SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4849-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DELVIN JONES, a/k/a

DELVIN L. JONES JR.,

Defendant-Appellant.

__________________________

Submitted January 27, 2020 – Decided

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 16-11-

0956.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David Anthony Gies, Designated Counsel, 

on the briefs).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Stephen 

Christopher Sayer, Assistant Prosecutor, of counsel and 

on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

September 9, 2020
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PER CURIAM

Defendant Delvin Jones appeals from his November 6, 2017 conviction 

for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-

10(a)(1), and possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(b)(3). 

Defendant was arrested by law enforcement after officers allegedly observed 

him participate in several suspected drug transactions while they were 

surveilling an area known for high drug activity. On appeal, defendant 

principally argues: (1) that he was impermissibly barred from cross-examining 

an officer at trial as to the officer's distance from defendant when observing 

defendant's conduct; (2) that the trial judge's instruction on flight was improper; 

(3) that he was denied the effective assistance of trial counsel because his trial 

counsel failed to move to suppress certain physical evidence; and (4) that the 

trial judge failed to properly weigh the required factors when sentencing 

defendant. After reviewing the record, and in light of the governing legal 

principles, we reverse the trial judge's ruling barring cross-examination of the 

officer's surveillance area, vacate the judgment of conviction, and remand for a 

new trial. 
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I.

We discern the following facts from the trial record. On June 1, 2016, 

Trooper Falciani, an officer of the New Jersey State Police, conducted a sneak 

and peek operation in Millville on a street where there had been numerous arrests 

for the sale and purchase of narcotics. During the operation, Falciani "identified 

an individual who appear[ed] to be distributing narcotics," prompting him to 

continue surveilling the area. 

Falciani saw defendant move back and forth between the porch and a

second-floor apartment at 700 Buck Street several times. Using binoculars, 

Falciani then observed three hand-to-hand transactions from his location. 

During the third transaction, Falciani sent in an arrest team. While the arrest 

team advanced, both defendant and a third suspected customer exited the 

apartment, and defendant remained on the porch. Falciani then observed 

defendant reenter the apartment, "exit a window at the front of the residence,"

jump off the overhang, and run across the street in the direction of 711 Buck 

Street, at which point Falciani lost sight of him. Falciani informed the arrest 

team, which located defendant on the other side of the street and arrested him. 

A State Police K-9 unit was dispatched, and a dog alerted police to a CDS 

located underneath a brick in the area where defendant had been arrested. Under 
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the brick was a drawstring bag filled with heroin and crack cocaine. Upon 

searching 700 Buck Street, Falciani discovered small rubber bands, scales, and 

a shopping bag filled with small Ziploc baggies. 

On direct examination, Falciani testified that defendant was arrested while 

sitting on the steps of a house at 711 Buck Street. Falciani stated that after the 

arrest, officers field tested the drugs uncovered in the vicinity, and the test

confirmed that the drugs were heroin and crack cocaine. 

On cross-examination, defendant attempted to question Falciani as to his 

distance from 700 Buck Street while he observed defendant, but the State 

objected, claiming that the information was protected under the informational 

privilege exception. In response, defense counsel indicated that he would not 

question Falciani as to his specific location when making observations, but only

concerning his distance from defendant when doing so. This prompted the judge 

to hold a Rule 104 hearing to decide whether to permit this line of questioning. 

The judge advised the parties that he had conducted a "very brief . . . 

cursory in camera with [Falciani] concerning the surveillance location."

1

 As a 

result of Falciani's representations in camera, the judge concluded that revealing 

1

 The trial judge conducted two in camera proceedings. We have not been 

provided transcripts for either proceeding, and we are left to infer that these 

proceedings were conducted off the record. 
5

A-4849-17T3

Falciani's "surveillance location would jeopardize current and ongoing 

investigations," and therefore disclosure was not permitted. The judge initially 

ruled that defendant could question Falciani as to his range of distance when 

making observations. However, after the prosecutor averred that disclosing 

Falciani's range of observation would reveal the surveillance location, the judge 

conducted a second in camera examination of Falciani. As the judge explained:

The prosecutor indicated that [Falciani] indicated that 

such a disclosure of range would, in fact, reveal . . . the 

surveillance location, which I’d already indicated was 

not to be revealed under . . . State v. Garcia. That said, 

the . . . further in camera was able to have the [c]ourt 

provide what the [c]ourt believes would be a sufficient 

basis of examination . . . for the defense counsel that 

approximates a distance without . . . actually 

jeopardizing any . . . location[.] . . . The inquiry you can 

make is, were you from a distance from which with the 

assistance of the field glasses you were utilizing, you 

could make a positive identification of an individual at 

the 700 Buck Street location. 

