Opinion
DOCKET NO. A-1516-13T4
04-10-2015
STATE OF NEW JERSEY IN THE INTEREST OF J.N., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant J.N. (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Laura C. Sunyak, Legal Assistant, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1372-13. Joseph E. Krakora, Public Defender, attorney for appellant J.N. (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Laura C. Sunyak, Legal Assistant, on the brief). PER CURIAM
One clear October morning while a student we shall refer to as Jerome was attending classes, someone stole his bicycle by breaking the chain that secured it to a railing behind the high school. The theft was recorded on a surveillance camera. After viewing the surveillance video, both the school's Vice-Principal and Resource Officer identified J.N. as the thief. Based on those identifications, the trial judge adjudicated J.N. delinquent for committing acts that, had they been committed by an adult, would be disorderly persons offenses: theft by unlawful taking, N.J.S.A. 2C:20-3, and criminal mischief, N.J.S.A. 2C:17-3. The court imposed a six-month suspended sentence on those two charges, ordered restitution, and imposed appropriate penalties and assessments.
The Vice-Principal also testified that he was able to use the school's video system to zoom in, or magnify the image of J.N. J.N. objected at trial because the process could not be duplicated in court. Consequently, the judge did not base his opinion on that aspect of the Vice-Principal's testimony.
In this appeal, J.N. presents the following arguments:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING MR. WHITSON AND OFFICER GONZALEZ, NEITHER OF WHOM WERE EYEWITNESSES, TO OPINE AS TO THE IDENTITY OF THE INDIVIDUAL SHOWN TAKING THE BICYCLE IN THE SURVEILLANCE FOOTAGE.Having considered J.N.'s arguments in the light of the record and controlling law, we find them unpersuasive and therefore affirm.
II. THE ADJUDCIATIONS MUST BE REVERSED BECAUSE THE TRIAL JUDGE FAILED TO CONSIDER THE FACTORS SET FORTH IN STATE v. HENDERSON WHEN ASSESSING THE WITNESSES' IDENTIFIACTION TESTIMONY.
The video of the theft shows two young men walking past the bike toward the video camera. Their faces, though exposed, are not entirely clear. Less than one minute after passing the bike, one of the individuals returns, forcibly pulls at the bike until the chain breaks, and then rides away. While that individual is stealing the bike, the other young man rides by on another bike, extends his arm toward the thief, turns around, and rides away.
According to the trial testimony, when Jerome reported the theft, the school's Vice-Principal obtained a copy of the surveillance video, watched it, and then immediately identified J.N. as the thief. The Vice-Principal also identified the other individual. The Vice-Principal knew J.N., who had been a student at the school for a couple of years. The Vice-Principal also knew J.N. "from encounters in my office as a result of teachers having written referrals on him."
Similarly, the school's Resource Officer, a full-time police officer assigned to the school, was well-acquainted with J.N. She and J.N. had had "numerous interactions with one another, more so for mentoring life skills, noticing some behaviors, and just bringing it to his attention to try and assist him to cope better with things outside of school, and in school as well." After learning of the theft, the Resource Officer obtained and reviewed the surveillance video and identified both students. As she told the court, "I know them very well. I've had many interactions with the both of them, in school and outside of school."
Both witnesses repeated with certainty their identifications of J.N. when they testified in court. The Resource Officer added that the two individuals depicted in the video were best friends. "They are together inside school all the time, and outside of school. In addition to that, that same sweatshirt [J.N.] wears, he wore almost every day to school."
Based on Jerome's testimony concerning the value of the bike and chain and the eyewitness identifications of J.N., the trial judge adjudicated J.N. delinquent. In a thorough and thoughtful opinion delivered from the bench following trial, Judge James J. McGann acknowledged that he was unable to positively identify J.N. from the video, having only seen him on maybe two occasions. Judge McGann further explained, however, that "we're looking at this from the eyes of individuals who have, on a number of occasions, had an opportunity to deal with [J.N.]." The judge found the identification testimony of both witnesses credible.
J.N. first argues that Judge McGann improperly admitted the Vice-Principal's and Resource Officer's lay opinions that J.N. was the thief depicted in the surveillance video. J.N. argues, among other things, that the opinions of those witnesses were not rationally based upon their perception and that, in any event, the judge was as competent as they were to form the conclusion that J.N. was the person who stole the bike.
J.N. did not dispute the authenticity of the security video, or that it accurately depicted the theft, the scene, and the people involved. Consequently, the judge and the parties were entitled to rely upon the content of the video as accurately depicting its contents, which included the appearance of the individual that stole the bike. The witnesses' identification of that individual as J.N. were factual assertions based on their knowledge of his demeanor and appearance, both witnesses having observed J.N. over an extended period of time during his attendance at the high school.
Even if the identification testimony was lay opinion testimony, such testimony "in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception or the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. We review a trial court's evidentiary rulings under an abuse-of-discretion standard. State v. J.A.C., 210 N.J. 281, 295 (2012).
Here, the witnesses' identifications were rationally based on their perceptions. N.J.R.E. 701(a); see also, State v. Loftin, 287 N.J. Super. 76, 100 (App. Div.) (stating that lay opinion of police detective was properly based on "his own perception of defendant's actions as seen on the videotape"), certif. denied, 144 N.J. 175 (1996). Moreover, considering that both witnesses were well-acquainted with J.N. and the other individual depicted in the video, knew of their friendship, and knew the clothing J.N. regularly wore to school — knowledge the judge did not have — the witnesses' testimony was certainly of assistance to the trial judge in determining a fact in issue, namely, the identity of the thief. The witnesses' past acquaintance and interactions with J.N. made them abler to identify J.N. than the judge. Thus, even if considered lay opinion, rather than fact, the witnesses' identification testimony satisfied the requirements of N.J.R.E. 701. The judge certainly did not abuse his discretion by admitting the evidence.
J.N. next argues that the trial judge failed to consider the factors set forth in State v. Henderson, 208 N.J. 208 (2011). Significantly, Henderson concerned the identification by an eyewitness of a stranger. Id. at 220-21. Henderson requires a court to explore and weigh certain system and estimator variables during pretrial hearings to determine the admissibility of eyewitness identification evidence once a defendant makes a showing of suggestiveness that could lead to mistaken identification. Id. at 288. Henderson also requires that specific jury charges be used to help jurors evaluate admissible eyewitness evidence. Ibid. Here, Judge McGann was considering the trial testimony of two witnesses who were well-acquainted with J.N. and his friend. The judge was not dealing with a pretrial motion to suppress an out-of-court identification of J.N. by a stranger. And J.N. had made no showing whatsoever that there was evidence of suggestiveness that could have caused the witnesses to mistakenly identify him as the thief depicted in the surveillance film.
J.N.'s other arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION