RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3655-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. GERENA,

Defendant-Appellant.

_______________________

Submitted December 14, 2020 – Decided

Before Judges Sabatino, Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 18-10-0853.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Melanie K. Dellplain, Assistant Deputy 

Public Defender, of counsel and on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Ednin D. Martinez, Assistant Prosecutor, 

on the brief).

The opinion of the court was delivered by 

SABATINO, P.J.A.D.

In this criminal appeal, defendant principally contends the trial judge 

should not have admitted opinion testimony from a police officer and a civilian 

January 5, 2021

APPROVED FOR PUBLICATION

January 5, 2021

APPELLATE DIVISION
2

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eyewitness estimating the range of heights and ages of children they had 

observed near defendant in a public park. The witnesses saw the group of 

children, accompanied by several adults, playing on equipment in a playground. 

The State relied on their testimony to prove that one or more of the children was 

under the age of thirteen, a statutory grading element of the charged offenses of 

lewdness and sexual assault by contact.

The trial court rejected defendant’s contention that the opinion testimony 

was too speculative to be considered by the jury. On appeal, defendant reiterates 

this argument, contending as a general proposition that witnesses commonly 

misjudge the ages and heights of other persons.

For the reasons that follow, we affirm the court’s evidentiary ruling. In 

the circumstances presented, 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.

Although we appreciate the inherent risks of imprecision and mistake 

when eyewitnesses estimate the heights or ages of other persons, such lay 

opinions nonetheless may be admissible under Rule 701 and helpful to the trier 

of fact, subject of course to cross-examination and other forms of impeachment.
3

A-3655-18T2

In evaluating the admissibility of such evidence, a court should consider 

a variety of factors, such as: (1) distance, (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. In appropriate cases, 

the court may exclude or limit the opinion testimony in its discretion under 

N.J.R.E. 403 and, if warranted, provide jurors with a limiting or cautionary 

instruction.

Because it is contrary to the Supreme Court’s evidence rules and case law 

governing lay opinion, we decline to apply the 1916 categorical pronouncement 

of the Court of Errors and Appeals that age "is not within the category of things 

. . . which . . . can be proved by opinion testimony."

1 Rather, we apply a 

contextual, case-by-case analysis of admissibility of such proof consistent with 

our modern Rules of Evidence and prevailing case law principles.

1

 State v. Koettgen, 89 N.J.L. 678, 683 (E. & A. 1916), discussed in Part II, 

infra.
4

A-3655-18T2

Based on these principles, we uphold the trial court's admission of the 

opinion evidence and affirm defendant's conviction for fourth-degree lewdness. 

However, we remand for a hearing on jail credits.

I.

This matter arose after a seventeen-year-old eyewitness, A.G.,

2

called 9-

1-1 at approximately 5:45 p.m. on April 24, 2018. A.G. told the police that, 

while walking her dog alone, she had just seen a man exposing himself to a 

group of children in a playground within a Jersey City park. 

According to A.G., when she arrived at the park, she noticed about fifteen 

children and five adults gathered there. A.G. also saw a man, later identified as 

defendant William A. Gerena, sitting on a bench towards the back of the park. 

She estimated she was standing about twenty-five feet away from the man. She 

saw that his penis was out of his pants and that he was stroking it with his hand. 

She looked at him for about three seconds, turned away, and then looked at him 

again for about six more seconds and saw him engaging in the same activity. 

A.G. estimated the children were approximately ten feet away from the 

man. The man and the children were separated by a black fence. 

2

 We use initials because A.G. was a minor at the time. 
5

A-3655-18T2

A.G. did not record any of her observations with her cell phone. No 

surveillance cameras in the park captured the alleged incident. 

After observing the man, A.G. left the park, crossed the street, and called 

her grandmother to describe what she had seen. Shortly thereafter, A.G. called 

9-1-1 and reported that there was a man "in the park . . . touching himself." A.G.

stayed across the street from the park for the duration of the 9-1-1 call. She 

remained there until the police arrived and the officers ultimately left with 

defendant. 

Sergeant Nicholas Gerardi of the Jersey City Police Department3and a

fellow police officer swiftly responded to the scene at approximately 5:49 p.m. 

It took the officers only about two minutes to arrive at the park. Two additional 

patrol officers also arrived as backup. 

When the officers first arrived at the scene, they spoke briefly with A.G.

They then entered the park. 

Gerardi testified that when he entered the park, he saw fifteen to twenty 

children and "maybe, [eight] parents" present. He observed the children were 

playing in the playground area on the slides, monkey bars, and other equipment, 

and "some parents were sitting on the side just watching them." 

3

 At the time of the incident, Gerardi had the rank of patrolman. 
6

A-3655-18T2

Gerardi then saw a man later identified as defendant sitting on a bench 

facing the playground, with his penis exposed and erect. According to Gerardi, 

when defendant saw the officers, he attempted to hide his penis and place it back 

into his pants. The officers arrested defendant and placed him in a patrol car. 

After the officers arrested defendant, they asked A.G. whether he was the man 

she had called 9-1-1 about, and she confirmed that he was. 

Gerardi was unable to speak with any of the adults or children who were 

present at the scene that day. Gerardi explained this was because "[d]uring the 

time that [the officers] were dealing with the defendant there was some police 

activity going on. So a lot of the parents took their kids and left the park." 

Gerardi mentioned he believed that unspecified "witnesses" at the park gave 

statements to "the detectives," but such statements were not produced at trial.4 

A grand jury charged defendant with second-degree sexual assault by contact, 

N.J.S.A. 2C:14-2(b), and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1), plus a 

child endangerment count that was voluntarily dismissed before trial. Both offenses 

4

 We note the police reports supplied with the presentence report contain no 

indication that any witnesses were interviewed, other than A.G.
7

A-3655-18T2

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

thirteen.5

At trial, both Gerardi and A.G. recounted to the jury what they had seen 

at the park. As part of their accounts, the two witnesses described defendant, as 

well as the children and adults they had seen at the playground.

