### RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A- 3472

- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. JOSE Y. MARTINEZ-MEJIA 1 , a/k/a JOSE Y. MARTINEZ, JOSE Y. MEJIA and JOSE Y. YOBANI, Defendant-Appellant.

_____________________________

Argued November 6, 2023

– Decided December 7, 2023 Before Judges Sabatino, Marczyk, and Chase. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 20

- 01

- 0028. Samuel Clark Carrigan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Samuel Clark Carrigan, of counsel and on the briefs).

1 Under Rule 1:38 -3(c)(9), records of criminal proceedings relating to child victims of sexual assault are anonymized and exclud ed from public access in order to protect the identity of the victims. As t here was no actual child victim in this case, such anonymization is not necessary h ere.A- 3472

- 21 2 Emily M. M. Pirro, Assistant Prosecutor, argued the cause for respondent (John P. McDonald, Somerset County Prosecutor, attorney; Emily M. M. Pirro, of counsel and on the brief). The opinion of the court was delivered by CHASE, J.S.C. (temporarily assigned). The main issue in this criminal appeal is whether t he Luring, Enticing Child by Various Means statute, N.J.S.A. 2C:13-6(a) , requires the State to prove a defendant lured or enticed a "child," in this cas e an undercover law enforcement officer posing as a fourteen-year-old g irl, into traveling or accompanying the defendant to some location other t han the victim's own home. We reject defendant Jose Y. Martinez-Mejia's conten tion that because he enticed the "child" to meet him alone, and defendan t traveled to the "child's" home, a judgment of acquittal should have been ente red. By its plain language, the statute forbids an adult from "luring or entici ng a child to meet or appear at any other place." We hold that the child's home can be the "ot her place." Here, that location is a place "other" than where the def endant was when he communicated with the child. In the unpublished portion of this opinion, we addr ess unrelated arguments raised by defendant on appeal alleging ev identiary issues. Having found those arguments do not demonstrate plain erro r, we affirm defendant's convictions and sentence.A- 3472

- 21 3 I. The prosecution in this matter originated in Octobe r 2019 when a team of state, federal, and local law enforcement agencies participated in an undercover operation to investigate adults using the internet to lure children into sexual activity. Teams of officers were stationed in an a partment complex in Franklin Township, Somerset County. Special Agent Cedro Cruz from the Department of Hom eland Security served as a "chatter," posing as a fourteen-year-old girl named "Angela." Agent Cruz created a profile for Angela on SKOUT, a locat ion-based social networking and dating application emphasizing generalized user location. Because of age restrictions on SKOUT, Angela's profile was created using a birthdate to reflect that she was eighteen-years old. Angela's profile picture and other pictures associated with her account were photographs of an adult female border patrol officer. Agent Cruz used age-regression software t o alter the photographs, making Angela appear younger. At a jury trial, Agent Cruz testified solely as a f act witness that on the afternoon of October 25, 2019, acting as Angela, he accepted a SKOUT chat request from defendant, who went by the username "J ames." Defendant was thirty-two years old at the time. Defendant's firs t messages were "Hi, sweetheart, how are you?" and "Hi, sweetheart, what are you doing?" WhenA- 3472

- 21 4 Angela replied with "nothing," he immediately follo wed up with, "[y]our pictures turn me on, honey. Where are you from?" When Agent Cruz testified about this first exchange with defendant, the follo wing ensued:

Q: On October 25[,] of 2019, why was the conversation only minutes? A: Because the defendant sent Angela a, I would say a lewd image, and I basically said gross and that discontinued the conversation. Q: And by lewd image what do you mean? A: So it was an image of a male in tight boxer shorts and you could see the contour of his

– his penis. Defendant contacted Angela again via SKOUT the next afternoon in an interaction that lasted approximately two hours. W hen defendant expressed a desire to meet Angela, the following exchange ensue d:

