Kenneth Vercammen is author of the ABA "Criminal Law Forms" book.
More info at www.njlaws.com
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817

Monday, December 27, 2010

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen welcomes persons to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and every other Friday morning court sessions.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given projects to provide information to the public on updated criminal laws and statutes. Help people less fortunate than you who are down on their luck. This is an unpaid internship helping indigent persons.

Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM, every other Friday 9-12, plus hearing preparation work.

Volunteer Internship Description:

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery

-Conduct appropriate Legal research

-Acquire skills in Criminal Law and Procedure by active participation

-Participate in Public Relations activities and help organize seminars

- Update Lists of Prosecutors, Judges and Attorneys for publication of

NJ Municipal Court Law Review

- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

- Learn how to add criminal statutes and criminal articles to legal blogs and websites. http://criminal-jury.blogspot.com/

Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week. Must be over 18 years old and have a car. You can work more hours if you want and more than 12 weeks.

For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week. Send cover letter and resume. After sending resume, call to schedule interview

We are committed to excellence and service to clients and the community. Applicants must have attention to detail. We attempt to give assignments which will be meaningful and memorable but, nevertheless, expect that the volunteers will pitch in on whatever needs to be done.

Interested persons must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered.

PUBLIC DEFENDER OF METUCHEN

Att: Kenneth Vercammen, Esq.

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

Saturday, July 31, 2010

State in the Interest of A.S. (A-58/59-09)

