                                NOT FOR PUBLICATION WITHOUT THE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-1018-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

THADDEUS T. REEVEY,

     Defendant-Appellant.
___________________________

                    Argued March 5, 2019 – Decided March 25, 2019

                    Before Judges Fisher, Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 12-09-
                    1583.

                    James K. Smith, Jr., Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; James K. Smith, Jr., of
                    counsel and on the brief).

                    Maura K. Tully, Assistant Prosecutor, argued the cause
                    for respondent (Christopher J. Gramiccioni, Monmouth
                    County Prosecutor, attorney; Monica do Outeiro,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

       At the conclusion of a trial in February and March 2016, a jury found

defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1), and second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

At sentencing, the trial judge imposed a forty-five-year NERA1 prison term on

the murder conviction, and a concurrent six-year prison term, with a forty-two-

month period of parole ineligibility, on the weapon conviction. In appealing,

defendant argues the trial judge erred: (1) by allowing a prosecution witness to

narrate a surveillance video; and (2) by failing to instruct the jury that it could

draw a negative inference because police did not record earlier statements made

by a witness. Finding no merit in these arguments, we affirm.

       The jury heard evidence that, on November 8, 2011, Aaron Bray was

living in an apartment in Asbury Park Village with his grandmother. After

coming home from work, he received a phone call from Eric Freeman, a

childhood friend. Eric later arrived at Aaron's apartment, and they both stood

outside and talked.

       Aaron's grandmother, who also lived in the apartment, eventually came

outside and told Aaron to go vote, as it was Election Day. Aaron entered the


1
    No Early Release Act. N.J.S.A. 2C:43-7.2.
                                                                           A-1018-16T1
                                        2
apartment to retrieve a sweatshirt.         When he returned, Aaron told his

grandmother to leave without him. Aaron and Eric walked toward the polling

place, and Aaron's grandmother got into her car, along with Aaron's aunt. It was

about 6:15 p.m., and the neighborhood was quiet.

      When Aaron and Eric reached the corner, they heard noise from the other

side of the street. As they turned and began to walk back toward Aaron's

apartment, Aaron looked back over his shoulder and saw two men. One was

about six feet tall, heavyset, and wearing a black jacket. He was African-

American, and had long braids tied up in a bun and facial hair. The other was

wearing a gray hooded sweatshirt.           Aaron and Eric continued walking,

remaining close to each other.

      The man in the black jacket turned to his companion, who whispered

something as they continued to walk toward Aaron and Eric. The black-jacketed

man then pulled out a gun, pointed it at Eric and fired from approximately four

feet away. With that, everyone ran. Eric ran to his cousin's residence; Aaron,

seeing his grandmother's car, ran to it and got in the back.

      When he got in, Aaron was crying.          Aaron's grandmother continued

driving, proceeding to the polling place. She and his aunt left him there, and

Aaron's aunt called 9-1-1.


                                                                        A-1018-16T1
                                        3
      Police soon arrived to the scene and heard a male voice say, "Are you

shot?" Following the direction of that voice, officers saw an open door and, on

approaching, saw Eric lying face-first on the apartment's bottom steps. They

also observed blood drops on the sidewalk leading to where Eric was lying and

where two men were trying to help Eric. The officers noticed Eric had gone

limp, and had blood and mucus dripping from his mouth. They checked but

found no pulse.

      Paramedics arrived before long. They removed Eric's sweatshirt and t-

shirt, revealing to the officers what appeared to be a small bullet hole entry on

the right side of Eric's chest, and two other bullet hole entries near his neck. An

ambulance took Eric to a nearby hospital where he was pronounced dead.

      At the scene, officers found three shell casings. They also recovered

surveillance footage of the area. No weapon was found.