Angela: Yeah, but I'm mad young. Defendant: How old are you now? Angela: Fourteen. You? Defendant: Oh, I see, 23. Angela: Oh, okay, cool. Defendant: Yes, love, I like your body. Angela: Aw, thanks. Defendant: I would like to see more pictures from y ou. Angela: Why? Defendant: I like you.A- 3472

- 21 5 During this exchange, and after Angela revealed her age, defendant sent Angela multiple photographs of himself, including a pictur e of his erect penis. Angela revealed she was home alone because her gran dmother had left and would not be returning until the next day. Def endant asked Angela explicit questions about sex and masturbation and said he wa nted "more sexy pictures" of her. When Angela asked if he wanted only pictures , he responded, "I want to know you in person, baby." Defendant asked if Ange la wanted to touch his body and told her he wanted to perform oral sex on her. The prosecution admitted the photographs into evide nce and published them for the jury. Agent Cruz was asked to "descri be to the jury what they're seeing[.]" He replied, "The jury is seeing an imag e sent to Angela through SKOUT on October 26[,] of a hand holding an erect p enis."
On re- dir ect, Agent Cruz testified as follows: Q: During the course of those communications at any point in time did you threaten the defendant tha t he had to continue communicating with you? A: No. I was trying to dissuade him from communicating with me.

. . . . Q: How did you do that? A: Well, I asked if he was a pic collector, and if he would have said yes, I am just a pic collector, the n he would have just been a pic collector. I said that I

— I was [fourteen] years old, I would hope after somebo dyA- 3472

- 21 6 hears that, that they are communicating with a [fourteen]-year-old, they would then cease communications with that person. I said that I was alone, a fourteen-year-old alone in her house to wh ich he asked me if there were any neighbors around and, you know, I lived with my grandmother and my grandmother was not home. That, any reasonable person, that's going to dissuade you and you are no t going to travel. As a matter of fact, you might tr y to either report this person, which has happened in th e past, but in this situation it didn't happen. And on top of that he sent a picture of his erect penis to a [fourteen]-year- old. When defendant offered to come to Angela at 4:00 p. m. that day, she gave him the address of the apartment in Franklin and a phone number associated with Agent Cruz's undercover phone. The communication then proceeded outside of SKOUT a nd directly between defendant and the undercover phone, which r ecorded every call and text message. Agent Cruz continued to send and rep ly to text messages; while
De tective Katie Feehan from the New Jersey State Poli ce Internet Crimes Against Children Unit ("ICACU") provided Angela's v oice for phone calls. Detective Feehan testified to her role with the ICA CU and the training that she received in acting as a child in an underc over capacity; however, she was not tendered as an expert witness. She testifi ed to the details of her three phone calls with defendant.A- 3472

- 21 7 During the first phone call, defendant asked Angela to confirm that she was home alone. Angela told defendant her grandmot her was in Atlantic City and would not be returning for a couple of days. A ngela said her grandmother could not take her on the trip because she was not old enough to gamble. On a second phone call, Angela confirmed no one else was in the house by saying, "Just me and my grandma, and she isn't here. So I mean , I'm completely alone." On the third phone call, the following exchange ens ued:

[Angela]: . . . I'm just trying to figure out if y ou're coming up. Because, if not, I'm probably just gonna go out. [Defendant]: I mean, okay. So let me take a shower and then go

– go over there. [Angela]: You gonna come? [Defendant]: Yes. [Angela]: Okay. Awesome. I'm gonna clean up a little bit then. When Angela asked defendant what he wanted to do wh en he arrived, he repeated his desire to perform oral sex on her. Sh e reaffirmed she was going to clean the apartment to prepare for his arrival, and t hen she was going to wait for him. Defendant hired an Uber to take him to Franklin and sent Ang ela a screen shot of his phone's Uber application, showing that he was on his way to her house. When defendant texted Angela that he had ar rived, Agent Cruz couldA- 3472