After the judge made this determination, defense counsel again stressed that he 

did not seek to elicit Falciani's specific location when making observations, but 

only his approximate distance when doing so. Counsel also objected to the form 

of questioning permitted by the judge, arguing it was detrimental to defendant. 

The judge responded:

I reopened the in camera to explore areas that I had not 

explored with the trooper initially, and inquired as to 
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A-4849-17T3

what his basis was for that. And upon hearing that, I 

agree[d] that such disclosure would, in fact, disclose the 

surveillance location, which would . . . jeopardize 

current and ongoing investigations . . . . I then inquired 

further as to what type of information could be 

disclosed without disclosing the surveillance location, 

predicated upon what’s already been provided. Now

. . . what has been provided so far is that observations 

were made of several areas on the structure located at 

700 Buck Street, and that the . . . path of travel of the 

defendant was visible to the surveilling officer and that 

the surveilling officer utilized field glasses. That is a 

significant inquiry. The only thing I could find that 

would necessarily be something that may be inquired 

by the defense is whether . . . there were any 

obstructions to that field of view . . . so long as same do 

not reach into areas where it would pinpoint any 

particular location.

The judge concluded that based on his balancing of the State's interest in 

protecting the surveillance location versus defendant's need to elicit testimony 

to support his defense, he would permit defense counsel to ask whether Falciani 

"could make a positive identification of an individual in the locations he testified 

to from his location with the existence of field glasses and whether or not he had 

an obstructed or unobstructed view." The judge found those inquiries were 

sufficient "to afford the defense . . . the ability to cross-examine [Falciani] with 

regard to his ability to make observations."

When cross-examination resumed, defense counsel did not pursue the 

suggested line of questioning. Falciani conceded that officers were unable to 
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locate any of the three purchasers from the suspected drug transactions. Falciani 

also confirmed that no items recovered by law enforcement had been submitted 

for fingerprinting, and that he could not positively identify any items recovered 

from the apartment as belonging to defendant. 

The State then called several other witnesses. Trooper David Daniels, a 

member of the arrest team, testified that at the time of the arrest, defendant 

looked to be tired and out of breath, and he was sweating. Daniels conceded on 

cross-examination, however, that these observations were not noted in Falciani's 

report. 

The State then called Trooper Matthew Cocking, who was assigned to the 

canine unit at the time of defendant's arrest. On cross-examination, Cocking 

conceded that because defendant was arrested in an "active drug area," it was 

not surprising for his police dog to locate drugs there, and that he had no direct 

means of connecting the drugs found to defendant. 

The State also called Mandelle Hunter, a forensic scientist in the State 

Police lab, who testified that lab testing confirmed that the drugs found in the 

vicinity of defendant's arrest were indeed heroin and cocaine. Hunter 

acknowledged on cross-examination, however, that she had no way to conclude

that defendant had possessed the drugs.
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The State also called Detective Jay W. Pennypacker, who was assigned to 

investigate the lease agreements for 700 and 711 Buck Street during defendant's 

investigation. Pennypacker had contacted the owners of both residences by 

letter and asked them to identify the properties' tenants. On cross-examination, 

Pennypacker testified that neither owner provided any documents evincing that 

defendant had lived at either residence. 

On August 22, 2017, the judge held a charge conference, at which 

defendant requested that the judge tailor an instruction on flight "to fit the extent 

to which it might [apply] in [the] case." The judge proposed to read the model 

jury charge on flight, as there was testimony that defendant fled from 700 Buck 

Street, while stipulating that "[d]efendant denies any flight." Defendant initially

disagreed because "[h]e was charged in connection with what was located at 

711," but he ultimately consented to the charge. 

Trial resumed on August 23, 2017, at which time defendant took the stand. 

On direct, defendant offered testimony that conflicted with Falciani's testimony.

