NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1592-23

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

TYRELL S. LANSING, 

 Defendant-Appellant. 

________________________

 

Submitted August 27, 2024 – Decided October 3, 2024 

Before Judges Gooden Brown, DeAlmeida and Vinci. 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Morris County, 

Indictment No. 21-12-0895.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Alison Perrone, Deputy Public Defender, of 

counsel and on the brief). 

Robert J. Carroll, Morris County Prosecutor, attorney 

for respondent (Tiffany M. Russo, Assistant 

Prosecutor, of counsel and on the brief). 

The opinion of the court was delivered by 

DeALMEIDA, J.A.D. 

APPROVED FOR PUBLICATION 

October 3, 2024 

APPELLATE DIVISION 
A-1592-23 2 

 Defendant Tyrell S. Lansing, on leave granted, appeals from the 

September 18, 2023 order of the Law Division denying his motion to allow his 

expert witness to testify remotely at an evidentiary hearing and at his jury trial. 

We affirm. 

I.

 In 2021, a grand jury indicted defendant, charging him with: (1) firstdegree murder, N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); (3) second-degree 

possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1); (4) seconddegree possession of a handgun by a certain person, N.J.S.A. 2C:39-7(b)(a); 

and (5) fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-

3(f)(1). 

 The charges arise from a shooting death on a Morristown street in the 

early morning hours of August 18, 2021. Investigators recovered video 

footage from the morning of the shooting. During its case-in-chief, the State 

intends to present a reconstruction of the shooting using the video footage to 

identify defendant as the shooter. To create the reconstruction, the State 

retained an expert in photogrammetry, a scientific field involving the use of 

photography in surveying and mapping to measure the distance between 

objects. In December 2022, the State's expert produced a report containing 
A-1592-23 3 

visualizations and graphics he will testify constitute a reconstruction of the 

shooting. In addition to photogrammetry, the State's expert used forensic 

video analysis, bullet trajectory analysis, and other sciences in his report. 

 Defendant subsequently retained an expert who specializes in forensic 

video analysis to review the report of the State's expert, issue a report, and 

testify at an Olenowski hearing challenging the admissibility and reliability of 

the State's expert's report, and at trial, if necessary.1 Defendant's expert spent 

more than forty hours reviewing discovery. At the time the trial court issued 

the order under appeal, he had not issued a report.

 Before he was retained, defendant's expert informed defendant's counsel 

that he would have to testify virtually at any evidentiary hearing or trial 

because he has a heart condition, was recovering from surgery, and is the 

primary caregiver for his seriously ill spouse. Accordingly, in August 2023, 

defendant moved for leave to have his expert testify remotely. 

 In support of the motion, defendant submitted an affidavit from his 

counsel stating that the expert suffers from atrial fibrillation and at the time of 

the application was recovering from hernia surgery. According to the 

affidavit, the expert is also the sole caregiver for his spouse, who has 

1

 State v. Olenowski, 253 N.J. 133 (2023) (establishing the standards for 

admission of expert testimony at criminal and quasi-criminal trials). 
A-1592-23 4 

undergone chemotherapy, multiple surgeries, and other treatments for cancer 

and is limited in performing her daily life functions. The expert assists his 

spouse with all of her daily activities, preparing a six-meal-per-day regimen to 

meet her dietary needs, ensuring her physical safety, and dispensing her 

medications. Due to his spouse's immunocompromised state, the expert will 

not risk exposure to viruses, including COVID-19. The affidavit was not 

accompanied by medical evidence detailing the expert's condition or that of his 

spouse or offering the opinion that the expert should avoid appearing in public. 

The expert lives in Dutchess County, New York, approximately an hour-and-ahalf drive from Morristown, where the hearing and trial would take place, and 

is able to make that trip. 

 The State declined to consent to the expert's remote testimony and 

opposed defendant's motion. 