      The officers watched the video at the apartment complex's "control

center." Although the footage did not capture the shooting itself, it captured

Eric and Aaron walking, followed by two other individuals, one of whom was

wearing a black jacket and the other a gray hooded sweatshirt. From one angle,

the footage showed that the latter stopped and stayed in view while the black-

jacketed man proceeded in Eric and Aaron's direction. While the black-jacketed


                                                                           A-1018-16T1
                                        4
man was out of view, the other could be seen turning around quickly and running

in the opposite direction of where Eric and Aaron were. Although he never

reenters the frame, the black-jacketed man's shadow can be seen turning and

running in the same direction as his companion in gray. From another angle,

Aaron's grandmother's vehicle is seen stopping and letting Aaron into the back

seat.

        After watching this footage, officers attempted to locate Aaron and

learned he went to his girlfriend's house in Farmingdale. They found him there;

he was "distraught." They spoke briefly and Aaron agreed to accompany them

to the station.

        At the station, officers questioned Aaron but found the going "very tough"

because Aaron was crying profusely and it was difficult to understand what he

was saying. Nonetheless, officers were able to get some information from Aaron

regarding the suspect, and they were able to confirm Aaron's willingness to

cooperate. But, because of Aaron's state of mind, the officers did not then take

a formal statement from him.

        The next day, officers contacted Aaron again and brought him back to the

station. Aaron was "still obviously distraught," but he appeared to be thinking




                                                                          A-1018-16T1
                                         5
more clearly and was able to speak. Officers interviewed him and took a formal

statement.

      In his recorded statement, Aaron claimed he would be able to identify the

shooter, and officers showed him a series of six photographs of potential

suspects. Of the six, Aaron selected photograph number three – defendant – as

the shooter.

      Based on this and other evidence, defendant was convicted of first-degree

murder and unlawful possession of a weapon. In appealing, defendant argues

he was denied a fair trial because:

               I. [A DETECTIVE] WAS ALLOWED TO NARRATE
               A SURVEILLANCE VIDEO WHICH HAD NEVER
               BEEN PROPERLY AUTHENTICATED, AND
               ABOUT WHICH HE HAD NO PERSONAL
               KNOWLEDGE (Not Raised Below).

               II. THE TRIAL COURT FAIL[ED] TO INSTRUCT
               THE JURORS THAT THEY COULD DRAW A
               NEGATIVE INFERENCE FROM THE POLICE
               OFFICERS' FAILURE TO RECORD THE FIRST
               THREE ORAL STATEMENTS OF AARON BRAY,
               THE STATE'S MAIN WITNESS (Not Raised Below).

We find no merit in these arguments.

                                       I

      In his first point, defendant argues the trial judge erred in permitting

Detective Michael Magliozzo to narrate the surveillance footage for the jury.

                                                                       A-1018-16T1
                                       6
He argues this was improper because the footage was not authenticated and

because the detective had no personal knowledge of the events depicted.

      At trial, prior to playing the video, the State elicited testimony from

Detective Magliozzo that hours after the incident, he became aware there was

surveillance footage of the scene. He viewed the footage that was downloaded

from the surveillance cameras at the apartment complex's "control center,"

which the detective described as a "big closet" in the back of the laundry room

area "where they keep the monitoring system, the hard drive and the computer

screens."

      At trial, the detective testified that the video accurately captured the area

and he was able to identify the location of the video cameras by referencing

photographs shown to him during his testimony.           Without objection, the

prosecution played the video for the jury. As it played, the detective described

– without objection – what appeared onscreen.

      A videotape "qualifies as a writing[]" under N.J.R.E. 801(e) and must be

"properly authenticated" before being admitted. See State v. Wilson, 135 N.J.

4, 17 (1994). Under N.J.R.E. 901, "[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter is what its proponent claims." The


                                                                           A-1018-16T1
                                        7
authentication rule "does not require absolute certainty or conclusive proof."

State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999). "The proponent of

the evidence is only required to make a prima facie showing of authenticity."

Ibid. (citations omitted). "Once a prima facie showing is made, the [item] is

admissible, and the ultimate question of authenticity of the evidence is left to

the jury." Ibid. (citations omitted).

