                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2513-16T3

BRIAN J. RICE,

     Plaintiff-Appellant,
                                       APPROVED FOR PUBLICATION
v.
                                             June 5, 2018

CHRISTINA M. MILLER and RICHARD           APPELLATE DIVISION
H. MILLER, IV,

     Defendants-Respondents.
___________________________________

         Argued May 14, 2018 – Decided June 5, 2018

         Before Judges Sabatino, Rose and Firko.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Docket No. L-
         0451-14.

         Gary F. Piserchia argued the cause for
         appellant    (Flynn   &   Associates,   PC,
         attorneys; Gary F. Piserchia and Stephen L.
         Slavoff, on the briefs).

         Robert M. Kaplan argued the cause for
         respondents (Margolis Edelstein, attorneys;
         Robert M. Kaplan, of counsel and on the
         briefs).

     The opinion of the court was delivered by

SABATINO, P.J.A.D.

     Tried to a jury, this negligence case arose out of a motor

vehicle accident in which the defendant driver struck plaintiff,

a pedestrian, as he was attempting to walk one February evening
across an eight-lane state highway.                      Plaintiff alleged that he

acted reasonably while crossing the highway, and that defendant

was negligent because she was not using her headlights and had

failed to observe him in the road until it was too late for her

to stop.     Defendant asserted that plaintiff unreasonably failed

to use a crosswalk and insisted her headlights were on and she

was   attentive     to   the    road.         The    jury       found    plaintiff    was

seventy-five      percent      at    fault    in     causing       the   accident     and

defendant was twenty-five percent at fault.                       Given that finding,

the trial court entered a judgment in defendant's favor pursuant

to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8.

      Plaintiff appeals, contending that the trial court erred

with respect to several evidentiary rulings concerning opinion

testimony from a police officer, hearsay, and other subjects.

Plaintiff    further        argues      the     court           issued   inappropriate

instructions to the jury concerning the traffic laws governing

pedestrian    crossings        and    should    have       taken     judicial    notice

concerning    the   asserted         legality       of    his    attempted   crossing.

Plaintiff argues he is entitled to a new trial because of these

claimed errors.

      We affirm the judgment in defendant's favor.                           The trial

court's jury instructions were proper, as were several of its

challenged evidentiary rulings.                 We agree with plaintiff that




                                          2                                     A-2513-16T3
the     court    misapplied     its   discretion    in   allowing    a     police

officer, who was not designated as an expert witness, to provide

opinion testimony calculating the range of defendant's speed and

also in allowing a police officer to relay to the jury hearsay

statements of other declarants.              However, upon reviewing the

record as a whole and counsel's summations, we conclude these

discrete errors were harmless and are insufficient to require a

new trial.

                                        I.

      At around 8:00 p.m. on February 8, 2012, plaintiff Brian J.

Rice was at a pub located on the westbound side of State Highway

70 in Cherry Hill, when he decided to purchase a "Powerball"

lottery ticket from a gas station on the eastbound side of the

highway.        Plaintiff left his freshly-ordered drink at the bar

and, without putting on his coat, began to walk toward the gas

station.        It was dark and lightly snowing, although no snow had

accumulated on the road surface.

      Initially, plaintiff walked from the pub toward Greentree

Road, which crosses Route 70 at an intersection controlled by a

traffic light.        Although plaintiff claims he was unaware of it

at the time, there is a pedestrian crosswalk for Route 70 at

Greentree Road.         In order to reach that crosswalk, plaintiff

would    have     needed   to   cross   Greentree   itself   in     two    places




                                        3                                 A-2513-16T3
without a crosswalk: first, going across a turning lane                          for

vehicles merging from Greentree onto Route 70 west, and, second,

across   one    or   more    lanes     for    vehicles    going    onto    or   from

Greentree across Route 70.

