. 2C:39-3(j), and third-degree possession of

codeine/promethazine with intent to distribute within 1000 feet of a school,

N.J.S.A. 2C:35-7(a).    The jury found defendant guilty of a lesser-included

assault charge and convicted him of all remaining counts.




                                                                         A-4077-16T1
                                       5
      After trial, on August 18, 2016, the court dismissed defendant's conviction

for possession of a firearm during the course of committing a drug offense. The

trial judge sentenced defendant to five years with forty-two months of parole

ineligibility on the gun charges. On the aggravated assault on a law enforcement

officer charge, the judge sentenced defendant to 180 days in jail as a condition

of one year of probation, with probation to terminate upon completion of the

180 days, to run consecutively to the sentence on the gun charges.         After

appropriate mergers, the court sentenced defendant to fines and fees on all the

remaining charges.

      This appeal followed. Defendant raises the following arguments.

            POINT I

            DEFENDANT'S   STATEMENT      MUST    BE
            SUPPRESSED BECAUSE THERE IS NO EVIDENCE
            THAT HE WAIVED HIS MIRANDA RIGHTS.

            POINT II

            THE TRIAL COURT ERRED IN ADMITTING THE
            POLICE OFFICERS' RECORDED OUT-OF-COURT
            STATEMENTS     BECAUSE    THEY    WERE
            INADMISSIBLE HEARSAY.

            POINT III

            THE COURT ERRED IN ADMITTING EVIDENCE
            THAT DEFENDANT POSSESSED MARIJUANA


                                                                         A-4077-16T1
                                       6
            WITHOUT AN N.J.R.E. 404(b) ANALYSIS OR ANY
            LIMITING INSTRUCTION. (Not Raised Below)

            POINT IV

            A JUDGMENT OF ACQUITTAL MUST BE
            ENTERED ON THE TWO TAMPERING COUNTS
            BECAUSE THE STATE ONLY PROVED THAT
            DEFENDANT DROPPED THE GUNS AND DRUGS
            DURING A POLICE CHASE. (Not Raised Below)

            POINT V

            THE TWO CONVICTIONS FOR POSSESSION OF A
            PRESCRIPTION DRUG WITH INTENT TO
            DISTRIBUTE MUST MERGE.

                                        I.

      Addressing defendant's arguments in turn, we note the appropriate

standard of review for each issue. We defer to a trial court's factual findings on

a Miranda motion if supported by sufficient credible evidence. State v. Hreha,

217 N.J. 368, 381-82 (2014). The trial court's legal conclusions are reviewed

de novo. State v. Rockford, 213 N.J. 424, 440 (2013). We apply a "deferential

standard for reviewing a trial court's evidentiary rulings." State v. Perry, 225

N.J. 222, 233 (2016). We will uphold the judge's ruling "'absent a showing of

an abuse of discretion, i.e., there has been a clear error of judgment.'" State v.

Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)). We do not substitute our own judgment unless "the trial court's ruling

                                                                          A-4077-16T1
                                        7
'was so wide of the mark that a manifest denial of justice resulted.'" Marrero,

148 N.J. at 484 (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

      Defendant argues the statements he made in the police car should have

been suppressed because there was no evidence that he waived his Miranda

rights. Stranahan read defendant his Miranda rights and seconds later began to

talk to defendant without obtaining an express written or oral waiver of

defendant's rights. Defendant argues even if the police read him his Miranda

rights, there must be a knowing, intelligent and voluntary waiver. See Fare v.

Michael C., 442 U.S. 707, 724 (1979). The prosecution bears the burden of

showing a defendant's waiver was knowing, intelligent, and voluntary beyond a

reasonable doubt. State v. Presha, 163 N.J. 304, 311 (2000).

      Here, the court reviewed the MVR and concluded under the totality of

circumstances the State established a valid waiver of defendant's Miranda rights.

We agree.

      Miranda rights exist to combat the inherent and compelling pressures

present in custodial interrogation, "which work to undermine the individual's

will to resist and to compel him to speak where he would not otherwise do so

freely." Miranda, 384 U.S. at 467. Even if the officer reads a defendant his or

her Miranda rights, the waiver of those rights are invalid if the defendant did not


                                                                           A-4077-16T1
                                        8
waive them knowingly, intelligently, and voluntarily. Fare, 442 U.S. at 724. A

reviewing court must consider the totality of circumstances surrounding the

interrogation to determine if there was "a full awareness of both the nature of

the right being abandoned and the consequences of the decision to abandon it."

