RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1683-17T4

STATE OF NEW JERSEY IN THE 

INTEREST OF K.B., a Juvenile.

_____________________________

Argued May 2, 2019 – Decided May 28, 2019

Before Judges Simonelli, Whipple and Firko.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson County, 

Docket No. FJ-09-0830-17.

Susan L. Romeo, Assistant Deputy Public Defender, 

argued the cause for appellant K.B. (Joseph E. Krakora, 

Public Defender, attorney; Susan L. Romeo, of counsel 

and on the brief).

Alanna M. Jereb, Assistant Prosecutor, argued the 

cause for respondent State of New Jersey (Esther 

Suarez, Hudson County Prosecutor, attorney; Alanna 

M. Jereb, on the brief).

PER CURIAM

Defendant, K.B., a juvenile, appeals from a June 5, 2017 Family Part order 

of disposition for delinquency entered after a bench trial. For the reasons that 

follow, we reverse.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although 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.
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Based on a review of the record, we discern the following facts. Early in 

the morning on January 22, 2017, police responded to a report of gunshots on a 

residential street in Jersey City. No one identified or described the shooter. 

Detective Michael Burgess of the Jersey City Police Department responded to 

the scene and found shell casings from a nine-millimeter handgun on the 

sidewalk. He noticed two parked cars were struck by bullets. There were no 

witnesses and the police did not recover a gun. The evidence presented to the 

judge during the subsequent bench trial included surveillance videos from the 

neighborhood and police testimony about them. 

Officer Jesse Hilburn obtained surveillance video from home cameras on 

the residential street where the shots were fired. The cameras faced east and 

west down the street. The west-facing video showed a group of people leaning 

against a parked car, but only their legs were visible. The video showed flashes 

of light, which caused the people to scatter. A parked car immediately pulled 

out and backed down the street. Another video showed two men running east. 

The video did not show the shooter. 

The east-facing video, at the same time stamp as the west-facing video, 

showed small flashes of light from across the street. After the gunfire, one or 
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two people ran across the street. No weapons or faces were visible, but the same 

car can be seen driving in reverse down the street.

The next set of videos came from a multi-family apartment building 

located one street east of where the shots were fired. One camera faced north 

and another faced south. A third camera faced west and a fourth camera showed 

the interior of the building's laundry room. The north- and south-facing cameras 

clearly showed two men in dark clothing running, later walking, south and away 

from the street where the shots were fired. Their faces were partially covered. 

The videos did not show weapons. The third camera showed the men turn right 

and then enter an alleyway adjacent to the apartment building. 

The video from the apartment's laundry room showed a young man, 

dressed in black and wearing a black cap, step into the laundry room with 

something brown in his hand. He was visible for less than two seconds before 

he turned around and left. The video is blurry and dim.

One of the officers, Michael Sanchez, believed he recognized the person 

in the laundry room video as K.B., someone he had previously encountered in 

other investigations. Based on Sanchez's identification, K.B. was charged in a 

juvenile delinquency complaint alleging conduct, which if committed by an 

adult would constitute: second-degree unlawful possession of a weapon, 
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N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a)(1); fourth-degree possession of a firearm by a 

minor, N.J.S.A. 2C:58-6.1(b); and third-degree aggravated assault, N.J.S.A. 

2C:12-1(b)(2).

A trial was held in the Family Part on April 25 and May 16, 2017. Four 

police officers testified for the State. Detective Burgess testified that on January 

22, 2017, he received a call about shots fired on a residential street. During 

Burgess's testimony, the State introduced, and later moved into evidence, photos 

of the cars struck by bullets and the shell casings scattered at the scene. 

During Hilburn's testimony, the State played the east- and west-facing 

videos recovered from the street where the shots were fired. Hilburn testified 

the police could not locate any witnesses or victims of the shooting. On crossexamination, he acknowledged neither a shooter nor a gun was visible on the 

street-view videos.

Jersey City Police Officer Gilberto Vega also testified he recovered the 

four surveillance videos from the apartment building. Vega was unable to 

identify any individuals or point to any weapons in the three videos showing the 

street view. Vega testified as to what he believed the laundry-room video 

depicted, and the following exchange took place. 
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Q: Okay, Officer Vega. What did we just see?