      Instead of heading across Greentree, because it appeared to

be too dangerous, plaintiff decided to cross Route 70 at a point

further to the west.          At that location, the posted speed limit

on Route 70 is forty-five miles per hour, and the road surface

is straight and level.             Route 70 is eight lanes wide at that

point    (including      a    fourth     westbound       lane     emanating     from

Greentree for merging vehicles).                The lanes are divided by a

grassy center median about thirty feet wide, which separates

westbound      traffic      from    eastbound     traffic.         As     plaintiff

described it in his trial testimony:

             As I walked up [to Greentree], there was an
             Escalade [vehicle] come up Greentree Road
             onto Route 70. And at that point, I thought
             it was too dangerous.    So, I wanted to put
             some   space    between    myself  and   the
             intersection, to an area where I can see
             that intersection, Route 70, and on the
             other side of Greentree Road.     So, that's
             why I positioned myself where I did.

Plaintiff stated that he chose to cross underneath, or within a

few   feet   from,   a   streetlight         rather   than   crossing     Greentree

Road.




                                         4                                 A-2513-16T3
      According to plaintiff, once he got to the point where he

began to cross Route 70, he waited for a period of time, and did

not   immediately   cross   the   highway.     When   asked   why   he    had

waited, plaintiff responded, "[T]here were two cars that had

passed me on Route 70 while I was standing on the side of the

road on the – I guess it's still part of [the pub's] parking

lot."    Plaintiff testified the two cars that passed him were

heading westbound.

      Plaintiff recalled that he could see "particularly far down

Route 70," about "three football fields" to his left, and beyond

the Route 70 and Greentree intersection.              However, plaintiff

testified he did not see the car defendant was driving until

"maybe a couple of seconds" before impact.

      Plaintiff contended he had been "scanning the area" before

crossing Route 70.     He stated that he looked down Route 70 for

car lights.   In this regard, he testified:

           But I just started across the street.    And
           as I crossed the street, I kept looking down
           Route 70, because I know nobody's coming
           from this way.     And I kept scanning the
           roadway   between   that   intersection  and
           Greentree Road on the other side of the
           street next to the BP Gas Station, and Route
           70 coming from east going west.

Plaintiff claimed that he did not see any cars coming at that

point when he crossed the highway.           He further testified that,




                                    5                               A-2513-16T3
at the time of the accident, the parking lot for the pub was

illuminated, as was the gas station across the highway.

      According    to    plaintiff,        just    before    getting     hit    by

defendant's car, he "turned and looked, and all [he] s[aw] was a

little girl in the back seat, and her face . . . ."                    Plaintiff

recalled he was able to "see in the [defendant's] vehicle,"

stating that was the reason he knew that the car's headlights

were not on when it hit him.

      Plaintiff contends that after he landed in the road, he

"used [his] arms to pull [him]self out onto the grass, so –

because [he] knew [his] leg was broke.              And [he] made it to the

grass."    According to plaintiff, he sat up on the grass and saw

defendant get out of her car crying, with her hands over her

mouth.     He further recalled that defendant's passenger "was out

of   the   passenger    side   [of   the   car],    [he]    believe[s]   on    the

phone, looking around."         It was estimated that plaintiff's body

was thrown eighty-five feet from the point of impact.

      Critically, plaintiff gave the following testimony at trial

concerning whether defendant's headlights were on:

            I don't – I don't remember seeing [the
            headlights] come on . . . I think right when
            all – right when the cops started to come –
            or not the cops started to come – more cars
            started to show up, that's when, I think,
            she went and turned her headlights on.




                                       6                                 A-2513-16T3
Plaintiff    claimed        he     told      the    police     multiple     times      that

defendant's headlights were not on at the time of impact: once

when in the back of an ambulance; and two more times when the

police interviewed him at the hospital.

      When confronted at trial, plaintiff admitted that he had

not mentioned in his answers to interrogatories, in giving a

detailed account of the accident, that defendant's headlights

had   been   off.     Nor        did   plaintiff      mention      this    fact   at    his

pretrial deposition because, according to plaintiff, he was not

asked specifically about defendant's headlights.

