STATE OF NEW JERSEY VS. KYLE P. BROWN (16-10-1680, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3588-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
AS REDACTED
March 10, 2020
v.
APPELLATE DIVISION
KYLE P. BROWN, a/k/a
KYLE PATRICK BROWN,
Defendant-Appellant.
_________________________
Argued November 18, 2019 – Decided March 10, 2020
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-10-
1680.
Patrick Michael Megaro argued the cause for appellant
(Halscott Megaro, PA, attorneys; Patrick Michael
Megaro, on the briefs).
David Michael Liston, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; David Michael
Liston, of counsel and on the brief).
The opinion of the court was delivered by
SUMNERS, JR., J.A.D.
A jury found defendant Kyle P. Brown guilty of third-degree arson,
N.J.S.A. 2C:17-1(b), and second-degree causing or risking widespread injury or
damage, N.J.S.A. 2C:17-2(a)(1), as a result of setting fire to, and causing an
explosion of, his parked car in a sparsely-filled parking lot adjacent to his
apartment building in the early morning hours. He appeals his convictions
contending:
POINT I
BECAUSE THERE WAS INSUFFICIENT
EVIDENCE THAT THE [DEFENDANT] CAUSED
AN “EXPLOSION” WITHIN THE MEANING OF
N.J.S.A. 2C:17-2(a)(1) AND N.J.S.A. 2C:17-1(b),
THIS COURT SHOULD REVERSE AND GRANT
HIM A JUDGMENT OF ACQUITTAL; FURTHER,
THE TRIAL COURT SHOULD HAVE ENTERED A
JUDGMENT OF ACQUITTAL BECAUSE THE
CONDUCT PROHIBITED BY N.J.S.A. 2C:17-2(a)(1)
WAS IMPROPERLY APPLIED AGAINST THE
DEFENDANT-APPELLANT AND THE FACTS OF
THIS CASE.
POINT II
BECAUSE A CRITICAL VIDEO RECORDING WAS
NOT PROPERLY AUTHENTICATED AND
BECAUSE THE STATE FAILED TO PRESERVE
THE ORIGINAL EVIDENCE, THE DENIAL OF THE
DEFENSE MOTION IN LIMINE, WITHOUT AN
EVIDENTIARY HEARING, WAS REVERSIBLE
ERROR WHICH WAS LATER COMPOUNDED BY
THE TRIAL COURT’S REFUSAL TO ADMINISTER
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TO THE JURY AN ADVERSE INFERENCE
INSTRUCTION.
A. Because State’s Exhibit 17A Was Not
Properly Authenticated, Its Admission
Was Clear Error and an Abuse of
Discretion.
B. The Erroneous Admission of the Video
Was Compounded [b]y the Trial Court’s
Refusal, In Spite of the State’s Later-
Rescinded Concession, to Issue an Adverse
Jury Instruction.
POINT III
BECAUSE THE EVIDENCE PRESENTED TO THE
GRAND JURY WAS KNOWINGLY MISLEADING
AND INSUFFICIENT TO ESTABLISH THIRD[-
]DEGREE ARSON AND SECOND[-]DEGREE
RISKING WIDESPREAD INJURY AND/OR
DAMAGE, THE TRIAL COURT’S REFUSAL TO
DISMISS THOSE COUNTS WAS ERRONEOUS.
POINT IV
THE TRIAL COURT’S ADMISSION OF NEW
EVIDENCE THAT WAS “DISCOVERED” MID-
TRIAL AND NOT PREVIOUSLY DISCLOSED
PRIOR TO TRIAL, AND WHICH LATE
DISCLOSURE DEPRIVED [DEFENDANT] OF THE
OPPORTUNITY TO INVESTIGATE AND VERIFY[,]
DEPRIVED [DEFENDANT] OF THE
OPPORTUNITY TO PRESENT A DEFENSE AND
VIOLATED RULE 3:13-3(f).
A-3588-17T4
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POINT V
BECAUSE THE VERDICT WAS AGAINST THE
WEIGHT OF THE EVIDENCE, THE TRIAL
COURT’S REFUSAL TO GRANT [DEFENDANT]’S
RULE 3:20-1 MOTION WAS ERRONEOUS.
