NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2097-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DESHAUN P. WILSON,

Defendant-Appellant.

___________________________________________

Submitted December 9, 2014 – Decided

Before Judges Messano, Hayden and Sumners.

On appeal from the Superior Court of New 

Jersey, Law Division, Union County, 

Indictment No. 09-05-0454.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Kevin G. Byrnes, Designated 

Counsel, on the brief).

John J. Hoffman, Acting Attorney General, 

attorney for respondent (Sara M. Quigley, 

Deputy Attorney General, of counsel and on 

the brief).

The opinion of this court was delivered by

MESSANO, P.J.A.D.

The Union County grand jury returned an indictment charging 

defendant DeShaun Wilson with third-degree possession of a 

controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count 

one); third-degree possession of a controlled dangerous 

APPROVED FOR PUBLICATION

September 10, 2015

APPELLATE DIVISION

September 10, 2015
2 A-2097-12T4

substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 

(b)(3) (count two); and second-degree possession of a controlled 

dangerous substance with intent to distribute within 500 feet of 

a public park, N.J.S.A. 2C:35-7.1 (count three). Following an 

evidentiary hearing, the judge denied defendant's pre-trial 

motion to suppress evidence seized during a warrantless search. 

Defendant proceeded to trial before a different judge, but, a 

mistrial was declared when the jury was unable to reach a 

unanimous verdict.1

Before retrial, defendant moved for reconsideration of his 

motion to suppress, contending that certain testimony at trial 

contradicted testimony by the same witnesses at the pre-trial 

hearing. The judge denied that motion, defendant again 

proceeded to trial, and the jury convicted him of all counts. 

At sentencing, the judge merged counts one and two into count 

three and sentenced defendant to an eight-year term of 

imprisonment with a four-year period of parole ineligibility. 

Defendant raises the following points on appeal:

 

1 The record originally did not contain transcripts from this 

trial, nor did the parties directly discuss the first trial in 

their briefs. We ordered the transcripts since defendant has 

raised arguments that necessarily implicate testimony at the 

first trial.
3 A-2097-12T4

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW 

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ART. I, 

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS 

VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not 

Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW 

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ART. 1, 

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS 

VIOLATED WHEN THE STATE'S LAY WITNESS 

RENDERED A HIGHLY PREJUDICIAL OPINION THAT 

SHOULD HAVE BEEN EXCLUDED.

POINT III

THE DEFENDANT'S RIGHT TO CONFRONTATION AS 

GUARANTEED BY THE SIXTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND ART I., PAR. 

10 OF THE NEW JERSEY CONSTITUTION, AND THE 

DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS 

GUARANTEED BY THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ART. I, 

PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE 

VIOLATED.

A. THE TRIAL COURT ERRONEOUSLY ADMITTED 

ACCUSATIONS AND OTHER EVIDENCE FROM ABSENTEE 

WITNESSES.

B. THE TRIAL COURT ERRONEOUSLY ADMITTED 

HEARSAY PAPER EVIDENCE PREPARED BY THE 

GOVERNMENT TO PROVE AN ESSENTIAL ELEMENT OF 

THE CRIME.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW 

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ART. I, 

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS 
4 A-2097-12T4

VIOLATED BY THE ERRONEOUS, CONTRADICTORY, 

AND PREJUDICIAL INSTRUCTION ON THE LAW OF 

CONSTRUCTIVE POSSESSION. (Not Raised Below)

POINT V

THE DEFENDANT WAS DENIED THE RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL AS 

GUARANTEED BY THE SIXTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND ART. I, PAR. 

10 OF THE NEW JERSEY CONSTITUTION. (Not 

Raised Below)

POINT VI

THE DEFENDANT'S RIGHT TO BE FREE FROM 

UNREASONABLE SEARCHES AND SEIZURES, AS 

GUARANTEED BY ART. I, PAR. 7 OF THE NEW 

JERSEY CONSTITUTION, WAS VIOLATED.

POINT VII

THE DEFENDANT'S MOTION TO RECONSIDER THE 

DECISION TO DENY HIS MOTION TO SUPPRESS 

EVIDENCE SHOULD HAVE BEEN GRANTED.

POINT VIII

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE 

AGGRAVATING AND MITIGATING FACTORS.

B. THE TRIAL COURT ERRONEOUSLY MADE 

FINDINGS OF FACT THAT ELEVATED THE SENTENCE 

BEYOND THE MINIMUM TERM THAT COULD HAVE BEEN 

AND SHOULD HAVE BEEN IMPOSED BASED ON THE 

JURY'S FINDINGS. (Not Raised Below)

Having considered these arguments in light of the record and 

applicable legal standards, we affirm.
5 A-2097-12T4

I.

In Points VI and VII, defendant contends that the first 

judge erred in denying his motion to suppress, and the trial 

judge erred in denying his motion for reconsideration. At the 

pre-trial hearing on the motion to suppress, the State called 

Elizabeth police officer James Szpond as its sole witness. On 

January 30, 2009, he and officer Louis Garcia received 

information from a citizen regarding possible narcotics sales at 

a certain address in a "[h]igh narcotic trafficking" 

neighborhood. The information also provided a "unique" 

detailed description of a suspect and the clothing he wore. 