- 21 8 see him standing outside through the apartment wind ow. Defendant was arrested and was found to be in possession of a cel l phone, a receipt with Angela's address written on it, $184 dollars, and t wo condoms. At trial, Detective Feehan was asked on cross-exami nation about her training on the topic of entrapment. Detective Fee han testified that she ha d reviewed the relevant New Jersey law and that it cl osely matched the national standard. She testified that she had been trained to allow the subject of the investigation "to set the tone, pace, and subject m atter of the conversation[.]" She was presented with a portion of the investigati ve standards from the ICACU, which was entered into evidence. On re-direct, the following exchange took place: Q: On cross-examination you were asked some questions about your training with regard to the to pic of entrapment. Do you recall that? A: Yes. Q: And you testified that you received training abo ut the federal and also State of New Jersey entrapment laws. Is that correct? A: Yes. Q: Did you follow the entrapment laws in this case? A: Yes.A- 3472

- 21 9 Defense counsel re-crossed Detective Feehan on thos e points, asking whether "[w]hat do you wanna do when you get here?" was a conversation topic that defendant initiated, to which she replied in t he negative. During an extensive charge conference, defense coun sel raised no obje ctions to the language of the second-degree luring charge. The jury was instructed that a guilty verdict on luring required the State to prove:

1. That "Angela" was a child. When I say Angela I have that in quotes, or, that the defendant reasonably believed that Angela was a child. 2. Defendant

— that defendant attempted to lure or entice Angela into a motor vehicle, structure or is olated area, to meet or appear at any other place; and, 3. That defendant had a purpose to commit a crimina l offense with or against the child. The jury returned a verdict finding defendant guilt y of all charges: seconddegree luring, N.J.S.A. 2C:13-6(a); second-degree a ttempted sexual assault, N.J.S.A. 2C:5-1(a)(3) and 2C:14-2(c)(4); third-degr ee attempted endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), 2C: 5-1(a)(1) and (a)(3); and third-degree attempted promoting obscene material t o a minor, N.J.S.A. 2C:34- 3(b)(1), 2C:5-1(a)(1) and (a)(3). After merging the attempted endangering the welfare of a child count with the attempted sexual assault count, the judge sentence d defendant concurrently to five years of imprisonment on the attempted sexual assau lt charge; five yearsA- 3472

- 21 10 on the luring charge; and three years on the attemp ted obscene material charge. Defendant was also subjected to Megan's Law registr ation requirements and parole supervision for life. On appeal, defendant raises the following claims fo r the first time:
I. THE LURING CHARGE MUST BE VACATED BECAUSE DEFENDANT DID NOT TRY TO LURE A CHILD INTO GOING ANYWHERE. II. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE INADMISSIBLE LAY OPINION TESTIMONY FROM INVESTIGATING OFFICERS INTRODUCED UNFAIR PREJUDICE.

II. When a party does not object to an alleged trial er ror, or otherwise preserve the issue for the appellate record, it is reviewed for plain error. Review for plain error requires determining: "(1) whether there was error; and (2) whether that error was 'clearly capable of producin g an unjust result,' [under Rule] 2:10-2; that is, whether there is 'a reasonab le doubt . . . as to whether the error led the jury to a result it otherwise might n ot have reached.'" State v. Dunbrack, 245 N.J. 531, 544 (2021) (quoting State v . Funderburg, 225 N.J. 66, 79 (2016) (omission in original)). "To determine w hether an alleged error rises to the level of plain error, it 'must be evaluated in light of the overall strength of the State's case.'" State v. Clark, 251 N.J. 266, 287 (2022) (quoting State v.A- 3472

