### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 5275

- 16T3 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. J. H. , Defendant

- Appellant.

_____________________________

Submitted February 25, 2019

– Decided July 15, 2019 Before Judges Sabatino and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 15

- 07

- 0353. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S tephanie Michaels, Assistant Deputy Public Defender, of counsel and on the brief s ). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly A

. Shelton, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

- 5275

- 16T3

Tried before a jury, defendant J.H. 1 was convicted of third

- degree

en dangering the welfare of a child

– sexual conduct by a non

- care giver, N.J.S.A.
2C:24

- 4(a)(1), for masturbating on his front porch in view of a fourteen

- year old boy walking home fr om school. D efendant contends for the first time on appeal that he was depr ived of due process and a fair trial because the State relied upon the inadmissible lay opinion testimony of a police detective who identified defendant in a video recorded by defendant's home surveillance

camera system as the man depicted masturbating on the same porch m inutes after the victim 's observation

. Defendant a lso contends the trial judge erred in sentencing him to a five

- year term at the Adult and Diagnostic Treatment Center by mis applying the aggravating and mitigating factors. In a pro se supplem en tal brief, defendant contends the victim lied, his surveillance system should not have been seized , and h is attorney was ineffective. Because we conclude that admission of the detective's testimony was not plain error , defendant's sentence

was co nsistent with our sentencing guidelines , and the pro se arguments are without merit, we affirm.

1 We use initials to identify defendant and others to protect the identities of the victims. See R. 1:38

- 3(c)(9), (12).3 A

- 5275

- 16T3 I We briefly summarize the trial testimony that is relevant to the issues before us. M.F. testified that at approximately 3:20 p.m. on February 26, 2015 , he was walking home from school when he saw a naked man masturbating while standing on the front porch of a house located across the alleyway from M.F. 's home

. M.F. , a fourteen

- year old middle school student a t the time and six teen at the time of trial, was one hundred percent certain the man was masturbating

. M.F. went into his home when the man gestured to him to come over to the man's porch

. When M.F. got in the house , he told his mother , stepfather, siblings, and J.P., a family friend who lived with M.F. 's family, about the man's behavior

. J.P testified M.F. appea red to be "a little bit shocked , not overly dishe vel ed but surprised." Estimating it was around 3:30 p.m. , J.P. went outside and saw "a man's head kind of bob in and out of the [front] doorway" and he "occasiona lly heard, 'suck it.'" J.P. also claimed the man was masturbating while standing in the doorframe, and then retreated inside the house after stepping onto the porch
to urinate by his door

. M.F. never went back out, so he did not observe anything that J.P. allegedly saw. N either M.F. nor J.P. identified the man in

- or out

- of

court.4 A

- 5275

- 16T3

Assisting another officer, Phillipsburg Police Lieutenant John Mac z ko , went to defendant's house due to a call to the police. When he went inside the house, he noticed a surveillance camera mounted on the wall of defendant's living room pointing towards the door. He advised the Warren County Prosecutor's Office of the surveillance camera

. Warren County Prosecutor's Office Detective Melissa Fehr was subsequently assigned to investigate the matter and obtained a search warrant to confiscate the surveillance camera system reportedly seen in defendants' home by Lt. Maczko

. A ccompanied by Phillipsburg police officers , she then went to defendant's home eight days after the reported offense to confiscate the surveillance camera system

. Observing that the system was operational and its date and time settings were accurate , the detective seized it along with a DVR system that was connected to it

. She later analyzed the recordings on the system and burned a portion of them on a DVD

. The jury was shown the DVD , which covered the time, 3:31p.m. to 3:54
p.m. , that related to the reports and J

. P. 2 Defense counsel stated he had no

2 There is no indication in the record as to why the jury was not shown a recording from defendant's surveillance system during the time

– around 3:20 p.m.

– when M.P. observed a man masturbating5 A

- 5275

- 16T3

objection to the DVD being admitted into evidence and being played to the jury with Detective Fehr's narration. 3 The video did not have any audio. At 3:31
p.m. on the recording , a naked man viewed solely with his back to the camera without his face visible

– due to the came ra 's positioning

– cracked open a door

. The man, leaning down to look outside while standing in the doorway , apparently touch ed his genitals and then close d the door again ; this took place several times

. He also sat down and looked out a window. M.F.'s house was to the right of defendant's front door. Without objection from the defense, Detective Fehr narrat ed the man's actions de picted in the video and identified him as defendant

. Prior to her testimony and in

- court identification of defendant , t he de tective had met defendant once : when she went to execute the search warrant for the surveillance system

. At the end of the State's case, defendant moved for an acquittal, arguing there was no proof that the man masturbating was him because neither M.F. nor J.P. identif

ied him as the man they saw masturbating

. The tr ial judge rejected the argument

. He determined that giving the State the benefit of all its favorable evidence

– direct and circumstantial

– a jury could reaso nably infer from

3 Defendant objected to Detective Fehr's testimony regard ing the time sequence on the video; however, it was overruled.6 A