As we will discuss in our legal analysis, the central issue in this appeal 

concerns the portions of the testimony of Gerardi and A.G. in which they 

estimated the ranges of ages and heights of the children they had each seen at 

the park. 

Gerardi provided the following testimony in this regard about ages and 

heights. Initially, the trial judge sustained defense counsel's objection to Gerardi 

estimating the children's ages:

THE PROSECUTOR: Were you able to tell 

approximately how old the children were that you 

observed in the park?

GERARDI: I – yes. They were in ranges of about, I 

would say, [three] to [thirteen] years old. 

DEFENSE COUNSEL: Objection.

THE PROSECUTOR: May I be heard at side bar?

5

In addition, the judge charged the jury at trial with the lesser-included offense of 

disorderly persons lewdness, which does not require as an element a victim under 

the age of thirteen. See N.J.S.A. 2C:14-4(a). 
8

A-3655-18T2

DEFENSE COUNSEL: Speculation. 

THE COURT: All right. 

(Side bar discussion.)

DEFENSE COUNSEL: My understanding is that the 

officers did not speak to any children or parents. I'm 

not sure how they were able to ascertain precise ages. 

I would understand if they were able to say that they 

were young children, but I think to specify ages when –

THE COURT: Yeah.

DEFENSE COUNSEL: – they lack that knowledge –

THE PROSECUTOR: Nobody – he provided a range[,]

that's an opinion, lay opinion. He's allowed by 

[Evidence] Rule 701. I could also elicit –

THE COURT: He better flesh that out more because I'm 

not that – you know, age is obviously a key issue in this 

case. And in that –

THE PROSECUTOR: I'll ask him follow[-]up 

questions, Judge.

THE COURT: I'm going to sustain this objection.

DEFENSE COUNSEL: Can that be stricken? His 

testimony –

THE COURT: Hmm? Did he testify?

DEFENSE COUNSEL: – as to age? Yeah. He said 

[three] to [thirteen]. 
9

A-3655-18T2

THE COURT: Okay.

(Side bar discussion concluded.)

THE COURT: Okay. I'm sustaining the objection. 

[Addressing the jury:] So please disregard – if there was 

an answer I'm going to ask you to disregard the answer. 

The State's attorney will be asking another question.

[(Emphasis added).]

At this point, the prosecutor elicited testimony from the officer about the 

children's heights, with a demonstration to the jury:

THE PROSECUTOR: Officer, if you could please just 

describe to the jury the approximate size of the children

you saw in the park?

GERARDI: Can I stand up?

THE PROSECUTOR: Absolutely.

GERARDI: The children were, I would say, about this 

high, so maybe about this high to me.

THE PROSECUTOR: And, for the record, when you 

say "this high", you're at your waist?

GERARDI: At about my – a little below my waist to 

where about my chest is.

THE PROSECUTOR: And how tall are you, sir?

GERARDI: I'm five [foot], eleven [inches].

[(Emphasis added).]
10 A-3655-18T2

The prosecutor then asked Gerardi to compare the perceived ages of the 

children he saw at the park with the ages of his own children. The prosecutor 

further attempted to ask Gerardi his opinion as to the weights of the children.

Both of these lines of inquiry were objected to by defense counsel. The judge 

sustained the objections and struck those particular queries.

Before completing Gerardi's direct examination, the prosecutor returned 

to the age issue. As a foundation for that renewed inquiry, the prosecutor 

reminded Gerardi of the additional details he had provided concerning the 

heights of the children, the adults who had been with them, and the playground 

equipment they had been using. 

Specifically, over defense counsel's continuing objection, the prosecutor 

asked:

THE PROSECUTOR: Let me ask you again. Based on 

your observations of the height of the children in the 

park, the fact that there were parents present in the park, 

and your observations as to the equipment the children 

were playing on, do you have an opinion as to the 

approximate age range of the children who were in the 

park that day?

GERARDI: Yes. . . . My opinion is they were age[s]

ranging from around [three] years old to about 

[thirteen] years old. 

[(Emphasis added).] 
11 A-3655-18T2

This time, the judge did not strike Gerardi's age estimate or instruct the jury to 

disregard it.

On cross-examination of Gerardi, defense counsel focused on various

omissions from the police report he had written. In particular, Gerardi 

acknowledged his report did not mention that he had seen any parents with the 

children. He also acknowledged his report did not contain estimates of the 

children's heights. However, Gerardi reiterated on redirect examination that it 

was his "visual observation that [he] believed that the children were around

[three] to [thirteen] years old." 

A.G. testified for the State the following day. She told the jurors that 

while walking her dog in the park, she had seen about fifteen children and about 

five parents in the playground. A.G. stated the children had been playing on 

equipment and objects, such as a rock wall and monkey bars. 

A.G. estimated the children's heights ranged from approximately four feet 

to five-and-a-half feet tall. For comparison, she testified that she herself was 

five feet, four inches tall. She recalled that the tallest child was about her own 

height, while the shortest one only reached her hip. 
12 A-3655-18T2

As with Gerardi, the prosecutor then asked A.G. to estimate the range of 

ages of the children. Defense counsel objected, and the following colloquy at 

side bar ensued:

THE PROSECUTOR: And the height descriptions you 

provided of the children that you saw, and the 

equipment that they were playing with in the park on 

that day, do you have an opinion as to approximate age 

range of the children –

DEFENSE COUNSEL: Objection.

THE PROSECUTOR: – who were in the park that day?

DEFENSE COUNSEL: May we be heard at side bar?

THE COURT: Yes.

(Side bar discussion.)