 On September 18, 2023, the trial court issued a comprehensive written 

decision denying the motion. The court first addressed the apparent tension 

between Rule 1:2-1(b), which permits testimony by contemporaneous 

transmission on a showing of good cause and with appropriate safeguards, and 

the October 27, 2022 Order of the Supreme Court (2022 Order), which directs 

that criminal jury trials shall proceed in person and that evidentiary hearings in 

criminal matters shall proceed in person unless the parties consent to a virtual 
A-1592-23 5 

proceeding. The trial court rejected the State's contention that in light of the 

2022 Order, the court could not permit defendant's expert to testify remotely at 

the evidentiary hearing without the State's consent and could not permit his 

remote testimony at trial under any circumstances. The court concluded that 

the 2022 Order, the last in a series of orders in which the Supreme Court 

addressed the framework for court operations during the COVID-19 

emergency, is "temporary in nature," unlike Rule 1:2-1(b). In addition, the 

trial court reasoned that because defendant is seeking to have only one witness 

testify remotely, and not to have the entire evidentiary hearing and trial 

conducted remotely, the Rule, and not the 2022 Order, controls. 

 In its analysis of the "good cause" and "appropriate safeguards" 

standards set forth in the Rule, the trial court applied the factors established in 

Pathri v. Kakarlamath, 462 N.J. Super. 208, 216 (App. Div. 2020), which was 

issued prior to both the adoption of Rule 1:2-1(b) and the issuance of the 2022 

Order. The trial court found that the intended testimony of defendant's expert 

concerned "the heart of the matter" in dispute between the parties: the 

identification of defendant as the shooter. While defendant's expert had not 

yet issued a report, the trial court found that, although not necessarily 

disputing the reliability of the underlying science used by the State's expert, 

defendant's expert will dispute the methods the State's expert used in analyzing 
A-1592-23 6 

the evidence and creating the reconstruction. The trial court found that "the 

anticipated testimony will be offered to address sharply disputed facts, that is, 

whether the State's expert testimony is admissible at trial, and if so, the 

reliability of that evidence." The court found that the anticipated testimony of 

defendant's expert will be "significantly important to the anticipated 

Olenowski hearing as well as to the trial itself if the court deems the expert 

testimony admissible." 

 In addition, the trial court found that the anticipated testimony of 

defendant's expert "is likely to be extensive, highly technical, and significantly 

disputed . . . ."2 The court also found that the credibility of defendant's expert, 

and an assessment of his knowledge, skill, experience, and training will be at 

issue, both at the evidentiary hearing and at trial. 

 The court also found that "[i]t is reasonable to assume both experts will 

be extensively cross-examined regarding their reports and opinions, and 

allowing the defense expert to appear virtually may hinder the ability of the 

2

 As noted above, at the time that the trial court issued its decision, 

defendant's expert had not issued a report. During the pendency of this appeal, 

the expert issued a report. We granted defendant's motion to supplement the 

record with the report, which we have reviewed. Although defendant argues 

that the report highlights the non-technical character of the expert's intended 

testimony, our review supports the trial court's characterization of the expert's 

intended testimony as extensive, highly technical, and raising disputed issues. 
A-1592-23 7 

State to zealously cross-examine the witness." In support of this finding, the 

court noted that 

although certain material can be forwarded to the 

defense expert in advance, it is difficult to anticipate 

every potential area of cross-examination prior to 

hearing direct testimony. If certain material has not 

been previously provided to the expert, crossexamination may be limited. Further, uploading 

certain material in advance may serve to alert the 

witness of potential areas of cross-examination and

place the State at a disadvantage. 

 The court found that even though it, and not a jury, will be the factfinder 

at the evidentiary hearing, the State will be at a disadvantage because of the 

highly technical nature of the expected testimony. Presentation of remote 

testimony to the jury at trial would, the court found, make the difficult task of 

assessing the expert's credibility considerably more problematic. 

 The trial court found that defendant's expert could make the trip to 

Morristown to testify with minimal financial burden to the Public Defender's 

Office. In addition, the court found requiring the expert to appear in person 

would not delay the hearing or trial, given his proximity to the courthouse. 

The court recognized that denial of defendant's motion may require him 

to retain a new expert. However, it found that the expert's desire not to appear 

in person was readily foreseeable, as the expert was aware of his medical 

condition and the need to care for his spouse at the time he was retained. 
A-1592-23 8 

Although the court stated that it appeared the expert did not inform defendant's 

counsel of his desire to testify remotely until after he was retained, defendant's 

merits brief states that the expert notified defendant's counsel before he was 

retained. The court concluded that any delay in retaining a new expert in the 

event that the motion is denied will be attributable to the defense. 

