STATE OF NEW JERSEY VS. JOHN R. SALYERDS (7-17, BURLINGTON COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4894-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    JOHN R. SALYERDS,
    Defendant-Appellant.
    ____________________________
    Argued January 8, 2019 – Decided February 8, 2019
    Before Judges Accurso, Vernoia and Moynihan.
    On appeal from Superior Court of New Jersey, Law
    Division, Burlington County, Municipal Appeal No. 7-
    17.
    Robert C. Wolf argued the cause for appellant.
    Alexis R. Agre, Assistant Prosecutor, argued the cause
    for respondent (Scott A. Coffina, Burlington County
    Prosecutor, attorney; Alexis R. Agre, of counsel and on
    the brief).
    PER CURIAM
    Following a trial de novo in the Law Division, defendant John R. Salyerds
    appeals from a June 6, 2017 order finding him guilty of engaging in prostitution
    as a patron, N.J.S.A. 2C:34-1(b)(1). For the reasons that follow, we vacate
    defendant's conviction and remand for further proceedings.
    I.
    On August 25, 2016, defendant was arrested in a Mount Laurel Township
    motel room and charged with engaging in prostitution as a patron. Prior to the
    commencement of his municipal court trial, defendant sought dismissal of the
    charge because the police failed to preserve or otherwise destroyed what he
    contended is exculpatory evidence. The State alleged his arrest resulted from a
    Mount Laurel Police Department operation during which officers posted internet
    ads soliciting individuals to call a phone number to arrange a meeting with a
    prostitute.   Defendant asserted the State had been deceitful and evasive in
    responding to his requests for the ads during discovery and failed to provide the
    ad the State alleged was posted on August 25, 2016, and to which defendant
    purportedly responded in taking the actions leading to his arrest.
    The State argued the ad offered a "$50 short stay special" and included a
    phone number to arrange for it, but the State never produced the ad during
    discovery. Defendant claimed production of the August 25, 2016 ad was critical
    A-4894-16T4
    2
    to his defense and potentially exculpatory because the State intended to rely on
    what the ad stated as evidence defendant engaged in prostitution as a patron.
    Defense counsel explained his efforts to obtain the ad from the State
    during discovery, detailed the State's responses and argued the State may have
    acted in bad faith in failing to preserve and provide the August 25, 2016 ad.
    Defendant argued the ad constituted exculpatory evidence under Brady v.
    Maryland, 
    373 U.S. 83
    , 87 (1963), and the State's destruction or loss of the ad
    required dismissal of the charge.
    During the pretrial argument on defendant's motion to dismiss the charge,
    the municipal prosecutor represented that the Mount Laurel Police Department
    conducted operations to catch individuals seeking prostitutes by placing internet
    ads that "solicit[] individuals to come to [a] hotel for a specific purpose." The
    prosecutor told the court that the police department continually posted ads, but
    did not print the August 25, 2016 ad because "the detectives did not have access
    to a printer." The prosecutor explained that the ads "fall off" the internet site
    after a certain time and then cannot be retrieved. The prosecutor noted that when
    the Mount Laurel Police Department attempted to retrieve ads two weeks after
    defendant's arrest, they printed the ads they could locate but could not find "the
    mysterious [August 25, 2016] posting which talks about a $50 sale." The
    A-4894-16T4
    3
    prosecutor noted the State produced other posted ads "that are virtually
    identical" to the missing ad, and asserted the missing ad was not critical because
    a recording of defendant at the motel "is the crucial piece of evidence."
    The municipal court judge denied the dismissal motion and the matter
    proceeded to trial. The evidence showed that prior to arriving at the motel room
    defendant called a telephone number that had been listed in various internet ads
    placed by the Mount Laurel Police Department.1 The ads were posted as part of
    a police operation intended to solicit individuals to come to a motel to meet a
    female undercover detective posing as a prostitute. A detective testified the ads
    solicited "sexual activities," but there was no evidence about the specific content
    of any of the ads and the municipal court judge barred testimony concerning the
    content of the August 25, 2016 ad to which the State alleged defendant
    responded the day he was arrested.