      Authentication of a videotape is similar to authentication of a photograph.

State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996). "[T]estimony must

establish that the videotape is an accurate reproduction of that which it purports

to represent and the reproduction is of the scene [when] the incident took place."

Ibid. (citing Wilson, 135 N.J. at 15). The photographer or videographer need

not testify "because the ultimate object of an authentication is to establish its

accuracy or correctness." Wilson, 135 N.J. at 14. Thus, "any person with the

requisite knowledge of the facts represented in the photograph or videotape may

authenticate it." Ibid.

      Because defendant did not object, we review his argument under the plain-

error standard. R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012).

To warrant reversal, the error must be "clearly capable of producing an unjust




                                                                          A-1018-16T1
                                        8
result." R. 2:10-2. In applying this standard, we find no reversible error. In

fact, we find no error at all.

      The detective sufficiently authenticated the video during his testimony:

             Q: Now, based upon your viewing it that night and
             viewing it after the fact, did it adequately or did it
             reflect what that, those areas looked like on that night?

             A: Yes.

             Q: Does it adequately, you know, to some extent show
             the lighting conditions and things like that?

             A: Yes.

Defendant claims the detective's testimony was insufficient because he did not

personally observe what was captured. That argument has no merit. It was

unnecessary for the detective to be present at the scene at the time of the shooting

for him to confirm what was depicted. "[S]o long as the witness can verify that

the [video] accurately represents its subject," the witness need not have been

present at the time the video was taken. Wilson, 135 N.J. at 14.

      Even if we were to assume this authenticating testimony was insufficient,

defendant deprived the prosecution the opportunity to offer other evidence that

would have sufficed by failing to object. For example, Aaron and his aunt

testified about the scene of the crime and the unfolding events. Although they

were not shown the surveillance video, they were shown and identified several

                                                                            A-1018-16T1
                                         9
pictures of the neighborhood and the crime scene. Had defendant objected to

the detective's authentication testimony or argued the testimony was

insufficient, the prosecution could have provided whatever might have been

missing by calling those other witnesses to testify. Moreover, the testimony of

Aaron and his aunt, aided by photographs, provided further substantiation of the

video's authenticity.

      We also reject the contention that the detective improperly narrated th e

video footage. His testimony did not reach beyond what was provided by other

evidence, adduced from witnesses with personal knowledge, or beyond what

anyone else might observe while viewing the footage; for example:

            Q: And are they out of the frame?

            A: Yes, they are.

            Q: Are [their] shadows still there?

            A: Their shadow is still there. This would be Eric
            Freeman's right here and this would [be] Aaron Bray's.
            Now, both their shadows have been removed from
            camera angle. Coming into picture is two individuals;
            one wearing dark clothing and then a second individual
            wearing a gray hoody.

            The individual with the gray hoody is going to stay at
            the intersection while the individual with the black
            jacket is going, crossed through the intersection. He is
            now proceeding south on Sylvan Way in the direction
            of Aaron Bray and Eric Freeman.

                                                                        A-1018-16T1
                                      10
            Q: This portion of the footage, could you determine
            any characteristics of the person in the black jacket's
            hairstyle?

            A: Yes. It appears that his hair is pulled back into
            either like a ponytail or a bun.

      The detective then described, while the video was playing, the movements

of the man wearing the black jacket and the man wearing the gray hooded

sweatshirt, but he did not opine or suggest their identity. He also did not

comment on the shooting itself, which was not captured on the video. And it

bears repeating that at no point during the detective's testimony did defendant

object.