Defendant testified that before his arrest on June 1, 2016, he had visited his aunt 

in the area and then stopped at a store. Defendant claimed that he was arrested 

while walking after leaving the store, not while sitting on a step, as Falciani 

testified. Defendant denied being in the apartment where the suspected drug 
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A-4849-17T3

transactions occurred but conceded that he had a relationship with Porchia 

Williams, the occupant of the apartment, and intended to visit her that day. He

also claimed that he was not running when arrested by police, stressing that he 

had sprained his ankle several days prior, which he claimed belied Daniels' 

testimony that he had been sweating and looked out of breath. Finally, 

defendant denied possessing any drugs on the day of his arrest or owning any 

items seized from the apartment. 

The State then called Williams as a final witness. Williams testified on 

direct examination that she had also been arrested on June 1, 2016, in connection 

with law enforcement's surveillance of her apartment at 700 Buck Street. 

Williams testified that defendant had not been living with her on the date of their 

arrests. The State introduced a bail intake form for the purposes of identification 

that the intake officer had filled out on June 2, 2016. On the form, which 

Williams acknowledged she had signed, defendant was listed as her cohabitant 

and boyfriend. Williams explained, however, that defendant had not been living 

with her, and that she had advised the intake officer that they were in a 

relationship and that "[defendant] was always over at [her] house." On crossexamination, Williams testified that she did not recall whether the intake officer 
10 A-4849-17T3

had told her that her signing the document would mean her attesting to their 

cohabitation. 

After closing arguments, the judge charged the jury. As to flight, the 

judge gave the following charge:

There has been some testimony in this case from 

which you may infer that the defendant fled shortly 

after the alleged commission of the crime. The 

defendant denies any flight. The question of whether 

the defendant fled after the commission of the crime is 

another question of fact for you to determine. 

Mere departure from a place where a crime has 

been committed does not constitute flight. If you find 

that the defendant fearing that an accusation or an arrest 

would be made against him on the charge involved in 

the indictment, took refu[g]e in flight for the purpose 

of evading the accusation or arrest on the charge, then 

you may consider such flight in connection with all 

other evidence in the case as an indication or proof of 

consciousness of guilt.

Flight may only be considered as evidence of 

consciousness of guilt if you should determine that the 

defendant's purpose in leaving was to evade accusation 

or arrest . . . for the offense charged in the indictment.

If after a consideration of all of the evidence you 

find the defendant fearing that an accusation or arrest 

would be made against him on the charge involved in 

this indictment, took refu[g]e in flight for the purpose 

of evading accusation or arrest then you may consider 

such flight in connection with all of the other evidence.

. . . It is for you as the judges of the fact[s] to 

determine whether or not evidence of flight shows a 

consciousness of guilt and the weight to be given to 

such evidence in light of all of the other evidence in the 

case.
11 A-4849-17T3

On August 24, 2017, the jury rendered a verdict finding defendant guilty of 

possession of a CDS and possession with intent to distribute a CDS. 

At his October 27, 2017 sentencing, defendant averred that his arrest was 

the product of an illegal search of 700 Buck Street. Defendant also stated that 

he no longer wanted his present counsel to represent him. The judge denied 

defendant's request for substitute counsel and declined to address his allegations 

of an illegal search, as the case had already been tried. Defense counsel 

conceded that although the search of the apartment was arguably 

unconstitutional, he did not raise the issue at trial because he believed that the

"facts that led to [defendant's] arrest were sufficiently attenuated," as the arrest 

was based principally on the CDS discovered in defendant's immediate vicinity, 

an area in which he had no reasonable expectation of privacy. 

The judge concluded that based on the nature of the present offenses as 

being in the third-degree and because "[d]efendant has [a] history of offenses, 

has been exposed to a full array of criminal sanctions, including diversion, 

probation, and incarceration, none of which has dissuaded him from continued 

anti-social criminal behavior," he was a persistent offender under N.J.S.A. 

2C:44-3(a). As defendant was a persistent offender with prior distribution 

charges, he was subject to a mandatory extended-term sentence. Based on a
12 A-4849-17T3

review of defendant's presentence report, the judge found that defendant had six 

prior indictable convictions since 2013, and based on defendant's status, he was

subject to a sentencing range from three to ten years for the current conviction. 