    The evidence further showed defendant made a telephone call, spoke to a
    female undercover detective, asked for the "$50 special"2 and made
    1
    There is no evidence showing the dates the various ads were posted on the
    internet.
    2
    The female undercover detective did not testify at trial. It was stipulated that
    defendant "asked for the $50 special" during his telephone conversation with the
    detective.
    A-4894-16T4
    4
    arrangements to meet the detective at a motel room. Shortly after the phone call
    ended, defendant arrived at the motel room and was greeted by the undercover
    detective. An audio recording of the motel room encounter reveals defendant
    said he was there for the "short stay special."3 The detective invited defendant
    into the room, and told him to have a seat and "put the money on the table" while
    she went into the bathroom "to freshen up."
    Seconds later, other detectives entered the room and arrested defendant.
    Defendant said he did not do anything and there was "no touching." The
    detectives recovered $50 on a table. The money was not on the table prior to
    defendant's entry into the room.
    During the trial, the municipal prosecutor asked a detective who
    participated in the operation, "What is the short stay special?"        Defendant
    objected, arguing the question called for expert testimony and that the detective
    had neither been designated nor qualified as an expert. The court overruled the
    objection, finding the question did not call for expert testimony and required
    only that the detective testify as to his understanding of the term.
    3
    The recording is not included in the record on appeal. We discern the content
    of the recording from the briefs of the parties and note the parties do not dispute
    the undercover detective and defendant made the statements quoted in this
    opinion.
    A-4894-16T4
    5
    The detective testified a "short stay special" is "an agreement between two
    people to engage in an act of prostitution under circumstances where they agree
    to the act and the amount itself." The detective arrived at that understanding of
    the term "based on [his] training and experience as a detective." He further
    testified he could not "recall [the term] being a . . . common term."
    The municipal court judge found defendant guilty of engaging in
    prostitution as a patron. During the trial de novo on defendant's appeal of his
    conviction, the Law Division judge noted that the ad the State asserted was
    involved in defendant's alleged solicitation of the undercover detective was not
    produced in discovery and that defendant claimed the charge should be
    dismissed on that basis. The court rejected defendant's contention that the
    destruction or failure to preserve the ad constituted a Brady violation. The court
    found it highly unlikely the ad was exculpatory because the testimony showed
    the general nature of the police department's ads, and the August 25, 2016 ad
    "was more inculpatory than anything."
    Addressing the merits of the State's case, the judge found the Mount
    Laurel Police Department "placed an online advertisement, a series of them as a
    matter of fact, one of which offered services for $50 under what was known as
    a short-stay special." Based on his review of the audio recording of defendant
    A-4894-16T4
    6
    at the motel room, the judge found defendant told the undercover detective he
    "wanted the short-stay special" and entered the room. The judge further found
    the detective told defendant to take a seat and put the money on the table while
    the detective went into the bathroom. The judge found defendant was arrested
    by other detectives who entered the room, and said he did not do anything and
    there was "no touching." An officer asked defendant what the money on the
    table was for and defendant said, "it's money, money for time."
    The judge found the detective's testimony concerning the meaning of
    "short-stay special" constituted an admissible lay opinion which was supported
    by an adequate foundation. The judge noted the opinion was based on the
    detective's prior experience in similar operations. The judge also found the term
    "was used in the original ad that was posted for the services which the defendant
    hoped to buy for $50, short-stay special." The judge reviewed the detective's
    testimony that, based on the detective's experience, he understood the term
    described "an agreement between two people to engage in an act of prostitution."
    The court further noted that during the telephone call prior to his arrival
    at the motel, defendant asked for the "[fifty]-dollar special," and defendant
    placed the $50 found on the table because there was no money on the table
    before defendant entered the room. The court found the State's witnesses were
    A-4894-16T4
    7
    credible and the evidence established beyond a reasonable doubt that defendant
    was guilty of engaging in prostitution as a patron. This appeal followed.
