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SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. William A. Gerena (A-72-20) (085359)

(NOTE: The Court did not write a plenary opinion in this case. The Court affirms 

the judgment of the Appellate Division substantially for the reasons expressed in 

Judge Sabatino’s opinion, published at 465 N.J. Super. 548 (App. Div. 2021).) 

Argued November 29, 2021 -- Decided December 30, 2021

PER CURIAM

The Court considers the Appellate Division’s determination that the trial court did 

not abuse its discretion in admitting two eyewitnesses’ lay opinions estimating the range 

of heights and ages of children they observed near defendant in a public park. 

In April 2018, a seventeen-year-old civilian called police and reported that she had 

seen a man, later identified as defendant, exposing himself to a group of children at a 

playground. Police officers responded to the scene and saw defendant sitting on a bench 

facing the playground, with his penis exposed and erect. Defendant was charged with 

second-degree sexual assault by contact and fourth-degree lewdness, which both require 

the State to prove that at least one of the victims was under the age of thirteen.

At trial, one of the police officers and the civilian eyewitness recounted to the jury 

what they had seen at the park. Over defendant’s objection, the trial court admitted the 

witnesses’ lay opinions about the children’s ages and heights. The officer estimated that 

the children were around three to thirteen years old and that the smallest child appeared 

to be no higher than his waist. The civilian testified that the children were approximately 

six to fifteen years old and that the shortest child appeared no taller than her hip. The 

State relied on that testimony to prove that one or more of the children was under the age 

of thirteen, and the jury found defendant guilty of fourth-degree lewdness. 

The Appellate Division affirmed, finding that the two witnesses had an adequate 

opportunity to view the physical characteristics and activities of the group of children to 

enable them to provide lay opinions under N.J.R.E. 701 about the perceived ranges of the 

children’s heights and ages. See 465 N.J. Super. 548, 551 (App. Div. 2021). However, 

the court remanded for a hearing on jail credits, see id. at 573, a determination not 

challenged here. 
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The Appellate Division reviewed the relevant Rules of Evidence: N.J.R.E. 701, 

which states that a lay witness’ opinion testimony may be admitted if it “(a) is rationally 

based on the witness’ perception; and (b) will assist in understanding the witness’ 

testimony or determining a fact in issue”; and N.J.R.E. 403, under which an opposing 

party is free to argue that the witness’ testimony should be excluded if its prejudicial risks 

substantially outweigh its probative value. See id. at 568-69.

The Appellate Division declined to apply the flat prohibition on lay opinion 

testimony about age announced by the Court of Errors and Appeals in State v. Koettgen, 

89 N.J.L. 678, 679-80 (E. & A. 1916) because the court found that it was contrary to the 

evidence rules and case law governing lay opinion. See 465 N.J. Super. at 551-52. The 

appellate court instead applied a contextual, case-by-case analysis that it determined was 

consistent with the State’s modern Rules of Evidence and prevailing case law principles. 

See id. at 552. The court agreed with Professor Wigmore’s treatise on evidence and the 

case law of other states that allows trial courts to admit such opinion testimony where it 

has a reasonable foundation. See id. at 569. The Appellate Division noted that in the 

present case, the opinion testimony about the children’s ages was based in part upon the 

witnesses’ separate perceptions and that no reported case in this State categorically 

forbids lay witnesses from offering such height estimates. See id. at 567.

The Appellate Division offered a variety of factors it found a court should 

consider in evaluating the admissibility of such lay opinions: (1) distance of the 

eyewitness to the person observed, (2) length of time of the observation, (3) any observed 

activity of the person, (4) physical comparisons with the height or size of nearby objects 

or other persons, (5) whether the eyewitness attests to a range rather than a specific height 

or age, (6) whether the observed individual has a comparatively similar age or height as 

the witness, (7) whether there is corroborating proof, and (8) the totality of 

circumstances. See id. at 551. The court applied those factors to the present case and 

found that they supported admission of the witnesses’ lay opinions. See id. at 570-72.