Finally, the court found that, although the concerns raised by defendant's 

expert were legitimate, accommodations, such as masking, clear screens, and 

social distancing, could lessen the risk of contracting an infection while 

testifying in person.3

 A September 18, 2023 order memorialized the trial court's decision. 

 On October 27, 2023, we denied defendant's motion for leave to appeal 

the September 18, 2023 order. 

 On January 23, 2024, the Supreme Court granted defendant's motion for 

leave to appeal, and summarily remanded the matter for our consideration. 

 Defendant raises the following argument. 

THIS COURT SHOULD REVERSE THE TRIAL 

COURT'S DECISION DENYING DEFENDANT'S 

MOTION TO PERMIT HIS EXPERT WITNESS TO 

TESTIFY REMOTELY. 

3

 The court did not address steps the expert could take to arrange for 

professional care for his spouse during his live testimony. 
A-1592-23 9 

II. 

 A trial judge has broad discretion in controlling the courtroom and court 

proceedings. State v. Pinkston, 233 N.J. 495, 511 (2018); State v. Jones, 232 

N.J. 308, 311 (2018). "[W]e apply the abuse of discretion standard when 

examining the trial court's exercise of that control." Jones, 232 N.J. at 311. 

 A trial court abuses its discretion "by relying on an impermissible basis, 

by relying upon irrelevant or inappropriate factors, by failing to consider all 

relevant factors, or by making a clear error in judgment." State v. S.N., 231 

N.J. 497, 500 (2018); see also State v. Chavies, 247 N.J. 245, 257 (2021). 

"[A] functional approach to abuse of discretion examines whether there are 

good reasons for an appellate court to defer to the particular decision at issue." 

State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg v. Essex Cnty. Prosecutor, 

171 N.J 561, 571 (2002)) (alteration in original). "When examining a trial 

court's exercise of discretionary authority, we reverse only when the exercise 

of discretion was 'manifestly unjust' under the circumstances." Newark 

Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 

174 (App. Div. 2011) (quoting Union Cnty. Improvement Auth. v. Artaki, 

LLC, 392 N.J. Super. 141, 149 (App. Div. 2007)). 

 The advent of the COVID-19 emergency in the State in March 2020 

necessitated adjustments to the longstanding practice of almost all proceedings 
A-1592-23 10

taking place in-person in our courts. "Experience with the various video 

conferencing and live streaming applications employed during that emergency 

laid the groundwork for rule adoptions providing for the use of these 

technologies in appropriate circumstances." Pressler & Verniero, Current N.J. 

Court Rules, cmt. 1 on R. 1:2-1 (2025). One such rule, adopted effective 

September 1, 2021, was Rule 1:2-1(b). That rule provides: 

Contemporaneous Transmission of Testimony. Upon 

application in advance of appearance, unless otherwise 

provided by statute, the court may permit testimony in 

open court by contemporaneous transmission from a 

different location for good cause and with appropriate 

safeguards. 

[R. 1:2-1(b).] 

 During the COVID-19 emergency, the Supreme Court also issued a 

number of orders concerning the conduct of court proceedings. On November 

18, 2021, the Court issued an order "to provide a framework for transition 

from almost all in-person proceedings to a future that uses technology to 

provide expanded options for access, participation, timeliness, and justice. 

That Order stipulated proceedings that must continue in person and those that 

could or would proceed virtually." Pressler & Verniero, Current N.J. Court 

Rules, cmt. 1 on R. 1:2-1 (2025). 

 With the COVID-19 emergency lessening in severity, the Court issued 

the 2022 Order. In that Order, the Court stated, 
A-1592-23 11

[t]his Order updates the framework for those court 

events that are to be conducted in person and those

that in general will proceed in a virtual format. 

Informed by experience, it establishes a more 

sustainable approach to court operations in order to 

optimize access, participation, and the timely 

administration of justice. 

. . . . 

[W]ith expanded vaccination and treatment options, 

public health authorities agree that the virus poses less 

of a threat. In light of those changed circumstances, 

the Court has concluded all COVID-19 restrictions in 

court locations while maintaining the option for 

people to wear masks at their choice. In addition,

judges also routinely exercise discretion to permit

individuals to participate virtually as necessary for 

health and other reasons. 

[2022 Order, preamble (emphasis added).] 