      Defendant, meanwhile, testified that she had been driving

her Honda sedan westbound on Route 70, with her sister-in-law in

the passenger seat and defendant's child in the back seat.                              She

described the weather as a mixture of snow turning to rain.

Defendant    recalled       that       she    stopped    for     gasoline       and    then

reentered    Route     70        heading     west.       She     insisted       that    her

headlights and fog lights had been on, as well as her windshield

wipers.

      According to defendant, she stopped at the traffic light

for   Greentree     Road,    and       was    the   first    car   in     the   far    left

westbound lane.        She recalled there were multiple cars in the

lane to her right, but she could not recall the exact number of

cars.     When the light changed, defendant proceeded forward, at




                                              7                                   A-2513-16T3
what she estimated was a speed of between twenty-five and thirty

miles per hour.        She denied being distracted.

    As defendant described it, plaintiff suddenly appeared "on

the right hand side of her headlight[s]."                    She estimated he was

only "centimeters" away.            According to defendant, she "slammed

the brakes as hard as [she] could," but nevertheless struck

plaintiff.    Emergency aid soon arrived.

    Defendant also presented factual testimony from her sister-

in-law and her daughter, both of whom had been passengers in the

Honda.      They   provided     details        substantially       consistent      with

defendant's    testimony.        Both      of    them      corroborated     generally

defendant's recollection that the Honda's headlights had been on

the night of the accident.            Additionally, defendant's daughter

corroborated defendant's assertion that the headlights had been

on specifically at the time of the collision.

    The      parties     presented      several        other     fact    and     expert

witnesses at trial, on both liability and damages issues.                         Other

than the testimony of two police officers who investigated, but

who did not witness the accident, which we discuss, infra, in

Part II(B), we need not detail that other testimony here.

    The     jury   returned     a    7-1       verdict      on   all    questions     it

reached,     finding     that   plaintiff            and    defendant     were     each

negligent    and   a    proximate    cause      of    the   accident.       The     jury




                                           8                                   A-2513-16T3
additionally    found    that    plaintiff's      fault     was   seventy-five

percent and defendant's was only twenty-five percent.                   Because

of plaintiff's comparatively greater fault, there was no need

for the jury to reach questions of damages.               See N.J.S.A. 2A:15-

5.1 and -5.2.    The court accordingly entered a final judgment of

no cause of action.       Plaintiff moved for a new trial, which the

court denied.   This appeal ensued.

                                      II.

                                       A.

    Plaintiff's       first    two    arguments   in      his   brief   involve

related concerns.       Fundamentally, he contends that, under the

applicable motor vehicle statutes, his decision to cross Route

70 at the location he selected was lawful, and that he was not

obligated to use the crosswalk at Greentree Road traversing the

highway.     Plaintiff specifically argues that the trial judge:

(1) should have taken judicial notice under N.J.R.E. 201 that

his crossing was lawful; and (2) should not have charged the

jury with N.J.S.A. 39:4-33, a statute that disallows certain

pedestrian crossings.      We reject these arguments.

    Two related motor vehicle statutes, N.J.S.A. 39:4-33 and

N.J.S.A.   39:4-34,     bear   upon   the   analysis.       N.J.S.A.    39:4-33

instructs:

           At intersections where traffic is directed
           by a police officer or traffic signal, no



                                       9                                A-2513-16T3
             pedestrian shall enter upon or cross the
             highway at a point other than a crosswalk.
             Pedestrians    shall     move,    whenever
             practicable,  upon   the  right  half   of
             crosswalks.

             [N.J.S.A. 39:4-33 (emphasis added).]