The State conceded that defendant was going to school and was working and

asked that the court consider these factors during sentencing. Defense counsel 

added that defendant pays his child support and is "trying to live a decent li[f]e,"

and he asked that the judge place defendant at the bottom of the extended range. 

The judge gave substantial weight to several aggravating factors: the risk 

that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent 

of defendant's prior criminal record and the seriousness of the offenses for which 

he was previously convicted, N.J.S.A. 2C:44-1(a)(6); and the need for 

deterrence, N.J.S.A. 2C:44-1(a)(9). The judge emphasized defendant's history 

of convictions, including second-degree offenses and state prison sentences and 

that defendant is a repetitive offender in need of specific deterrence. The judge 

also determined that no mitigating factors applied. 

The judge concluded that the aggravating factors substantially outweighed

the mitigating factors. He added that a period of parole ineligibility was 

warranted based on "defendant's criminal nature and the nature . . . of the present 
13 A-4849-17T3

offense." Ultimately, the judge sentenced him to seven years' imprisonment 

with a three-and-a-half-year period of parole ineligibility. This appeal ensued. 

On appeal, defendant raises the following points:

POINT ONE

THE TRIAL COURT IMPROPERLY CONSTRICTED 

DEFENDANT'S CROSS-EXAMINAT[I]ON OF THE 

POLICE OFFICER AS TO THE SURVEILLANCE 

LOCATION, THEREBY DEPRIVING DEFENDANT 

OF HIS RIGHT TO A FAIR TRIAL.

POINT TWO

THE TRIAL COURT'S FAILURE TO PROPERLY 

MOLD THE FLIGHT INSTRUCTION TO THE 

FACTS OF THE CASE POSSESSED A CLEAR 

CAPACITY TO BRING ABOUT AN UNJUST JURY 

VERDICT.

POINT THREE

THE FAILURE OF DEFENDANT'S TRIAL 

ATTORNEY TO MOVE TO SUPPRESS THE 

EVIDENCE OF DRUG PARAPHERNALIA FOUND 

IN THE RESIDENCE AMOUNTED TO 

CONSTITUTIONAL INEFFECTIVENESS OF 

COUNSEL. (Partially raised below). 

POINT FOUR

THE TRIAL COURT DID NOT CONSIDER THE 

REAL-TIME CONSEQUENCES RELATING TO 

DEFENDANT'S SENTENCE. (Not raised below). 

We address each of these arguments in turn.
14 A-4849-17T3

II.

Defendant first argues that the trial judge erred by barring him from

eliciting testimony as to Falciani's distance when he observed defendant. We 

review a trial court's evidentiary rulings for an abuse of discretion. Brenman v. 

Demello, 191 N.J. 18, 31 (2007). Thus, we will not disturb a trial court's 

evidentiary rulings unless they are "so wide off the mark that a manifest denial 

of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) 

(quoting State v. Carter, 91 N.J. 86, 106 (1982)). However, we review questions 

of law de novo. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 

(1999).

Both N.J.S.A. 2A:84A-27 and N.J.R.E. 515 provide the following:

No person shall disclose official information of this 

State or of the United States (a) if disclosure is 

forbidden by or pursuant to any Act of Congress or of 

this State, or (b) if the judge finds that disclosure of the 

information in the action will be harmful to the interests 

of the public.

Under the official information privilege, "a surveillance location falls within the 

type of information that a court may conceal in the public interest." State v. 

Garcia, 131 N.J. 67, 73 (1993). "Trial courts must consider possible disclosure 

of surveillance locations on a case-by-case basis," id. at 80, and the decision to 

disclose or withhold a location "should be overturned only if the record discloses 
15 A-4849-17T3

a mistaken exercise of discretion in the application of the relevant factors," State 

v. Zenquis, 131 N.J. 84, 88 (1993).

To successfully invoke the privilege, "the State must demonstrate a 

realistic possibility that revealing the location would compromise present or 

future prosecutions or would possibly endanger lives or property." Garcia, 131 

N.J. at 78. The defendant can overcome the privilege only by making "a 

substantial showing of need." Id. at 81. "[I]n determining whether the defendant 

has demonstrated 'substantial need,' the court should balance the defendant's 

need for that information with the public's interest in nondisclosure." Zenquis, 

131 N.J. at 88. Relevant factors include the crime charged, possible defenses, 

the potential significance of the information, and the availability of evidence 

corroborating the officer's statements. See ibid.; Garcia, 131 N.J. at 80, 82-83.