DEFENSE COUNSEL: . . . Okay. It's the same 

objection I had yesterday to the ages. It's pure 

speculation. It's not opinion. It's speculation. And it's 

a conclusion that goes to an element of the crime. I'm 

sure she is now just saying that the oldest child is 

exactly [thirteen], which is not an accident. 

THE PROSECUTOR: Judge, my response is the same 

as it was yesterday with Sergeant Gerardi.

Rule 701 allows that, based on the observations of the 

witness, if they can reasonably provide an opinion as to 

a fact in issue. Which, again, as [defense counsel] is 

well aware, whether the children were under the age of 

[thirteen] is a fact in issue in this case. 
13 A-3655-18T2

Sergeant Gerardi was allowed to testify based on the 

same foundation as to the opinion.

DEFENSE COUNSEL: It's a fact in issue that is a literal 

element of the crime and it is a conclusion. It's only a 

conclusion of fact. The jury –

THE PROSECUTOR: It's not a conclusion. It's an 

opinion, Judge. And 701 says if it's a fact in issue and 

it's reasonably based on the person's observations of the 

person –

THE COURT: I could understand that. But you gotta 

be careful here because you're asking for an age range. 

And if she tells me an (Indiscernible) with the 

description she gave I'm going to strike her answer. 

[(Emphasis added).]

The judge then clarified her ruling:

THE COURT: Because do you – she could talk about 

what she – what her opinion was of as to her 

observations as to what she saw, because whether –

whether that's beyond a reasonable doubt is something 

else. 

DEFENSE COUNSEL: I understand. 

THE COURT: You don't lose your right to crossexamination.

DEFENSE COUNSEL: I understand that. I just have to 

note my objection on the record. 

. . . .
14 A-3655-18T2

THE COURT: And – and so it doesn't – it doesn't 

change anything. [Turning to the prosecutor:] But just 

be very careful because then it wouldn't be based on 

observation if she just throws a number out there. 

THE PROSECUTOR: Understood.

[(Emphasis added).]

The prosecutor then resumed his inquiry of A.G. about the children's ages:

THE PROSECUTOR: So as I was asking you [A.G.], 

based on the fact that you observed five parents or 

adults in the park that day, as well [as] approximately 

[fifteen] children who you described the height range

of those individuals that you observed, as well as the

equipment that you saw those children playing on in the 

park, do you have an opinion as to the approximate age 

range of the children who were in the park that day[?]

A.G.: From ages [six] to [fifteen]?

THE PROSECUTOR: Okay. 

[(Emphasis added).] 

On cross-examination of A.G., defense counsel refrained from asking her 

explicitly about her observations of the ages and heights of the children. Instead, 

defense counsel asked A.G. questions that sought to demonstrate she had a faulty 

memory about the incident, which had occurred seven months earlier. 

No parents or other eyewitnesses testified for the State. The State did 

move into evidence several photographs of the park, which, among other things, 
15 A-3655-18T2

depicted the playground and the bench where the police found defendant. 

Defendant, meanwhile, admitted into evidence an aerial photo of the park, using 

it to show there was an iron fence and some trees between the bench and the 

playground. 

During her summation, defense counsel argued, among other things, that 

the State failed its burden of proof as to the age element of both the sexual 

assault and lewdness charges:

There's no credible evidence as to the children's ages or 

their presence. We don't know how old the children 

are. And we certainly do not know how old they are 

beyond a reasonable doubt. Sergeant Gerardi said 

[three] to [thirteen]. Well, [thirteen] is a good number 

to pick because, as you'll see, the statute requires 

someone to be under [thirteen]. And [A.G.] says she 

believed the children were [six] to [fifteen]. But we 

don't know how they got there. They speculated based 

on the heights but neither of them got close to the 

children. 

Sergeant Gerardi told you he came into the park to 

make an arrest. He arrested Mr. Gerena and he left. 

[A.G.] told you she never walked down that playground 

with her dog. So how either of them got close enough 

to know their heights, let alone their ages, makes no 

sense. It's pure speculation. And speculation is a 

reason to doubt.

[(Emphasis added).]
16 A-3655-18T2

In his own closing argument, the prosecutor countered defendant's efforts 

to impeach the age estimates of Gerardi and A.G.:

So that brings us to whether a child under the age of 

[thirteen] was present at the time of the offense, at the 

time that the defendant was masturbating in a public 

park. How do we know that? I just want to draw your 

attention to what the element requires, child, singular.

The State is not required to prove that every single 

person in the park that day was under the age of 

[thirteen]. 

Now how do we prove that? Because, after all, 

Sergeant Gerardi told us he didn't speak with any of the 

parents. He didn't speak with any of the children who 

were in the park that day. But he also told us why he 

didn't have a chance to do that. He didn't have the

opportunity to speak to those parents, to those children, 

because as the officers were apprehending the 

defendant, understandably, people were leaving the 

park. So, with that, what can we look to [in order] to 

determine whether the children were under the age of 

[thirteen]? 

Let's start with some common sense. You see [referring 

to the photographs in evidence] the playground

equipment that's in the park. A rock wall that's only a 

few feet high, ladders, bridges, a tic tac toe board, 

slides. Who is that equipment designed to entertain? A 

teenager or a toddler? Do you see any basketball courts 

in those [photos]? Do you see any large open areas 

where a teenager could throw around a football or a 

baseball with their friend? 

Draw upon your everyday experiences. Who uses the 

playground equipment that's found in [this] Park? I'm 
17 A-3655-18T2

not asking you just to use your common sense and 

everyday experiences. 

. . . .

You heard the testimony of Sergeant Gerardi. He told 

us that there was about [twenty] kids in the park when 

he arrived on scene, and that they ranged in age from 

[three] to [thirteen] years old. He gave us the basis for 

that opinion. Their height, the fact that there – there 

were parents present in the park. The playground 

equipment that they were using. Is it possible that 

Sergeant Gerardi was off on the age of a few of those 

kids? Absolutely. He's not perfect. Could he have 

mistaken someone who he thought was [twelve] years 

old, but was, in fact, [thirteen] or [fourteen]? Sure.