      We find no error in the admission of the detective's testimony about what

was depicted in the video. Although he did not observe the events as they

unfolded, his testimony about the video was permissible because he did not

purport to provide an eyewitness account of the shooting. Rather, his testimony

was relevant to aid the jury in its understanding of what was depicted, as to

which he was familiar from his investigation of the area. See People v. Brown,

82 N.E.3d 148, 167 (Ill. App. Ct. 2017) (finding detective's narration

appropriate, even though he was not present at the live event, because he was

not providing an eyewitness account, but was describing the scenes shown in


                                                                       A-1018-16T1
                                     11
the recording); People v. Hardy, 981 N.Y.S.2d 722, 723 (N.Y. App. Div. 2014)

(recognizing that "[e]ven when the witnesses described events depicted on the

videotapes that they had not observed, they were still generally testifying about

matters within their knowledge, and nothing in their testimony deprived

defendant of a fair trial").

      In his brief, defendant categorizes the detective's testimony as "lay

opinion testimony"; we disagree. The detective did not opine about the identity

of the unnamed individuals that appeared in the video, nor did he opine about

how the shooting occurred. 2 He simply described what was visible onscreen,

which was permissible because his testimony was based on his perceptions of

the video and his familiarity with the area.



2
   Defendant heavily relies on State v. Lazo, 209 N.J. 9 (2012) in this regard.
We are not persuaded. Lazo – which concerned a police officer's testimony
about how and why he assembled a photo array, id. at 12 – was problematic
because the officer had no personal knowledge of the crime committed yet he
"told the jury that he believed [Lazo] closely resembled a composite sketch of
the assailant and therefore included a photo of [Lazo] in the array." Ibid. The
Court found that the officer's testimony should not have been admitted because
"an officer's reasons for placing a particular photo in an array are irrelevant and
prejudicial." Id. at 12-13. Defendant's comparison of Lazo with this situation
is mistaken. Unlike the officer in Lazo, the detective made no attempt to identify
defendant. He also did not speculate about the shooting. He only described
what he saw onscreen, and because jurors were also shown the footage, there
was no attempt to add more to an understanding of the video than what appeared
onscreen.
                                                                           A-1018-16T1
                                       12
      We also reject defendant's contention that the detective's statements

regarding "the shadow" that appears in the video were "nothing more than [the

detective's] opinion," which served to "corroborate [Aaron's] testimony that the

man in the black jacket had been the shooter, and that he had run from the scene

immediately after the crime." But the testimony about the shadow was based on

a perception of what the video revealed, which the jury was simultaneously able

to view and judge for itself.

      Defendant also argues introduction of the video "prejudiced" him because

it did not show "the actual shooting and the presence of a firearm." The video's

failure to capture the actual shooting, however, benefitted defendant, as he was

free to argue that the very absence of that part of the incident suggested a

reasonable doubt about what occurred. He also claims "the prosecution used

[the detective's] testimony . . . to bolster Aaron Bray's credibility." But the

detective never opined that Aaron was telling the truth; he simply pointed out

where the video proved consistent with what Aaron had told him:

            Q: . . . you described the individual with the gray
            hooded sweatshirt who was with the individual with the
            black jacket. Correct?

            A: Yes.

            Q: And fair to say the person stays back. Correct?


                                                                        A-1018-16T1
                                      13
               A: That's correct.

               Q: Is it consistent with what [Aaron Bray] ultimately
               told you?

               A: Yes.

This testimony offers no commentary on Aaron's credibility.

         Defendant lastly argues that he was prejudiced by the way in which the

video was presented because "it basically allowed the prosecution to give a mid-

trial summation of what it believed had occurred during the course of this

incident." But, again, the detective never opined about the shooting itself. He

did not say any depicted individual was defendant; he did not say that the

individual in the footage was carrying a weapon; and he did not say that the

individual wearing the black jacket shot Eric. He never usurped the jury's fact-

finding function in testifying about the video. We find no error, let alone plain

error.

                                         II

         In his second and last point, defendant argues he was denied a fair trial

because the judge failed "to instruct the jurors that they could draw a negative

inference from the police officers' failure to record the first three oral statements

of Aaron Bray." This argument lacks merit.