Even where the State receives the benefit of the official information 

privilege, the defendant is entitled "to inquire about certain important facts" to 

help the jury "critically examine testimony, while also serving the State's need 

for confidentiality." Garcia, 131 N.J. at 81. "[S]ome [such] information is so 

vital that we can envision few circumstances in which a defendant would not be 

entitled to it," so the defendant may always question a witness about it. Ibid. 

Such information includes the distance from which the observation was made, 
16 A-4849-17T3

whether the witness used any vision-enhancing articles, whether the observation 

was made from an elevated position, and information about the witness's line of 

sight and angle of sight. Id. at 81-82. These facts may always be elicited absent 

"some strong State interest in their continued concealment." Zenquis, 131 N.J. 

at 89 (citing Garcia, 131 N.J. at 82). 

Our Supreme Court considered the official information privilege in the 

companion cases of Garcia and Zenquis. In Garcia, police officers conducting 

surveillance, based on an informer's tip, observed Garcia and an accomplice 

engaging in what appeared to be drug transactions, so they apprehended Garcia. 

131 N.J. at 71. The officers did not find any drugs or money on him but found 

heroin in a nearby freezer that he had been using. Ibid. Garcia was later 

convicted on several drug charges. Id. at 72. At trial, Garcia was able to 

question a testifying officer as to his elevation, distance, and direction when 

making observations, and his use of binoculars. Id. at 71. However, the trial

court issued a protective order barring Garcia from discovering the precise 

surveillance location. Id. at 72.

On appeal, Garcia asserted that the court's suppression of the precise 

location of the surveillance site "unconstitutionally limited his right of crossexamination." Ibid. The Court disagreed, finding that the record "disclose[d] 
17 A-4849-17T3

sufficient opportunity to cross-examine the officers even without inquiring 

about the exact surveillance location." Id. at 82. The Court concluded that 

because the 

defendant learned the distance and direction from 

which the officers had conducted the surveillance, that 

the officers had used binoculars, and that the officers 

had viewed the transaction from an elevated position[,]

. . . [he] has failed to show that disclosure of the exact 

location was essential or even helpful to a fair 

determination of his case.

[Id. at 83.]

What differentiates this case from Garcia is the fact that defense counsel 

did not seek to question Falciani about the precise location from which the 

surveillance was conducted. Unlike Garcia, where the court permitted extensive 

cross-examination concerning the officer's vantage point, here the judge allowed 

no cross-examination on factors concerning distance, line of sight, or elevation. 

See id. at 71. The judge's ruling was based on two brief in camera conversations 

with Falciani, from which he concluded that disclosure of the distance from 

which the officer observed defendant would necessarily reveal the officer's 

precise location and endanger current and future investigations. Unfortunately, 

we are hampered in our review of that determination because the in camera 
18 A-4849-17T3

hearings were apparently off the record and there is otherwise no support in the 

record for the judge's conclusion.

Moreover, as the Court made clear in Zenquis, even where ongoing 

surveillance may be compromised, the confidential information privilege may 

nevertheless require divulgence of a precise surveillance location. In Zenquis, 

after an in camera hearing, the trial court barred the defendant from questioning 

the officer as to his specific location, line of sight, and elevation when making 

observations, and limited further cross-examination to whether the officer was

indoors at the time he observed defendant. 131 N.J. at 87. On appeal, the Court 

concluded that barring testimony of the specific location was improper, as the 

defendant's need for the testimony was substantial because "the case against him 

turned almost exclusively on [the officer's] testimony." Id. at 88-89. In so 

ruling, the Court distinguished the matter from Garcia:

Unlike the facts in Garcia, the police did not receive a 

tip that persons were selling heroin in the area nor did 

they locate a supply of drugs in the vacant lot where the 

alleged drug transaction had occurred. The police 

found no drugs on defendant[,] . . . [and] [w]ithout 

access to the surveillance site, defendant's sole defense 

necessarily was simply a denial of the charges. The 

case depended on the jury's appraisal of the credibility 

of [the officer] and defendant; but the protective order 

impeded the jury's opportunity fairly to assess the 

officer's credibility.
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[Id. at 89.]