A: We just saw the defendant with no mask on and a 

gun in his hand come into the laundry room, look 

directly at the camera, and then exit the laundry room. 

Q: Officer Vega, why do you think there's a gun in his 

hand?

A: There's a gun in his hand, because it was the gun that 

I believe was used in the shooting that occurred 

approximately ten minutes prior to that. 

Vega admitted he only knew defendant was the person who entered the laundry 

room based on information from other officers, not his own perception. When 

asked how he knew the object in the person's hand was a gun, he responded it 

was based on his "training and experience." He did not explain what his training 

and experience entailed. 

Officer Sanchez identified the individual in the laundry-room video as 

defendant. During the course of his testimony, Sanchez only testified about the 

laundry-room video and did not view or identify defendant in the videos showing 

people scatter after flashes of light. Sanchez testified, "based on [his] 

observation," the object in the person's hand was a "small caliber handgun." 

Sanchez admitted he could not determine the caliber of the handgun. 

Based on the evidence presented at trial, the judge found two men, one 

being defendant, fired handguns at a group of individuals. The judge found the 
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two individuals in the video wearing black and running down the street were the 

shooters and one of them was defendant. The judge found that defendant was 

the individual who entered the laundry room after running from the scene of the 

shooting. The judge speculated the car that reversed after the flashes of light 

was connected to the perpetrators of the shooting, though no testimony was 

offered that linked the vehicle to the perpetrators.1 

The judge credited Officer Sanchez's testimony, finding his identification 

of defendant in the video believable, and he also relied on his own viewing of 

the video, saying that it

corroborates everything else. So it's – it's not just the 

face. It's not just the features. It's not just the clothing, 

the color of the clothing, the headgear. It's also the fact 

that holding of the gun and everything establishes, in 

my view, that the State proved . . . beyond a reasonable 

doubt . . . that the person in that laundry room was 

[defendant.]

The judge found defendant guilty of all charges. Despite the fact that K.B. was 

only charged with third-degree aggravated assault, he was adjudicated 

delinquent of second-degree assault. He was sentenced to a three-year term of 

detention. This appeal followed.

 

1

 Testimony about this vehicle was used to establish continuity of the security 

cameras because the time stamps on the cameras were not identical. 
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On appeal, defendant argues the following:

POINT I

K.B.'S ADJUDICATIONS FOR DELINQUENCY 

MUST BE REVERSED BECAUSE THE TRIAL 

COURT ERRONEOUSLY ALLOWED TWO POLICE 

OFFICERS TO PROVIDE INADMISSIBLE OPINION

TESTIMONY THAT THE BLURRY BROWN 

OBJECT SEEN FOR TWO SECONDS ON THE 

BASEMENT LAUNDRY ROOM VIDEO WAS A 

HANDGUN.

POINT II

K.B. IS ENTITLED TO JUDGMENT OF 

ACQUITTAL ON THE CHARGES OF 

AGGRAVATED ASSAULT AND POSSESSION OF 

A WEAPON FOR AN UNLAWFUL PURPOSE 

BECAUSE: 1) EVEN IF K.B. WAS THE PERSON 

DEPICTED ON THE LAUNDRY ROOM VIDEO, 

THE STATE PRESENTED NO EVIDENCE THAT HE 

WAS ONE OF THE SHOOTERS; 2) EVEN IF THE 

BLURRY BROWN OBJECT SEEN ON THE 

LAUNDRY ROOM VIDEO WAS A GUN, THE 

STATE PRESENTED NO EVIDENCE THAT IT WAS 

THE [NINE-MILLIMETER] HANDGUN USED IN 

THE SHOOTINGS, OR THAT IT WAS EVEN A 

[NINE-MILLIMETER] GUN.

1. K.B.'s Motion For Judgment Of Acquittal.

2. The State's Failure To Present Evidence To 

Establish Identity And Unlawful Purpose.