POINT VI
THE TRIAL COURT’S PRECLUSION OF
EXCULPATORY EVIDENCE THAT HAD
ALREADY BEEN INTRODUCED INTO EVIDENCE
BY THE STATE VIOLATED [DEFENDANT]’S
RIGHT TO PRESENT A DEFENSE AND VIOLATED
THE RULE OF COMPLETENESS.
For the reasons that follow, we hold the trial judge did not err in denying
defendant's motion for acquittal of third-degree arson and second-degree
causing or risking widespread injury or damage because there was sufficient
evidence to establish defendant caused a fire and explosion as set forth in
N.J.S.A. 2C:17-1(b), and an explosion as set forth in N.J.S.A. 2C:17-2(a)(1).
In the unpublished portion of this opinion, we affirm the trial judge's: (1)
denial of defendant's motion to dismiss the indictment due to lack of prima facie
evidence that defendant committed third-degree arson and second-degree
causing or risking widespread injury or damage because the jury's guilty verdict
overrides the claim of prejudice in the grand jury process; (2) admission of
documentation of defendant's purchase of a gas can because there was no abuse
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of discretion; (3) denial of defendant's motion for a new trial because there was
no showing of a clearly and convincingly manifest denial of justice; and (4)
refusal to require the State to play parts of non-testifying defendant's recorded
police statement where he denied setting the fire was not an abuse of discretion
because the exculpatory statements did not provide context to the inculpatory
statements admitted into evidence. We affirm.
I.
We summarize the procedural history and trial testimony pertinent to this
appeal.
A. Pre-trial Proceedings
A Middlesex County grand jury charged defendant with second-degree
aggravated arson, N.J.S.A. 2C:17-1(a)(1) (knowingly placing another person in
danger of death or bodily injury) and/or N.J.S.A. 2C:17-1(a)(3)(arson with the
purpose of collecting insurance) (count one); third-degree arson, N.J.S.A.
2C:17-1(b)(1), (2), (3) or (5) (purposely starting a fire or an explosion under
certain circumstances) (count two); fourth-degree arson, N.J.S.A. 2C:17-1(c)(2)
(count three); second-degree risking widespread injury or damage, N.J.S.A.
2C:17-2(a)(1) (count four); fourth-degree risking widespread injury or damage,
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N.J.S.A. 2C:17-2(c) (count five); and fourth-degree risking widespread injury
or damage, N.J.S.A. 2C:17-2(d)(2) (count six).
Defendant's motion to dismiss the indictment was granted in part. The
judge dismissed counts three, five, and six in their entirety as well as the portion
of count one alleging violation of N.J.S.A. 2C:17-1(a)(1), purposely placing
another person in danger. The judge declined to dismiss counts two, four, and
the portion of count one alleging violation of N.J.S.A. 2C:17-1(a)(3), arson to
collect insurance.
Defendant also filed a motion in limine to exclude cell phone video
footage taken of a screen displaying surveillance camera video from a nearby
bus stop. The judge denied defendant's motion because the cell phone video was
authenticated by an eyewitness, who was at the bus stop, and saw the fire and
heard the explosion.
B. Trial
Testifying on behalf of the State, Brooke McClarren stated that around
2:00 a.m. on October 15, 2015, she and a friend were at a bus stop outside the
Buell Apartments (Buell) at Rutgers University when she heard a loud explosion
sounding like a cannon. Looking at a "nearby [nearly] empty parking lot," with
a few parked cars, she saw one of the cars on fire.
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McClarren called 9-1-1, reporting a "smell of gas from a while away" and
"there's like a [sic] exploding sound." She also commented, "[t]he car is on fire,
and some of the bushes around the car are on fire," with the car being "pretty
far" from the building. A recording of her call was played for the jury.
McClarren also authenticated the cell phone video that recorded surveillance
camera video footage of the area at the time of the incident. She confirmed the
video accurately showed her at the bus stop and a flash of light occurred
simultaneously with a loud cannon-like explosion she remembered hearing.
Rutgers University Emergency Services Lieutenant Michael Richards
gave similar testimony. He stated that around 2:00 a.m. he went to the Buell
parking lot with his partner Lieutenant William Schlick1 in response to a report
of a motor vehicle fire. Upon arrival, he saw "a vehicle parked in the back corner
of the parking lot by the wood line with fire showing on the trunk of the vehicle."