The Zenquis Court concluded that even though the defendant was able to elicit 

testimony as to "some of the important facts concerning the site," that 

defendant's substantial need for the information warranted disclosure of the 

specific location. Ibid. In rendering this decision, the Court focused principally 

on the fact that "the trial court failed to give due consideration to defendant's 

interests and thereby violated his right of confrontation in refusing to divulge 

the exact location," without engaging in any discussion as to the balancing of 

defendant's interest with that of the State. Ibid.

With these guiding principles in mind, we conclude that the trial judge's 

decision to prevent defendant from questioning Falciani concerning his ability 

to make observations was a mistaken exercise of discretion. We find that the 

trial judge placed undue emphasis on the State's interest in maintaining 

confidentiality and did not consider defendant's demonstrated need to crossexamine Falciani as to his ability to identify defendant. See Garcia, 131 N.J. at 

81. In that regard, here as in Zenquis, defendant's guilt turns principally on 

Falciani's credibility. There was no corroborative testimony from an informant 

or other witnesses who observed defendant's conduct, nor physical evidence 

linking defendant to a CDS. The State's witnesses all testified that there was no 
20 A-4849-17T3

objective way to link defendant to any of the CDS recovered from either his 

vicinity or from 700 Buck Street.2

On remand, the trial judge should determine if defendant's substantial 

need to elicit Falciani's distance was overcome by a strong State interest in the 

continued concealment of this information. See Zenquis, 131 N.J. at 89 (citing 

Garcia, 131 N.J. at 82). In this regard, while the trial judge concurred with the 

prosecutor that testifying as to the distance of Falciani's surveillance location 

would necessarily disclose the specific location, this position is unsupported by 

the record. We are without the transcripts of the in camera reviews conducted 

by the judge and are unaware as to the specifics of that discussion aside from 

the judge's conclusory comments that he agreed with the prosecutor's position. 

Based on the record, we find that, as in Zenquis, the trial judge did not 

give due consideration to the extent to which the defense strategy required

impeaching Falciani, which should have been accommodated by allowing 

defendant to ask questions regarding Falciani's distance, use of binoculars, 

elevation, and line and angle of sight when making observations. See Garcia, 

131 N.J. at 81-82. We conclude that the sought-after questioning concerning, 

2

 While both defendant's and William's testimony established that they knew 

each other, it did not directly link defendant to the alleged drug transactions.
21 A-4849-17T3

among other factors, the distance from which Falciani made his observations 

was potentially both helpful and perhaps essential to the defense. See Garcia, 

131 N.J. at 83. "[T]he question is whether there is a reasonable possibility that 

the [error] complained of might have contributed to the conviction." State v. 

Slaughter, 219 N.J. 104, 119 (2014) (alterations in original) (quoting State v. 

Dennis, 185 N.J. 300, 302 (2005)). "The inquiry . . . is not whether, in a trial 

that occurred without the error, a guilty verdict would surely have been 

rendered, but whether the guilty verdict actually rendered in this trial was surely 

unattributable to the error." State v. Pillar, 359 N.J. Super. 249, 277-78 (App. 

Div. 2003) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993)). 

That defendant was precluded from eliciting testimony regarding 

Falciani's ability to make observations, "[n]o matter that the likelihood of [his] 

contentions might be slim," it constituted a violation of his sixth amendment 

right to confront the witnesses against him. State v. Crudup, 176 N.J. Super. 

215, 221 (App. Div. 1980); see generally Zenquis, 251 N.J. Super. at 367-69. 

Accordingly, we cannot say with any degree of confidence that the error was 

harmless beyond a reasonable doubt. See Slaughter, 219 N.J. at 118-19

("[W]here the trial court commits a constitutional error, that error is to be 

considered 'a fatal error, mandating a new trial, unless we are able to declare a 
22 A-4849-17T3

belief that it was harmless beyond a reasonable doubt.'" (quoting State v. 

Cabbell, 207 N.J. 311, 338 (2011)) (internal quotation marks omitted)). 

Because this matter must be retried, the remaining issues on appeal are 

moot and therefore will not be addressed. 

Reversed in part, vacated in part and remanded for a new trial.