While conducting surveillance from an undisclosed location, the 

officers observed a man who fit the description, later 

identified as defendant, standing outside a bodega. Szpond 

testified that the officers also had a clear view of defendant's 

"stash spot."

Szpond saw two men approach defendant and engage in a brief 

conversation, after which defendant walked a short distance away 

and down the alley of a nearby residential building. Szpond saw 

defendant bend down, return toward the street and motion to the 

men. Defendant received money and gave the men a small object. 

Fifteen minutes later, defendant was approached by a female, and 

Szpond observed similar activity. Other officers were called to 
6 A-2097-12T4

the scene and arrested defendant. Szpond proceeded to the 

alley, walked to the area where he had seen defendant bend down, 

and found a plastic bag containing vials of cocaine hidden in a 

drainpipe.2

Defendant called Garcia as a witness. His testimony was 

largely consistent with Szpond's. Garcia acknowledged that the 

alley was part of a private home, albeit not defendant's, and 

that the officers did not secure a search warrant prior to 

seizing the narcotics.

The judge placed his oral decision on the record. He found 

both officers credible and, based upon the anonymous tip they 

received and observations they made, the judge concluded there 

was probable cause to arrest defendant. The judge held that 

defendant lacked any possessory interest in the drainpipe, and 

he "could not have had a subjective expectation of privacy as he 

could not expect that the zip-loc bag and its contents would be 

safe from detection in this area." 

Before us, defendant argues that the warrantless search of 

the drainpipe and seizure of the drugs was not justified by any 

exception to the warrant requirement. The State contends that 

the judge properly determined that defendant had no reasonable 

 

2 During his trial testimony, Szpond claimed some drugs were in 

the drainpipe and some were not.
7 A-2097-12T4

expectation of privacy in the drainpipe area of a stranger's 

home.

We think a case decided after the briefs were submitted in 

this appeal is fully dispositive of the issue. In State v. 

Brown, 216 N.J. 508, 535 (2014), the Court made clear that a 

defendant has "no standing to challenge a search if an officer 

had an objectively reasonable basis to believe [defendant] was a 

trespasser." It is apparently undisputed that defendant was a 

trespasser, in that he did not live at the premises and received 

no permission from the owner to repeatedly walk down the alley. 

Because the record is unclear as to whether the officers knew 

this beforehand, we assume arguendo that defendant had standing 

to bring the motion to suppress and consider whether the search 

and seizure without a warrant was justified.

"Even when a defendant has automatic standing, if . . . the 

merits rest on whether defendant possesses a reasonable 

expectation of privacy, the court must address that issue as 

part of the substantive constitutional analysis." State v. 

Hinton, 216 N.J. 211, 234 (2013). In this regard, our 

constitution "requires only that an expectation of privacy be 

reasonable." Id. at 236 (quoting State v. Hempele, 120 N.J.

182, 200 (1990)) (internal quotation marks omitted). However, 

our courts "have recognized circumstances in which no reasonable 
8 A-2097-12T4

expectation of privacy can be found, notwithstanding the 

residential setting of the police activity." Ibid. (citations 

omitted); see also State v. Gibson, 318 N.J. Super. 1, 10-11 

(App. Div. 1999) (holding that the defendant's movements in a 

driveway "whether it was owned by him, his mother or any other 

person, was within the public view and observed from the public 

thoroughfare . . . . Accordingly, [he] could have no reasonable 

expectation of privacy in the driveway.").

The facts in this case are most similar to those presented 

in State v. Ford, 278 N.J. Super. 351 (App. Div. 1995). There, 

officers on surveillance observed the defendant walk down the 

side of a nearby house, kneel down, take something out of a 

hidden plastic bag, return the bag to a location on the outside 

of the house and complete a drug transaction with his cohort. 

Id. at 353. After arrests were made, an officer retrieved a bag 

containing cocaine from the side of the house. Id. at 353-54. 

We held that the "defendants['] privacy rights in the 

contraband had already been forfeited." Id. at 357. We upheld 

the warrantless seizure, reasoning,

Given the knowledge that a crime had been 

committed, given both officers' visual 

observations of the defendants during its 

commission, and given the observation of the 

contraband and its place of attempted 

concealment in an exterior portion of the 

house accessible by anyone from the outside 

without entering the house, no compelling 
9 A-2097-12T4

constitutional interests require suppression 

of the seized contraband from its known 

location.

[Ibid. (citation omitted); see also State v. 

Jessup, ___ N.J. Super. ___, ___ (App. Div. 

2015) (holding the defendant had no 

reasonable expectation of privacy regarding 

drugs left on top of the tire of a car).]

We believe the same rationale applies here. The judge properly 

denied defendant's motion to suppress.

Defendant next argues that the trial judge erred in denying 

his motion for reconsideration because the testimony of Szpond 

and Garcia at the first trial differed significantly from their 

testimony during the pre-trial suppression hearing. The trial 

judge stated "there was a discrepancy between what [they] said 

at trial, what they said in their police reports, and what they 

said . . . at the hearing." He concluded, however, that while 

this presented significant credibility issues for the jury, it 

did not affect whether the seizure of the drugs without a 

warrant was constitutional. He denied defendant's motion for 

reconsideration.3

 

3 We have noted that motions for reconsideration are not 

expressly provided for by Part III of the Rules of Court 

governing practice in the criminal courts, but we have 

nevertheless applied the standards contained in Rule 4:49-2 to 

such applications. State v. Fitzsimmons, 286 N.J. Super. 141, 

147 (App. Div. 1995), certif. granted, and remanded, 143 N.J.