- 21 11 Sanchez-Medina, 231 N.J. 452, 468 (2018)). "The mere poss ibility of an unjust result is not enough." Funderberg, 225 N.J. at 79. Where there is a failure to object, reviewing courts presume the newly minted o bjection on appeal is "not error" and "unlikely to prejudice the defendant's c ase." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J . 325, 333-34, (1971)). Statutory interpretations are legal determinations reviewed by an appellate court "de novo, 'unconstrained by deference to the decisions of the trial court[.]'" State v. Fuqua, 234 N.J. 583, 591 (2018) (quoting S tate v. S.B., 230 N.J. 62, 67 (2017)). A trial court's evidentiary rulings, by c ontrast, are reviewed for abuse of discretion. State v. Garcia, 245 N.J. 412, 430 (2021) (citing State v. Nantambu, 221 N.J. 390, 402 (2015)). An appellate court "will not substitute [its] judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes 'a clear error in judgment.'" Ibid. (quot ing State v. Medina, 242 N.J. 397, 412 (2020)).
III. Defendant does not claim the indictment should have been di smissed, nor does he explicitly express that the trial court, su a sponte, should have found that the State had not met the elements of the crime at the close of its case. Rather, defendant's issue seems to be a conceptual one, whe re he believes we should hold: (1) telling a child you want to meet for sex ; (2) asking them to meet youA- 3472

- 21 12 to fulfill that desire; and (3) making sure a child is alone and vulnerable before meeting them, is not luring or enticing the child i nto a sexual encounter so long as the child makes the mistake of meeting the would -be predator at the child's own house. Defendant emphasizes that the forbidden conduct elemen t of the statute is "to lure or entice" a child to go somewhere. Relyi ng on the dictionary definitio n of "lure," defendant argues its aim is "to lead som eone into a dangerous or difficult situation that they otherwise would not h ave entered." MerriamWebster's Collegiate Dictionary, (11th ed. 2020). Therefore, defendant reasons, the statute does not criminalize traveling to the child for the criminal purpose. Defendant concedes a child may be "lured" into stay ing at a place that they otherwise would have left, such as a school after-h ours, but argues if a child would be at home or school anyway, even without the defendant's enticement, then luring has not taken place. Defendant argues, in the alternative, that even if the statutory language was not clear, the only provision that could be con sidered ambiguous is the term "to meet or appear at any other place." Defendant employs the canon of ejusdem generis to argue that the phrase "any other place" must also refer to places where a child must be lured to travel towards for the sta tutory elements to be met. Defendant points to the luring statute's close rela tionship to the kidnappingA- 3472

- 21 13 statute, N.J.S.A. 2C:13-6(c), to support his theory . Defendant argues even if the statutory language did not support his position, th e principle of lenity should apply in favor of interpreting the statute to requi re the child to be lured to travel. The State responds that defendant is asking us to c reate a "convenient loophole" in the statutory scheme by finding that an adult traveling to a child's location for the purpose of sex is not criminalized by the luring statute. The State maintains that a complicated analysis of the text under ejusdem generis is not required since the clause "to meet or appear at any other place" is unambiguous on its face. The "ordinary meaning and significance" of statutor y language is acknowledged as "'the best indicator of [the Legisl ature's] intent.'" Tumpson v. Farina, 218 N.J. 450, 467 (2014) (alteration in ori ginal) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Only where the st atutory language at issue is ambiguous should a court "look to extrinsic evidenc e, such as legislative history [and] committee reports" to determine legislative i ntent. Tumpson, 218 N.J. at 468. Where the textual analysis and extrinsic aids both fail to resolve ambiguity, the rule of lenity "requires that the ambiguity be resolved in favor of the defendant." State v. Regis, 208 N.J. 439, 451 (201 1). Courts should "avoid statutory interpretations that 'lead to absurd or u nreasonable results.'" State v. Lewis, 185 N.J. 363, 369 (2005) (quoting State v. G ill, 47 N.J. 441, 444 (1966)).A- 3472

