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NOT FOR PUBLICATION WITHOUT THE 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-MEJIA1, 

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 excluded from public access in 

order to protect the identity of the victims. As there was no actual child victim 

in this case, such anonymization is not necessary here. 
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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 the 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 case an undercover law 

enforcement officer posing as a fourteen-year-old girl, into traveling or 

accompanying the defendant to some location other than the victim's own home. 

We reject defendant Jose Y. Martinez-Mejia's contention that because he 

enticed the "child" to meet him alone, and defendant traveled to the "child's" 

home, a judgment of acquittal should have been entered. By its plain language, 

the statute forbids an adult from "luring or enticing a child to meet or appear at 

any other place." We hold that the child's home can be the "other place." Here, 

that location is a place "other" than where the defendant was when he 

communicated with the child. 

In the unpublished portion of this opinion, we address unrelated 

arguments raised by defendant on appeal alleging evidentiary issues. Having 

found those arguments do not demonstrate plain error, we affirm defendant's 

convictions and sentence. 
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3 

I.

The prosecution in this matter originated in October 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 apartment complex in Franklin 

Township, Somerset County.

Special Agent Cedro Cruz from the Department of Homeland Security 

served as a "chatter," posing as a fourteen-year-old girl named "Angela." Agent 

Cruz created a profile for Angela on SKOUT, a location-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 to alter the photographs, 

making Angela appear younger. 

At a jury trial, Agent Cruz testified solely as a fact 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 "James." Defendant was 

thirty-two years old at the time. Defendant's first messages were "Hi, 

sweetheart, how are you?" and "Hi, sweetheart, what are you doing?" When 
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4 

Angela replied with "nothing," he immediately followed up with, "[y]our 

pictures turn me on, honey. Where are you from?" When Agent Cruz testified 

about this first exchange with defendant, the following 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. When defendant expressed a 

desire to meet Angela, the following exchange ensued: 

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 you. 

Angela: Why? 

Defendant: I like you. 
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During this exchange, and after Angela revealed her age, defendant sent Angela 

multiple photographs of himself, including a picture of his erect penis. 

Angela revealed she was home alone because her grandmother had left 

and would not be returning until the next day. Defendant asked Angela explicit 

questions about sex and masturbation and said he wanted "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 Angela wanted to touch his body 

and told her he wanted to perform oral sex on her. 

The prosecution admitted the photographs into evidence and published 

them for the jury. Agent Cruz was asked to "describe to the jury what they're 

seeing[.]" He replied, "The jury is seeing an image sent to Angela through 

SKOUT on October 26[,] of a hand holding an erect penis." 

On re-direct, Agent Cruz testified as follows: 

Q: During the course of those communications at 

any point in time did you threaten the defendant that 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, then he 

would have just been a pic collector. I said that I—I 

was [fourteen] years old, I would hope after somebody 
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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 which 

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 not 

going to travel. As a matter of fact, you might try to 

either report this person, which has happened in the 

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 and directly 

between defendant and the undercover phone, which recorded every call and 

text message. Agent Cruz continued to send and reply to text messages; while 

Detective Katie Feehan from the New Jersey State Police Internet Crimes 

Against Children Unit ("ICACU") provided Angela's voice for phone calls. 

Detective Feehan testified to her role with the ICACU and the training 

that she received in acting as a child in an undercover capacity; however, she 

was not tendered as an expert witness. She testified to the details of her three 

phone calls with defendant. 
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During the first phone call, defendant asked Angela to confirm that she 

was home alone. Angela told defendant her grandmother was in Atlantic City 

and would not be returning for a couple of days. Angela 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 ensued: 

[Angela]: . . . I'm just trying to figure out if you'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 when he arrived, he 

repeated his desire to perform oral sex on her. She reaffirmed she was going to 

clean the apartment to prepare for his arrival, and then she was going to wait for 

him. 

Defendant hired an Uber to take him to Franklin and sent Angela 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 arrived, Agent Cruz could 
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see him standing outside through the apartment window. Defendant was 

arrested and was found to be in possession of a cell phone, a receipt with 

Angela's address written on it, $184 dollars, and two condoms. 

At trial, Detective Feehan was asked on cross-examination about her 

training on the topic of entrapment. Detective Feehan testified that she had 

reviewed the relevant New Jersey law and that it closely 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 matter of the conversation[.]" 

She was presented with a portion of the investigative 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 topic 

of entrapment. Do you recall that? 

A: Yes. 

Q: And you testified that you received training about 

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. 
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Defense counsel re-crossed Detective Feehan on those 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 the negative. 

During an extensive charge conference, defense counsel raised no 

objections 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 isolated 

area, to meet or appear at any other place; and, 

3. That defendant had a purpose to commit a criminal 

offense with or against the child. 