482 (1996). Under that Court Rule, motions for reconsideration 

are addressed to "the sound discretion of the Court, to be 

(continued)
10 A-2097-12T4

The general rule that a "defendant cannot refer to evidence 

developed other than at the motion to suppress[] applies when 

[the] defendant challenges the denial of a motion to suppress." 

State v. Tavares, 364 N.J. Super. 496, 502 (App. Div. 2003). 

"The court's decision becomes the law of the case and is binding 

on whatever judge ultimately tries the case." State v. Jordan, 

115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 

(1971); see also State v. K.P.S., 221 N.J. 266, 277-79 (2015) 

(holding that "law of the case" is not applicable to appeals 

filed by co-defendants). 

Of course, there are exceptions to this general rule. 

"Presumably, if [a] defendant could show that the motion was 

denied because of fraud, or that the interest of justice 

required a new hearing on the merits (e.g., perjury), such would 

be permissible under the rules." Jordan, supra, 115 N.J. Super.

at 76-77.

Any inconsistencies and discrepancies between the officers' 

testimony at the hearing and the first trial do not suggest 

fraud or perjury, nor do the interests of justice compel the 

 

(continued)

exercised in the interest of justice." Cummings v. Bahr, 295 

N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. 

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (internal 

quotation marks omitted).
11 A-2097-12T4

conclusion that the trial judge mistakenly exercised his 

discretion in denying defendant's motion for reconsideration.

II.

At the second trial, the State called Szpond and Garcia as 

witnesses. Their testimony generally conformed with that 

referenced above, although they were subject to impeachment 

through inconsistencies in their reports and prior testimony. 

Utilizing an enlargement of a certified map, see N.J.S.A. 2C:35-

7.1(e), Detective Brendan Sullivan of the Union County 

Prosecutor's Office testified that the location where the drug 

transactions occurred was within 500 feet of a public park. 

Detective Gary Webb testified as an expert in narcotics 

transactions. The State also called a masonry contractor who 

testified regarding work done on the house near the drainpipe. 

Defendant presented the testimony of Edward Fitzgerald, an 

investigator who visited and photographed the alleyway and the 

general area of the transactions. Fitzgerald's testimony 

impeached that of the officers regarding their ability to 

observe what defendant was doing at the end of the alley.

[At the court's direction Subsections A, B,

and C of Section II of its opinion, which 

concern discrete issues, have been redacted 

from the published opinion, because they do 

not meet the criteria set by R. 1:36-2(d) 

for publication. The published parts of the 

opinion continue as follows.] 
12 A-2097-12T4

III.

As previously mentioned, Detective Brendan Sullivan of the 

Union County Prosecutor's Office testified at trial. Sullivan 

identified an exhibit as "a standard 500-foot map," depicting an 

area within a five-hundred foot radius around Legget Park in 

Elizabeth. Sullivan identified the location where the drugs 

were found as being within the circle. Defense counsel 

vigorously cross-examined Sullivan, eliciting that the map was 

prepared by an engineer in 1998, and Sullivan could not verify 

the accuracy of its measurements or add much by way of 

description of the park itself.

Near the close of the State's case, the prosecutor sought 

to move the map, an affidavit authored by an assistant 

prosecutor who met with county engineers to prepare the map, and 

a resolution approved by the Union County Board of Chosen 

Freeholders accepting the map as official into evidence. 

Defense counsel objected, arguing that the State failed to lay 

an adequate foundation and the affidavit and resolutions were 

hearsay. The judge overruled defendant's objection and admitted 

the items into evidence. 

Before us, defendant argues that the map was "testimonial" 

because it was "prepared for the purpose of prosecuting drug 

criminals," and its admission in evidence violated the 
13 A-2097-12T4

Confrontation Clause of the United States and New Jersey 

Constitutions. See U.S. Const. amend. VI; N.J. Const. art, I, ¶ 

10) (recognizing a criminal defendant's right "to be confronted 

with the witnesses against him").4 The State counters by arguing 

that, pursuant to N.J.S.A. 2C:35-7.1(e), the map was admissible 

as a business or government record, N.J.R.E. 803(c)(6); N.J.R.E.

803(c)(8), was properly authenticated pursuant to N.J.R.E. 902 

and, for purposes of the Confrontation Clause, was not 

"testimonial."

A.

N.J.S.A. 2C:35-7.1(a) provides:

Any person who violates subsection a. of 

N.J.S.A. 2C:35-5 by distributing, dispensing 

or possessing with intent to distribute a 

controlled substance or controlled substance 

analog while in, on or within 500 feet of 

the real property comprising a public 

housing facility, a public park, or a public 

building is guilty of a crime of the second 

degree . . . .