POINT III

K.B. IS ENTITLED TO REVERSAL OF HIS 

CONVICTION IN COUNT FOUR FOR 
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DELINQUENCY BASED ON ALLEGATIONS OF 

SECOND-DEGREE AGGRAVATED ASSAULT 

UNDER N.J.S.A. 2C:12-1(b)(1), BECAUSE THE 

COMPLAINT CHARGED HIM ONLY WITH 

DELINQUENCY BASED ON THIRD-DEGREE 

AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12-

1(b)(2), AND THE ADJUDICATION BASED ON A 

HIGHER DEGREE CRIME VIOLATED HIS RIGHT 

TO DUE PROCESS. (U.S. CONST. AMENDS. V, VI, 

XIV; N.J. CONST. ART. 1, PAR. 10) (not raised 

below).

POINT IV

THE TRIAL COURT ERRED WHEN IT PERMITTED 

OFFICER SANCHEZ TO TESTIFY THAT K.B. WAS

THE PERSON ON THE VIDEO (not raised below).

I.

Ordinarily, "[a] trial court's evidentiary rulings are entitled to deference 

absent a showing an abuse of discretion" as a "clear error of judgment." State 

v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 

439 (2012)). When a trial court fails to apply the proper legal standard to 

determine the admissibility of evidence, the court's decision is not entitled to 

deference and appellate review is de novo. State v. Darby, 174 N.J. 509, 518 

(2002). 

We focus our attention on the arguments in defendant's first point. After 

a careful review of the record, we consider the admission of lay-opinion 
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testimony in the present case as grounds for reversal. Here, the officers 

speculated that defendant possessed a gun and Officer Vega offered his opinion 

that defendant was holding a gun because he had committed a shooting. 

When objections regarding the officers' opinion testimony were raised, 

the judge overruled the objections stating, "you don't need to be an expert to 

testify that someone was seen with a gun in his hand. And, you know, whether 

. . . that is believable or not and whether, in fact, that happened is for the [c]ourt 

to determine." Although the judge justified his decision by asserting credibility 

determinations would balance the testimony, the judge did not consider whether 

the testimony was admissible or inadmissible lay-opinion testimony. The judge 

did discuss the application of Rule 701 for lay-opinion testimony, but he 

characterized the identification of defendant as the person with the gun as fact 

testimony. See N.J.R.E. 701. Given the failure to assess the admissibility of 

the evidence, the judge's evidentiary decisions are reviewed de novo. Darby, 

174 N.J. at 518.

Lay-opinion testimony is admissible if it: "(a) is rationally based on the 

perception of the witness and (b) will assist in understanding the witness'[s] 

testimony or in determining a fact in issue." N.J.R.E. 701. "[L]ay opinion 

testimony is limited to what was directly perceived by the witness and may not 
10 A-1683-17T4

rest on otherwise inadmissible hearsay." State v. McLean, 205 N.J. 438, 460 

(2011). On the other hand, expert testimony allows experts "to explain the 

implications of observed behaviors that would otherwise fall outside the 

understanding of ordinary people on the jury." Ibid. "The Rule does not permit 

a witness to offer a lay opinion on a matter 'not within [the witness's] direct ken 

. . . and as to which the jury is as competent as he to form a conclusion[.]'" Id.

at 459 (alterations in original) (quoting Brindley v. Firemen's Ins. Co., 35 N.J. 

Super. 1, 8 (App. Div. 1955)).

In McLean, our Supreme Court considered whether "there is a category of 

testimony that lies between those two spheres, governed by the lay opinion rule,

that authorizes a police officer, after giving a factual recitation, to testify about 

a belief that the transaction he or she saw was a narcotics sale." Id. at 461. The 

Court declined to adopt such an approach, finding "we would be transforming 

testimony about an individual's observation of a series of events, the significance 

of which we have previously held does not fall outside the ken of the jury, into 

an opportunity for police officers to offer opinions on defendants' guilt. " Ibid.

(citation omitted).

The McLean Court focused on how the testifying officer had not been 

qualified to testify as an expert. Id. at 461-62. "As a result, the reference in the 
11 A-1683-17T4

question to his training and experience, coupled with the request that he testify 

about his belief as to what had happened, impermissibly asked for an expert 

opinion from a witness who had not been qualified to give one." Id. at 462. In 

McLean, a police detective testified about a drug-dealing surveillance operation. 