The "flip side" of N.J.S.A. 39:4-33 is N.J.S.A. 39:4-34, which

reads:

             Where traffic is not controlled and directed
             either by a police officer or a traffic
             control signal, pedestrians shall cross the
             roadway within a crosswalk or, in the
             absence of a crosswalk, and where not
             otherwise prohibited, at right angles to the
             roadway.     It shall be unlawful for a
             pedestrian to cross any highway having
             roadways separated by a medial barrier,
             except   where   provision   is   made   for
             pedestrian crossing.   On all highways where
             there are no sidewalks or paths provided for
             pedestrian use, pedestrians shall, when
             practicable, walk only on the extreme left
             side of the roadway or its shoulder facing
             approaching traffic.

             Where sidewalks are provided it shall be
             unlawful for any pedestrian to walk along
             and upon an adjacent roadway.

             [N.J.S.A. 39:4-34 (emphasis added).]

       As   the   language      of   these    companion   statutory   provisions

reflects, a critical determinant of whether the pedestrian has

an obligation to use a crosswalk is the nature and proximity of

that   crosswalk     to   the    subject     location.     For   example,   if   a

pedestrian is seeking to cross a highway at a spot with an

intersection "where traffic is directed by a police officer or



                                         10                             A-2513-16T3
traffic     signal,"     N.J.S.A.     39:4-33          plainly     obligates           the

pedestrian to use a crosswalk and, where practicable, to use its

right    half.     (Emphasis   added).       Conversely,         if     there     is    no

nearby traffic signal or any police officer directing traffic,

N.J.S.A. 39:4-34 prescribes that the pedestrian, "in the absence

of a crosswalk," shall proceed across the roadway "at right

angles," unless there is a medial barrier.                      (Emphasis added).

There was no medial barrier on Route 70 at the location of

plaintiff's      accident.     Nor    was    a    police        officer      directing

traffic.

    The     analysis     therefore    turns       on     whether       there     was     a

crosswalk sufficiently close and accessible to the spot where

plaintiff attempted to cross Route 70 so as to require him to

use it.     During his trial testimony, plaintiff estimated that he

was "probably twenty or thirty feet from Greentree [Road] down

Route 70" where he crossed the highway.                    As we have already

noted,    plaintiff    explained     that    he       decided    not    to     use     the

Greentree    crosswalk    across     Route       70    because     it    seemed        too

dangerous to access from the pub, although plaintiff testified

that the surrounding roadways were "illuminated, but not in –

not as illuminated as the – the intersection of Greentree Road

and Route 70."




                                      11                                        A-2513-16T3
      A police officer who investigated the accident, Sergeant

Ronald    Dolan,     estimated         that    plaintiff          tried    to    cross       much

further      west    on    Route    70,    approximately           150     feet    from      the

crosswalk.1         Thus, a factual issue was presented to the jury

concerning      exactly      where       plaintiff      attempted          to     cross       the

highway,     and     how    far    that    actually         was    from    the     Greentree

crosswalk.      A related factual question for the jury was whether,

as plaintiff claimed, it would have been even more hazardous for

him to traverse multiple lanes of traffic on Greentree without a

crosswalk,     in    order    to       reach   the    Route       70    crosswalk       at   the

intersection.

      This court confronted related issues in Abad v. Gagliardi,

378   N.J.    Super.       503,    505    (App.      Div.    2005).         In    Abad,       the

defendant     was    driving       a     vehicle     when     it       collided    with      the

plaintiff,      a    pedestrian         crossing      the    street.            Ibid.         The

accident in Abad occurred approximately ninety feet away from an

intersection controlled by a traffic light.                             Ibid.     The trial

court decided to charge the jury with only N.J.S.A. 39:4-33,

which, as we have noted, pertains to intersections controlled by

1
  Defendant has chosen in her brief to adopt Sergeant Dolan's
150-foot measured distance, rather than plaintiff's twenty-to-
thirty-foot estimate. The record does not contain a measurement
of how far the pub building is from the Greentree crosswalk,
although the intersection is described as being near the pub's
parking lot. No witness described or measured how far the east
edge of the parking lot is from the pub building.