Noticing flames coming out of the gap between the trunk lid and the rear quarter
panel of the vehicle on the passenger side, Lt. Richards put the visible fire out
with a fire extinguisher, then saw an additional fire, which "[t]urned out to be a
gas can . . . burning in the woods."
1
Lt. Schlick was retired at the time of trial.
A-3588-17T4
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Initially, Lt. Richards did not notice any other parts of the vehicle on fire,
but "[w]hen . . . check[ing] the passenger compartment of the vehicle . . . the
windows were smoked over, and we were able to open the doors without a key
or forcing entry." The "smoked over" windows meant there was "a fire that had
been in the vehicle but had since died down," which caused "soot on the
windows," according to the Lieutenant. A "fireball" came out from underneath
the vehicle as they opened the car door. There appeared to be gasoline in the
foot wells of the car. In addition, "[i]t appeared that the back seat was down on
one side," which meant it was "possible that the soot or the smoke inside the
passenger compartment could have come from the trunk and moved into the
passenger compartment." Household items were inside the vehicle.
Captain Stephen Letts, employed by the State of New Jersey, Division of
Fire Safety, State Fire Marshall's Office, Fire Investigation Unit, testified as a
fire investigations expert. Cpt. Letts conducted the investigation of the car fire
after he arrived at the scene at about 4:34 a.m., and opined:
[I]t was honestly pretty obvious that this was an
intentionally set fire. You had the amounts of gasoline
that were poured throughout the vehicle, and there was
a gas can within close proximity of the woods, in the
woods area. It was within like five feet of the vehicle.
. . . We labeled this as an incendiary cause classification
which involves a deliberate act by a person or persons
igniting a fire where a fire should not be.
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In short, Cpt. Letts concluded "someone opened the trunk of this car, poured
some gasoline into it, poured gasoline into the passenger compartment of the
car, lit the car on fire from the trunk, closed the trunk, somehow lit the gas can
on fire and left the scene."
Rutgers University Police Sergeant Joseph Ray was also involved in the
fire investigation. Upon arriving at the scene around 5:00 a.m., he observed:
[I]t looked like . . . the fire had started in the trunk area
because that's where most of the damage was. . . . [T]he
vehicle was stocked with a lot of items that were burnt
also. There was some gasoline in the front driver [side]
floor. There was some gasoline in the rear passenger
side floor. There was a gas can off to the right . . . side
of the vehicle in the wooded area closest to the
passenger side of the vehicle. There was a book of
burnt Shop-Rite matches in the rear of the vehicle . . . .
And then the gas can nozzle was in the front passenger
side floor area.
Sgt. Ray collected the gas can, although neither it nor the liquid in the can were
submitted for lab analysis. Analysis of four sampled items – the front driver's
side floor, the rear passenger's side floor, the driver's side floor mat, and the gas
can's nozzle – by the New Jersey Office of Forensic Science were positive for
gasoline. The matchbook came back negative for gasoline.
At around 8:00 a.m., Sgt. Ray interviewed defendant at the Rutgers
University Police Headquarters after it was learned he was the owner of the fire
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damaged car. Defendant was Mirandized 2 and chose to give a statement.
Defendant, who began a master's program at Rutgers two months earlier,
detailed what he did the day before and morning of the fire.
Defendant stated while he was driving to a Piscataway store where he paid
cash to buy boxes, bubble wrap, candy, and a drink, he had a road-rage incident
with another driver, who was only described as "Asian." According to
defendant, they screamed at each other and he was briefly followed by the other
driver. Upon returning to his apartment, defendant packed his car for a trip
home to Pennsylvania; later deciding to leave the next day because he felt it was
too late to drive when he finished packing. Around 10:30 or 11:00 p.m., he
walked to a restaurant to buy dinner, but since it was closed, he ordered delivery
which arrived at about 12:30 a.m. At 1:15 a.m. or 1:20 a.m., defendant went
outside "for a walk to see if the main lobby was open so that I (indiscernible),
so I walked over, walked around the building, like I said before, and looking,
and it was locked, so I just walked back."