The jury returned a verdict finding defendant guilty of all charges: seconddegree luring, N.J.S.A. 2C:13-6(a); second-degree attempted sexual assault, 

N.J.S.A. 2C:5-1(a)(3) and 2C:14-2(c)(4); third-degree 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 to 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 sentenced defendant concurrently 

to five years of imprisonment on the attempted sexual assault charge; five years 
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10

on the luring charge; and three years on the attempted obscene material charge. 

Defendant was also subjected to Megan's Law registration requirements and 

parole supervision for life. 

On appeal, defendant raises the following claims for 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 error, 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 producing an unjust result,' [under 

Rule] 2:10-2; that is, whether there is 'a reasonable doubt . . . as to whether the 

error led the jury to a result it otherwise might not 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 whether 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. 
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11

Sanchez-Medina, 231 N.J. 452, 468 (2018)). "The mere possibility 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 objection on appeal is "not 

error" and "unlikely to prejudice the defendant's case." 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 State v. S.B., 230 N.J. 62, 67 

(2017)). A trial court's evidentiary rulings, by contrast, 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. (quoting State v. Medina, 242 N.J. 

397, 412 (2020)). 

III. 

Defendant does not claim the indictment should have been dismissed, nor 

does he explicitly express that the trial court, sua 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, where he believes we should 

hold: (1) telling a child you want to meet for sex; (2) asking them to meet you 
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to fulfill that desire; and (3) making sure a child is alone and vulnerable before 

meeting them, is not luring or enticing the child into 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 element of the statute is 

"to lure or entice" a child to go somewhere. Relying on the dictionary definition 

of "lure," defendant argues its aim is "to lead someone into a dangerous or 

difficult situation that they otherwise would not have 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 staying at a place that they 

otherwise would have left, such as a school after-hours, 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 considered 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 statutory elements to be met. 

Defendant points to the luring statute's close relationship to the kidnapping 
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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, the principle of lenity should 

apply in favor of interpreting the statute to require the child to be lured to travel. 

The State responds that defendant is asking us to create 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 statutory language is 

acknowledged as "'the best indicator of [the Legislature's] intent.'" Tumpson v. 

Farina, 218 N.J. 450, 467 (2014) (alteration in original) (quoting DiProspero v. 

Penn, 183 N.J. 477, 492 (2005)). Only where the statutory language at issue is 

ambiguous should a court "look to extrinsic evidence, such as legislative history 

[and] committee reports" to determine legislative intent. 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 (2011). Courts should "avoid 

statutory interpretations that 'lead to absurd or unreasonable results.'" State v. 

Lewis, 185 N.J. 363, 369 (2005) (quoting State v. Gill, 47 N.J. 441, 444 (1966)). 
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The plain language of the statutory text in question provides in relevant 

part: 

A person commits a crime of the second degree if he

attempts, via electronic or any other means, to lure 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 purpose 

to commit a criminal offense with or against the child. 

[N.J.S.A. 2C:13-6(a) (emphasis added).] 

One must look at the wording of the entire phrase in its context, which 

prohibits to "lure or entice," and the entire dictionary definition of both words 

to determine the statute's ordinary meaning. Defendant's argument only focuses 

on the dictionary definition of "lure" to conclude that "to lead someone into a 

dangerous or difficult situation that they otherwise 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 induce; esp., to wrongfully solicit 

(a person) to do something." Black's Law Dictionary (11th ed. 2019). The 

prohibited conduct is thus defined by its aim to lead someone into a dangerous 

or difficult situation that they otherwise would not have entered. The course of 

action Angela was lured into was staying alone, isolated, and vulnerable to meet 

an adult male for an illegal sexual encounter. 
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Here, the ordinary meaning of the phrase "to meet or appear at any other 

place" also leads to the conclusion defendant engaged 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 other place" as containing an 

unwritten exception for places where the child is already located. Here, that 

location is a place "other" than where the defendant 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. Indeed, by requesting the child to 

stay at her home, the abuse is all the easier to commit; since it lulls the child 

into a false sense of security; creating the dangerous circumstance of isolation 

and vulnerability that this statute is meant to punish. Neither the dictionary 

definitions nor the language of the statute expresses 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 suggests an intent to create an 

expansive scheme to criminalize an increasing number of dangerous behaviors. 

The original text, now thirty years old, was limited to luring a child into a motor 

vehicle. By contrast, the current statute criminalizes two actions (luring and 

enticing), by unlimited means (electronic or any other), with two categories of 

victims (children or those reasonably believed to be children), a wide number of 
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prohibited enticements (motor vehicles, structures, isolated areas, and meetings 

or appearances at any other place), and a broadly stated 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 position. The kidnapping statute 

was meant to address the kind of danger isolation poses 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 alone. 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 litany of cases where kidnappingby-confinement occurs in places where the victim would still otherwise be); 

State v. LaFrance, 117 N.J. 583, 592-93 (1990) (confining a victim to his own 

bedroom for a substantial period in order to isolate the man's wife and sexually 

assault her constituted kidnapping). 