That's possible. He could have gotten the age of a few 

kids who were on the higher end of the range that he 

provided wrong. But going over [twenty]? Getting the 

age of every single child in that park wrong[?]

For defense [c]ounsel's arguments to ring true Sergeant 

Gerardi would have had to have mistaken a [thirteen] 

or [fourteen]-year old for a [five] or [six]-year old. He 

would have had to mistake[] a teenager for a toddler. 

He would have had to mistake[] a child who was in the 

eighth grade for a child who was in the first or second 

grade. 

But you don't have to just look to Sergeant Gerardi's 

testimony. You have the 911 call, as well. "Grown man 

in the park touching himself and there's a whole bunch 

of kids present." 

[A.G] told us when she took this stand she recalled 

about [fifteen] kids present in the park that day. And 

she did tell us that they ranged in age from about [five] 

to [sixteen]. 
18 A-3655-18T2

So for defense [c]ounsel's arguments to ring true not 

only would Sergeant Gerardi have to get the age of 

every single kid who was in that park wrong, [A.G.] 

would have to get it wrong, too. [A.G.], who is a 

teenage girl, herself, would have had to confuse a 

teenager with a toddler. [A.G.], who is a high school 

senior, would have had to confuse a child in the eighth 

grade with a child in the first or second grade. 

[(Emphasis added).]

The jury found defendant not guilty of second-degree sexual assault by 

contact but convicted him of fourth-degree lewdness. The jury therefore did not 

need to render a verdict on the lower-graded offense of disorderly persons 

lewdness.

At sentencing, the court imposed upon defendant a fourteen-month custodial 

term for the lewdness offense. The court directed that sentence to be served 

consecutively with five-year prison terms defendant received for unrelated theft 

offenses.

On appeal, defendant argues: (1) the court misapplied its discretion in 

admitting the witnesses’ lay opinions about the children’s perceived ages and 

heights; (2) the wording of the court's jury charge on the lesser-included offense 

unfairly steered the jurors away from that option; and (3) the court eliminated jail 

credits from the judgment of conviction without proper notice to him.
19 A-3655-18T2

II.

The critical question on appeal is whether the trial court erred in admitting, 

over defendant's objection, the two eyewitnesses' lay opinions about the victims' 

ages and heights. In assessing that evidentiary issue, we apply familiar standards of 

appellate review. 

A trial court's determination about the admissibility of evidence generally 

"should be upheld 'absent a showing of an abuse of discretion, i.e., there has 

been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) 

(quoting State v. Brown, 170 N.J. 138, 147 (2001)); see also State v. Buda, 195 

N.J. 278, 294 (2008). "An appellate court applying this standard 'should not 

substitute its own judgment for that of the trial court, unless the trial court's 

ruling is so wide of the mark that a manifest denial of justice resulted.'" J.A.C., 

210 N.J. at 295 (quoting Brown, 170 N.J. at 147) (internal quotation omitted).

Having preserved the issue for appeal by objecting below, defendant 

argues the admission of opinion testimony from Sergeant Gerardi and A.G. 

about the children's ages and heights violated long-standing principles of New 

Jersey evidence law. He maintains such "improper opinion testimony deprived 

[him] of his rights to due process and a fair trial," citing the Fourteenth 

Amendment of the United States Constitution and Article I, paragraphs 1 and 10 
20 A-3655-18T2

of the New Jersey Constitution. As a remedy, defendant requests that his 

conviction for lewdness be reversed and the case remanded for a new trial. 6 

Defendant relies on the 1916 opinion of the Court of Errors and Appeals 

in State v. Koettgen, 89 N.J.L. 678, 679-80 (E. & A. 1916), a case involving a 

prosecution of a dance hall owner for operating a "disorderly house" by selling 

intoxicating liquors to minors under the then-applicable drinking age of 

eighteen. The trial court permitted lay witnesses "to give opinion testimony as 

to the age of persons frequenting the place, such testimony being based solely 

upon their appearances." Id. at 680. The intermediate appellate court upheld 

the admission of such opinion testimony, relying on the observation of Professor 

Wigmore in his treatise on evidence7that to reject such opinion evidence about 

age would be "pedantically overcautious." State v. Koettgen, 88 N.J.L. 51, 52 

(Sup. Ct. 1915) (citing Wigmore on Evidence § 222). The intermediate court 

6

 Notably, defendant does not contend the State's evidence was so deficient that 

he is entitled on appeal to a judgment of acquittal. Rather, he argues the 

improper lay opinions tainted the jury's fair consideration of the case. 

7

 As a historical note, we point out that Professor John Henry Wigmore, who 

was then Dean of Northwestern Law School, first published his influential multivolume treatise on the "Anglo-American System of Evidence in Trials at 

Common Law" in 1904-05, only a few years before the decisions in Koettgen. 

He died in 1943. His treatise is updated and published by Wigmore's successors 

to this day, and widely cited as legal authority.
21 A-3655-18T2

recognized that the witnesses could only assess the patrons' ages based on their 

appearances, and that the "value of such testimony varies with circumstances." 

Ibid. Even so, the court upheld the admission of the witnesses' opinions, noting 

the jury ultimately must judge the weight of such proof. Ibid.

The Court of Errors and Appeals, with one dissent, reversed the admission 

of the age opinions in Koettgen. It declared that a person's age is a fact "entirely 

capable of direct proof if it be important to prove it," 89 N.J.L. at 681, and "[t]he 

fact of age is not within the category of things . . . which . . . can be proved by 

opinion testimony." Id. at 680. The Court majority, authored by Justice Kalisch,

pronounced that:

It is a matter of common knowledge, derived from

observation and experience, that there is nothing more

uncertain and highly speculative than that of attempting 

to fix the age of a person by his or her appearance. 