 

4 At trial, defense counsel never clearly articulated an argument 

under the Confrontation Clause, although he alluded to an 

inability to cross-examine the individual who had made the 

measurements. Since the trial in this case, our Court has held 

that a Confrontation Clause argument not advanced at trial may 

be deemed waived on appeal. See State v. Williams, 219 N.J. 89, 

93 (2014) (holding that the "defendant's failure to object on 

confrontation grounds and his decision to cross-examine the 

[witness] constituted a waiver of his confrontation right"). 

However, whether admission of a drug-zone map violates the 

Confrontation Clause has been the subject of at least five 

unpublished opinions of our court, and therefore we conclude 

that the issue needs to be addressed in a published opinion.
14 A-2097-12T4

The purpose of the statute, and N.J.S.A. 2C:35-7, 

is essentially the same: to protect those, 

predominantly children, in and around 

schools and public parks from exposure to 

the drug culture and perils of drug 

trafficking. In furtherance of that purpose, 

the Legislature mandated severe punishment 

for those who possess or distribute drugs in 

the safety zones established by those 

statutes.

[State v. Lewis, 185 N.J. 363, 370 (2005).]

We have upheld the statute against a constitutional challenge 

alleging its disparate impact upon "minority and poor 

populations that make up a large percentage of the residents of 

public housing." State v. Brooks, 366 N.J. Super. 447, 457-58 

(App. Div. 2004); see also State v. Ogar, 229 N.J. Super. 459, 

471-72 (App. Div. 1989) (rejecting constitutional vagueness 

challenge to N.J.S.A. 2C:35-7).

N.J.S.A. 2C:35-7.1(e) provides in pertinent part:

In a prosecution under this section, a map 

produced or reproduced by any municipal or 

county engineer for the purpose of depicting 

the location and boundaries of the area on 

or within 500 feet of a . . . public park, 

. . . or a true copy of such a map, shall, 

upon proper authentication, be admissible

and shall constitute prima facie evidence of 

the location and boundaries of those areas, 

provided that the governing body of the 

municipality or county has adopted a 

resolution or ordinance approving the map as 

official finding and record of the location 

and boundaries of the area or areas on or 

within 500 feet of a public housing 
15 A-2097-12T4

facility, a public park, or a public 

building . . . .

[N.J.S.A. 2C:35-7.1(e); see also N.J.S.A.

2C:35-7(f) (containing similar provisions 

with respect to one thousand-feet schoolzone maps.]

When an official map is admitted into evidence, the ordinance or 

resolution adopting the map should also be entered into 

evidence, as it was in this case. State v. Collins, 262 N.J. 

Super. 230, 240 (App. Div. 1993). Such maps are "selfauthenticati[ng]" pursuant to N.J.R.E. 902, which provides,

"[e]xtrinsic evidence of authenticity as a condition precedent 

to admissibility is not required with respect to . . . [a]ny 

. . . document . . . declared by state . . . law to be 

presumptively or prima facie genuine or authentic."

Statutes like N.J.S.A. 2C:35-7 and 2C:35-7.1 that impose 

enhanced penalties for acts committed within specified distances 

from schools, playgrounds, public parks, and other areas are 

common throughout the country, and generally the 

constitutionality of these statutes has been upheld. See Tracy 

A. Bateman, Annotation, Validity, Construction, and Application 

of State Statutes Prohibiting Sale or Possession of Controlled 

Substances Within Specified Distance of Schools, 27 A.L.R.5th 

593 (1995); Jay M. Zitter, Annotation, Validity, Construction, 

and Application of State Statutes Enhancing Penalty for Sale or
16 A-2097-12T4

Possession of Controlled Substances Within Specified Distance of 

Playgrounds, 23 A.L.R.6th 679 (2007); see also William G. 

Phelps, Validity and construction of 21 U.S.C.A. § 860 enhancing 

penalty for drug distribution if offense occurs within 1,000 

feet of school, college, or university, 108 A.L.R. Fed. 783

(2008) (discussing enhanced penalties under federal law). 

However, statutory provisions that allow a governmental entity 

to generate and adopt an official map depicting the location and 

boundaries of the specified areas, and provide for the admission 

of that map as "prima facie evidence of the location and 

boundaries of those areas," are far less common.

Our research uncovered similar statutory provisions only in 

Texas, Tex. Health & Safety Code Ann § 481.135; Tex. Penal Code

§§ 46.12, and 71.029, Georgia, Ga. Code Ann. § 16-13-32.6(e) and 

Washington, Wash. Rev. Code. § 69.50.435(5), and no reported 

case from those jurisdictions addresses whether admission of an 

official map, generated pursuant to these statutory provisions, 

violates a defendant's Sixth Amendment rights. 

One case from Washington did address a related issue —

whether the admission of an unofficial map violated the 

defendant's right to confrontation. See State v. Pearson, 321 

P.3d 1285 (Wash. Ct. App.), review denied, 337 P.3d 327 (2014). 

In Pearson, the defendant was tried for selling drugs within 
17 A-2097-12T4

1000 feet of a school bus stop. Id. at 1286. Yakima County, 

where the offense occurred, had never adopted a "complying 

resolution or ordinance" adopting an official map under 

Wash. Rev Code. § 69.50.435. Id. at 1287-88. Instead, the 

county's director of Geographic Information Systems (GIS), which 

maintained "a digital legal map library for the county and all 

its departments," testified at trial. Id. at 1286. The witness 

explained that GIS would receive information supplied by the 

local school districts, including the location of bus stops. 