Defendant's request that the principle of lenity support an interpretation 

in his favor is similarly unavailing, and is not required, given the unambiguous 

text and expansive legislative history. The fact that 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). 
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IV. 

The remaining arguments presented by defendant warrant 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 determining 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 hearing." State v. McLean, 205 N.J. 

439, 457 (2011) (citations omitted). Lay opinion testimony is impermissible 

when it constitutes "an expression of a belief in defendant's guilt" or "an opinion 

on matters that were not beyond the understanding of the jury." Id. at 463. Lay 

witnesses may not opine on a matter "as to which the 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. Super. 1, 8 (App. Div. 1955)). 

So long as the lay witness opinion is competent under N.J.R.E. 701, and is not 

otherwise inadmissible, it will not be objectionable simply because it "embraces 

an ultimate issue to be decided by the trier of fact." 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 solely because it includes the 
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ultimate issue in question. If lay or expert opinion testimony 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 incompetent."). 

Fact testimony, by contrast, is "ordinary fact-based recitation by a witness 

with first-hand knowledge." McLean, 205 N.J. at 460. For a police officer, in 

the context of a narcotics trial, such fact testimony 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 officer 

approached, and that the officer found drugs in the bag. 

Ibid. 

In McLean, our Supreme Court cautioned against admitting lay opinion 

testimony by a police officer where the opinion is based on the officer's training 

and experience, writing "the analysis of admissibility has been, as it must be, 

firmly rooted in the personal observations and perceptions 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 between two individuals and then 

testified as to his own belief, based on his experience, that what he had observed 

was a hand-to-hand drug transaction. Id. at 446. 
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The McLean Court found the second part of the officer's testimony 

inadmissible because the police officer had not been qualified as an expert and 

because the lay opinion rule could not provide a basis for admissibility. Id. at 

463. The Court held such testimony "was impermissible both because it was an 

expression of a belief in defendant's guilt and because 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 Feehan included 

inadmissible lay opinions with "zero probative" value, which introduced such 

an unfair prejudice that a new trial is required. Specifically, defendant argues 

Detective Feehan should not have been permitted to testify that she followed the 

laws on entrapment. Defendant argues the entrapment statute requires the issue 

to be settled by the factfinder. The State, meanwhile, contends the testimony 

was proper. 

This testimony from Detective Feehan was offered on re-direct 

examination, after detailed cross-examination squarely placed entrapment at 

issue. Here, Detective Feehan's testimony was like that of the hypothetical 

narcotics officer described in McLean. It was a factual recitation of her own 

actions during the operation, namely that she followed protocol, not an opinion 

about anything defendant did or did not do. The jury was free to find her 
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statements credible or not. Detective Feehan was not asked for, and did not 

offer, her thoughts or beliefs as to defendant's guilt or innocence. She only 

recounted the actions she took that day. 

Even to the extent that Detective Feehan's testimony 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 probative 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 and Detective Feehan's training 

on the same were extensively explored in cross-examination by defense counsel. 

Detective Feehan's one-word answer of "yes" to the question, viewed in 

light of the overall evidence against defendant, was 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 contour of the penis was 

unnecessary and impermissibly purported to usurp the role of the jury. The State 
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believes the testimony was proper because Agent Cruz'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 picture of [an] erect penis 

to a [fourteen-year-old]," his characterization of the photograph as a "lewd 

image," and his description of the displayed photograph 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 jury. Our Court recently took 

up the admissibility of lay witness testimony providing subjective 

interpretations of a video recording in State v. Watson, 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 evidence 

without resort to Rule 701. Rule 701, in its purest form, 

allows witnesses to offer lay opinion testimony based 

on their firsthand observation of events in real time. 

Beyond that, they can offer lay opinion testimony about 

parts of a recording that depict what they perceived 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 prong of N.J.R.E. 

701(b), holding the analysis is "more straightforward 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 who was not present on the 
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scene because "[t]he jury was as competent as the detective 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 Cruz 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 observations of the photographs. 

To the extent his testimony included any subjective interpretation of the 

photographs, it would still be an admissible lay opinion since he personally 

participated in the chat and therefore, under Watson, "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 with defendant. 

Defendant posits Agent Cruz's testimony was inadmissible because by 

stating that "any reasonable person" would not continue 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 defendant, impermissibly invaded 

the province of the jury by embracing an ultimate issue. 

Agent Cruz's testimony constitutes opinion testimony in that it is not a 

factual recitation of actions taken or observations made during the operation, 
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but rather a subjective characterization of what defendant or others in 

defendant's position might do. Therefore, to be admissible, 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 defendant'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 learning 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 them to be admitted. 

However, considering the brevity of these comments compared to Agent 

Cruz's overall testimony, the error does not rise to the level of being clearly 

capable of producing an unjust result and was not plain error, given the overall 

strength of the State's case and the clear evidence of defendant's continued 

sexually explicit conversation with Angela after being told her age. 

Affirmed.