                                               12                                   A-2513-16T3
a traffic light or a police officer.                Id. at 506.        The jury in

Abad found the plaintiff, who had not used the crosswalk, more

at fault than the defendant.            Ibid.     On appeal, we held that the

court   properly       charged     only       N.J.S.A.     39:4-33   rather        than

N.J.S.A.    39:4-34,     because       the     intersection    was   sufficiently

close   and    the     crosswalk       "was    clearly     visible   and     readily

accessible by walking a short distance."                   Id. at 508 (emphasis

added).2      Hence, the plaintiff was legally obligated in those

circumstances to use the crosswalk.               Ibid.

     The situation here is debatable, because of the factual

questions     concerning       plaintiff's        actual    distance       from     the

Greentree crosswalk and also whether that crosswalk was "readily

accessible," given the lighting and traffic conditions.                           Under

these circumstances, the trial judge wisely charged the jury

with both traffic statutes.3            The legality of the crossing would

properly      depend    upon     the     jury's     credibility      and     factual

assessments.


2
  The plaintiff in Abad described the crosswalk "as being thirty
steps away; an investigating police officer described it as
being approximately one hundred feet from where [the] plaintiff
crossed the street." Ibid.
3
  The judge also charged the jury with N.J.S.A. 39:4-36(a)(4)
which provides that pedestrians who cross at a point other than
a crosswalk "shall yield the right-of-way to all vehicles upon
the roadway."  Plaintiff does not challenge this aspect of the
jury charge.



                                          13                                A-2513-16T3
       Given the bona fide factual disputes present here, it would

have been improper for the court, as plaintiff urges, to take

judicial notice of the alleged legality of his crossing under

N.J.R.E. 201, even if plaintiff had requested it.                            The notice

rule is inapplicable because the pertinent facts can "reasonably

be the subject of dispute."                N.J.R.E. 201(b)(1) and (2).

                                             B.

       More    troublesome          issues    stem    from      aspects     of    Sergeant

Dolan's testimony during the defense's case.                          Plaintiff argues

the trial court erred in allowing Sergeant Dolan: (1) to express

to     the    jury,    over    objection,          opinion      testimony    estimating

defendant's       speed       at    the     time     of   the    collision,        despite

defendant's failure to designate Dolan as an expert witness; and

(2) to rely upon and convey the hearsay statements made at the

accident scene of other declarants, specifically defendant's two

passengers.

       Sergeant Dolan did not observe the accident.                              He was on

traffic duty that evening and arrived at the scene after the

accident had already occurred.                 Dolan spoke with another Cherry

Hill     police       officer,       Ryan    Johnstone,         who   was    the      first

responding      officer       and    had    preceded      Dolan's     arrival.        Dolan

interviewed defendant and other persons at the accident scene,




                                             14                                    A-2513-16T3
and   he    thereafter   interviewed         plaintiff    twice    at   a     local

hospital.

      Dolan also took measurements at the scene, including the

distance between where he found debris from defendant's car and

where Officer Johnstone had told him he had found plaintiff's

injured body.       Based on a mathematical formula Dolan knew from

his training in motor vehicle accidents, known as the "Searle

formula" or the "Searle equation,"4 Dolan calculated that the

estimated speed of defendant's car when she struck plaintiff was

approximately      thirty-two    to    forty-one   miles     per   hour.       This

estimated range was less than the forty-five miles per hour

posted     speed   limit,   but       higher   than      defendant's    personal

estimate of her speed.          Dolan included this calculation in his

police report.

      In her answers to interrogatories, defendant notably did

not designate Sergeant Dolan as an anticipated expert witness.




4
  See John A. Searle & Angela Searle, The Trajectories of
Pedestrians, Motorcycles, Motorcyclists, etc., Following a Road
Accident, Society of Automotive Engineers, Inc. (1983); John A.
Searle,   The    Physics   of   Throw   Distance    in   Accident
Reconstruction, Society of Automotive Engineers, Inc. (1993).
In essence, the formula utilizes several variables, including
the "throw distance" of a pedestrian after impact, to calculate
the range of speed of a vehicle that struck the pedestrian.