Moran v. Burbine, 475 U.S. 412, 421 (1986). Here, the trial judge considered

"both the characteristics of the particular defendant and the pressure brought to

bear on him," State v. Puchalski, 45 N.J. 97, 101 (1965), and whether the State

proved defendant's waiver of his rights was knowing, intelligent, and voluntary

beyond a reasonable doubt. State v. Oresga, 163 N.J. 304, 313 (2000).

      In Berghuis v. Tompkins, 560 U.S. 370, 384 (2010), the Supreme Court

of the United States clarified an uncoerced statement alone is insufficient to

demonstrate a waiver of Miranda, and "[t]he prosecution must make the

additional showing that the accused understood these rights." Our Supreme

Court in Presha outlined the conditions surrounding the interrogation the court

must consider to determine if there was a valid Miranda waiver. 163 N.J. at 313.

      Under Presha, the factors considered are (1) the defendant's "'age,

education and intelligence'"; (2) the advice given about his or her constitutional

rights; (3) the "'length of the detention'"; (4) "'whether the questioning was

repeated or prolonged'"; and (5) "'whether physical punishment or mental


                                                                          A-4077-16T1
                                        9
exhaustion was involved.'" Ibid. (quoting State v. Miller, 76 N.J. 392, 402

(1978)).

      Here, the trial judge reviewed the recordings showing Stranahan's

interactions with defendant and noted defendant immediately responded to

Stranahan. Defendant was facing Stranahan during the reading of his rights.

Roughly ten seconds passed before Stranahan began speaking to him. The

record shows no attempt by defendant to invoke his right to remain silent, nor

was there evidence of coercion or any lack of understanding on defendant's part.

The judge noted defendant's age and that he denied the guns were his, but

admitted the CDS was his. Considering the totality of the circumstances and

support in the record for the court's findings, we discern no abuse of the court's

discretion in denying defendant's Miranda motion and allowing the portion of

the MVR showing defendant's statement to be shown to the jury.

                                       II.

      Defendant next argues the court erred by permitting the State to play

earlier portions of the MVR from Stranahan's patrol car, which included

conversations Stranahan had with other officers that occurred before he

administered defendant's Miranda rights.        The video and audio captures

Stranahan, Hemple and an unknown officer discussing what happened at the deli


                                                                          A-4077-16T1
                                       10
and during the chase.       Defendant argued the officers' statements were

inadmissible because they were irrelevant, serving no purpose other than to

bolster the officers' trial testimony in violation of Rule 607.2 The State argued

the statements were admissible as present sense impressions not offered for their

truth under Rule 803(c)(1). The trial court admitted the statements as relevant,

not unduly prejudicial, and subject to cross-examination because both Hemple

and Stranahan would testify. The trial judge found the video was relevant as it

showed what occurred during the event, the location, and the officers' actions.

The judge noted defendant made no argument the subject portions of the MVR

were prejudicial, but only argued lack of relevance. The court did not address

defendant's Rule 607 argument. The judge determined the MVR was admissible

under Rule 403 as relevant because it "shows what's happening with the officers,

it shows the area of the scene, it shows what the officers did. All of that is

relevant to what happened on this day in question." The judge made no ruling

on whether the MVR's relevance was substantially outweighed by the risk of

undue prejudice. The judge did not address the issue of whether admission of



2
  Rule 607 in pertinent part states, "[a] prior consistent statement shall not be
admitted to support the credibility of a witness except to rebut an express or
implied charge against the witness of recent fabrication or of improper influence
or motive and except as otherwise provided by the law of evidence."
                                                                         A-4077-16T1
                                      11
Stranahan's commentary with other officers, some unknown, violated Rule 607.