- 5275

- 16T3

Detective Fehr 's testimony that defendant wa s the man in the video , which provided a "temporal and physical connection to the time and place of the alleged co nduct [(masturbating in the presence of M.F. )] charged in the indictment."
D efendant exercised his right not t o testify , and did not present any witnesses. Following deliberations , t he jury found him guilty of the sole charge of third

- degree endangering the welfare of a child

– sexual conduct by a non

caregiver

. At sentencing, the judge agreed with the State to apply aggravating factors three ( the risk of re

- offense ) , six ( the extent of defendant's prior criminal record and the seriousness of the current offense ) , and nine ( the need to deter) N.J.S.A. 2C:44

- 1(a)(3) , - 1(a)(6 ) , and

- 1(a)(9)

. In reaching his fin dings, the judge noted defendant's two

- decade long history of sexual offenses , which included offenses against children and his resulting Megan's Law status

. B ased upon defendant's repetitive and compulsive behavior, the judge rejected his request to appl y mitigating factor s one ( defendant's conduct neither caused or threatened serious harm ) , two (defendant did not intend or cause serious harm ) , and four ( substantial grounds tending to excuse or justify defendant's conduct )

. N.J.S.A.
2C:44

- 1(b)(1 ) , - 1(b)(2), and

- 1(b)(4 )

. As mentioned, d efendant was s entenced7 A

- 5275

- 16T3

to a five

- year prison term , to be served at the Adult and Diagnostic Treatment
Center

. I I On appeal, defendant through counsel presents the following points for our consideration:

POINT I
INAD MISSIBLE OPINION TESTIMONY FROM THE INVESTIGATING DETECTIVE

- - IDENTIFYING DEFENDANT AS THE PERSON ON THE SURVEILLANCE FOOTAGE AND NARRATING WHAT SHE BELIEVED HE WAS DOING

- - DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Partially raised below)

. POINT II A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE JUDGE ERRED IN FINDING AND WEIGHING AGGRAVATING AND MITIGATING FACTORS. We first address defendant's first brief point that he was deprived of due process and a fair trial because D etective Fehr 's testimony that he was the man depicted masturbating in the DVD was inadmissible opinion testimony as proscribed by State v. Lazo , 209 N.J. 9, 23

- 24 (2012) , and State v. McLean , 205 N.J. 438, 460 ( 201 0 )

.8 A

- 5275

- 16T3

In considering defendant's argument, we view it under the p lain e rror standard because he did not object to Detective Fehr's testimony during the tr i a l. We agree with the State that defendant's claim that he "partially raised" the argument is not supported by the record. While defendant unsuccessfull y argued for acquittal based upon the absence of testimony by M.F. and J.P that he was the man masturbat ing on his porch, he never sought to exclude Detective Fehr's testimony that he was the man in the video and what he was doing

. When there is a failure to object, the defendant must establish the conduct constitutes plain error under Rule 2:10

- 2. State v. Feal , 194 N.J. 293, 312 (2008). Plain error to

revers e a conviction is warranted when the error is "of such a nature as to have been clearly capable of producing an unjust result [.] " R. 2:10

- 2

. Turning to the specifics of defendant 's attack on Detective Fehr's testimony , a lay witness may testify "in the form of opinions or inferences" if "rationally based on the perception of the witness" and if the testimony "will assist in understanding the witness' testimony or in determining a fact in issue."
N.J.R.E. 701. "[T]estimo ny in the form of an opinion, whether offered by a lay or an expert witness, is only permitted if it will assist the jury in performing its function." McLean , 205 N.J. at 462. "The Rule does not permit a witness to offer a lay opinion on a matter . . . a s to which the jury is as competent as he to9 A

- 5275

- 16T3

form a conclusion[.]" Id. at 459 (internal quotation marks and citation omitted). Furthermore, a police witness is not permitted to offer an opinion regarding a defendant's guilt. State v. Frisby , 174 N.J. 58 3, 593

- 94 (2002) (disapproving police testimony that opined regarding innocence of one person and inferentially the guilt of the defendant); State v. Landeros , 20 N.J. 69, 74

- 75 (1955) (holding that police captain's testimony that defendant was "as guilty as Mrs. Murphy's pet pig" caused "enormous" prejudice warranting reversal). These principles apply to opinions regarding an offender's identity. "In an identification case, it is for the jury to decide whether an eyewitness credibly identified the defenda nt." Lazo , 209 N.J. at 24. A police officer may not "improperly bolster or vouch for an eyewitness' credibility and thus invade the jury's province." Ibid. The Lazo Court reviewed federal authority on whether a lay police witness may opine that a defendant is depicted in a crime scene photograph. The Court noted that one federal court held that a lay opinion "is permissible where the witness has had sufficient conta ct with the defendant to achieve a level of familiarity that renders the lay opinion helpful." Id. at 22 (internal quotation marks and citation omitted). Whether the opinion is helpful in turn depends on the witness's knowledge of the defendant's appeara nce at the time of the crime,10 A