Therefore, to permit a witness to give an opinion as to 

the age, where age is fact to be proved is to open the 

gate to the realm of indefinite guesswork, and thereby 

subvert a necessary and salutary rule of evidence that 

the existence of a fact must be proved by competent 

testimony and not by conjecture.

[Id. at 683.]

The majority catalogued cases in which "direct proof" of a child's age was 

proffered by testimony. Id. at 681-82. As one such illustration, the majority 

observed that a child's date of birth could be proven through her mother, but 
22 A-3655-18T2

could not be conclusively established when only the child herself and her father

testified about her age. Id. at 682.

The dissent in Koettgen, authored by Justice White, endorsed the 

admissibility reasoning of the Supreme Court below. Id. at 687. Justice White 

criticized the majority's treatment of the witness' observations about the patrons' 

ages as incompetent opinion. He acknowledged that it may be improper for lay 

witnesses, based purely upon observation, to testify that two people were "in 

love," or that a person was "despondent." Ibid. By contrast, he deemed it 

permissible for witnesses who have observed other persons to describe not only 

the details of their appearances but also their first-hand perceptions of those 

persons' ages. Ibid. Otherwise, he noted, in cases where birth witnesses or 

records cannot be found, excluding such opinion testimony by eyewitnesses 

would "leave the jury to guess at the age." Ibid. The justice noted that direct 

proof of patrons' ages often was not readily available in disorderly-house 

prosecutions, and that the majority's categorical rule of exclusion was "not only 

unsound in principle, but vastly pernicious in practice." Ibid.

The flat prohibition on age opinion testimony announced by the Koettgen

majority has not been reaffirmed in over a century. Only three published New 
23 A-3655-18T2

Jersey cases since 1916 have addressed the topic, and none of them applied an 

absolute bar to such testimony. 

In Laurino v. State Div. of Alcoholic Bev. Control, 81 N.J. Super. 220, 

226-27 (App. Div. 1963), we reversed a regulatory agency's finding that a bar 

owner had sufficient reason to believe that two females he employed were under 

the legal drinking age of twenty-one. The women had presented to the tavern 

owner baptismal certificates and police-issued fingerprint cards showing they 

were over twenty-one. They also had falsely represented in oral discussions 

with the owner they were over the cutoff age. Id. at 227. 

We ruled the testimony of two undercover agents in Laurino who had 

observed the employees in the bar and perceived they were underage was 

inadequate to sustain the charges against the owner. We did so because the 

agents had not provided "reasons for their judgment," leaving the court 

"uninformed as to the factors in the appearances of the [employees] which 

influenced their opinions." Id. at 226-27. Given the circumstances, we found 

"no lack of prudence in the licensee's judgment [to allow them to serve liquor] 

based on the girls' appearances." Id. at 227. Citing Koettgen, we reiterated the 

general proposition that "determining the age of a person by his appearance is 

often very speculative." Laurino, 81 N.J. Super. at 226 (citing Koettgen, 89 
24 A-3655-18T2

N.J.L. at 683). Even so, we did not state in Laurino that such testimony is 

categorically inadmissible, but rather focused on the conclusory nature of the 

agents' opinions in that case.

Most recently, in State v. May, 362 N.J. Super. 572, 593 (App. Div. 2003), 

we rejected a defendant's argument in a child pornography case that the State

was required to present expert testimony to establish the children in the seized

images were under the relevant statutory age of sixteen. Lacking direct proof 

of the children's dates of birth, the State argued the jurors were capable of 

determining—from their own observations of the images—that one or more of 

the children was younger than sixteen. In analyzing these issues, we reasoned:

We are mindful that proof of a person's age by his or 

her appearance alone is a questionable practice. See

State v. Koettgen, 89 N.J.L. 678, 683, 99 A. 400, 402 

(E. & A. 1916) (observing that "[i]t is a matter of 

common knowledge, derived from observation and 

experience, that there is nothing more uncertain and 

highly speculative than that of attempting to fix the age 

of a person by his or her appearance"); Laurino v. State 

Div. of Alcoholic Bev. Control, 81 N.J. Super. 220, 

226, 195 A.2d 306, 309 (App. Div. 1963) (noting that 

"determining the age of a person by his appearance is 

most often very speculative"). In the instant matter, 

even the State's witness, Detective Wolf, remarked that 

"it really takes an expert, usually a pediatrician" to 

determine a child's age from the images presented in a 

child-pornography case.
25 A-3655-18T2

Notwithstanding the potential pitfalls, we are 

constrained to observe that, in particular circumstances, 

determinations of an age threshold based on outward 

appearance alone can be seen to be as valid an exercise 

of common knowledge as of expert opinion. Whether 

or not a person is older or younger than sixteen years of 

age may well be easier to determine than a precise age.

We cannot conclude that such evaluations are always, 

in the terms of the standard test, "beyond the ken of the 

average juror[,]" DeHanes v. Rothman, 158 N.J. 90, 

100, 727 A.2d 8, 13 (1999), or that experts are 

invariably better equipped than laypersons are to make 

the judgment based on appearance alone.

[Id. at 583-84 (alterations in original) (emphasis 

added).]

We further noted in May the capacity of laypersons to approximate the 

ages of children is highly dependent on the facts and circumstances. Such a 

case-by-case analysis may include where the children appear to fit along the 

spectrum of ages:

"Like any other fact, age is, of course, for the 

determination of the jury." State v. Carlone, 109 N.J.L. 

208, 211, 160 A. 551, 552 (Sup. Ct. 1932). "[W]hether 

the age of a model in a child pornography prosecution 

can be determined by a lay jury without the assistance 

of expert testimony . . . must be determined on a case 

by case basis." United States v. Katz, 178 F.3d 368, 

373 (5th Cir. 1999). 