The judge accepted the State's argument the comments were present sense

impressions and Stranahan was available to testify. The judge faulted defense

counsel for not previously trying to identify an unknown officer in Stranahan's

conversation and focused on the fact the case was ready to be tried after some

delays. The judge stated:

            So for all of those reasons I find that the MVR is
            relevant. I don't find the lack of ability to cross
            examine Sergeant Stranahan to even exist. I don't find
            the defense's argument to be persuasive with regards to
            the identified male because the defense didn't seek to
            identify that male in any fashion. There may be
            information that Sergeant Stranahan says in this
            transcript that could be prejudicial. I don't know. I can
            only answer and respond to arguments made by the
            defense. It's not my job to try to figure out which may
            be prejudicial. And at no time has Mr. Thompson said
            I don't want . . . I believe the statement by Sergeant
            Stranahan should be redacted because it's prejudicial.
            And the reason I raise this is I don't know how far to
            push the issue. I was listening to just a portion of the
            tape I listened to and I know at one point Sergeant
            Stranahan says, you know, you're going to jail for a
            long time for this. Well, is that something that the jury
            should hear? Perhaps not, but that hasn't been raised as
            an issue and I'm - - quite frankly I'm a bit concerned
            that there may be other statements made by Sergeant
            Stranahan similar to this that may be prejudicial to this
            defendant, none of which has been raised by Mr.
            Thompson. So I just can't predict what's in here. This
            is the defense's obligation, so . . . .


                                                                        A-4077-16T1
                                      12
      Based on our review of the record, we conclude the court did not complete

the analysis required under Rule 403 requiring it to weigh relevance and

prejudice and did not address defendant's Rule 607 objection. In the MVR,

Hemple can be heard telling other officers he tried to arrest defendant, defendant

punched him, and ran out of the deli. Stranahan described, while running after

defendant, that defendant kept reaching into his pants, as if he was trying to get

rid of something.      Stranahan and Hemple also discussed with another

unidentified officer that defendant had guns and was going to be charged with

drug possession and assaulting an officer. During one exchange, Stranahan

stated to an unknown officer "[defendant] is a dealer."       We note the State

redacted minimal portions of the transcript of the MVR, however, the unredacted

conversations between the police officers in the MVR are inadmissible hearsay

under Rule 801(c).     They are not present sense impressions, under Rule

803(c)(1), requiring "a very brief time between the observation and the

statement." State ex rel. J.A., 195 N.J. 324, 338 (2008). The conversation

between the officers discussed the events in the deli and the chase after both

were already over, thus their statements were not present sense impressions.




                                                                          A-4077-16T1
                                       13
        Moreover, the State never offered a non-truth purpose for the statements,

and the jury was never told these statements were not admissible for their truth. 3

No limiting instruction was offered with the video or transcript.

        The judge made no ruling on whether the MVR's relevance was

substantially outweighed by the risk of undue prejudice. The judge did not

address the issue of whether admission of Stranahan's commentary with other

officers, some unknown, violated Rule 607. Prior consistent statements are not

admissible to bolster a witness's testimony or credibility. N.J.R.E. 607; N.J.R.E.

803(a)(2); Neno v. Clinton, 167 N.J. 573, 580 (2001).

        "The mere possibility that evidence could be prejudicial does not justify

its exclusion."    State v. Morton, 155 N.J. 383, 453-54 (1998).           Indeed,

"[d]amaging evidence usually is very prejudicial, but the real question is

whether the risk of undue prejudice is too high." State v. Swint, 328 N.J. Super.

236, 253 (App. Div. 2000). Here, we agree with defendant, the risk was too

high.    The court's omission of any discussion regarding the risk of undue

prejudice constituted an abuse of discretion and allowing the jury to hear the



3
  We also note the error was not in showing the video; the video itself is not
hearsay. The hearsay was the audio and the accompanying transcript of the
officers' conversations.


                                                                           A-4077-16T1
                                       14
officers' hearsay statements had the capacity to lead to an unjust result. We

reverse for a new trial on the remaining counts.

      With regard to the remaining counts, we note the following. The State

concedes defendant's convictions on the two counts of fourth-degree tampering

with evidence must be vacated. Thus, defendant's convictions for tampering are

vacated. Because defendant is subject to a new trial, we need not address his

remaining arguments.

      Reversed and remanded for a new trial.




                                                                      A-4077-16T1
                                      15