    On appeal, defendant makes the following arguments:
    POINT ONE
    THE COURT FAILED TO ADDRESS THE BAD
    FAITH OF THE PROSECUTOR WHO LIED ABOUT
    THE EXISTENCE OF MATERIAL EVIDENCE[.]
    POINT TWO
    THE TESTIMONY OF OFFICER RYAN ORANGE
    REGARDING THE TERM "SHORT STAY" WAS
    EXPERT TESTIMONY THAT SHOULD NOT HAVE
    BEEN ADMITTED, AND IN THE ALTERNATIVE,
    IT COULD NOT HAVE BEEN CONSIDERED LAY
    TESTIMONY TO COMMON STREET SLANG, AS
    THE OFFICER TESTIFIED THAT IT WAS NOT A
    COMMON TERM.
    [A]. EXPERT TESTIMONY
    B. LAY OPINION TESTIMONY REGARDING
    STREET SLANG
    II.
    On an appeal taken from the Law Division's final decision after a trial de
    novo, "[o]ur review is limited to determining whether there is sufficient credible
    evidence present in the record to support the findings of the Law Division judge,
    not the municipal court." State v. Clarksburg Inn, 
    375 N.J. Super. 624
    , 639
    A-4894-16T4
    8
    (App. Div. 2005). This requires "'consideration of the proofs as a whole,' and
    not merely those offered by the defendant." State v. Kuropchak, 
    221 N.J. 368
    ,
    383 (2015) (quoting State v. Johnson, 
    42 N.J. 146
    , 162 (1964)). "Any error or
    omission shall be disregarded by the appellate court unless it is of such a nature
    as to have been clearly capable of producing an unjust result[.]" 
    Ibid. (alteration in original)
    (quoting R. 2:10-2). We review the Law Division's interpretation of
    the law de novo without according any special deference to the court's
    interpretation of "the legal consequences that flow from established facts."
    Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995).
    Defendant first contends the Law Division judge erred by denying his
    motion to dismiss the charge based on the State's purported Brady violation.
    Defendant argues the police department's destruction of or failure to preserve
    the August 25, 2016 ad constituted the suppression of exculpatory evidence that
    requires dismissal of the charge. Defendant further argues that even if the ad
    was only probably exculpatory, dismissal is required because the State acted in
    bad faith by either destroying or failing to preserve the ad.
    "A prosecutor's obligation to 'turn over material, exculpatory evidence to the
    defendant' is well established . . . ." State v. Nash, 
    212 N.J. 518
    , 544 (2013) (quoting
    State v. Morton, 
    155 N.J. 383
    , 413 (1998)). "A breach of this duty of disclosure—
    A-4894-16T4
    9
    in appropriate circumstances—violates a defendant's due process rights." 
    Ibid. (citing Brady, 373
    U.S. at 87).
    A Brady violation occurs when the prosecution suppresses evidence that is
    material and favorable to the defense. State v. Martini, 
    160 N.J. 248
    , 268 (1999).
    "[T]o establish a Brady violation, defendant must show that: (1) the prosecution
    suppressed evidence; (2) the evidence is favorable to the defense; and (3) the
    evidence is material[.]" State v. Nelson, 
    330 N.J. Super. 206
    , 212 (App. Div. 2000)
    (citing 
    Martini, 160 N.J. at 268
    ). "Evidence is material 'if there is a reasonable
    probability that, had the evidence been disclosed to the defense, the result of the
    proceeding would have been different.'" State v. Robertson, 
    438 N.J. Super. 47
    , 67
    (App. Div. 2014) (quoting State v. Knight, 
    145 N.J. 233
    , 246 (1996)), aff'd on other
    grounds, 
    228 N.J. 138
    (2017).
    "It is only the suppression of exculpatory evidence that violates due process
    'irrespective of the good faith or bad faith of the prosecution.'" George v. City of
    Newark, 
    384 N.J. Super. 232
    , 243 (App. Div. 2006) (quoting 
    Brady, 373 U.S. at 87
    ).