                                        15                                 A-2513-16T3
Instead, defendant retained as a liability expert an accident

reconstructionist, William Camlin.5

       Plaintiff       took     the    deposition      of     Sergeant       Dolan,      who

repeated      his    opinions     about      defendant's       speed      based    on    his

Searle calculation.           During the deposition, Dolan explicitly and

emphatically denied that he was serving as an expert witness in

the case.      Dolan was not identified as an expert in defendant's

Rule   4:25-7       pretrial     exchange,        although    he    was     listed      as   a

potential witness.

       When defense counsel called Sergeant Dolan to the stand, he

sought   to    elicit     Dolan's      opinions      and     calculations      regarding

defendant's speed.             Plaintiff's counsel objected, emphasizing

that   the    defense     had     never      designated       Dolan    as    an    expert.

Defendant's         counsel     laid     a    foundation        concerning         Dolan's

extensive     police     experience       and     training     in   traffic       accident

techniques,         including    his    knowledge      of     the     Searle      formula,

although the officer acknowledged he was not an expert in Searle

speed equations.          The     trial      court    did     not   declare       Sergeant

Dolan qualified to express opinions as an expert witness.                                    In


5
  Prior to trial, plaintiff moved in limine to exclude Camlin's
expert opinions on various grounds, including the improper
presentation of legal opinions.   That motion was never decided
because defendant withdrew Camlin as an expert during the midst
of trial, for what counsel described to us at oral argument as
"strategic reasons."



                                             16                                   A-2513-16T3
fact, the court did not reference Dolan in the customary jury

instruction      for     expert      witnesses,       see     Model     Jury     Charges

(Civil), 1.13, "Expert Testimony" (2018), even though the court

did so for all of the other experts who testified during the

trial.    Nevertheless, the court allowed Dolan, over objection,

to provide the jurors with his opinion about defendant's speed

based    upon   the    Searle     calculation.           In      essence,   the     court

impliedly allowed Dolan to do so under the lay opinion rule,

N.J.R.E. 701.

      The court's allowance of Dolan's opinion testimony under

the circumstances was erroneous.                  N.J.R.E. 701 did not authorize

this police officer, despite his training and credentials, to

provide the jury with his opinion concerning the speed of a

vehicle   that    he     had   not     personally      observed,        without     being

designated      before    trial,       and   qualified      by    the   court,     as    an

expert.

      N.J.R.E.     701,    which       addresses     the    admissibility         of    lay

opinions, prescribes that "[i]f a witness is not testifying as

an expert, the witness' testimony in the form of opinions or

inferences may be admitted if it (a) is rationally based on the

perception of the witness and (b) will assist in understanding

the   witness'    testimony       or    in    determining        a   fact   in   issue."

(Emphasis added).         The central purpose of N.J.R.E. 701 is to




                                             17                                  A-2513-16T3
ensure that lay opinion is based on a sufficient foundation, and

not inadmissible hearsay.        Biunno, Weissbard & Zegas, Current

N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 701 (2018).

      By contrast, N.J.R.E. 702 specifies the general requirement

to admit opinion testimony from an expert witness:

            If    scientific,    technical,    or    other
            specialized knowledge will assist the trier
            of fact to understand the evidence or to
            determine a fact in issue, a witness
            qualified as an expert by knowledge, skill,
            experience,   training,   or   education   may
            testify thereto in the form of an opinion or
            otherwise.

            [N.J.R.E. 702.]

N.J.R.E. 703 provides a special latitude for expert witnesses to

rely upon facts or data which are not in evidence when they are

formulating and rendering their opinions, so long as the facts

or data are of a type "reasonably relied upon" by experts in the

same field.