With respect to criminal matters, the Court ordered, in relevant part, that 

1. Criminal jury trials shall continue to proceed in 

person. 

2. The following matters will generally proceed in 

person but may proceed virtually with the consent of 

all parties; consent of a party will not be required if 

that party is absent and unreachable: 

a. CRIMINAL: . . . evidentiary hearings . . . . 

[2022 Order, paragraphs 1-2 (a).] 

We reject the State's argument that paragraphs 1-2(a) of the 2022 Order 

preclude the trial court from allowing defendant's expert to testify remotely at 
A-1592-23 12

the evidentiary hearing without the State's consent and at trial in any 

circumstances. The Supreme Court has the authority to "make rules governing 

the administration of all courts in the State and, subject to law, the practice and 

procedure in all such courts." N.J. Const. art. VI, § 2, ¶ 3. The Court's "[r]ulemaking authority may be exercised by the promulgation of formal rules to be 

included in the published Rules of Court . . . . It may also be exercised in the 

form of general directives or specific orders." In re Yaccarino, 101 N.J. 342, 

351 (1985) (citation omitted). 

Both Rule 1:2-1(b) and the 2022 Order were promulgated under the

Supreme Court's constitutional authority and address the use of remote 

testimony in criminal proceedings. Our comparison of these authorities 

revealed no conflict in their provisions. The 2022 Order provides a general 

framework for how the many categories of proceedings heard in our courts 

generally will take place. Criminal jury trials will take place in person, as will 

evidentiary hearing in criminal matters, unless both parties consent to a virtual 

hearing. Issued after Rule 1:2-1(b) was adopted, the 2022 Order does not 

mention the rule, limit its provisions, or contradict its terms. To the contrary, 

in its preamble, the 2022 Order recognizes that "judges also routinely exercise 

discretion to permit individuals to participate virtually as necessary for health 

and other reasons." This is a reference to the authority that judges exercise 
A-1592-23 13

under Rule 1:2-1(b). As we understand the 2022 Order, it establishes that 

criminal jury trials and evidentiary hearings (in the absence of consent by all 

parties) will proceed in person, but the trial court retains its authority to permit 

remote testimony by witnesses at those proceedings where "good cause" is 

shown and "appropriate safeguards" are imposed. 

 Defendant did not request the entire evidentiary hearing or his jury trial 

be held remotely. Those proceedings will take place in person. He requested 

only that his expert be permitted to testify remotely at those proceedings due to 

the medical conditions of the expert and his spouse. The trial court was, 

therefore, authorized to entertain defendant's request under Rule 1:2-1(b).4

Rule 1:2-1(b) was adopted after our courts experienced more than a year 

of remote proceedings necessitated by the COVID-19 emergency. We issued 

our opinion in Pathri, on which the trial court relied when applying the Rule, 

in January 2020, before the COVID-19 emergency reached New Jersey. We 

acknowledge that when we issued Pathri, we did not have the benefit of the 

experience that informed the Court when it adopted Rule 1:2-1(b). The factors 

set forth in Pathri, however, were based in part on a federal rule of civil 

4

 We see no support in the record for the trial court's characterization of the 

2022 Order as temporary. While paragraph 10 of the Order indicates that it 

"remains subject to ongoing review and potential future refinement," nothing 

in the Order indicates that it expires after a stated period. 
A-1592-23 14

procedure which mirrors Rule 1:2-1(b) and are useful guidelines for deciding 

"good cause" and "appropriate safeguards" under the Rule. 

In Pathri, one of the parties had moved out of the country after filing a 

complaint for divorce. 462 N.J. Super. at 212. Shortly before the scheduled 

trial date, he moved to appear and testify remotely via contemporaneous video 

transmission because he was unable to obtain a visa to return to the United 

States. Ibid. The trial court denied the motion. Ibid. 