Defendant stated he had both car insurance and renter's insurance but told
Sgt. Ray he was not certain the personal property in the car that was destroyed
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3588-17T4
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would be covered. 3 Except for the possibility of the road-rage driver, defendant
had "no idea who would" set his car on fire.
Sgt. Ray continued his investigation by going to the store where defendant
stated he bought some items the day before the fire. The store provided him two
still images of two different people buying a gas can that day. In executing a
search warrant for defendant's bedroom with a lock on it, Sgt. Ray found a gas
can sticker inside the store's bag in a garbage can, and some credit and debit
cards. This led to defendant's arrest.
Sgt. Ray also obtained surveillance videos from Buell's surveillance
system after he personally accessed the system, reviewed the recorded footage,
supervised the downloading of the videos, and was present while they were
transferred to a disk. The State played for the jury, twelve entry and exit videos
from Buell showing defendant. The first video starts at 12:44 p.m. on October
14, 2015, and the last video ends at 2:10 a.m. on October 15, 2015.
3
In addition to clothes estimated to be more than $1200, defendant claimed his
desktop computer, monitor, keyboard, keyboard mouse, microphone,
"automation stuff" to control his lights, security camera, and "basically just a lot
of electronics[,]" as well as a recently purchased desk, were valued around
$7650.
A-3588-17T4
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Sgt. Ray further testified about two still photos from the videos that were
shown to the jury. He described the first photo 4 as showing defendant leaving
Buell wearing a black jacket and a black hat, and the second photo, occurring
nineteen minutes later, showing defendant entering Buell without the jacket or
hat. He testified that a photograph of the passenger compartment of the vehicle
showed what appeared to be a black jacket on top of "boxes and stuff." The
police did not search the car for a black jacket and hat, and they did not inventory
anything in the car because there were "a lot of items [in the car] which you
couldn't tell what they were because they were all burnt up inside."
Sgt. Ray was unable to export from the surveillance system a video of the
bus stop depicting McClarren because the system was too old. He stated:
At the time, bus stops went to a different system and we
tried to export ourselves, but were unsuccessful. We
used IT and Security Technologies to try to export it.
And then eventually, . . . we didn't want to lose the
footage, so it was recorded with a cell phone and then
saved that way.
To further explain the surveillance camera system, Kenneth Ackerman, a
manager in the Security Technologies Unit at Rutgers University, testified that
although the bus stop at Buell Apartments had several DVR systems in place at
4
The time stamp on the photo was 1:50:02 p.m. on October 15, 2015, but the
time stamp was fast by twelve hours and eight minutes.
A-3588-17T4
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the time of the fire, there was no backup system. He stated, normally, there
would be no reason for an "individual to use a separate video camera to take a
shot of the screen."
After the State rested, defendant renewed his objection to admitting the
cell phone video into evidence. Again, the judge denied the motion, essentially
for his initial reasons. The judge noted, "the State, in fact, put a witness on who
explained why the [video]tape is unavailable and . . . why the [cell phone] had
to be used to record what was on the original [video]tape."
The State's attempt to introduce video evidence of defendant's store
purchase was denied because the State could not authenticate the video. Instead,
the State presented Alexis Damon, an assistant manager at the Piscataway store,
who authenticated the store's record of a transaction number from October 14,
2015, at 12:15:07, showing the purchase of a five-gallon gas can using a credit
card with the last four account numbers that matched the last four digits on one
of the credit cards Sgt. Ray collected from defendant when he was arrested.
Defendant's objection to the document's admission was denied. He argued
the document's production in the middle of the trial was an "unfair surprise,"
because it had not been disclosed prior to trial. The judge determined there was
no unfair surprise because defendant was aware that evidence of his purchase
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would be produced, albeit in a different format. The judge remarked, defendant
"knew the State intended to at least attempt to introduce into evidence that the
defendant engaged in a transaction . . . [at the store]" and that the information
about the transaction and defendant's credit card numbers had been available in
the initial police reports. The judge concluded that "the prejudice that the late
revelation of this discovery imposes on the defendant . . . does not outweigh the
probative value." Yet, to address defendant's concerns regarding the document's
mid-trial production, the judge offered him an adjournment to investigate the
transaction. There is no indication that defendant took advantage of the offer.
