                        NOT FOR PUBLICATION WITHOUT THE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-3238-17T3



STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

CHRISTOPHER G. ORSINI,

     Defendant-Respondent.
_______________________________

              Submitted May 21, 2018 - Decided August 24, 2018

              Before Judges Messano and Accurso.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              17-07-0488.

              Esther Suarez, Hudson County Prosecutor,
              attorney for appellant (Erin M. Campbell,
              Assistant Prosecutor, on the brief).

              Condon & Theurer, attorneys for respondent
              (Kathleen M. Theurer, on the brief).

PER CURIAM

        The State appeals on our leave from a March 12, 2018 order

denying its motion to admit the recording of a 911 call and a
March 14 order granting defendant's motion to suppress a citizen

video capturing a car theft.    We reverse.

    The essential facts are easily summarized.      On a May

morning last year, a teenager left her father's red Ford Focus

running outside their home in Jersey City while she ran inside

to retrieve something she had forgotten.      When she emerged

moments later, she saw the car being driven down the street with

her house keys, clothing and wallet inside.      The theft was

captured on their neighbor's security camera, although the image

is not sharp enough to identify the thief.      The next day, a

woman made a panicky 911 call claiming she was following a man

in a red Ford Focus, who had just punched her and stolen her

wallet.

    Defendant was apprehended shortly after the 911 call in the

vicinity of where police located the car, about ten blocks from

where the victim reported the robbery.     He was identified in a

show-up by the 911 caller.     She claimed he was the man who

reached into her car, punched her and stole her wallet while she

waited for her daughter's school to let out, and then drove off

in the red Ford Focus with her in pursuit.      Defendant was

indicted on one count of third-degree receiving stolen property,

the Ford Focus, and one count of second-degree robbery.



                                  2                             A-3238-17T3
      Following a Driver1 hearing, the court ruled both the video

and the tape of the 911 call inadmissible.   The court deemed the

911 call testimonial, finding the statements made by the caller

"were not made in the course of an ongoing emergency" and that

she never "requested any assistance to resolve an ongoing

emergency."   The court rejected the State's assertion that the

call was admissible as a present sense impression under N.J.R.E.

803(c)(1), relying on State ex rel. J.A., 195 N.J. 324, 346

(2008).   Specifically, the court found:

           the call was placed what appears to be four
           minutes after the alleged robbery and the
           victim merely repeated the suspect's license
           plate number and the fact that she had been
           robbed. The victim never indicated that she
           was injured or in need of any medical
           assistance. This emergency that the State
           suggests was ongoing at the time of the call
           was only exacerbated by the victim's choice
           - chase the suspect.

      The court noted the caller "can and will likely testify,"

and concluded admitting the 911 call "would constitute needless

presentation of cumulative evidence not necessary or materially

probative to establish whether the victim was, in fact, robbed"

and thus that its "potential prejudice" substantially outweighed

its probative value.   The court also ruled the 911 tape was

procedurally barred under R. 3:9-1(e), because the State only


1
    State v. Driver, 38 N.J. 255 (1962).

                                 3                          A-3238-17T3
notified the court of its intent to use it after the plea cutoff

date and a month before trial.

    As to the video, the court described it as consisting of

different clips or camera angles showing first an African-

American man walking down the street in dark clothing and a knit

cap; then a young woman apparently looking for something in the

red Ford Focus, who gets out and walks away from the car out of

the frame; next an African-American man, who may or may not be

the same man as in the first clip, crossing the street, getting

in the Ford Focus and immediately driving it away; and finally

the young woman reappearing and "walk[ing] into the street

looking around for the car."

    Although acknowledging the video qualified for admission

under Driver, the court questioned its probative value.    The

court noted the State would "still need . . . the person who

. . . left the car running" to testify it was stolen, and

identify items recovered in the car, which "would be the better

evidence in this case."   Further, the court noted defendant was

not charged with stealing the car, only receiving stolen

property, and "that the risk of confusion of these issues or

misleading the jury are too great" and a limiting instruction

inadequate to counter the potential prejudice.   The court

ultimately concluded it "just [did not] believe that under these

                                 4                           A-3238-17T3
circumstances [the video's] probative value is sufficient given

the potential prejudice as it would confuse the jury and

certainly mislead it in term of the charges as they're presented

here."