                                                                             A-1018-16T1
                                        14
      At trial, the detective explained that he did not record his earlier

discussion with Aaron at his girlfriend's house because Aaron was distraught

and crying. Later, at the police station, Aaron's statements weren't recorded for

the same reason. As the detective testified:

            Q: Now, had his mindset or his demeanor, had it
            changed at all once you got to the office?

            A: Not really. Not really. It's like he was still in shock
            is I guess a good word for it. Asking him questions, it
            was very tough. By no means did I not think he was
            holding back or is not trying to cooperate; it's just he
            had so much raw emotion going on at that time that – I
            mean crying profusely, really to the point it was at times
            hard to understand exactly what he was saying.

            He had just witnessed his best friend get killed in front
            of him. And for other reasons. And he just – he
            cooperated with us. He, for lack of a better word, his
            head just was not straight. But I got information from
            him that, A, I knew kind of who we were looking for,
            along with the fact of he was going to cooperate, which
            is the most important.

      Following this interview, Aaron returned to his girlfriend's house. The

next day, officers contacted Aaron a second time. He returned to the station

where another interview was conducted, and then a formal statement recorded.

As the detective testified:

            Q: At this point in time had his demeanor changed at
            all?


                                                                         A-1018-16T1
                                       15
               A: He was still obviously distraught, but he, for lack of
               a better phrase, had a clearer head that he could speak
               better, and it was obviously easier to take a formal
               statement from him at that point.

                     ....

               Q: Now, did you interview [Aaron] about the incident
               prior to taking a formal statement?

               A: Around noon, yes, we did.

               Q: And what is the purpose of interviewing a person?

               A: Well, in this case, A, you want to know exactly what
               he's talking about. But for me I wanted to see if his
               story was going to change at all from the night before.
               Not that I think he would lie or anything, I just wanted
               to see that, considering what he had just witnessed the
               day before, and now that him having a couple more
               hours to let it all soak in to see if anything changed, and
               nothing did.

In his statement, Aaron described the shooter, and identified defendant

following the administration of a photographic lineup.

       During cross-examination, defense counsel emphasized that the

detective's first interactions with Aaron were not recorded "in any manner." But,

defense    counsel     never    requested      an   adverse   inference      instruction.

Notwithstanding, he now argues an adverse inference charge was warranted. We

reject this.



                                                                                 A-1018-16T1
                                          16
      Defendant has not – and cannot – show that the police were required to

record all their discussions with Aaron. The cases upon which defendant relies

– State v. Cook, 179 N.J. 533 (2004), State v. W.B., 205 N.J. 588 (2011), and

State v. Dabas, 215 N.J. 114 (2013) – do not so hold.

      In Cook, the defendant was interrogated multiple times by investigators

who did not electronically record the questioning and then destroyed their notes.

179 N.J. at 542-46.     The Court noted its disapproval of this practice and

established a "committee to study and make recommendations on the use of

electronic recordation of custodial interrogations." Id. at 562. Later, the Court

adopted Rule 3:17, which requires the electronic recordation of custodial

interrogations in cases involving serious offenses.

      The Court expanded on this in W.B., 205 N.J. at 608, holding that the

State must preserve, for later disclosure, the pre-indictment writings and notes

of a police officer under the prosecutor's supervision. The Court explained that

once "a case is referred to the prosecutor following arrest by a police officer as

the initial process, or on a complaint by a police officer, local law enforcement

[becomes] part of the prosecutor's office for discovery purposes."           Ibid.

(citations omitted). Upon indictment, those notes are discoverable as reports "in

the possession, custody and control of the prosecutor." Ibid. (citing R. 3:13-3).


                                                                          A-1018-16T1
                                       17
        The Court also held that, prospectively, if such notes "are lost or destroyed

before trial, a defendant, upon request, may be entitled to an adverse inference

charge molded, after conference with counsel, to the facts of the case." Id. at

608-09. As the defendant in W.B. neither requested an adverse inference charge,

nor timely raised the issue before moving for a new trial, the Court declined to

hold the charge was required. Id. at 609. And the Court noted that an adverse

inference charge may be "unnecessary where enough evidence is presented to

make [the] out-of-court statement trustworthy" without the notes. Id. at 609

n.10.