    Where, as here, the evidence "is no longer available, to establish a due process
    violation a defendant may show that the evidence had 'an exculpatory value that
    was apparent before [it] was destroyed' and that 'the defendant would be unable
    to obtain comparable evidence by other reasonably available means.'" State v.
    A-4894-16T4
    10
    Mustaro, 
    411 N.J. Super. 91
    , 102 (App. Div. 2009) (alteration in original)
    (quoting California v. Trombetta, 
    467 U.S. 479
    , 489 (1984)).
    If the value of the evidence is unknown and "the defendant cannot establish
    that the now lost evidence had 'apparent' exculpatory value and can show only that
    the evidence was 'potentially' useful or exculpatory, then the defendant can show a
    due process violation by establishing that the evidence was destroyed in bad faith."
    
    Id. at 103
    (citation omitted).
    Here, defendant makes no showing the August 25, 2016 ad was either
    favorable or material. See 
    Nelson, 330 N.J. Super. at 212
    . Although the witnesses
    were barred from testifying about the ad's contents, the testimony established the ad
    was presented in a series of advertisements during the police department's operations
    designed to solicit phone calls to a designated number from individuals seeking a
    prostitute. There is nothing in the evidence to suggest the August 25, 2016 ad was
    in any manner different than the other ads, some of which were produced during
    discovery. Thus, the court's finding the missing ad was more likely inculpable is
    supported by the record, and the record is otherwise bereft of evidence showing the
    missing ad is exculpatory under the Brady standard. See 
    Robertson, 438 N.J. Super. at 67
    .
    A-4894-16T4
    11
    Defendant argues the evidence was potentially useful and therefore should
    have been excluded because the State acted in bad faith. See Mustaro, 411 N.J.
    Super. at 103; see also State v. Hollander, 
    201 N.J. Super. 453
    , 479 (App. Div. 1985)
    (finding that where a court is asked to dismiss charges because evidence is destroyed,
    it must in part consider "whether there was bad faith or connivance on the part of the
    government"). "Without bad faith on the part of the State, 'failure to preserve
    potentially useful evidence does not constitute a denial of due process of law.'"
    
    George, 384 N.J. Super. at 243
    (quoting Arizona v. Youngblood, 
    488 U.S. 51
    , 58
    (1988)).
    We reject the State's contention that we should not address defendant's
    argument that the State acted in bad faith because the claim was not asserted before
    the Law Division. See generally State v. Robinson, 
    200 N.J. 1
    , 19-20 (2009)
    (explaining that appellate courts may decline to address issues that are not presented
    to the trial court). Defendant argued in the municipal court that the charge should
    be dismissed because the State destroyed or failed to preserve the August 25, 2016
    ad in bad faith and renewed his motion for a dismissal, albeit without expressly
    mentioning the State's alleged bad faith, during the trial de novo in the Law Division.
    In our view, a fair reading of defendant's Law Division arguments reflects defendant
    A-4894-16T4
    12
    reprised his claim the State destroyed or failed to preserve the missing ad in bad
    faith. We therefore address the merits of defendant's contention.
    Our review of the record reveals no evidence supporting even a suggestion
    that the State's destruction or failure to maintain the ad was the product of bad faith.
    Defendant argues bad faith is established because the municipal prosecutor provided
    inconsistent and conflicting responses to defendant's requests for the ad. The
    prosecutor's responses, however, do not support a finding that the State acted in bad
    faith by destroying or failing to preserve the August 25, 2016 ad. At worst, they
    demonstrate only that the municipal prosecutor was misinformed about the existence
    of the ad or exhibited a lack of candor in providing responses about its existence.