Id. at 1286-87. For the defendant's trial, GIS "created a map,"

using the location of the drug sale "as the center point and 

depicting a 1,000 foot radius around that center point," with 

the reported bus stop locations also depicted. Id. at 1287. 

The Pearson court noted that while Washington's statute 

specifically allowed for the use of an unofficial map that was 

"otherwise admissible," "the map [here] [wa]s not otherwise 

admissible." Id. at 1288. Citing Crawford v. Washington, 541 

U.S. 36, 68, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 

(2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-

11, 129 S. Ct. 2527, 2531-32, 174 L. Ed. 2d 314, 321 (2009), the 

court held that the map fell "within the core class of 

testimonial statements," and that defendant "had a right to 
18 A-2097-12T4

confront the school district official" who provided information 

regarding the location of the school bus stops. Id. at 1288.

We do not consider Pearson to be particularly informative, 

since the holding focused on the hearsay nature of information 

given to the county director, who had no personal knowledge of 

the bus stop locations, and the defendant's inability to 

confront the source of that information. No reported decision 

in New Jersey has considered a Confrontation Clause challenge to 

the evidentiary provisions contained in either N.J.S.A. 2C:35-

7(f) or N.J.S.A. 2C:35-7.1(e). 

B.

We need not recount in great detail the sea change 

occasioned by the Supreme Court's decision in Crawford, prior to 

which hearsay statements were admitted without running afoul of 

the Confrontation Clause if they fell "under a firmly rooted 

hearsay exception or [bore] particularized guarantees of 

trustworthiness." 541 U.S. at 40, 124 S. Ct. at 1358, 158 L. Ed.

2d at 186 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.

2531, 2539, 65 L. Ed. 2d 597, 608 (1980)). Instead, the Court 

in Crawford held, "[w]here testimonial statements are at issue, 

the only indicium of reliability sufficient to satisfy 

constitutional demands is the one the Constitution actually 

prescribes: confrontation." Id. at 68-69, 124 S. Ct. at 1374, 
19 A-2097-12T4

158 L. Ed. 2d at 203 (emphasis added). Thus, admission of an 

out-of-court testimonial statement violates the Confrontation 

Clause unless the witness is unavailable and the defendant had an 

opportunity to cross-examine that witness. Id. at 68, S. Ct. at 

1374, 158 L. Ed. 2d at 203. By contrast, "[w]here nontestimonial 

hearsay is at issue," the States have "flexibility in their 

development of hearsay law" and are not required to afford the 

defendant an opportunity for cross-examination. Ibid.

"[T]he question of whether a hearsay statement is 

testimonial or nontestimonial defies facile definition." State 

v. Buda, 195 N.J. 278, 300 (2008). Quoting Crawford, our Court 

has said that testimonial statements are those in which 

"witnesses bear testimony against the accused." State v. 

Cabbell, 207 N.J. 311, 329 (2011) (emphasis added) (quoting 

Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed.

2d at 192). In Davis v. Washington, 547 U.S. 813, 126 S. Ct.

2266, 165 L. Ed. 2d 224 (2006), while declining to "produce an 

exhaustive classification of all conceivable statements," the 

Court endeavored to provide greater clarity for determining 

whether a statement was "testimonial," adopting the "primary 

purpose" test:

Statements are nontestimonial when made in 

the course of police interrogation under 

circumstances objectively indicating that 

the primary purpose of the interrogation is 
20 A-2097-12T4

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.

[Id. at 822, 126 S. Ct. at 2273-74, 165 L. 

Ed. 2d at 237 (emphasis added).]

The Supreme Court has recently reiterated, "the question is 

whether, in light of all the circumstances, viewed objectively, 

the 'primary purpose' of the conversation was to 'creat[e] an 

out-of-court substitute for trial testimony.'" Ohio v. Clark, 

___ U.S. ___, ___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306, 315

(2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 

S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107 (2011)). "[A] 

statement cannot fall within the Confrontation Clause unless its 

primary purpose was testimonial. 'Where no such primary purpose 

exists, the admissibility of a statement is the concern of state 

and federal rules of evidence, not the Confrontation Clause.'" 

Ibid. (quoting Bryant, supra, 562 U.S. at 359, 131 S. Ct. at

1155, 179 L. Ed. 2d at 107-08). 

"Our state confrontation jurisprudence has followed the 

federal approach, focusing on whether a statement is 

testimonial[,]" State v. Roach, 219 N.J. 58, 74 (2014), cert. 

denied, ___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015),
21 A-2097-12T4

through application of the "primary purpose test." State v. 

Michaels, 219 N.J. 1, 30-32, cert. denied, ___ U.S. ___, 135 S. 

Ct. 761, 190 L. Ed. 2d 635 (2014). "In order to correctly apply 

the Crawford analysis" a court "must consider first whether the 

particular evidence is admissible under the ordinary rules of 

evidence." State v. Chun, 194 N.J. 54, 139, cert. denied, 555 

U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). If so, the 

next inquiry is "whether the particular evidence is 

'testimonial' within the meaning of the Confrontation Clause, 

for if it is, then the fact of admissibility for purposes of the

exceptions to the hearsay rules is insufficient" to warrant 

admission absent cross-examination. Id. at 138-39; see also

State v. Sweet, 195 N.J. 357, 368 (2008).