If the disputed images in such a case depict either very 

young child-models or older "models of sufficient 

maturity," expert testimony will not be required 

because a layperson can plainly make the determination 
26 A-3655-18T2

whether the person so depicted is younger than sixteen.

Ibid. However, when the persons depicted in the

images approach sixteen years of age, "expert 

testimony may well be necessary to 'assist the trier of 

fact to understand the evidence or to determine a fact in 

issue.'" Ibid. (quoting Fed. R. Evid. 702) [federal case 

citations omitted].

. . . .

We adopt the rationale of these federal cases, including 

the implicit requirement that the trial court must

examine each image to be presented to the jury in order 

to make discrete assessments, in discharge of its

gatekeeping functions, which of the images can be 

evaluated by the jury on a common-knowledge basis 

and which require expert testimony to assist the jury in 

determining whether the person depicted is older or 

younger than sixteen years of age. 

[Id. at 594-95 (emphasis added).]

We added that the jury should be charged carefully in such cases to refrain from 

speculation about the children's ages:

Moreover, we emphasize that, irrespective of how the 

State chooses to prove the age element, when the trial

court addresses the age issue in its instructions to the 

jury, the judge must specifically instruct the jury that 

the State bears the burden of proving beyond a 

reasonable doubt that the person depicted in each image 

to be used as a basis for conviction is less than sixteen 

years of age. The judge must charge the jury that 

speculation about age is not permitted, but rather that 

the jury must be persuaded by the evidence that, in each 

instance, the sixteen-year age threshold has been 

proven.
27 A-3655-18T2

[Id. at 595 (emphasis added).]

Our state's present highest court under the 1947 Constitution has not 

specifically addressed this age estimation issue since the Court of Errors and 

Appeals' 1916 decision in Koettgen. The post-1947 Supreme Court has not 

discussed or cited Koettgen in any opinion. 

We are mindful the Supreme Court's seminal opinion illuminating the 

risks of misidentification in State v. Henderson, 208 N.J. 208 (2011), mentions

age as one of many characteristics that a witness may be prone to misperceive. 

In that regard, the Court noted there is an "own-age bias" wherein witnesses are 

"better at recognizing people of [their] own age than . . . people of other ages." 

Id. at 265-66 (alteration in original). Nonetheless, the Court in Henderson did 

not cite or endorse Koettgen's flat prohibition on lay opinion testimony about 

age.

The most recent version of the Wigmore treatise continues to reject as 

"pedantically overcautious" a categorical judicial ban on admitting lay witness 

opinions about the ages of other persons. As Section 222 of Wigmore advises:

Experience teaches us that corporal appearances are 

approximately an index of the age of their bearer,

particularly for the marked extremes of old age and 

youth. In every case such evidence should be accepted 

and weighed for what it may be worth. In particular, 
28 A-3655-18T2

the outward physical appearance of an alleged minor 

may be considered in judging of his age; for such an 

inference a contrary rule would be pedantically 

overcautious.

[Wigmore on Evidence § 222 (4th ed. 1985) (emphasis 

added).]

Several states have authorized the admission of such opinion testimony 

on a case-by-case basis, particularly if the opinion is based upon more than 

physical appearance. See, e.g., State v. Lauritsen, 199 Neb. 816, 818-19 (1978) 

(allowing circumstantial evidence of defendant's age where he was present in 

court, was identified by witnesses at trial, and testified); Commonwealth v. 

Pittman, 25 Mass. App. Ct. 25, 27-28 (1987) (holding that some additional 

evidence beyond appearance must be produced where "proof of age is necessary 

to establish the offense" and the person whose age is at issue is not overtly under 

or over the age limit set forth for the offense); In re Interest of Roy R., 3 Neb. 

App. 816, 819-20 (1995) (reaffirming Lauritsen in a bench trial wherein the age 

of the juvenile was not confirmed as fourteen years old but was sufficiently 

under eighteen years old to warrant trial in juvenile court); Jewell v. 

Commonwealth, 8 Va. App. 353, 356-57 (1989) (citing Lauritsen and Wigmore 

in remanding a case where the physical appearance of the defendant was not 
29 A-3655-18T2

relied upon in determining his age, but rather documents that were not admitted 

into evidence). 

Defendant's brief cites a Sixth Circuit case, United States v. Russell, 532 

F.2d 1063 (6th Cir. 1976), which noted the variability of opinion testimony by 

experienced police officers, whose weight and age estimates of other persons 

can "vary by as much as twenty pounds and fifteen years." Id. at 1066 (citing 

Patrick M. Wall, Eye-Witness Identification in Criminal Cases 10-11 (1965)). 

Defendant also relies upon a 2008 law review article that refers to research 

studies showing that, within one day after viewing a person, a witness' 

"[m]emory for physical attributes of strangers' age, hair color, and height [is] 

usually inaccurate." Amy Luria, Showup Identifications: A Comprehensive 

Overview of the Problems and a Discussion of Necessary Changes, 86 Neb. L. 

Rev. 515, 529 (2008) (first alteration in original) (emphasis added) (quoting A. 

Daniel Yarmey, Understanding Police and Police Work: Psychosocial Issues

298-99 (1990)).

In the present case, the opinion testimony of Gerardi and A.G. about the 

children's ages was based in part upon their separate perceptions of the 

youngsters' heights. No reported case in this State categorically forbids lay 

witnesses from offering such height estimates. The briefing refers in this regard 
30 A-3655-18T2

to our opinion in Gretowski v. Hall Motor Express, 25 N.J. Super. 192, 196 (App. 