State in the Interest of A.S. (A-58/59-09)
Argued April 27, 2010 -- Decided July 29, 2010
LaVECCHIA, J., writing for a unanimous Court.
The issue in this appeal is whether, under the totality of the circumstances, A.S., a juvenile, knowingly,
voluntarily, and intelligently confessed to conduct that, if committed by an adult, would constitute first-degree
aggravated sexual assault.
A.S. was the adoptive daughter of F.D. A.S. and F.D. lived in one-half of a duplex; the other half was
inhabited by F.D.’s daughter T.B., and T.B.’s four-year-old son C.J., who was F.D.’s grandson. While A.S. was
home with C.J. on the night of November 25, 2007, she allegedly performed fellatio on the boy for a period of
approximately ten minutes. Although A.S. told C.J. not to tell anyone about the incident, after his bath the next
night around midnight, C.J. told his mother what A.S. had done. T.B. had F.D. come over and T.B. repeated what
she heard had happened the previous day. F.D. confronted A.S. Later that night, T.B. contacted the police and at
some point during the following day, while still at home, A.S. apparently confessed to the act in the presence of T.B.
and F.D., stating that she did not know why she did it.
C.J. and A.S. were interviewed by detectives at the Somerset County Prosecutor’s Office. A detective
interviewed A.S., with F.D. present. Although the interview was videotaped, a transcript or verbatim record of the
tape was not admitted into evidence at trial; however, the actual VHS cassettes, though of poor quality, were
introduced into evidence. At the outset of the interview the detective requested that F.D. read to A.S. her Miranda
rights, which she did in less than one minute without any clarification. F.D. then read aloud the portion of the form
dealing with her rights as a parent and she expressed some concerns. The detective attempted to clarify F.D.’s rights
and blamed her confusion on the fact that the form was written by a lawyer. That exchange took almost three
minutes.
F.D. and A.S. engaged in a conversation in which A.S., when asked if she wanted an attorney, inquired
about an attorney’s functions. Both F.D. and the detective explained that the attorney would represent her and, as
explained by F.D., the attorney would “make sure your rights are not violated.” In addition, A.S. was told that the
attorney would not speak for her and that she had to answer questions and answer them truthfully because that
would demonstrate that she was a “good person.” Throughout, F.D. insisted that A.S. tell the detective what she did.
Eventually, more than thirty minutes into the interview, A.S. confessed that she had “sucked [C.J.’s] tinky” for ten
minutes and then went to sleep. After A.S. confessed, the interview continued for thirty more minutes. F.D.
interjected and asked A.S. questions throughout, chastising her several times. The questions addressed to A.S. were
greeted with long periods of silence on her part, some lasting over a minute, causing the detective to say “[we] can’t
do this all night.”
Defense counsel filed a motion to suppress the videotaped interview, and that motion was argued as part of
A.S.’s delinquency adjudication. Counsel contended that A.S.’s confession should be suppressed because A.S.
understood neither her right to remain silent nor her right to an attorney and that her confession was not freely and
voluntarily given. Counsel also argued that F.D. had acted as an interrogator and had unduly pressured A.S. to
confess, abdicating her responsibility as a parent to A.S. and instead advancing the interests of her grandson. A.S.
testified, acknowledging that she was not yelled at or threatened, and stating that although she was in ninth grade,
she only read at a third-grade level. A.S. testified that she really didn’t want to answer the questions posed to her,
and that was why she remained silent so often during the questioning, but that questions kept coming and that she
felt pressured.
2
The juvenile court denied the motion to suppress the videotaped interview. The court characterized, with
understatement, the procedure by which the Miranda warnings were given as “a little unusual” and “probably not the
best police practice.” Nonetheless, the court was satisfied that A.S. was read and understood her rights. The court
then found that A.S. had committed an act that, if performed by an adult, would constitute first-degree aggravated
sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and adjudicated her delinquent. The court noted that there was
ample evidence in the record to support its finding whether or not it admitted A.S.’s videotaped statement into
evidence.
A.S. appealed and a “troubled” Appellate Division affirmed. The Appellate Division applied the totality of
the circumstances test that the Supreme Court annunciated in State v. Presha, 163 N.J. 304 (2000), and
determined that “the State has failed to meet its burden of demonstrating beyond a reasonable doubt that A.S.’s
confession was knowingly, intelligently and voluntarily given.” The Appellate Division found that A.S. did not
understand her Miranda rights and that the efforts made to help her understand those rights were not only
ineffectual, but actually misinformed her. Additionally, the Appellate Division was concerned by F.D.’s conflict of
interest because of her relationship to both A.S. and the victim, her grandson C.J., characterizing F.D.’s role not as a
parent, but rather as an “interrogator.” In order to avoid such problems in future cases in which the parental figure
has a close relationship with both the victim and the accused, the Appellate Division posited that “the prudent
approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights
and her potential culpability, a procedure adopted elsewhere.” Despite those concerns, the Appellate Division
affirmed A.S.’s delinquency adjudication based on the other evidence in the record in light of the trial court’s
statement that A.S.’s confession was not absolutely necessary to its ruling.
Both parties appealed and the Supreme Court granted the State’s petition for certification and A.S.’s crosspetition
for certification. The Court also granted the Attorney General of New Jersey and the Office of the Child
Advocate of New Jersey status to appear as amici curiae.
HELD: Upon consideration of the totality of the circumstances, A.S.’s confession was not knowingly, intelligently,
and voluntarily given. In addition, the confession by far was the most damning piece of evidence against A.S. and
thus the Court cannot say that there was no reasonable possibility that its introduction into evidence contributed to
the delinquency adjudication, and so, in the particular circumstances presented in this case, the Court is constrained
to reverse A.S.’s conviction and remand for new proceedings.
1. The Court begins, as did the Appellate Division, with the decision in Presha, its seminal case addressing the
admissibility of juvenile confessions. In order for a juvenile’s confession to be admissible into evidence it must
satisfy the same standard that applies to adult confessions: that is, it must be made knowingly, intelligently, and
voluntarily. The Court looks to the totality of the circumstances in making that determination. In Presha, the Court
also noted the increased emphasis being placed on punishment as a rationale underlying the juvenile justice system,
as opposed to its traditional rehabilitative purposes. In light of that paradigm shift, the Court instructed courts to
consider the parent’s role as a “highly significant factor” in the totality of the circumstances analysis used to assess
whether a juvenile’s confession was knowing, intelligent, and voluntary. However, the mere presence of a parent is
insufficient to protect a juvenile’s rights, because presence alone cannot be said to provide the buffer between police
and the juvenile that the Court was contemplating in its decision in Presha. In order to serve as a buffer, the parent
must be acting with the interests of the juvenile in mind. (Pp. 19-22)
2. The factors relevant when making the totality of the circumstances determination include the child’s age,
education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was
repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved, prior
experience with the legal system, and the “highly significant factor” of parental involvement. A.S. was fourteen
years old at the time of the interrogation. That age put her on the cusp for heightened protections because a
fourteen-year-old is still of tender sensibilities and may have great difficulty withstanding the rigors of a police
interrogation. Furthermore, although A.S. was in ninth grade at school, she was not intellectually sophisticated. She
read at a third-grade level and had a “low-average” I.Q. of 83. In addition, she had no prior experience with the
legal system. In light of those facts, the actual efforts employed to inform A.S. of her constitutional rights were
woefully inadequate. Indeed, the detective abdicated his responsibility in that regard by having F.D. read A.S. her
rights, a procedure which tainted the interview from its outset and must not be utilized in the future. In addition,
telling a juvenile who does not understand her rights that an attorney would “make sure your rights aren’t violated”
3
is an empty gesture. Moreover, the attempts to inform A.S. of her rights contained actual misinformation. An
impartial review of the videotaped interview yields convincing evidence that the “greatest care” was not taken to
protect A.S.’s constitutional rights in this case. The Court therefore concludes, upon consideration of the totality of
the circumstances, that A.S.’s confession was not knowingly, intelligently, and voluntarily given. (Pp. 22-28)
3. The Court must determine whether the admission of A.S.’s confession into evidence was harmful: that is,
whether it was “clearly capable of producing an unjust result.” R. 2:10-2. The Appellate Division, although
“troubled,” affirmed A.S.’s delinquency adjudication in large part due to the juvenile court’s assessment that even if
the videotaped statement had not been introduced into evidence, the court still would have adjudicated A.S.
delinquent. The confession by far was the most damning piece of evidence against A.S. and thus the Court cannot
say that there was no reasonable possibility that its introduction into evidence contributed to the delinquency
adjudication, and so, in the particular circumstances presented in this case, the Court is constrained to reverse A.S.’s
conviction and remand for new proceedings. (Pp. 28-30)
4. Because the Court finds that A.S.’s confession was not voluntarily given under the totality of the circumstances
test as described in Presha, its decision does not hinge on whether F.D. had a conflict of interest that rendered her
unable to fulfill the parental role contemplated by Presha. The Court, however, declines to embrace a categorical
rule that an attorney must be present any time that there is perceived clash in the interests of a parent based on a
familial relationship with the victim or another involved in the investigation. Even in cases of such apparent
clashing interests, a parent may be able to fulfill the role envisioned in Presha. And in those cases where a parent is
truly conflicted, another adult – not necessarily an attorney – may be able to fulfill the parental assistance role
envisioned by Presha. (Pp. 30-33)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for new
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO, and
HOENS join in JUSTICE LaVECCHIA’s opinion.