On appeal, in the absence of a court rule or Supreme Court Order 

addressing virtual testimony, we held that "we see no reason why a family 

judge could not permit testimony by contemporaneous video transmission in 

appropriate circumstances." Id. at 214. Relying in part on a federal rule of 

civil procedure that permitted virtual testimony "[f]or good cause in 

compelling circumstances and with appropriate safeguards," id. at 215 (citing 

Fed. R. Civ. P. 43(a)), we established seven factors to be considered by a trial 

court when deciding whether to permit a witness to testify remotely. We held 

that a judge should consider: (1) "the witness' importance to the proceeding;" 

(2) "the severity of the factual dispute to which the witness will testify;" (3) 

"whether the factfinder is a judge or a jury;" (4) "the cost of requiring the 

witness' physical appearance in court versus the cost of transmitting the 

witness' testimony in some other form;" (5) "the delay caused by insisting on 
A-1592-23 15

the witness' physical appearance in court versus the speed and convenience of 

allowing the transmission in some other manner;" (6) "whether the witness' 

inability to be present in court at the time of trial was foreseeable or 

preventable;" and (7) "the witness' difficulty in appearing in person." Id. at 

216.

We explained that the logic of the first factor is that "[t]he greater the 

witness' importance in the dispute, the heavier should be the burden of 

excusing in-person testimony. But, if the witness is merely conveying some 

information of relatively minor importance, or if the witness is a custodian of 

records, or the like, the burden ought not be onerous." Ibid. 

 The second factor "dovetail[s]" with the first factor. Ibid. Where a 

witness intends to testify with respect to a dispute "that goes to the heart of the 

matter," in-person testimony is favored. Ibid. This is particularly true where 

the credibility of the witness will be a significant factor and the "factfinder is 

better served in its truth-finding function by having testimony in person rather 

than by contemporaneous transmission." Id. at 217-18.

 The identity of the factfinder, the third factor, is material to determining 

whether to permit remote testimony. "In many instances a judge would [more] 

likely overcome whatever barrier to ascertaining the witness' credibility and 
A-1592-23 16

demeanor is created by contemporaneous video transmission than would a jury 

of laypersons not accustomed to weighing testimony in any form." Id. at 218. 

 The fourth factor weighs the costs associated with producing the witness 

in person against the costs associated with providing remote testimony. "That 

would not only include the travel and lodging expenses necessarily incurred 

but other costs, such as the impact on a party's income caused by a loss of time 

from work." Ibid. "Judges should consider whether the cost of insisting on inperson testimony is simply not worth whatever the impact on the factfinder's 

assessment of the witness or, for that matter, what it is the parties are fighting 

over." Id. at 218-19. "The delay in the case's disposition is also a factor." Id. 

at 219. 

 With respect to foreseeability, we observed that "[a] sudden business trip 

or family member's illness may require a party to travel abroad at or around 

the time of a trial . . . ." Ibid. Thus, "a judge may inquire as to the 

circumstances that led to that trip and determine whether the witness was faced 

with the unavoidable consequence of being outside the jurisdiction at the time 

of trial." Ibid. "In making the determination whether to permit testimony by 

contemporaneous video transmission, a judge has a right to know what steps 

[the moving party] took in advance . . . to avoid the need for the relief now 

sought . . . and assess the bona fides of that party's actions." Ibid. We noted 
A-1592-23 17

that "[a] witness' health may also cause the type of difficulty that would inure 

in favor of" remote testimony. Id. at 219 n.7. 

 With respect to appropriate conditions that may be imposed, we noted 

that 

[t]he judge, for example, may require a particular size 

monitor or multiple monitors in the courtroom for the 

transmission, as well as insist on a particular framing 

of what the video transmits (in other words, whether 

the image is not just of the witness' face but also

enough of his body so that the judge could better 

appreciate his overall demeanor). The judge has the 

right to expect a clear video and audio, and that the 

remote witness testify from a place suitable to the

solemnity of the proceeding. Copies of documents 

that the parties expect to show the witness should be 

forwarded to that location in advance. 

[Id. at 220-21.] 

 We have carefully reviewed the record and conclude that the trial court 

properly considered each of the Pathri factors and made findings with respect 

to each factor that are supported by the record. The technical and complicated 

nature of the expert's expected testimony, the prevalent role video evidence 

will play when determining whether the State's expert's opinion is admissible 

and, if so, credible, the difficulty the State would have in cross-examining 

defendant's expert, the physical proximity of defendant's expert to the 

courthouse, defendant's knowledge of the expert's desire to testify remotely 

when he retained the expert, and the absence of medical evidence requiring 
A-1592-23 18

remote testimony, all support the conclusion that the trial court did not 

mistakenly exercise its discretion when denying defendant's motion. 

 Affirmed.