Id. at 445-46. A prosecutor asked what the detective believed happened "based 

on [his] own experience . . . and . . . training[.]" Id. at 446. The Court found 

this impermissibly elicited an expert opinion from a witness not qualified to give 

one. Id. at 463. 

Our courts "have permitted police officers to testify as lay witnesses, 

based on their personal observations and their long experience in areas where 

expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 

N.J. 187, 198 (1989). But admissibility "must be[] firmly rooted in the personal 

observations and perceptions of the lay witness in the traditional meaning of the 

Rule 701." McLean, 205 N.J. at 459. 

Here, both Vega and Sanchez opined on the presence of a gun in the video. 

Vega was given the opportunity to narrate the video, with the prosecutor asking, 

"What did we just see?" and Vega responding, "We just saw the defendant with 

no mask on and a gun in his hand." The prosecutor further asked Vega, "why 

do you think there is a gun in his hand?" (Emphasis added). Vega then opined 
12 A-1683-17T4

about events he did not personally observe and about which he had no personal 

knowledge, stating, "[it] was the gun that I believe was used in the shooting that 

occurred approximately ten minutes prior." (Emphasis added). Lay-opinion 

testimony is limited to what was directly perceived by the witness. Id. at 460. 

Vega was not familiar with defendant and did not observe the shooting. Rather, 

he based his observation on his "training and experience."

His statement was prejudicial because he opined on the ultimate issue of 

the case: whether defendant was the shooter. See id. at 461. When defendant 

objected to this testimony, the judge overruled the objection without considering 

the admissibility of the statement, only its credibility.2 The judge stated, "[t]his 

is what this witness is saying and it has to be determined whether what he's 

saying is correct, whether it will be given any weight. He will be crossexamined, but this is his testimony." As a result, the judge failed to perceive 

Vega offered an inadmissible lay opinion. 

II.

 

2

 The credibility of Vega's conclusion is also somewhat dubious given that no 

witness placed K.B. at the scene, no witness saw who fired the shots and even 

if police identified K.B. as one of the two men running from the scene, which 

they did not do, the video shows other men running in different directions after 

the shots were fired.
13 A-1683-17T4

The present case also raises an issue of whether the fact finder was able 

to form his own conclusion about the alleged gun in the video. See id. at 459. 

Officer Sanchez testified that the object in the video was a "small caliber 

handgun."3 Opinion, either lay or expert, "is not a vehicle for offering the view 

of the witness about a series of facts that the jury can evaluate for itself or an 

opportunity to express a view on guilt or innocence." Id. at 462. 

The judge stated he repeatedly viewed the video of the laundry room and 

that was part of his basis for concluding defendant was holding a gun. The State 

contends this shows any erroneous admission was not harmful as the judge 

would have determined there was a gun in the video regardless of the officers' 

testimony. We disagree. If the judge were able to determine the individual was 

holding a gun based only on his own observation, then the officers' testimony 

was admitted in error because lay-opinion testimony is not a vehicle for offering 

 

3

 The State cites State v. Brown, an unpublished case, for the proposition that 

an officer can testify regarding their belief a defendant possessed a weapon. No. 

A-4860-14 (App. Div. Dec. 4, 2017) (slip op. at 3). Unpublished opinions are 

not binding on any court and should not be relied upon for precedential 

authority. Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 1:36-3 

(2019). Reliance on Brown is also misguided. There, officers observed a 

defendant carrying what appeared to be a machine gun, and a later traffic stop 

allowed them to retrieve the gun from the defendant's vehicle. Brown, slip op. 

at 3-4. In Brown, unlike the current case, the gun was recovered, there was no 

video for the fact finder to review, and an objection was not raised below. 
14 A-1683-17T4

information a factfinder could determine for themselves. Ibid. If the factfinder 

could not have determined that a gun was present absent the officers' testimony, 

then the State cannot argue the admission was harmless because the factfinder 

would have relied on the testimony. 

Because the trial court's admission of impermissible lay opinion testimony 

provides sufficient reason for reversal, we need not reach the other arguments 

raised by defendant.

The disposition of delinquency is reversed and vacated.