      The   pretrial   rules    of   our   civil    courts   have    specific

requirements for parties to designate expert witnesses during

the course of discovery.        See generally R. 4:17-4(e) (requiring

litigants to furnish opposing parties with the names and reports

of   experts   and   treating   physicians    who   are   involved    in   the

matter); R. 4:17-7 (imposing an obligation for parties to amend

their interrogatory answers "not later than 20 days prior to the

end of the discovery period").             The obvious purpose of these



                                     18                              A-2513-16T3
disclosure requirements for anticipated experts is to promote

fair advocacy and to discourage gamesmanship or unfair surprise

at trial.

      Substantively, the Supreme Court carefully delineated in

its seminal decision in State v. McLean, 205 N.J. 438 (2011),

the appropriate (and, conversely, inappropriate) role of opinion

testimony when it is elicited from a police officer.        The Court

reversed in McLean some of the criminal defendant's convictions,

upon concluding that a police officer's opinion testimony at

trial for the State failed to meet the requirements for lay

opinion, thereby invading the fact-finding province of the jury.

Id. at 463.    Noting that certain limits "have traditionally been

imposed on lay opinion testimony," the Court observed that "lay

opinion testimony is limited to what was directly perceived by

the witness and may not rest on otherwise inadmissible hearsay."

Id. at 460 (citation omitted).         In particular, the Court ruled

in McLean that the opinion of a police officer, who had not been

appropriately designated by the prosecution before trial as an

expert witness, asserting that the defendant had been engaging

in   hand-to-hand   drug   transactions,   was   inadmissible   as    lay

opinion.    Id. at 463.

      We extended these principles from McLean to a civil context

in Gonzales v. Hugelmeyer, 441 N.J. Super. 451 (App. Div. 2015),




                                  19                            A-2513-16T3
an opinion issued in the year before the present case was tried. 6

In Gonzales, a state trooper responded to the scene of a car

accident he had not observed and interviewed several persons.

Id. at 456.         We held the defendant was "unfairly prejudiced by

two critical aspects of [the trooper]'s testimony, which [the]

plaintiffs' counsel punctuated in his closing argument to the

jury."      Id. at 457.

       We   noted    in   Gonzales   the    most   troubling   aspect   of    the

trooper's testimony was that he was allowed to give an opinion,

over objection, as to which driver had been at fault in causing

the accident.        Id. at 459.      The trooper in Gonzales was never

proffered to the court as an expert in any capacity.                     Id. at

460.     Although the trooper had over five years of experience in

investigating car accidents, his opinion testimony as to fault

"clearly [went] beyond the scope of lay opinion admissible under

N.J.R.E. 701."        Ibid.   We reasoned that because the trooper "had

no personal observation or recollection of the accident . . .

his opinions thus failed the foundational requirements of Rule

701."       Ibid.     Citing the Supreme Court's opinion in Neno v.

Clinton, 167 N.J. 573, 585 (2001), we instructed that "a police

6
  Perhaps because it was then a relatively recent precedent,
there is no indication that Gonzales was cited to the trial
court. The case was not cited in the parties' appellate briefs,
but, at our request, counsel supplied us with helpful
supplemental briefs addressing it.



                                       20                               A-2513-16T3
officer cannot provide an opinion at trial when that opinion is

based primarily on the statements of eyewitnesses."                       Ibid.    Any

other conclusion would enable police officers to subvert the

hearsay prohibition.         Id. at 460-61 (citing Neno, 167 N.J. at

585).

    We     recognize       that    the    line       between   permissible         and

impermissible lay opinion from police officers is not always

self-evident, and that some degree of case-by-case analysis may

be necessary.        In this regard, the Court in McLean recognized

that police officers traditionally have been permitted in our

case law to present lay opinion testimony about the "point of

impact" of a motor vehicle collision.                 McLean, 205 N.J. at 459

(citing State v. Labrutto, 114 N.J. 187, 199-200 (1989)).