After the State rested, the judge granted in part defendant's motion for a
judgment of acquittal. The remaining portion of count one alleging a purpose
of collecting insurance and part of count two alleging starting a fire or causing
an explosion with the purpose of collecting insurance were dismissed.
Defendant's renewed application at the close of his case to dismiss the remaining
parts of counts two and four was denied. Defendant exercised his right not to
testify.
Although the parties initially agreed to an adverse inference charge on
spoliation of the surveillance camera video depicting the explosion, the State
changed its position during the jury charge conference. After argument, the
A-3588-17T4
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judge denied defendant's request for an adverse inference charge because the
cell phone video was properly authenticated by McClarren and Sgt. Ray, and the
limitations of exporting a video from the surveillance system was explained by
Ackerman.
After the jury found defendant guilty of arson (count two) and risking
widespread injury and/or damage (count four), the judge denied defendant's
motions for a new trial, or for a judgment of acquittal, and bail pending appeal.
Defendant was later sentenced to an aggregate five-year prison term. This
appeal followed. 5
II.
In Point I, defendant contends the trial judge erred in denying his motion
for acquittal on counts two and four because there was insufficient evidence to
establish that he caused an explosion, "which is an indispensable element of both
counts." He argues the fireball seen on the surveillance video is not an
explosion, and no expert opined that an explosion occurred. He emphasizes no
explosion occurred where there was a fire "in an isolated area of a parking lot
5
This court denied defendant's motion for bail, finding that "[t]he trial court
did not misapply its discretion or the factors under Rule 2:9-4 in denying bail
pending appeal."
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that contained no people at almost 2:00 a.m.," and there was no "evidence of
violent damage to the car, a debris field, [or] broken windows." We disagree.
We begin with a review of our guidelines regarding a judgment of
acquittal. A court shall enter an order for a judgment of acquittal only "if the
evidence is insufficient to warrant a conviction." R. 3:18-1. The long-
established standard to determine a motion for a judgment of acquittal at the
conclusion of the State's case was articulated in State v. Reyes, 50 N.J. 454
(1967):
[T]he question the trial judge must determine is
whether, viewing the State's evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[Id. at 458-59 (citing State v. Fiorello, 36 N.J. 80, 90-
91 (1961)).]
Under Rule 3:18-1, the court "'is not concerned with the worth, nature or
extent (beyond a scintilla) of the evidence, but only with its existence, viewed
most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002)
(quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). "If the
evidence satisfies that standard, the motion must be denied." State v. Spivey,
A-3588-17T4
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179 N.J. 229, 236 (2004). We apply this same standard on appeal. State v.
Kittrell, 145 N.J. 112, 130 (1996).
Next, because defendant questions the meaning of the word "explosion"
as applied to N.J.S.A. 2C:17-1(b) and N.J.S.A. 2C:17-2(a)(1), we examine our
rules of statutory construction. In determining the interpretation of a statute,
our review is de novo. State v. Frank, 445 N.J. Super. 98, 105 (App. Div. 2016).
It is well settled that a primary purpose of "statutory interpretation is to
determine and 'effectuate the Legislature's intent.'" State v. Rivastineo, 447 N.J.
Super. 526, 529 (App. Div. 2016) (quoting State v. Shelley, 205 N.J. 320, 323
(2011)). We start with considering "the plain 'language of the statute, giving the
terms used therein their ordinary and accepted meaning.'" Ibid. And where "'the
Legislature's chosen words lead to one clear and unambiguous result, the
interpretive process comes to a close, without the need to consider extrinsic
aids.'" Ibid. Hence, we do "not 'rewrite a plainly-written enactment of the
Legislature [or] presume that the Legislature intended something other than that
expressed by way of the plain language.'" Ibid. (alteration in original) (quoting
Marino v. Marino, 200 N.J. 315, 329 (2009)).