    The State appeals, arguing no rule or case requires the

State to pre-admit a 911 recording prior to trial, and that the

recording is not testimonial and clearly admissible under J.A.

The State further argues the surveillance video is likewise

admissible, "bears directly" on one element of the State's

proofs, and that it is for the State, and not the court, to

decide what admissible evidence will best prove its case.      We

agree.

    Although we generally defer to a trial court's evidentiary

rulings, reviewing them only for abuse of discretion, "we do not

defer to a ruling that is based on a mistaken interpretation of

an evidence rule, or that misapplies the rule."   State v.

R.J.M., 453 N.J. Super. 261, 266 (App. Div. 2018).   Our review

of the trial court's application of the law to the facts, of

course, is plenary.   State v. Hubbard, 222 N.J. 249, 263 (2015).

    911 calls made in the throes of an emergency are textbook

examples of nontestimonial hearsay statements that do not

implicate the Sixth Amendment's Confrontation Clause and are

admissible in a criminal trial "subject to traditional

                                5                            A-3238-17T3
limitations upon hearsay evidence."     Davis v. Washington, 547

U.S. 813, 821 (2006).      In Davis, the Court refined its

formulation of the "testimonial statements" it deemed critical

for Sixth Amendment purposes in Crawford v. Washington, 541 U.S.

36, 53-54 (2004), holding that:

          [s]tatements are nontestimonial when made in
          the course of police interrogation under
          circumstances objectively indicating that
          the primary purpose of the interrogation is
          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.

          [Davis, 547 U.S. at 822 (footnote omitted).]

    Our own Supreme Court applied that definition in J.A., a

case involving the statement of an eyewitness to a robbery who

followed the perpetrators, much like the victim of the robbery

here.   195 N.J. at 337.    While in pursuit of the robbers, the

eyewitness telephoned the police and provided a description of

the suspects, which was then broadcast over the police radio.

Id. at 330.   Within two minutes of receiving that dispatch, an

officer found the witness and interviewed him about what he saw.

Ibid.




                                   6                         A-3238-17T3
    The Court found the eyewitness's statement to the officer,

made several minutes after the witness left off his pursuit of

the robbers, did not qualify as a present sense impression

exception to the hearsay rule under N.J.R.E. 803(c)(1) because

it was not "made while or immediately after the [witness] was

perceiving the event."   Id. at 337-40.    The Court further found

the witness's report to the officer "ran afoul of the

Confrontation Clause" as a testimonial statement because

"[t]here was no ongoing emergency — no immediate danger —

implicating either the witness or the victim, both of whom were

in the company of police officers" when the eyewitness made the

statements the State sought to admit.     Id. at 340, 348.

    Importantly for our purposes, the Court contrasted the

witness's statements to the dispatcher "relating . . . events as

they were unfolding."    Id. at 337.   The Court noted those

statements, which were not offered in evidence, "would have fit

within the classic definition of a present sense impression."

Ibid.   Addressing whether such statements would be considered

testimonial, the Court stated that "[h]ad the prosecution

introduced the contemporaneous statements of the eyewitness to

the 911 operator, assuming that he was relating the robbery in

progress and pursuit, the Confrontation Clause analysis might

well have been different."   Id. at 348 n.13.

                                 7                             A-3238-17T3
    It is different here because the State is seeking to admit

the victim's call to the 911 operator while she was pursuing her

assailant, not the statements she subsequently made to the

police detailing the crime.   A review of the 911 call makes the

point.   The call begins, not with the victim identifying herself

or explaining the emergency, but shouting out the license plate

number for the red Ford Focus.     We quote the start of the call:

          Caller:   [license plate number]

          911 Operator:   Excuse me?

          Caller:   [license plate number]

          911 Operator:   Hello?

          Caller: Hello? Can I get a cop please?
          I'm – I'm chasing a car, he tried to rob me.
          His driver's plate is [repeats the license
          plate number], and he – he has my stuff.
          And he just – he jumped in my car and he
          chased – he grabbed all my stuff.

          911 Operator:   Why are you chasing him?

          Caller:   [indiscernible]

          911 Operator: Hello? Ma'am, all you gave
          me was a plate, so I can't really help you.
          I can't send somebody [indiscernible] the
          plate. I need a[n] address.