Div. 1953), in which we observed that lay witnesses are regularly permitted to 

estimate the heights and other physical attributes of persons and objects, with a 

caveat that "ordinarily such information would not be otherwise reproducible." We 

recognize, however, the factual setting in Gretowski involved a lay witness who saw 

an accident and estimated the relative widths of cars and traffic lanes, not the heights 

or other characteristics of human beings.

The pertinent rule of evidence on lay opinion, Rule 701, provides us with 

some general principles to help guide our analysis. The current version of that rule 

states:

If a witness is not testifying as an expert, the witness' 

testimony in the form of opinions or inferences 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.

[N.J.R.E. 701 (emphasis added).]

The provision is derived from former New Jersey Evidence Rule 56(1) enacted 

in 1967, and the subsequent promulgation of Federal Rule of Evidence 701 in 

1975. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on 

N.J.R.E. 701 (2020); 1991 Supreme Court Committee Comment to N.J.R.E. 701. 
31 A-3655-18T2

The first element of the rule may be satisfied by showing the witness had 

the opportunity, through one or more of his or her senses, to perceive directly 

the person, object, or event. State v. LaBrutto, 114 N.J. 187, 197-98 (1989). 

The perception may not be based primarily on inadmissible hearsay. Neno v. 

Clinton, 167 N.J. 573, 581, 585 (2001). The second element of Rule 701, 

helpfulness to the trier of fact, also is not generally difficult to establish. 

However, if the lay opinion is presented by a testifying police officer, courts 

should exercise discretion to prevent jurors from unduly relying on the views of 

that law enforcement official. See State v. McLean, 205 N.J. 438, 460-61 

(2011). Additionally, the lay witness should not cross into the realm of expert 

opinion that entails scientific or other specialized knowledge. McLean, 205 N.J. 

at 459-60. Cf. N.J.R.E. 702 (regarding expert opinion).

As a further limitation on such opinion testimony, an opposing party is 

free to argue under Evidence Rule 403 that the witness' testimony should be 

excluded in the court's discretion if it is unduly prejudicial, confusing or 

misleading to a jury, needlessly cumulative, or would cause undue delay or a 

waste of time. N.J.R.E. 403. Those limited grounds for exclusion only prevail, 

however, if the risks of such testimony "substantially outweigh" its probative 

value. Ibid.
32 A-3655-18T2

The categorical barrier adopted in 1916 by the Court of Errors and 

Appeals in Koettgen is out of step with these modern principles of evidence law. 

To be sure, we appreciate the inherent risks of imprecision and mistake when 

eyewitnesses estimate the ages of other persons they have observed. Particularly 

with adults, elements such as clothing, head coverings, facial hair, eyeglasses, 

hair coloring, posture, mobility, health, tone of voice, vocabulary, plastic 

surgery, wigs, disguises, and lighting may throw off an observer's perception of 

their ages based on physical appearance. The physical setting and the apparent 

ages of any accompanying persons also may affect the perception. Movies and 

stage plays often successfully cast older persons in younger roles and vice

versa.8 We can be easily fooled or mistaken about age. Nevertheless, it is within 

the common knowledge and regular experience of laypersons to form quick 

opinions about whether they are encountering a young child, a middle-aged 

person, or a senior citizen.

8

 As just a few examples, Leonardo DiCaprio, then age thirty-seven, played 

seventy-seven-year-old FBI Director J. Edgar Hoover in J. Edgar (2001); Emma 

Thompson, then age thirty-five, was cast as a nineteen year old in a film 

adaptation of Jane Austen's Sense and Sensibility (1995); and Orson Welles was 

only age twenty-five when he portrayed the tycoon Charles Foster Kane as an 

elderly man in Citizen Kane (1941). These Hollywood depictions, of course, 

involve professional makeup and costume artistry unlike what would be 

commonly encountered in daily life.
33 A-3655-18T2

We similarly are cognizant that lay witnesses may err in quantifying the 

heights of other persons. But we agree with the Wigmore treatise and the case 

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

it has a reasonable foundation. Indeed, as we have already noted, our post-1916 

decisions in Laurino and May did not adopt or apply a rigid ban on such proof.

To guide the bench and bar in future cases, we offer several factors that 

may sensibly be applied in resolving whether such lay opinion, assuming of 

course it is relevant under Evidence Rule 401, is admissible. We list them in no 

special order.

First, the court should consider, if known, the approximate distance of the 

eyewitness to the person who he or she observed. In the present case, the record 

does not specify in feet how far away A.G. and the police officer were from the 

children in the playground, although the judge and jury did have the benefit of 

photographs of the scene. We do note A.G. testified that defendant was about 

ten feet away from the children, and she was about twenty-five feet away from

defendant when she observed his own lewd conduct. Both witnesses were also 

close enough to describe under oath the number of children and adults who were 

present and their activities in the playground. 
34 A-3655-18T2

Second, the court should consider, if supplied, the estimated length of time 

of the witness' observation. The record does not specify such times, although 

again both A.G. and Gerardi were able to describe the number of children and 

how they were playing. Their testimony does not state they had only a 

momentary opportunity to glance in the children's direction.

Third, and significantly here, both A.G. and the officer observed that the 

children were using playground equipment commonly used by pre-teen youths, 

such as monkey bars and a slide. We are mindful such equipment sometimes is 

used by teenagers and adults, but it is certainly consistent with the witnesses' 

observations that one or more of the children were as young as six. In addition, 

we note their mutual observation that the children appeared to be accompanied 

by several parents or other adults, and that the assembly dispersed when the 

police arrived. Although it is not impossible that a group of teenagers will 

choose to go to a small playground with their parents or other adults without any 

young children, common experience suggests otherwise.