Crawford, Davis and Clark involved verbal statements made 

by a declarant to either law enforcement personnel or other 

third parties where the declarant was not produced as a witness 

at trial. Our Court has considered application of the 

Confrontation Clause to similar scenarios, resulting in settled, 

albeit fact-sensitive, precedent. See, e.g., State ex rel. 

J.A., 195 N.J. 324, 328 (2008) (non-testifying witness's 

statements to police were testimonial and their admission under 

the circumstances violated the Confrontation Clause); Buda,

supra, 195 N.J. at 304, 308 (holding child's statements to his 
22 A-2097-12T4

mother and a DYFS worker were nontestimonial). However, the 

Confrontation Clause's application to statements contained in 

documentary evidence has stirred muddier waters.

Crawford seemingly made clear that most statements 

contained in documentary evidence admitted under well-recognized 

"hearsay exceptions . . . by their nature were not testimonial —

for example, business records." 541 U.S. at 55, 124 S. Ct. at 

1367, 158 L. Ed. 2d at 195. However, in a subsequent trilogy of 

cases involving forensic testing reports, that ratio decidendi 

has been obscured.

In Melendez-Diaz, supra, 557 U.S. at 311, 129 S. Ct. at 

2532, 174 L. Ed. 2d at 321, a five-four decision, the Court 

concluded that certificates of analysis, "the sole purpose of 

[which] was to provide prima facie evidence of the composition, 

quality, and the net weight of the analyzed substance," were 

testimonial statements, and the defendant "was entitled to be 

confronted with the analysts at trial." (Internal quotation 

marks omitted). The Court went on to say:

Business and public records are generally 

admissible absent confrontation not because 

they qualify under an exception to the

hearsay rules, but because — having been 

created for the administration of an 

entity's affairs and not for the purpose of 

establishing or proving some fact at trial —

they are not testimonial. Whether or not 

they qualify as business or official 

records, the analysts' statements here —
23 A-2097-12T4

prepared specifically for use at 

petitioner's trial — were testimony against 

petitioner, and the analysts were subject to 

confrontation under the Sixth Amendment.

[Id. at 324, 129 S. Ct. at 2539-40, 174 L. 

Ed. 2d at 329-30 (emphasis added).]

Justice Kennedy wrote a vigorous dissent, declaring that 

Crawford and Davis only applied to "formal statements made by a 

conventional witness — one who has personal knowledge of some 

aspect of the defendant's guilt." Id. at 330, 129 S. Ct. at

2543, 174 L. Ed. 2d at 334 (Kennedy, J., dissenting) (emphasis 

added).

In Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct.

2705, 2709-10, 180 L. Ed. 2d 610, 616 (2011), a subsequent fivefour decision, the Supreme Court concluded that the admission of 

a standard lab report regarding the defendant's blood alcohol 

level as a business record, in the absence of the preparer of 

the report as a witness, violated the Confrontation Clause. 

Although the state produced a witness who was generally familiar 

with laboratory procedures, testing and reports, the Court 

concluded that "the formalities attending the" report qualified 

the preparer's "assertions as testimonial." Id. at ____, 131 S. 

Ct. at 2717, 180 L. Ed. 2d at 624. Justice Kennedy, again 

writing for the dissent, argued that the Confrontation Clause 

did not "impose a constitutional bar on the admission of 
24 A-2097-12T4

impartial lab reports . . . prepared by experienced technicians 

. . . that follow professional norms and scientific protocols." 

Id. at ____, 131 S. Ct. at 2726, 180 L. Ed. 2d at 634 (Kennedy, 

J., dissenting). 

Lastly, in Williams v. Illinois, ___ U.S. ___, 132 S. Ct.

2221, 183 L. Ed. 2d 89 (2012), the majority of the Supreme Court 

concluded there was no Confrontation Clause violation when a 

testifying expert witness referenced a DNA report prepared by an 

outside laboratory, from which no witness was produced. In his 

plurality opinion, Justice Alito wrote that the report was not 

testimonial, in part, because it "was not prepared for the 

primary purpose of accusing a targeted individual." Williams, 

supra, ___ U.S. at ___, 132 S. Ct. at 2243, 183 L. Ed. 2d at 

115. 

Our Court found Williams to provide "at best unclear" 

precedential force, and specifically rejected the abovereferenced aspect of Justice Alito's analysis, noting it 

diverged from "the primary purpose test that had been applied 

previously." Michaels, supra, 219 N.J. at 31. Both Michaels

and Roach considered issues similar to those presented in 

Bullcoming and Williams.

In Michaels, supra, 219 N.J. at 5-6, the Court held the 

Sixth Amendment was not violated by admission at trial of a 
25 A-2097-12T4

certified lab report indicating defendant's blood sample tested 

positive for intoxicating substances, even though only the 

supervising analyst who had performed the test was the only 

witness at trial. In Roach, supra, 219 N.J. at 60, the Court 

held the defendant's confrontation rights were not violated even 

though the testifying DNA analyst "did not perform the testing 

procedures that provided the basis for the DNA profile developed 

from the perpetrator's evidence," but only reviewed those tests 

and "matched" the defendant's DNA with that gathered from the 

crime scene. 