        Unlike W.B., the Court found warranted an adverse inference charge in

Dabas, 215 N.J. at 119, 123-24, where an investigator conducted an unrecorded

pre-interview of the defendant, during which he took handwritten notes. The

pre-interview was then followed by a recorded interrogation, which consisted of

short answers to leading questions. Id. at 123-24. A year after the issuance of

the indictment, the investigator destroyed his pre-interview notes upon

preparation of his written report.        Id. at 123.    The Court held that the

investigator's notes were discoverable material under Rule 3:13-3(c), and the

prosecutor violated the rule by failing to retain the notes. Id. at 133-35. The

Court also determined that the trial judge erred by denying a defense request for


                                                                             A-1018-16T1
                                         18
an adverse inference charge, noting that "[b]alancing the scales" in such an

instance required an adverse inference charge consisting of instructions that: (1)

"the State had a duty to produce the pre-interview notes to the defense following

the return of the indictment"; (2) "[b]ecause the State made the notes

unavailable, . . . the jury . . . was permitted to draw an inference that the contents

of the notes were unfavorable to the State"; and (3) "[w]hether to draw such an

inference falls within the jury's discretion, after it gives full consideration to the

nature of the discovery violation, the explanation given by the State for the

violation, and any other relevant factors that would bear on the issue." Id. at

141.

       Here, defendant did not object and his arguments must be assessed via the

plain error standard of review. R. 2:10-2. See State v. Torres, 183 N.J. 554,

564 (2005). When a defendant does not object to a charge at the time it is given,

"there is a presumption that the charge was not error and was unlikely to

prejudice the defendant's case." Singleton, 211 N.J. at 182 (citing State v.

Macon, 57 N.J. 325, 333-34 (1971)). See also State v. Adams, 194 N.J. 186,

206-07 (2008).

       The officers here were not required to record every conversation with

Aaron because Aaron was not a suspect; he was witness. Rule 3:17 requires


                                                                              A-1018-16T1
                                         19
electronic recordation of "all custodial interrogations" if the person is suspected

of having committed one of the enumerated crimes contained in the Rule and is

ultimately charged with one of those crimes. Law enforcement authorities,

however, "need not record the interrogation if at the time 'the accused is not a

suspect for the crime to which that statement relates.'" State v. Anthony, 443

N.J. Super. 553, 571 (App. Div.), certif. denied, 224 N.J. 529 (2016) (citing R.

3:17(b)(vi)).

      In short, the recordation requirements that apply to suspects do not

similarly apply to witnesses.3 In W.B., the Court specifically acknowledged that

"[o]ur criminal discovery rules do not currently require the recordation of all

statements of witnesses obtained by law enforcement officers." 205 N.J. at 608.

Our rules provide only for discovery of all statements whether signed or

unsigned, of witnesses as well as police reports that are "in the possession,

custody or control of the prosecutor."        R. 3:13-3(b)(1)(E),(G),(H).      "[A]

prosecutor is not obligated to create tangible items of evidence; he is only

required to turn over items 'within the possession, custody or control of the



3
  Police do have a duty, however, to record details of out-of-court identification
procedures that result in positive identifications and non-identifications as well
as near misses and hits. State v. Delgado, 188 N.J. 48, 58-64 (2006); R. 3:13-
3(b)(1)(J).
                                                                            A-1018-16T1
                                       20
prosecuting attorney.'" State v. Gordon, 261 N.J. Super. 462, 465 (App. Div.

1993). Cook, W.B., and Dabas deal with the loss or destruction of existing

evidence, and thus, are not applicable because there is no evidence to suggest

the officers destroyed anything.

      Affirmed.




                                                                      A-1018-16T1
                                     21