- 21 14 The plain language of the statutory text in questio n provides in relevant part: A person commits a crime of the second degree if he

attempts, via electronic or any other means, to lur e or entice-a child or one who he reasonably believes to be a child into a motor vehicle, structure or isolated area, or to meet or appear at any other place, with a pur pose to commit a criminal offense with or against the ch ild. [N.J.S.A. 2C:13-6(a) (emphasis added).] One must look at the wording of the entire phrase i n its context, which prohibits to "lure or entice," and the entire dicti onary definition of both words to determine the statute's ordinary meaning. Defend ant's argument only focuses on the dictionary definition of "lure" to conclude that "to lead someone into a dangerous or difficult situation that they otherwis e would not have entered" means to go to another location. The definition of "lure" includes "to lead astray from one's true course." Merriam-Webster's College Dictionary, (11th ed. 2020). And "entice" is defined as "to lure or indu ce; esp., to wrongfully solicit (a person) to do something." Black's Law Dictionar y (11th ed. 2019). The prohibited conduct is thus defined by its aim to le ad someone into a dangerous or difficult situation that they otherwise would no t have entered. The course of action Angela was lured into was staying alone, iso lated, and vulnerable to meet an adult male for an illegal sexual encounter.A- 3472

- 21 15 Here, the ordinary meaning of the phrase "to meet o r appear at any other place" also leads to the conclusion defendant engag ed in prohibited conduct when he enticed Angela to stay at her home and not go out with her friends. There is no reason to construe the phrase of "any o ther place" as containing an unwritten exception for places where the child is a lready located. Here, that location is a place "other" than where the defendan t was when he communicated with the child. Defendant went through great pains to ensure Angela would be alone before telling her he was coming over. Indee d, by requesting the child to stay at her home, the abuse is all the easier to co mmit; since it lulls the child into a false sense of security; creating the danger ous circumstance of isolation and vulnerability that this statute is meant to pun ish. Neither the dictionary definitions nor the language of the statute express es a requirement of the victim going to a different place. Although there is no need to make any further inquiry, our decision is also supported by the legislative history, which suggest s an intent to create an expansive scheme to criminalize an increasing numbe r of dangerous behaviors. The original text, now thirty years old, was limite d to luring a child into a motor vehicle. By contrast, the current statute criminal izes two actions (luring and enticing), by unlimited means (electronic or any ot her), with two categories of victims (children or those reasonably believed to be children), a wide number ofA- 3472

- 21 16 prohibited enticements (motor vehicles, structures, isolated areas, and meetings or appearances at any other place), and a broadly s tated purpose element (to commit a criminal offense with or against the child ). In addition, analyzing this statute in relation to our kidnapping statute, N.J.S.A. 2C:13-1, also undermines defendant's posit ion. The kidnapping statute was meant to address the kind of danger isolation p oses to a child, and such isolation and danger can certainly be present at the child's own home, especially where, as here, the child is confirmed to be home a lone. See State v. Cruz-Pena , 243 N.J. 342, 354-61 (2020) (kidnapping occurs when the victim is confined to one place for a substantial period, citing to a lit any of cases where kidnappingby -confinement occurs in places where the victim woul d still otherwise be); State v. LaFrance, 117 N.J. 583, 592-93 (1990) (con fining a victim to his own bedroom for a substantial period in order to isolat e the man's wife and sexually assault her constituted kidnapping). Defendant's request that the principle of lenity su pport an interpretation in his favor is similarly unavailing, and is not re quired, given the unambiguous text and expansive legislative history. The fact t hat other statutes such as the child endangerment statute, N.J.S.A. 2C:24-4, might also criminalize a defendant's behavior does not compel us to adopt a crabbed interpretation of N.J.S.A. 2C:13-6(a).A- 3472