HELD: The Court affirms the judgment of the Appellate Division substantially for the 

reasons expressed in Judge Sabatino’s published opinion. The determination of whether 

to admit, under N.J.R.E. 701, lay opinion testimony estimating the perceived ranges of 

children’s ages or heights is best suited for case-by-case assessment. The Court 

disapproves of State v. Koettgen and its categorical approach to the admission of such lay 

opinion evidence about age. Henceforth, the trial court, acting as gatekeeper, shall assess 

whether there exists a proper foundation for the lay opinion being offered, and if so, 

allow its admission subject to a Rule 403 balancing of the relative probative value and 

prejudicial effect of the testimony. The Court generally endorses and adds to the 

Appellate Division’s helpful guidance to trial courts when performing that gatekeeping 

role and protecting against the admission of unreliable age-related lay opinion testimony. 
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1. First, the trial court should conduct a Rule 104 hearing, on request, and state on the 

record its basis for finding a sufficient foundation exists for the proposed lay opinion 

testimony. The Court commends the use of the eight factors the Appellate Division 

identified as aids, recognizing that the determination will be case-specific. Second, in the 

use of those factors, a trial court’s determination of admissibility may be much more 

easily resolved in cases where the witness is estimating the approximate age of a person 

or persons to be at the extremes of old age and very young, distant from the relevant legal 

threshold age -- in this case, over or under the age of thirteen. The closer the perceived 

age of the individual is to the legal threshold age to be proved, the greater the need for 

precise evidence and the less appropriate it is to rely on lay testimony. (pp. 3-4)

2. In some prosecutions, an expert might be necessary, such as in a child pornography 

case where the witness is estimating age from a video or picture. Other times, it may be 

necessary to establish age with more reliable proof, for example, through date-of-birth 

records or personal knowledge. The Court notes that this concern is not present in the 

instant matter, where two witnesses testified to seeing children as young as six years old 

engaged in age-appropriate activities, with parents apparently present and supervising, at 

the playground where defendant was apprehended. The Court sees no error in the trial 

court’s admission of the witnesses’ lay opinion testimony because the witnesses observed 

children who appeared significantly younger in their developmental age than the age of 

thirteen, the age threshold for a lewdness offense. (pp. 4-5)

3. The Court agrees with the Appellate Division and other courts that require the jury be 

carefully instructed in appropriate cases when lay opinion testimony is presented 

concerning estimation of a child’s age. Trial judges have the “discretion to provide 

appropriate charges, on request or sua sponte, as the situation may warrant.” Gerena, 465 

N.J. Super. at 572 n.9. At a minimum, the charge should remind the jury that the State 

bears the burden of proof on all elements of a criminal offense, including satisfying any 

age requirement. The jury should be informed that speculation about age is not permitted 

and that it must be persuaded by the evidence when determining whether the State has 

satisfied its burden. The Court recommends that a model charge be prepared on this 

subject and refers the matter to the Model Jury Charges Committees for further 

development. (pp. 5-6)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,

FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in this opinion.
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SUPREME COURT OF NEW JERSEY

A-72 September Term 2020

085359

State of New Jersey,

Plaintiff-Respondent,

v.

William A. Gerena,

Defendant-Appellant.

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at

465 N.J. Super. 548 (App. Div. 2021).

Argued

November 29, 2021

Decided

December 30, 2021

Melanie K. Dellplain, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Melanie K. Dellplain, of counsel and 

on the briefs).

Stephanie Davis Elson, Assistant Prosecutor, argued the 

cause for respondent (Esther Suarez, Hudson County 

Prosecutor, attorney; Ednin D. Martinez, Assistant 

Prosecutor, on the briefs).

Frank Muroski, Deputy Attorney General, argued the 

cause for amicus curiae Attorney General of New Jersey

(Andrew J. Bruck, Acting Attorney General, attorney; 

Frank Muroski, of counsel and on the brief).
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Rachel E. Simon argued the cause for amicus curiae 

Association of Criminal Defense Lawyers of New Jersey

(Pashman Stein Walder Hayden, attorneys; Rachel E. 

Simon, of counsel and on the brief).

PER CURIAM

The judgment of the Appellate Division is affirmed substantially for the 

reasons expressed in Judge Sabatino’s thorough and thoughtful published 

opinion. We add the following brief comments.

We concur with the Appellate Division’s reasoning that the 

determination of whether to admit, under N.J.R.E. 701, lay opinion testimony 

estimating the perceived ranges of children’s ages or heights is best suited for 

case-by-case assessment. State v. Gerena, 465 N.J. Super. 548 (App. Div. 

2021). Further, we agree that the categorical prohibition of such lay opinion 

testimony endorsed in the now century-old case of State v. Koettgen, 89 N.J.L. 

678, 680 (E. & A. 1916) (stating that age “is not within the category of things 

. . . which . . . can be proved by [lay] opinion testimony”), constitutes an

overbroad generalization that is discordant with our modern Rules of 

Evidence. Gerena, 465 N.J. Super. at 561-69. 