    In any event, under the circumstances presented here, in assessing defendant's
    dismissal motion, the relevant inquiry was whether the State acted in bad faith by
    destroying or failing to preserve the ad, not whether the prosecutor accurately
    informed defendant about its existence. See 
    Youngblood, 488 U.S. at 57-58
    (1988)
    (holding that "unless a . . . defendant can show bad faith on the part of the [State]"
    in destroying or losing the evidence, "failure to preserve potentially useful evidence
    does not constitute a denial of due process of law"). Defendant points to no evidence
    the State acted in bad faith by destroying or failing to preserve the evidence. Instead,
    it was represented to the court that the August 25, 2016 ad was not copied because
    A-4894-16T4
    13
    the police had no printer readily available on the day the ad was posted. There is
    also no showing the State destroyed the ad. The ad was lost due to the operation of
    the internet site on which it was posted, and not the result of any actions by the
    police. Indeed, despite the police department's efforts, the ad could not be retrieved
    later because the ads "fall off" the internet site after a period of time. In sum, the
    Law Division judge correctly denied the dismissal motion because the record is
    barren of any evidence showing the loss or destruction of the ad was the result of
    any bad faith of the State.
    Defendant next contends the court erred by relying on the detective's
    testimony that the phrase "short stay special" means "an agreement between two
    people to engage in an act of prostitution under circumstances where they agree
    to the act and the amount itself." Defendant argues the testimony constituted an
    inadmissible expert opinion because the detective was not qualified as an expert
    and defendant was not provided with information concerning the putative expert
    and his proposed testimony prior to trial as required by Rule 3:13-3(b).4 The
    4
    In pertinent part, Rule 3:13-3(b)(1)(I) requires that the State provide as
    pretrial discovery the:
    names and addresses of each person whom the
    prosecutor expects to call to trial as an expert witness,
    the expert's qualifications, the subject matter on which
    A-4894-16T4
    14
    State contends the detective's testimony was properly admitted as a permissible
    lay opinion.
    The Law Division judge determined the detective's testimony was
    admissible as a lay opinion under Rule 701. See N.J.R.E. 701. The court noted
    the detective provided "some foundation" for his testimony based on his
    "training and experience as a detective," and found "[t]he term was testified to
    by [the detective] as being used in the original ad that was posted for the services
    which defendant hoped to buy for $50, short-stay special."
    "The necessity for, or propriety of, the admission of expert testimony, and
    the competence of such testimony, are judgments within the discretion of the
    trial court." State v. Zola, 
    112 N.J. 384
    , 414 (1988). We therefore "apply a
    deferential standard of review to [a] trial court's evidentiary rulings." State v.
    Hyman, 
    451 N.J. Super. 429
    , 441 (App. Div. 2017), certif. denied, 
    232 N.J. 301
    the expert is expected to testify, a copy of the report, if
    any, of such expert witness, or if no report is prepared,
    a statement of the facts and opinions to which the expert
    is expected to testify and a summary of the grounds for
    each opinion . . . [I]f this information is not furnished
    [thirty] days in advance of trial, the expert witness may,
    upon application by the defendant, be barred from
    testifying.
    [R. 3:13-3(b)(1)(I).]
    A-4894-16T4
    15
    (2018). Where "the trial court applies the wrong legal test when analyzing
    admissibility, we review the issue de novo." 
    Ibid. The parties do
    not dispute that opinion testimony concerning the meaning
    of "short stay special" was required because it "assist[ed] the [court] in
    performing its [fact-finding] function," State v. McLean, 
    205 N.J. 438
    , 456
    (2011), and the court was not "as competent as [the detective] to form a
    conclusion" concerning the phrase's meaning, 
    id. at 459
    (quoting Brindley v.
    Fireman's Ins. Co., 
    35 N.J. Super. 1
    , 8 (App. Div. 1955)). Thus, the admissibility
    of the detective's opinion turns on whether he offered expert or lay testimony.
    Lay opinion testimony "must 'rest[] on the acquisition of knowledge
    through use of one's sense of touch, taste, sight, smell or hearing.'" 