Friday, June 11, 2010

EVIDENCE - CRIMINAL LAW- STATE OF NJ IN THE INTEREST OF D.H. ( A-1654-08T4)

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1654-08T41654-08T4

STATE OF NEW JERSEY IN THE INTEREST OF D.H.

_______________________

Submitted January 5, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Gloucester County,

Nos. FJ-08-858-08, FJ-08-927-08, FJ-08-1331-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant D.H. (Gilbert G. Miller, Designated

Counsel, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor,

attorney for respondent State of New Jersey

(Joseph H. Enos, Jr., Assistant Prosecutor,

on the brief).

PER CURIAM

D.H., a juvenile, was charged with acts which, if committed by an adult, would constitute burglary and theft. Following trial, he was found not guilty of burglary but guilty of theft. He appeals. After reviewing the record in light of the contentions advanced on appeal, we reverse.

On the morning of July 23, 2007, John Rooney walked to his car, parked in front of his residence, intending to drive to work. He found that the car doors had been opened and the interior ransacked. In the trunk was a box in which he had stored a GPS navigation system he had only recently obtained; the box was empty. Mr. Rooney summoned the police and the officer who responded to the scene carefully removed the box from the trunk and later delivered it to an investigator in his department. The investigator dusted the box and found several latent fingerprints. He did not attempt to lift the prints himself but forwarded the box to the county prosecutor's office to complete the process.

Detective Nicholas Kappre of the prosecutor's Crime Scene Unit took the box and lifted eight partial latent prints which he forwarded to the New Jersey State Police AFIS (Automated Fingerprint Identification System) unit. Of those eight, only two were found to be suitable for purposes of comparison. Detective Kappre received back a card containing ten prints that had been selected by AFIS, together with a computer print-out containing an enlargement of the latent print and the known print. Detective Kappre compared the latent print with the known print he had received from AFIS and testified that they were a match.