Summing up the holdings in both cases, the Roach court 

explained that the confrontation rights of a defendant will not 

be violated if a supervisor, co-worker, or independent reviewer 

testifies "based on his or her independent review of raw data 

and conclusions . . . based on that data," provided the 

testimony is "provided by a truly independent and qualified 

reviewer of the underlying data and report" and not merely 

"parrot[ed]" by a surrogate witness. Id. at 79. Here, of 

course, no witness testified regarding preparation of the parkzone map or how its measurements were made.

Our Court has wrestled with Confrontation Clause issues 

involving admission of purely documentary evidence both before 

and since Crawford was decided. In State v. Simbara, 175 N.J.
26 A-2097-12T4

37, 40 (2002), our Court considered the Confrontation Clause 

implications of N.J.S.A. 2C:35-19(b), which permits the 

admission in evidence of a laboratory certification, very much 

like the one at issue in Diaz-Melendez, without live testimony. 

The Court concluded that "[t]he State's proffer of a certificate 

whose form and content conform to the statute does not itself 

preclude a defendant's right to confront the certificate's 

preparer at trial." Id. at 48. The Court explained:

A laboratory certificate in a drug case is 

not of the same ilk as other business 

records, such as an ordinary account ledger 

or office memorandum in a corporate-fraud 

case. Those latter documents have not been 

prepared specifically for the government's 

use in a potential criminal prosecution. In 

contrast, the analyst prepares the 

laboratory certificate at a prosecuting 

agency's request for the sole purpose of 

investigating an accused. 

[Id. at 49 (emphasis added).]

We have applied similar analysis to lab reports prepared by 

police chemists and blood test certificates issued under 

N.J.S.A. 2A:62A-11,5 finding in both instances that the document 

 

5 That statute provides:

 

Any person taking a specimen pursuant to 

section 1 of this act shall, upon request, 

furnish to any law enforcement agency a 

certificate stating that the specimen was 

taken pursuant to section 1 of this act and 

in a medically acceptable manner. The 

(continued)
27 A-2097-12T4

was "testimonial" and triggered rights under the Confrontation 

Clause. State v. Kent, 391 N.J. Super. 352, 354-55 (App. Div. 

2007); State v. Renshaw, 390 N.J. Super. 456, 468-69 (App. Div. 

2007).

In Chun, the Court considered Crawford's application to 

documentary evidence — the Alcotest's "foundational documents," 

relating to the good working order of the device, Chun, supra, 

194 N.J. at 142, and the "Alcohol Influence Report" or AIR, that 

"reports the results of a test which, in and of itself under our 

statute, suffices to support a conviction." Id. at 145. As to 

the foundational documents, the Court said they were "business 

records in the traditional sense." Id. at 142. Their admission 

did not violate the Confrontation Clause because, although some 

were "prepared by the police, . . . none of them relate[d] to or 

report[ed] a past fact and none of them [was] generated or 

prepared in order to establish any fact that is an element of 

the offense." Id. at 144 (citing Davis, supra, 547 U.S. at 821-

24, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237). The 

 

(continued)

certificate shall be signed under oath 

before a notary public or other person 

empowered to take oaths and shall be 

admissible in any proceeding as evidence of 

the statements contained therein.

[N.J.S.A. 2A:62A-11.]
28 A-2097-12T4

foundational documents were not "testimonial in the 

constitutional sense." Ibid.; see also Sweet, supra, 195 N.J.

at 373-74 (reaching same conclusion regarding breathalyzer 

foundational documents). 

 The Chun Court also determined that the AIR was not 

testimonial, reasoning:

First, the AIR reports a present, and not a 

past, piece of information or data. Second, 

although given in the presence of a police 

officer who operates the device, nothing 

that the operator does can influence the 

machine's evaluation of the information or 

its report of the data. Third, although the 

officer may have a purpose of establishing 

evidence of a BAC in excess of the 

permissible limit, the machine has no such 

intent and may as likely generate a result 

that exonerates the test subject as convicts 

him or her. 

[Chun, supra, 194 N.J. at 147.]

Nevertheless, the Court also "concluded that [with respect to 

the AIR] defendants are entitled to certain safeguards that we 

have required be implemented in prosecutions based on the 

Alcotest[,] . . . through our requirement that the operator of 

the device be made available to testify." Id. at 148.

We turn to the map at issue in this case, a piece of 

documentary evidence not readily amenable to Confrontation 

Clause analysis.
29 A-2097-12T4

C.

It is beyond peradventure, and defendant does not contend 

otherwise, that the map "is admissible under the ordinary rules 

of evidence." Id. at 139; see N.J.R.E. 803(c)(8).6 We 

acknowledge defendant's essential argument, however, that the 

map is "testimonial" because its primary, and perhaps only, 

purpose is to establish a fact that the State must prove as an 

element of the crime charged, i.e., in this case, that a 

particular location is within five-hundred feet of Legget Park. 

In this sense, the map is "an out-of-court substitute for trial 

testimony." Bryant, supra, 562 U.S. 344, 358, 131 S. Ct. 1143, 

1155, 179 L. Ed. 2d 93, 107. 