    Hyman, 451 N.J. Super. at 442
    (alteration in original) (quoting 
    McLean, 205 N.J. at 457
    ); see
    also N.J.R.E. 701 (providing that lay witness testimony may be admitted "if
    it . . . is rationally based on the perception of the witness"). "[U]nlike expert
    opinions, lay opinion testimony is limited to what was directly perceived by the
    witness and may not rest on otherwise inadmissible hearsay." 
    McLean, 205 N.J. at 460
    .
    In contrast, "expert testimony depends on a witness's 'specialized
    knowledge' to address matters outside a juror's understanding." Hyman, 451
    
    A-4894-16T4 16 N.J. Super. at 443
    ; see also N.J.R.E. 702. Admission of expert testimony
    requires that "(1) the intended testimony must concern a subject matter that is
    beyond the ken of the average juror; (2) the field testified to must be at a state
    of the art such that an expert's testimony could be sufficiently reliable; and (3)
    the witness must have sufficient expertise to offer the intended testimony."
    
    Hyman, 451 N.J. Super. at 443-44
    (quoting State v. Kelly, 
    97 N.J. 178
    , 208
    (1984)). Thus, "a question that refer[s] to [an] officer's training, education and
    experience, in actuality call[s] for an impermissible expert opinion." 
    Id. at 444
    (quoting 
    McLean, 205 N.J. at 463
    ).
    In Hyman we determined that a detective's testimony about the meaning
    of "certain drug-related jargon," 
    id. at 438,
    constituted expert, and not lay,
    opinion testimony because "[t]he basis of his opinion . . . was his training,
    education and experience—not his 'own senses,' perceptions and observations,"
    
    id. at 448-49.
    We explained the detective had not conversed with the defendant
    when the jargon was used and, although his "knowledge of [the] investigation"
    included "familiarity with . . . wiretapped conversations," his testimony "did not
    become a lay opinion because he heard the wiretaps . . . any more than a non-
    treating physician's diagnosis becomes a lay opinion because the physician's
    own hands were used to conduct an independent medical examination." 
    Id. at A-4894-16T4
                                           17
    449 (first alteration in original). Moreover, we noted that "[a] witness may not
    offer a lay opinion that a person must have been talking about drugs simply
    because he is personally aware of evidence the person was dealing drugs." 
    Ibid. Here, the court
    abused its discretion by failing to apply the appropriate
    legal standard in determining the admissibility of the detective's testimony about
    the meaning of the term "short stay special." See 
    McLean, 205 N.J. at 464
    (finding a court abuses its discretion by applying the wrong legal standard for
    the admission of testimony). The testimony was not "firmly rooted in the
    [detective's] personal observations and perceptions," 
    id. at 459
    , or on any
    interactions with defendant and, therefore, did not constitute an admissible lay
    opinion, 
    Hyman, 451 N.J. Super. at 448-49
    ; cf. State v. Johnson, 
    309 N.J. Super. 237
    , 262-63 (App. Div. 1998) (holding a witness's testimony about the meaning
    of a term used by the defendant was admissible lay opinion in part because the
    witness participated in the conversation during which the term was used and
    explained only his understanding of the term). As the detective explained, his
    understanding of the term and his opinion about its meaning were based on his
    training and experience. His testimony therefore constituted a putative expert
    opinion, which was inadmissible because the State failed to identify the
    detective as an expert witness prior to trial, see R. 3:13-(b)(1)(I), and the
    A-4894-16T4
    18
    detective was never qualified as an expert, see 
    Kelly, 97 N.J. at 211
    (holding
    that a putative expert witness must first be qualified by the court as an expert
    prior to offering an expert opinion). The court erred by finding otherwise.
    We also observe that the court's reliance on the detective's opinion
    testimony was misplaced for another reason.             In its decision, the court
    determined there was a foundation for the detective's testimony about the
    meaning of "short stay special" because the detective also testified the term was
    "used in the original ad that was posted for the services which the defendant
    hoped to buy for $50, short-stay special." This finding is bereft of support in
    the record. The detective never provided such testimony. To the contrary, the
    detective's testimony concerning the meaning of the term "short stay special" is
    untethered to any evidence it was used in the August 25, 2016 ad because the
    court barred any testimony concerning what the ad said.