- 21 17 IV. The remaining arguments presented by defendant warr ant no more than a brief discussion.
A. Lay witnesses may testify "in the form of opinions or inferences if [the testimony]: (a) is rationally based on the witness' s perception; and (b) will assist in understanding the witness's testimony or determi ning a fact in issue." N.J.R.E. 701. Perception "rests on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell, or heari ng." State v. McLean, 205 N.J. 439, 457 (2011) (citations omitted). Lay opinion t estimony is impermissible when it constitutes "an expression of a belief in d efendant's guilt" or "an opinion on matters that were not beyond the understanding of the jur y." Id. at 463. Lay witnesses may not opine on a matter "as to which th e jury is as competent as [the witness] to form a conclusion[.]" Id. at 459 (second alteration in original) (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Su per. 1, 8 (App. Div. 1955)). So long as the lay witness opinion is competent und er N.J.R.E. 701, and is not otherwise inadmissible, it will not be objectionabl e simply because it "embraces an ultimate issue to be decided by the trier of fac t." N.J.R.E. 704. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 704 (2023) ("[O]pinion testimony is not inadmissible so lely because it includes theA- 3472

- 21 18 ultim ate issue in question. If lay or expert opinion te stimony is otherwise competent under N.J.R.E. 701, 702 and 703, the fact that it may embrace the ultimate fact issue in dispute does not render it i ncompetent."). Fact testimony, by contrast, is "ordinary fact-base d recitation by a witness with first-hand knowledge." McLean, 205 N.J. at 46 0. For a police officer, in the context of a narcotics trial, such fact testimo ny may include:

a description of what the officer did and saw, . . . that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the of ficer approached, and that the officer found drugs in the bag. Ibid. In McLean, our Supreme Court cautioned against admi tting lay opinion testimony by a police officer where the opinion is b ased on the officer's training and experience, writing "the analysis of admissibil ity has been, as it must be, firmly rooted in the personal observations and perc eptions of the lay witness in the traditional meaning of the Rule 701." 205 N.J. at 459. The McLean Court considered the admissibility of a police officer's testimony in which he first recounted his observations of an interaction betwee n two individuals and then testified as to his own belief, based on his experi ence, that what he had observed was a hand- to -hand drug transaction. Id. at 446.A- 3472

- 21 19 The McLean Court found the second part of the offic er's testimony inadmissible because the police officer had not bee n qualified as an expert and because the lay opinion rule could not provide a ba sis for admissibility. Id. at 463. The Court held such testimony "was impermissible bo th because it was an expression of a belief in defendant's guilt and bec ause it presumed to give an opinion on matters that were not beyond the understanding of the jury." Ibid.
B. Defendant argues testimony given by Detective Feeha n included inadmissible lay opinions with "zero probative" val ue, which introduced such

an unfair prejudice that a new trial is required. Sp ecifically, defendant argues Detective Feehan should not have been permitted to testify that she followed the laws on entrapment. Defendant argues the entrapment sta tute requires the issue to be settled by the factfinder. The State, meanwh ile, contends the testimony
was proper. This testimony from Detective Feehan was offered on re-direct examination, after detailed cross-examination squar ely placed entrapment at issue. Here, Detective Feehan's testimony was like that of the hypothetical narcotics officer described in McLean. It was a fa ctual recitation of her own actions during the operation, namely that she follo wed protocol, not an opinion about anything defendant did or did not do. The ju ry was free to find herA- 3472

- 21 20 statements credible or not. Detective Feehan was n ot asked for, and did not offer, her thoughts or beliefs as to defendant's gu ilt or innocence. She only recounted the actions she took that day. Even to the extent that Detective Feehan's testimon y could be considered a lay opinion on entrapment, such an opinion is not inadmissible simply because it goes to an issue to be decided by the factfinder . It must be incompetent under N.J.R.E. 701 or inadmissible on other grounds. The only argument defendant advances on this point is that the statement had "zero probat ive value," possibly an attempt to disqualify the statements under N.J.R .E. 701(b) or N.J.R.E. 401. This position is untenable, given that entrapment a nd Detective Feehan's training on the same were extensively explored in cross-exam ination by defense counsel. Detective Feehan's one-word answer of "yes" to the question, viewed in light of the overall evidence against defendant, wa s not "clearly capable" of producing an unjust result. R. 2:10 -2. It was evidence to be weighed by the jury under a preponderance standard if and only if they found guilt had been established.
C. Defendant maintains Agent Cruz's description of the photograph sent on October 25 as "a lewd image" and pointing out the c ontour of the penis was unnecessary and impermissibly purported to usurp th e role of the jury. The StateA- 3472