Detective Kappre also received from AFIS a list of twenty-five potential matches, identified by SBI number. Detective Kappre did not investigate any of those other potential matches to perform a comparison. There was testimony from which it could be inferred that D.H. headed this list, with the word "hit" next to his identification. There was no testimony to explain the significance of the term "hit" and no testimony linking D.H. to that SBI number. Nor did Detective Kappre take defendant's fingerprints to compare them either to the latent prints retrieved from the box or the ten-print card or enlargements he had received from AFIS.

Although Detective Kappre had received some training in fingerprint identification, he had never testified before on the question of fingerprint comparison. There was no attempt to qualify Detective Kappre to testify as an expert with respect to the workings of AFIS.

The trial was unfortunately protracted and heard in segments over eight days from May through September, 2008. Detective Kappre was the last witness for the prosecution. At the conclusion of his testimony on July 10, 2008, the prosecutor stated that the State was resting its case, and she then began to move documents into evidence, including the AFIS print screens Kappre had received from the State Police. Defense counsel objected, asserting they were hearsay, and that no foundation had been laid for their admission.

The trial court permitted the prosecution to recall Detective Kappre to the stand. For unavoidable reasons, the trial did not resume until August 7. Over defendant's objection, Detective Kappre took the stand. He testified that he had received from AFIS the latent prints he had taken from the box, the print screen AFIS had prepared comparing the latent prints and the known prints stored in the AFIS system and the ten-print card. Defendant objected to Kappre's testimony that the ten-print card contained D.H.'s name; he also testified that he believed the latent prints on the GPS box belonged to D.H.

On appeal, D.H. raises the following contentions for our consideration:

POINT I THE TRIAL COURT PERMITTED INADMISSIBLE HEARSAY THAT THE FINGERPRINTS FEATURED ON THE 10-PRINT CARDS SUPPLIED TO INVESTIGATOR KAPPRE BY AFIS AND THE WEST DEPTFORD POLICE, AND ON EXHIBITS D-7 AND D-8 WERE THE JUVENILE'S

POINT II THE COURT'S DECISION TO PERMIT THE STATE TO REOPEN ITS CASE VIOLATED THE JUVENILE'S RIGHT AGAINST DOUBLE JEOPARDY

POINT III THE JUVENILE WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS

POINT IV THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE

Hearsay is a "statement, other than one by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Admissibility of hearsay evidence is governed both by the hearsay exceptions set forth in N.J.R.E. 803 and 804, in criminal matters, by analysis of whether the proffered evidence is "testimonial" in nature under Crawford v. Washington541 U.S. 36,124 S. Ct. 1354158 L. Ed.2d 177 (2004).

The trial court ruled that the print screens Detective Kappre received from AFIS were admissible under the business records exception to the hearsay rule.

Under N.J.R.E. 803(c)(6), Records of Regularly Conducted Activity, business records are an exception to the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose, or circumstances of preparation indicate that it is not trustworthy.

New Jersey does not require that the custodian of the records testify as a condition to their admission. Supreme Court Committee Comment toN.J.R.E. 803(c)(6) (1991). However, a foundation must be laid establishing that the documents are admissible. Ibid.

Under the old rule, "the custodian or other qualified witness" had to testify as to the identity and mode of preparation of the business record. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2009) (quoting N.J.S.A. 2A:82-35). The new rule is "substantially similar." Ibid. The primary difference is requiring the document be made in regular business practice. Ibid. (cited with approval in State v.Sweet195 N.J. 357, 370 n.8 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2858174 L. Ed.2d 601 (2009)).

The New Jersey Supreme Court in State v. Matulewicz101 N.J. 27, 29 (1985), found that in order for evidence to be admitted under the business records exception: "First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." (finding State Police chemist's laboratory report inadmissible as a business record because the factual record below was "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the . . . report"). Although Matulewicz was decided under the old statute, it has been held as the standard by the New Jersey Supreme Court after the current rule for business records was adopted in 1991. See, e.g.Sweetsupra, 195 N.J. at 370; Feldman v. Lederle Labs. (Feldman III)132 N.J. 339, 354 (1993).