    Defendant objected to the detective's testimony concerning the meaning
    of the term "short stay special," and we determine whether its admission
    constitutes harmless error. R. 2:10-2. "The harmless error standard . . . requires
    that there be 'some degree of possibility that [the error] led to an unjust [verdict].
    The possibility must be real, one sufficient to raise a reasonable doubt as to whether
    [it] led the [fact finder] to a verdict it otherwise might not have reached.'" State v.
    A-4894-16T4
    19
    R.B., 
    183 N.J. 308
    , 330 (2005) (second and fourth alterations in original) (citation
    omitted).
    Based on our review of the record, we are convinced the court's error in
    admitting the detective's expert opinion testimony raises a reasonable doubt as
    to whether the court, acting as the fact finder, rendered a verdict it otherwise
    might not have reached. The meaning of the term "short stay special" is the
    fulcrum upon which the State's case against defendant turns.          There is no
    evidence defendant asked for a prostitute or solicited sex during the phone call
    or his brief interaction with the undercover detective at the motel. He requested
    only the "short stay special." The court barred any testimony concerning the
    content of the ad, which may or may not have included the term "short stay
    special" or linked the use of the term to the procurement of a prostitute.
    The State's case was based in great part on what defendant intended when
    he asked for the "short stay special" and announced he was at the motel room
    for the "short stay special." The State relied on the detective's testimony to
    define the term and the court utilized the testimony, as well as its unsupported
    finding the detective testified about the August 25, 2016 ad's contents, to
    conclude defendant's use of the term constituted a solicitation of a prostitute.
    Without the detective's testimony and any showing of the ad's contents, the
    A-4894-16T4
    20
    State's case is clearly different and more difficult.5 The record is otherwise
    devoid of any direct proof concerning the term's meaning and defendant's
    intentions must be gleaned from all of the other attendant circumstances. As a
    result, we are convinced admission of the detective's opinion was clearly capable
    of producing an unjust result and requires a new trial de novo in the Law
    Division.
    We vacate defendant's conviction and remand to the Law Division to
    conduct a trial de novo on the record before the municipal court, but without
    consideration of the detective's opinion testimony concerning the meaning of
    "short stay special."6 Because the judge who conducted the trial de novo from
    5
    Our observation that the State's case is "more difficult" without the detective's
    opinion testimony and evidence showing the ad's contents is not an expression
    of an opinion or finding on defendant's guilt or innocence. It is only a
    recognition the State's case would be more clearly established if it presented
    competent evidence establishing the meaning of the term "short stay special"
    and had produced an ad stating in some manner that a "short stay special" related
    to the procurement of a prostitute. We express no opinion as to whether the
    admissible evidence establishes defendant committed the offense charged
    beyond a reasonable doubt. That decision shall be made by the court, acting as
    a fact-finder, during the trial de novo on remand. Our decision suggests nothing
    to the contrary.
    6
    We also caution the remand court to ignore the municipal judge's statements
    concerning his knowledge of other similar operations conducted by the Mount
    Laurel Police Department. See Wallington Home Owners Ass'n v. Borough of
    Wallington, 
    130 N.J. Super. 461
    , 465 (App. Div.) ("A judge's private knowledge
    A-4894-16T4
    21
    which this appeal was taken has made credibility determinations, and our
    remand requires new findings of fact, we are constrained to require the trial be
    held before a different judge on remand.
    Vacated and remanded for further proceedings consistent with this
    opinion. We do not retain jurisdiction.
    is entitled to no weight at all."), aff'd o.b., 
    66 N.J. 30
    (1974); Amadeo v.
    Amadeo, 
    64 N.J. Super. 417
    , 424 (App. Div. 1960) (finding "[a] judge's private
    knowledge is no substitute for required proof" and "is entitled to no weight" in
    making factual determinations).
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    22