          Caller: I'm – I'm – right now we're on, um,
          we're about to be on – on the Boulevard.

          911 Operator: Ma'am, you're gonna have to
          stop. You're gonna have to stop. You're
          gonna have to stop what you're doing, so I


                                   8                        A-3238-17T3
         can send you some help.     Who is – do you
         know this person?

         Caller:   I don't know him. [indiscernible]

         911 Operator:    He jumped in your car and
         stole stuff?

         Caller: Yes! Yes. Please, I know he'll –
         we're on Bergen. We're on Bergen. He's
         right on the [indiscernible] right now!

         911 Operator:    He's on – in a bicycle or a
         car?

         Caller: No, it's a car, red Ford Focus.
         The driver's plate is [again repeats the
         license plate number]. And it's a Ford –
         red Ford Focus.

    A review of the tape makes plain the caller was relaying

events as they were occurring, that is, her pursuit of the man

who robbed her, and those that had just happened, that is, the

robbery itself, and that she was seeking police assistance for

an ongoing emergency.    The caller was not safely in the company

of a police officer recounting recent events.    She is on the

phone to the 911 operator, crying and frantically trying to

obtain help.   That the victim may have chosen to "exacerbate"

the emergency by giving chase does not affect the analysis.

Applying N.J.R.E. 803(c)(1) and J.A. to these facts, we have no

hesitation in finding the victim's 911 call qualifies as a

present sense impression exception to the hearsay rule and is

nontestimonial under J.A.

                                 9                         A-3238-17T3
    We further reject that admission of the tape was

procedurally barred by operation of R. 3:9-1(e).    Although R.

3:9-1(e) references sound recordings, defendant made no

objection to the authenticity of the recording of the 911 call,

which the State turned over in discovery at the beginning of the

case.    We, accordingly, reject the court's finding that the

State's failure to have made known its intention to admit the

911 call prior to plea cutoff barred its admission under R. 3:9-

1(e).    Defendant cites no case supporting such an interpretation

of the rule, and our own research has not revealed one.

    Turning briefly to the video, we acknowledge the State's

point that in order to convict defendant of receiving stolen

property pursuant to N.J.S.A. 2C:20-7, it must prove, among

other things, that the red Ford Focus was actually stolen.      See

State v. Hodde, 181 N.J. 375, 384 (2004).    The video makes that

point in dramatic fashion.

    The court was satisfied as to the video's admissibility

under the Driver test but expressed confusion "in terms of the

value of the evidence and . . . what it was being proffered to

show."   At another point, the court stated it did not think the

video "necessarily is the best proffer for the evidence"

presumably to prove defendant's receipt of the stolen Ford

Focus.

                                10                         A-3238-17T3
    Although we ordinarily defer to the trial court's

assessment of the undue prejudice of relevant evidence under

N.J.R.E. 403, see State v. Nantambu, 221 N.J. 390, 402-03

(2015), our concern here is the court's apparent failure to

recognize the probative value of the video to the State's

proofs, and the State's discretion in choosing the admissible

evidence it will present to the jury in carrying its burden to

establish each element of every charge, see McLean v. Liberty

Health Sys., 430 N.J. Super. 156, 169 (App. Div. 2013) (quoting

Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div.

1994)).

    There is certainly no question but that the video is

relevant evidence under N.J.R.E. 401.   It obviously has a

tendency to prove the red Ford Focus was stolen, a fact of

consequence in a prosecution for receipt of stolen property.

See State v. Cole, 229 N.J. 430, 447-48 (2017).   Although we can

appreciate the court's concern about the risk of the jury

concluding defendant was the man in the video, and thus that he

stole the car, a simple limiting instruction that the State has

not charged defendant with stealing the car and does not contend

defendant is the man in the video should be sufficient to

address the risk of any potential prejudice.   See id. at 455-56

(discussing use of limiting instructions); see also Ocasio v.

                              11                             A-3238-17T3
Amtrak, 299 N.J. Super. 139, 159-60 (App. Div. 1997) (holding

that total exclusion of evidence is error where prejudice can be

minimized through limiting instructions or other means).   We

cannot find such an instruction would be too complicated or

confusing for the jury to follow.   See State v. Hockett, 443

N.J. Super. 605, 616 (App. Div. 2016).

    Reversed.




                              12                           A-3238-17T3