Fourth, it is helpful if the testifying eyewitnesses make any physical 

comparisons of the observed individuals with the height or size of any nearby 

objects or other persons. Here, A.G., who is five foot, four inches, testified that 

at least one of the children appeared no taller than her hip. Gerardi, who is five 
35 A-3655-18T2

foot, eleven inches tall, stated that the smallest child appeared to be no higher 

than his waist. These height observations buttress the witnesses' perception of 

their ages.

Fifth, a court should consider whether the eyewitness attests to a range 

rather than a specific height or age. As we noted in May, the opinion can be 

more allowable where only a range is pertinent, e.g., whether the defendant or a 

victim is under or over a legally relevant age, rather than the need to ascertain a 

person's precise actual age or height. Here, both A.G. and Gerardi attested to a 

range of ages for the children. Although the upper end of A.G.'s range (age 

fifteen) exceeded thirteen, she also testified the children were as young as age 

six. In this regard, it is important to remember that in this case the State needed 

to only prove that one of the children was under the age of thirteen, not all of 

them.

Sixth, it may be of consequence whether the observed person is 

approximately the same age or height of the eyewitness. This factor takes into 

account the Court's comment in Henderson that witnesses may have a greater 

ability to assess the ages of persons who are their chronological peers. Here, 

although Gerardi is an adult, A.G. was a seventeen-year-old teenager at the time; 

arguably she would be attuned to recognizing whether the children she saw were 
36 A-3655-18T2

likewise teenagers. This was a fair point the prosecutor made in closing 

argument.

Seventh, the court should consider whether there is corroborating proof of 

the eyewitness' age estimate. In this case, the testimony of A.G. substantially 

dovetailed with that of the officer. In addition, the children's playground 

activities in the company of adults corroborated the witnesses' opinions about 

the children's ages and heights. Neither witness presented bare "net opinions." 

See Townsend v. Pierre, 221 N.J. 36, 52-59 (2015) (delineating the court's 

authority to exclude unsupported net opinions). In fact, the judge admonished 

the prosecutor that the witnesses could not simply "throw a number out," an 

admonition which prompted the State to lay a more explicit foundation for the 

witnesses' age and height estimates.

Lastly, the court should consider the totality of circumstances, and 

whether the evidence should be excluded under Rule 403. On the whole, there 

are ample contextual circumstances here to justify the admission of the lay 

opinions presented by A.G. and Gerardi. Their testimony was highly relevant 

to the pertinent age threshold under the criminal statutes. Unlike McLean, the

police officer's testimony was not expert testimony improperly presented in the 

guise of lay opinion. Also, there was no lethal weapon involved that might have 
37 A-3655-18T2

instilled fear and distracted the observers. Cf. Henderson, 208 N.J. at 262-63, 

291. In fact, according to A.G., she looked away from defendant once she 

recognized what he was doing.

The asserted prejudice to defendant in this case did not substantially 

outweigh the evidence's probative value under Rule 403. The judge did not 

misapply her discretion in overruling defendant's objections, and did not deprive 

defendant of a fair trial. J.A.C., 210 N.J. at 295. Defense counsel had a fair 

chance to impeach both witnesses on cross-examination, and ably took 

advantage of that opportunity with pointed queries. The closing arguments on 

the subject were not restricted by the court, and defense counsel robustly argued 

to the jurors why they should not accept the witnesses' opinions about the 

children's ages.

Where, as here, the applicable factors support admission of a witness' 

opinions about the age or height of another person, the court may consider in its 

discretion whether a cautionary or limiting instruction to the jury is warranted 

under Evidence Rule 105. There was no request for any such special instruction 
38 A-3655-18T2

here, and the jurors did have the benefit of the court's general jury instructions 

about witness credibility.

9

For these many reasons, we reject defendant's argument of evidentiary 

error and affirm his conviction. And, as a matter of law, we are not constrained 

to follow the obsolete total ban on age-related opinion testimony set forth in 

Koettgen, and instead utilize a multi-factor approach that is consistent with the

Supreme Court's modern rules of evidence and evolved case law.10

9

 We invite the Model Criminal and Civil Jury Charge Committees to consider 

whether any model charges about witness estimates of age or height should be 

fashioned. Even if no such model language is adopted, trial judges retain the 

discretion to provide appropriate charges, on request or sua sponte, as the 

situation may warrant.

10

 Although opinions of the former Court of Errors and Appeals are 

presumptively binding, we regard the Supreme Court’s adoption of Evidence 

Rule 56(1) in 1967 and N.J.R.E. 701 in 1993, which prescribe a flexible 

approach to the admission of lay opinion—as well as Supreme Court case law 

expansively applying those rules—to contravene and displace the kind of rigid 

categorical prohibition on lay opinion articulated in Koettgen. See, e.g., 

LaBrutto, 114 N.J. at 197-99 (declaring "[i]t is well-established that a lay 

witness may give his opinion in matters of common knowledge and 

observation," and applying that broad principle to allow the admission of lay 

opinion about the point of impact of a car crash); see also State v. Bealor, 187 

N.J. 574, 586 (2006) (citing and applying that well-established principle); State 

v. Johnson, 120 N.J. 263, 294 (1990) (same).
39 A-3655-18T2

III.

The other issues raised on appeal only warrant very brief comment.

We are unpersuaded by defendant's claim that the trial judge unfairly 

instructed the jury by the words she used in describing the jury's option to find 

him guilty of only the lesser-included disorderly persons offense. The 

instruction sufficiently tracked the model jury charge. The charge's use of the 

term "possible" in alluding to the disorderly persons offense did not unfairly 

convey to the jurors a preference against that lesser-included option.

We do agree, however, that the court's amendment of the judgment of 

conviction to remove certain jail credits without affording defendant notice and 

an opportunity to be heard about the post-judgment alteration requires a remand 

for such participation. R. 3:21-10(c).

All other points raised on appeal lack sufficient merit to be discussed. R.

2:11-3(e)(2).

Affirmed, except remanded for a hearing on jail credits.