 

6 The rule excepts from exclusion under the hearsay rule:

(A) a statement contained in a writing made 

by a public official of an act done by the 

official or an act, condition, or event 

observed by the official if it was within 

the scope of the official's duty either to 

perform the act reported or to observe the 

act, condition, or event reported and to 

make the written statement, or (B) 

statistical findings of a public official 

based upon a report of or an investigation 

of acts, conditions, or events, if it was 

within the scope of the official's duty to 

make such statistical findings, unless the 

sources of information or other 

circumstances indicate that such statistical 

findings are not trustworthy.

[N.J.R.E. 803(c)(8).] 
30 A-2097-12T4

However, like the foundational documents found not to be 

testimonial in Chun, the map is wholly objective, having been 

prepared by an independent firm, under the direction of the 

county engineer, and adopted by the freeholders as "properly 

depict[ing] the location and boundaries of the area on or within 

500 feet of a public housing facility or a public park or a 

public building . . . within Union County." 

We acknowledge that Confrontation Clause analysis cannot 

turn on whether a defendant is able to introduce evidence to 

"challenge or verify" the testimonial statement. Melendez-Diaz, 

supra, 557 U.S. at 318, 129 S. Ct. 2527, 2536, 174 L. Ed. 2d 

314, 326. However, unlike out-of-court verbal statements made 

by unavailable witnesses, or laboratory analysis conducted in 

the past and perhaps unable to be replicated at the time of 

trial, defendant is peculiarly capable of refuting the State's 

proof regarding the map, because defendant may conduct his own 

measurements and introduce them at trial. 

Additionally, and we believe more importantly, the map was 

produced and adopted once in the past, without regard to this, 

or any other, particular defendant's trial. A common thread 

throughout the cases cited is that the documentary testimonial 

statement at issue was prepared specifically to be introduced at 

the defendant's future prosecution. Compare Williams, supra, 
31 A-2097-12T4

___ U.S. at ___, 132 S. Ct. at 2243, 183 L. Ed. 2d at 115 (DNA 

lab report prepared by non-testifying lab technician "was not 

prepared for the primary purpose of accusing a targeted 

individual"), with Melendez-Diaz, supra, 557 U.S. at 324, 129 S. 

Ct. at 2540, 174 L. Ed. 2d at 329-30 (lab certificate "prepared 

specifically for use at petitioner's trial" was "testimony 

against petitioner . . . subject to confrontation under the 

Sixth Amendment"); see also Crawford, supra, 541 U.S. at 51, 124 

S. Ct. at 1364, 158 L. Ed. 2d at 192) (Confrontation Clause 

barred formal statement taken by police of non-testifying 

"witness[] against the accused" (internal quotation marks 

omitted)); and compare Simbara, supra, 175 N.J. at 49 ("[T]he 

analyst prepares the laboratory certificate at a prosecuting 

agency's request for the sole purpose of investigating an 

accused.") (emphasis added), with State v. Dorman, 393 N.J. 

Super. 28, 33 (App. Div. 2007), aff'd sub nom., Sweet, supra, 

195 N.J. at 357 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 

2858, 174 L. Ed. 2d 601 (2009) (noting that Breathalyzer

"certificates of operability . . . were not created with any 

specific case in mind"). 

The map in this case was not prepared to prosecute this

defendant, although it likely served no purpose except to be 

evidence at the prosecution of a defendant. In this regard, we 
32 A-2097-12T4

find it closely analogous to the foundational documents in Chun, 

which the Court concluded were not "testimonial in the 

constitutional sense" even if they proved reliability of a 

device "used to conduct the breath test for a particular 

defendant." Chun, supra, 194 N.J. at 144. A number of out-ofstate cases have similarly concluded that the admission of 

documentary hearsay evidence not generated in relation to a 

specific defendant did not violate the Confrontation Clause. 

See, e.g., State v. Fischer, 726 N.W.2d 176, 183 (Neb. 2007) 

(holding a simulator solution certificate that "was prepared in 

a routine manner without regard to whether the certification 

related to any particular defendant" non-testimonial); State v. 

Dial, 998 N.E.2d 821, 825-26 (Ohio Ct. App. 2013)

(distinguishing cases involving a defendant's "individual bloodtest results" from documents related to machine calibration, 

which are "not prepared with an eye to prosecute a specific 

defendant"); Jarrell v. State, 852 N.E.2d 1022, 1026-27 

(Ind. Ct. App. 2006) (holding breath-test-machine certifications 

nontestimonial because "not prepared in anticipation of 

litigation in any particular case or with respect to implicating 

any specific defendant"). 

We find these cases, together with the Court's reasoning in 

Chun, to be particularly persuasive in this instance. The park-
33 A-2097-12T4

zone map, although hearsay, was not testimonial in nature, and 

therefore did not violate the Confrontation Clause. 

Additionally, it was admitted in a manner that complied with our 

Evidence Rules and N.J.S.A. 2C:35-7.1(e).

[At the court's direction, Section IV of its 

opinion, which concerns discrete issues, has

been redacted from the published opinion 

because the issues do not meet the criteria 

set by R. 1:36-2(d) for publication.]

The judge did not abuse the broad discretion accorded to 

him in imposing sentence upon defendant, and we therefore affirm 

defendant's sentence.

Affirmed.