Yet, a statute's plain language "should not be read in isolation, but in
relation to other constituent parts so that a sensible meaning may be given to the
A-3588-17T4
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whole of the legislative scheme." Wilson ex rel. Manzano v. City of Jersey City,
209 N.J. 558, 572 (2012). "'When all is said and done, the matter of statutory
construction . . . will not justly turn on literalisms, technisms or the so-called
formal rules of interpretation; it will justly turn on the breadth of the objectives
of the legislation and the commonsense of the situation.'" J.H. v. R&M
Tagliareni, LLC, 454 N.J. Super. 174, 187 (2018) (quoting Jersey City Chapter,
P.O.P.A. v. Jersey City, 55 N.J. 86, 100 (1969)), rev'd on other grounds, 239
N.J. 198 (2019). A "common-sense approach often begins with an examination
of dictionary definitions." Cypress Point Condo. Ass'n v. Adria Towers, LLC,
226 N.J. 403, 426 (2016). Simply put, "[a]n absurd result must be avoided in
interpreting a statute." Gallagher v. Irvington, 190 N.J. Super. 394, 397 (App.
Div. 1983).
Applying these well-established principles, we discern no basis to set
aside the jury verdict because the State presented sufficient evidence to sustain
the convictions.
For defendant to be convicted for third-degree arson under N.J.S.A.
2C:17-1(b), there must be proof that "he purposely starts a fire or causes an
explosion, whether on his own property or another's." (Emphasis added). The
plain reading of the statute does not demand proof that an explosion occurred in
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order to sustain a conviction, merely proving a fire occurred satisfies an element
of the offense. Accordingly, this contention has no merit.
In order for defendant to be convicted for second-degree risking
widespread injury or damage under N.J.S.A. 2C:17-2(a)(1), there must be proof
that he "purposely or knowingly, unlawfully causes an explosion, flood,
avalanche, collapse of a building, release or abandonment of poison gas,
radioactive material, or any other harmful or destructive substance . . . ."
(Emphasis added). Defendant seeks to interpret the term "explosion" based on
the perceived meaning of the remaining terms in N.J.S.A. 2C:17-2(a)(1) through
the principle of noscitur a sociis, meaning "words may be indicated and
controlled by those with which they are associated." Herzog v. Twp. of
Fairfield, 349 N.J. Super. 602, 607 (App. Div. 2002) (quoting Germann v.
Matriss, 55 N.J. 193, 220 (1970)). We reject this reasoning.
All the words in the statute connote serious harm, i.e., "flood, avalanche,
collapse," among others. Regardless of noscitur a sociis, which is "not [an]
absolute" rule and should only be viewed as "a helpful guide," ibid. (quoting
Germann, 55 N.J. at 221), the term "explosion" is appropriately grouped with
other potentially significant hazards. The fact that one could imagine a less
lethal "explosion" does not render its inclusion ambiguous when less lethal
A-3588-17T4
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versions of the remaining terms could also be imagined. Contrary to defendant's
assertion, the terms "flood" and "avalanche" are not "tantamount to terrorism in
which the safety of large groups of citizens are threatened."
Considering the video of the fireball and McClarren's testimony
confirming her observation of the fireball simultaneous with the sound of a
cannon-like explosion, the judge refused to order an acquittal because there was
sufficient proof beyond a reasonable doubt that "there was some sort of
explosion" under N.J.S.A. 2C:17-2(a)(1).6 The judge determined it was for the
jury to decide whether defendant purposely or knowingly set the fire for the
purpose of causing the car to explode. We concur with this reasoning. The
common meaning of the term "explosion" does not require that it "cause or risk
injury to a large group of people" as defendant asserts. Expert testimony is not
required when the term is unambiguous. There is no evidence of legislative
intent to exclude the factual scenario in this case – a car with gasoline in its tank
set on fire and bursting into a fireball – from qualifying as an explosion. Hence,
we are convinced that denial of defendant's motion for a judgment of acquittal
6
As part of our review of the record on appeal, we have seen the video. Nothing
in the video materially contradicts the trial judge's factual findings. See State v.
S.S., 229 N.J. 360, 374-81 (2017) (clarifying the limited scope of appellate
review of factual findings based on video evidence).
A-3588-17T4
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was proper because the evidence supported the jury's guilty verdict on count
four that defendant violated N.J.S.A. 2C:17-2(a)(1).
III.
In Point II, defendant asserts it was error to admit a cell phone video of
the surveillance video of the bus stop because it was not properly authenticated.
He also asserts an adverse inference charge was required to "signal[] to the jury
the importance of the authenticity requirement." Given that the video was
"critical to the State's case," defendant maintains his convictions should be
reversed and a new trial be ordered. We are unpersuaded.