    Here, however, Sergeant Dolan's application of the "Searle

formula"      extrapolating       information    to     calculate     defendant's

speed   was    too   esoteric      and   too   far    beyond   the   "ken"        of   a

layperson to be admissible, without qualifying the officer as an

expert witness.         We are mindful of the apparent ad hoc decision

by defense counsel to jettison his designated private expert

witness,   and    his    attempt    to   convince      the   court   to    deem    the

police sergeant as an expert in form or in function.                       The court

correctly did not go that step, which would be contrary to the

expert witness and pretrial discovery rules in Rules 4:17-4 and




                                         21                                  A-2513-16T3
4:17-7.          But    the    court       nonetheless          erred   in    allowing    the

officer's opinion about the Honda's speed to be provided under

the guise of lay opinion.

      That said, we are not persuaded this error was sufficiently

harmful     to     warrant      a    new       trial.       Defense     counsel    did     not

mention, let alone emphasize, Sergeant Dolan's speed calculation

in   his    closing      argument         to    the     jury.      This      contrasts    with

Gonzales,     in       which    counsel        who    had   improperly        presented   the

officer's opinions at trial punctuated those opinions as a "tie

breaker" in summations.               Gonzales, 441 N.J. Super. at 461.                   Nor,

as   in    Gonzales,      was       the    officer's        opinion     about   defendant's

speed here the core ultimate issue before the jury.                               Plaintiff

did not contend defendant was speeding above the limit; instead,

he urged she did not have her headlights on and did not make

proper visual observations of his crossing.

      Under the circumstances, the evidential error was harmless.

See State v. Macon, 57 N.J. 325, 333 (1971).                              Considering the

trial record as a whole, the evidential error was not "clearly

capable of producing an unjust result . . . ."                          R. 2:10-2.

      Plaintiff further argues the trial court improperly allowed

Sergeant Dolan to divulge to the jurors hearsay statements from

defendant and her sister-in-law passenger.                         In Neno, 167 N.J. at

585, the Supreme Court clearly prohibited the use of testimony




                                                 22                                 A-2513-16T3
by   a    police      officer    as    such   a    conduit    of   hearsay    by   other

declarants.          Nonetheless, we deem this error harmless as well.

We recognize that the jurors, in essence, were provided with

repetitive       accounts       of    those   declarants'      factual      narratives.

But that mere repetition does not mandate a new trial.                         R. 2:10-

2; see also N.J.R.E. 403 (providing discretionary authority to

exclude cumulative evidence only where its probative value is

"substantially outweighed" by the prejudice).

                                              C.

         We   have    carefully       considered    the   balance      of   plaintiff's

arguments on appeal, including his claims that the trial court

unfairly:       (1)    disallowed       him   to    testify    about    his    personal

knowledge       of     New   Jersey      motor     vehicle    statutes       and   legal

crossings at roadways; and (2) disallowed testimony from Officer

Johnstone about other people who have in the past crossed Route

70 at the subject location without using a crosswalk.                               Both

arguments are clearly without merit.                  R. 2:11-3(e)(1)(E).

         As to the first point, it will suffice to say that legal

opinions of witnesses in jury trials are generally disallowed,

except in a legal malpractice case or other special setting.

See Kirkpatrick v. Hidden View Farm, 448 N.J. Super. 165, 179

(App. Div. 2017) (upholding the disallowance of a layperson's

testimony about a legal definition of a term contained in a




                                              23                               A-2513-16T3
statute).   As to the second point, whether other persons had –

reasonably or foolishly – crossed Route 70 at this spot instead

of using a crosswalk has no or little probative value under

N.J.R.E. 401.    The judge did not misapply his discretion on

these evidentiary rulings.   Hisenaj v. Kuehner, 194 N.J. 6, 25

(2008) (endorsing and applying an "abuse-of-discretion standard"

of appellate review of evidentiary rulings).

    Affirmed.




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