- 5275

- 16T3

the defendant's dress, and "whether the defendant disguised his appearance during the offense or altered her looks before trial, and whether the witness knew the defendant over time and in a variety of circumstances." Ibid. ( internal quotation marks and citation omitted). "[C]ourts recognize that when there is no change in defendant's appearance, juries can decide for themselves

— without identification testimony from law enforcement

— whether the person in a photograph is th e defendant sitting before them." Id. at 23. The Court cited a decision finding it error to admit an officer's opinion that a defendant was depicted in a bank surveillance photo where the officer's opinion "was based entirely on his review of photographs . . . and witnesses' descriptions . . . ." Ibid. (internal quotation marks and citation omitted). Another factor in determining whether to permit a lay opinion on identification is "whether there are additional witnesses available to identify the defenda nt at trial." Ibid. Considering this authority , the Lazo Court held it was error to permit a detective to testify he beli eved the defendant's arrest photo closely resembled a composite sketch that was based on the victim's description of her assailant. I d.
at 24. The detective did not witness the crime; did not know the defendant; and relied solely on the victim's description. Ibid. "Nor was there a change in11 A

- 5275

- 16T3

appearance that the officer could help clarify for the jurors; they could have compared the ph oto and the sketch on their own. Finally, the sole eyewitness told the jury what he observed firsthand." Ibid. Applying these principles, we conclud e there was no unjust result in Detective Fehr 's testimony that defendant was the man depicted in the vide o and that he appeared to be masturbating. D etective Fehr mad e a comparison of the man she had contact with when she executed the search warrant, albeit minimal , prior to viewing the video with the man herself. Having viewed the video as part of the record, we cannot conclude the detective's testimony deprived defendant of a fair trial. While we concede that she may have been no more competent than t he jury to scrutinize the video and defendant 's appearance at trial to determine whether defendant was the man in the video , we can not conclude her testimony create d an unjust result that contributed to his conviction

. Most importantly , she did not opine on defendant's guilt by stating defendant was the perpetrator of the crime

– the man who masturbated in front of M.F. Defendant's guilt was based upon the circumstantial evidence that he was in the house when Lt. Maczko investigated the incident in which a man was seen masturbating on the porch. Apparently, t here was no evidence that there12 A

- 5275

- 16T3

was any other man in the house. The jury moreover was able to mak e its own independent assessment of the video and defendant's appearance in court to determine whether defen d a nt was the man who endangered the welfare of M.F. In addition, e ven if we were to agree with defendant that Detective Fehr should not have been allowed to give the testimony in question, we conclude it was harmless error. "An evidentiary error will not be found 'harmless' if there is a reasonable doubt as to whether the error contribut ed to the verdict." State
v. J.R. , 227 N.J. 393, 417 (2017) . Said another way, "[t] he harmless error standard requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to rai se a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Lazo , 209 N.J. at 26 (internal quotation marks and citation omitted). The jury had sufficient evidence independent of Detective Fehr's testimony to
f ind defendant guilty.
I II Defen d a nt 's argument in Point II is that the judge erred in considering aggravating factors three, six and nine, and should have considered mitigating factors one, two and four

. Had the judge done so, defen d a nt claims he would13 A

- 5275

- 16T3

have received a sentence in the mid

- range of a third degree offense, a period of
one to five years. We disagree.
Our r eview of a criminal sentence is limited; a reviewing court must decide, "whether there is a 'clear showing of abuse of discretion.'" S tate v. Bolvito , 217 N.J. 221, 228 (2014) (quoting State v. Whitaker , 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating f actors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth , 95 N.J. 334, 364

- 65 (19 84)). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey , 168 N.J. 413, 426

- 27 (2001); State v. Megarg el , 143 N.J. 484, 493

- 94 (1996). Defendant's contentions are without sufficient merit to warrant discussion,
R ule 2:11

- 3(e)(2), and we affirm substantially for the thoughtful reasons expressed by the judge at sentencing ; the sentence does not shock our jud icial conscience.14 A

- 5275

- 16T3 I V Finally, in considering defendant's pro se supplemental brief, we conclude it is procedurally deficient under Rule 2:6

- 2(a)(6) because it fails to cite any law with appropriate reference to the record to support his arguments. See S tate v. Hild , 148 N.J. Super. 294, 296 (App. Div. 1977). In addition, from what we can glean from his arguments, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(2). Furthermore, defendant's claims of ineff ective assistance of his trial counsel should not be presented on direct appeal , but may be raised in a future petition for post

- conviction relief. State v. Preciose , 129 N.J. 451, 460 (1992). We do not pass judgment on the viability of such claims now . Affirmed.