- 21 21 believes the testimony was proper because Agent Cru z's description was rationally based on his own perception, as required by N.J.R.E. 701(a). Agent Cruz's testimony that defendant "sent a pictu re of [an] erect penis to a [fourteen-year-old]," his characterization of the photograph as a "lewd image," and his description of the displayed photog raph indicating the "contour of the penis" are opinion testimony only to the extent that they reflect Agent Cruz's beliefs about the images displayed for the j ury. Our Court recently took up the admissibility of lay witness testimony provi ding subjective interpretations of a video recording in State v. Wa tson, 254 N.J. 558 (2023). There, the Court held:

A fact witness who participated in an event can of course testify about it and recount relevant eviden ce without resort to Rule 701. Rule 701, in its purest form, allows witnesses to offer lay opinion testimony bas ed on their firsthand observation of events in real ti me. Beyond that, they can offer lay opinion testimony a bout parts of a recording that depict what they perceive d in real time. In those instances, they plainly have sufficient personal knowledge within the meaning of Rules 602 and 701. [Id. at 599.] The Watson Court also addressed the helpfulness pro ng of N.J.R.E. 701(b), holding the analysis is "more straightforwa rd and depends on the facts of the individual case." Id. at 600. In contrast, in State v. Higgs the Court disallowed narration evidence by a police officer w ho was not present on theA- 3472

- 21 22 scene because "[t]he jury was as competent as the d etective to view the video and determine what the image did or did not show." 253 N.J. 333, 336 (2023). Higgs is distinguishable from this case because Agent Cr uz personally participated in the chat to which he was testifying

. Applying this same analysis to the photos before Agent Cruz, it is clear he was permitted to testify as to his firsthand obs ervations of the photographs. To the extent his testimony included any subjective interpretation of the photographs, it would still be an admissible lay op inion since he personally participated in the chat and therefore, under Watso n, "plainly [has] sufficient personal knowledge" to satisfy N.J.R.E. 701(a). 254 N.J. at 599. And Agent Cruz's testimony was helpful to the jury under N.J. R.E. 701(b) because this testimony was offered to explain his interactions w ith defendant. Defendant posits Agent Cruz's testimony was inadmis sible because by stating that "any reasonable person" would not cont inue chatting with someone who revealed themselves to be a fourteen-year-old, and by stating "you are not going to travel" after learning of the child's age, Cruz impermissibly opined on defendant's guilt. This opinion, according to defe ndant, impermissibly invaded the province of the jury by embracing an ultimate i ssue. Agent Cruz's testimony constitutes opinion testimon y in that it is not a factual recitation of actions taken or observations made during the operation,A- 3472

- 21 23 but rather a subjective characterization of what de fendant or others in defendant's position might do. Therefore, to be ad missible, the statement must satisfy both the perception and helpfulness prongs of N.J.R.E. 701, and it must not constitute expression of a belief about defenda nt's guilt or innocence. Here, Agent Cruz's testimony about the behavior of "any reasonable person" and that such a person is "not going to travel" after l earning of Angela's age is more like the precluded evidence in McLean, in that it is a subjective lay opinion of defendant's behavior, based on Agent Cruz's training and experience in performing these types of operations in the past . These statements were inadmissible lay opinions, and it was error for the m to be admitted. However, considering the brevity of these comments compared to Agent Cruz's overall testimony, the error does not rise t o the level of being clearly capable of producing an unjust result and was not p lain error, given the overall strength of the State's case and the clear evidence of defendant's continued sexually explicit conversation with Angela after be ing told her age. Affirmed.