We disapprove of Koettgen and its categorical approach to the admission 

of such lay opinion evidence. Henceforth, the trial court, acting as gatekeeper, 

shall assess whether there exists a proper foundation for the lay opinion being 
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offered, and if so, allow its admission subject to a Rule 403 balancing of the 

relative probative value and prejudicial effect of the testimony.

The Appellate Division has offered helpful guidance to trial courts when 

performing that gatekeeping role and protecting against the admission of 

unreliable age-related lay opinion testimony. We generally endorse the 

considerations espoused by the Appellate Division and add the following. 

First, the trial court should conduct a Rule 104 hearing, on request, and 

state on the record its basis for finding a sufficient foundation exists for the 

proposed lay opinion testimony. We commend the use of the eight factors the 

Appellate Division identified as aids, recognizing that the determination will 

be case-specific. Gerena, 465 N.J. Super. at 569-73. Second, in the use of 

those factors, we note that a trial court’s determination of admissibility may be 

much more easily resolved in cases where the witness is estimating the 

approximate age of a person or persons to be at the extremes of old age and 

very young, distant from the relevant legal threshold age -- in this case, over or 

under the age of thirteen.1 See N.J.S.A. 2C:14-4(b)(1) (defining “Lewdness”

to include proscribed acts “where the actor knows or reasonably expects he is 

likely to be observed by a child who is less than 13 years of age”). For 

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 When the proof requires demonstration of the exact age of a person, it is 

difficult to imagine a scenario where lay opinion testimony based on 

observations would suffice.
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example, common sense supports the inference that the approximation of a 

child to be around the age of two or three years old as against a statutory 

threshold of “less than 13” can be fairly readily resolved through lay opinion 

testimony based on observations. 

Relatedly, the closer the perceived age of the individual is to the legal 

threshold age to be proved, the greater the need for precise evidence. In other 

words, as the margin narrows towards the poles of an age-range limit, the less 

appropriate it is to rely on lay testimony. Thus, if the proposed testimony of a 

witness estimates the age of a child to be close to the upper threshold of a 

statutory age limit, such lay witness testimony may not suffice under a 

gatekeeper’s assessment for reliability. As the Appellate Division’s decision 

reflected, an important consideration will be “where the children appear to fit 

along the spectrum of ages.” Gerena, 465 N.J. Super. at 565.

In some prosecutions, an expert might be necessary, such as in a child 

pornography case where the witness is estimating age from a video or picture. 

See, e.g., State v. May, 362 N.J. Super. 572, 594-95 (App. Div. 2003) (noting, 

in a child pornography prosecution, that whether an expert is needed to 

determine the age of a child depicted requires a case-by-case analysis that calls 

upon the trial court’s gatekeeping functions and requires a careful jury 

instruction). Other times, it may be necessary to establish age with more 
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reliable proof, for example, through date-of-birth records or personal 

knowledge. We note that this concern is not present in the instant matter,

where two witnesses testified to seeing children as young as six years old 

engaged in age-appropriate activities, with parents apparently present and 

supervising, at the playground where defendant was apprehended. Because 

those witnesses observed children who appeared significantly younger in their 

developmental age than the age of thirteen, the age threshold for a lewdness 

offense, their testimony was not problematic. Like the Appellate Division, we 

see no error in the trial court’s admission of the witnesses’ lay opinion 

testimony.

Finally, we agree with the Appellate Division and other courts that 

require the jury be carefully instructed in appropriate cases when lay opinion 

testimony is presented concerning estimation of a child’s age. Gerena, 465 

N.J. Super. at 565. Trial judges have the “discretion to provide appropriate 

charges, on request or sua sponte, as the situation may warrant.” Id. at 572 

n.9. The guidance provided by Judge Kestin in May offered an appropriate 

baseline for such an instruction, as was duly noted in the matter before us. 

Gerena, 465 N.J. Super. at 565-66. At a minimum, the charge should remind 

the jury that the State bears the burden of proof on all elements of a criminal 

offense, including satisfying any age requirement. See May, 362 N.J. Super. at 
6

595. The jury should be informed that “speculation about age is not 

permitted,” and that it must be persuaded by the evidence when determining 

whether the State has satisfied its burden. Ibid. 

Accordingly, we recommend that a model charge be prepared on this 

subject and refer the matter to the Model Jury Charges Committees for further 

development.

For the reasons expressed, we affirm the judgment of the Appellate 

Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in 

this opinion.