A judge's decision to admit or exclude evidence is "entitled to deferenc e
absent a showing of an abuse of discretion, i.e., [that] there has been a clear error
of judgment." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration
in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Although a
trial court retains broad discretion in determining the admissibility of evidence,
that discretion is abused when relevant evidence offered by the defense and
necessary for a fair trial is kept from the jury." State v. Cope, 224 N.J. 530,
554-55 (2016). "Thus, we will reverse an evidentiary ruling only if it 'was so
wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
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It is well-settled that a videotape "qualifies as a writing[ ]" under N.J.R.E.
801(e) and must be "properly authenticated" before being admitted. See State
v. Wilson, 135 N.J. 4, 17 (1994). Under N.J.R.E. 901, "[t]he requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter is what its
proponent claims." The authentication rule "does not require absolute certainty
or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999).
"The proponent of the evidence is only required to make a prima facie showing
of authenticity." Ibid. (citations omitted). "Once a prima facie showing is made,
the [item] is admissible, and the ultimate question of authenticity of the evidence
is left to the jury." Ibid. (citations omitted).
Authentication of a videotape is similar to the authentication of a
photograph. State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).
"[T]estimony must establish that the videotape is an accurate reproduction of
that which it purports to represent and the reproduction is of the scene at the
time the incident took place." Ibid. (citing Wilson, 135 N.J. at 15). The
photographer or videographer need not testify "because the ultimate object of an
authentication is to establish its accuracy or correctness." Wilson, 135 N.J. at
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14. Thus, "any person with the requisite knowledge of the facts represented in
the photograph or videotape may authenticate it." Ibid.
"[R]eliability is the decisive factor in determining the admissibility of a
recording." State v. Nantambu, 221 N.J. 390, 395 (2015). The determination is
"a highly fact-sensitive analysis, requiring consideration not only of any gaps or
defects in the recording but also the evidential purposes for which the recording
is being offered." Ibid.
A duplicate is usually admissible to the same extent as an original. A
duplicate includes "a counterpart . . . produced by the same impression as the
original, or from the same matrix, or by means of photography, including
enlargements and reductions, or by mechanical or electronic re-recording, or by
chemical reproduction, or by other equivalent technique which accurately
reproduces the original." N.J.R.E. 1001(d). N.J.R.E. 1003 states: "A duplicate
. . . is admissible to the same extent as an original unless (a) a genuine question
is raised as to the authenticity of the original, or (b) in the circumstances it would
be unfair to admit the duplicate in lieu of the original."
Based on our review of the record, we conclude the court's decision to
admit the video footage was not an abuse of discretion. McClarren authenticated
the video by identifying herself and by testifying that the video accurately
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depicted what she observed in the early hour of October 15, 2015 at the parking
lot next to the Buell Apartments. Sgt. Ray and Ackerman explained why a cell
phone video of the surveillance camera video was necessary. And defendant
presented no evidence undermining the reliability of Sgt. Ray's cell phone video.
Turning to defendant's claim that the judge failed to give an adverse
inference charge due to the absence of the original video from the Buell
Apartments' surveillance camera system, we review the failure to charge for an
abuse of discretion. State v. Dabas, 215 N.J. 114, 132 (2013). "An adverse
inference charge may be warranted when a party's failure to present evidence
'raises a natural inference that the party so failing fears exposure of those facts
would be unfavorable to him.'" Torres v. Pabon, 225 N.J. 167, 181 (2016)
(quoting State v. Clawans, 38 N.J. 162, 170 (1962)). That was not the case here,
because the State preserved the video evidence of the explosion though Sgt.
Ray's cell phone video of the surveillance video. As the judge properly
determined, the State's witnesses documented that because the original
surveillance video could not be preserved, an accurate duplicate was
successfully made and shown to the jury. Thus, no adverse inference charge
was necessary where the relevant evidence was not lost or destroyed.
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[At this court's direction Parts IV, V, VI, and VII of
this opinion, which do not concern matters pertinent
to the explosion issues in Parts I, II, and III, have
been omitted from the published version of this
opinion. R. 1:36-3.]
Affirmed.
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