No foundation was ever laid for entry of the AFIS documents. The writing must be made in the regular course of business and made by someone with actual knowledge, or someone who with actual knowledge supplied the information. N.J.R.E. 803(c)(6). While the person with "actual knowledge" need not be the person who lays the foundation for entry of the business record, Hahnemann University Hospital v. Dudnick292 N.J. Super. 11, 17-18 (App. Div. 1996), the foundation must be laid by someone with personal knowledge that the records were kept in the ordinary course of business and the circumstances in which the records were made. N.J.R.E. 803(c)(6); N.J.R.E. 602 (a witness can only testify to matters he or she has personal knowledge of).

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H.

In addition to the enlargements, Detective Kappre also received two 10-print cards, one from AFIS, and one from the municipal police which, testimony indicates, bore D.H.'s name. Those cards were never received in evidence, however. And, even if they had been proffered, they would suffer from the same evidential deficiency as the enlargements; Detective Kappre lacked the knowledge to testify that the cards in fact contained D.H.'s prints for he had no knowledge of their preparation or recordation.

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, "The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original." N.J.R.E. 1005 specifies, however, that the document must be "otherwise admissible." Here, the AFIS records were not "otherwise admissible" in the absence of a proper foundation, which Kappre was not equipped to provide.

We also note, although defendant does not explicitly raise it in his brief, that Kappre testified that the prints received from AFIS were computer-generated and that the process of taking fingerprints by computer, as opposed to by a manual ink roll, involves certain distortions. Kappre was not asked to explain the significance of these distortions and their effect, if any, on his comparison of these prints. We recently addressed an analogous situation in Rodd v. Raritan Radiologic Associates, P.A.373 N.J. Super. 154 (App. Div. 2004), in which we held inadmissible, in the absence of foundational testimony, a computer-generated blow-up of a mammogram. We noted that the radiologist, who testified about this blow-up, "offered no account of how the films were scanned into the computer, or how the computer program operated. Consequently, he added very little to explain the circumstances surrounding the computer images' creation. . . ." Id. at 169. Here, there was no testimony as to the creation of AFIS's records.

Because we are satisfied that these records were improperly admitted into evidence, and they are the only link between D.H. and the theft, his adjudication must be reversed. This makes it unnecessary to address his remaining contentions.

The order adjudicating D.H. a delinquent is reversed.

We note for the sake of completeness that we are not called upon to consider whether the trial court's determinations should be upheld under the principles of "invited error" recently articulated by the Supreme Court in Division of Youth & Family Services v. M.C. III, __ N.J. __ (2010) (slip op. at 23-25); here defense counsel objected to the admission of these documents.


EVIDENCE - CRIMINAL LAW- STATE OF NJ IN THE INTEREST OF D.H. ( A-1654-08T4)

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1654-08T41654-08T4

STATE OF NEW JERSEY IN THE INTEREST OF D.H.

_______________________

Submitted January 5, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Gloucester County,

Nos. FJ-08-858-08, FJ-08-927-08, FJ-08-1331-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant D.H. (Gilbert G. Miller, Designated

Counsel, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor,

attorney for respondent State of New Jersey

(Joseph H. Enos, Jr., Assistant Prosecutor,

on the brief).

PER CURIAM

D.H., a juvenile, was charged with acts which, if committed by an adult, would constitute burglary and theft. Following trial, he was found not guilty of burglary but guilty of theft. He appeals. After reviewing the record in light of the contentions advanced on appeal, we reverse.

On the morning of July 23, 2007, John Rooney walked to his car, parked in front of his residence, intending to drive to work. He found that the car doors had been opened and the interior ransacked. In the trunk was a box in which he had stored a GPS navigation system he had only recently obtained; the box was empty. Mr. Rooney summoned the police and the officer who responded to the scene carefully removed the box from the trunk and later delivered it to an investigator in his department. The investigator dusted the box and found several latent fingerprints. He did not attempt to lift the prints himself but forwarded the box to the county prosecutor's office to complete the process.

Detective Nicholas Kappre of the prosecutor's Crime Scene Unit took the box and lifted eight partial latent prints which he forwarded to the New Jersey State Police AFIS (Automated Fingerprint Identification System) unit. Of those eight, only two were found to be suitable for purposes of comparison. Detective Kappre received back a card containing ten prints that had been selected by AFIS, together with a computer print-out containing an enlargement of the latent print and the known print. Detective Kappre compared the latent print with the known print he had received from AFIS and testified that they were a match.

Detective Kappre also received from AFIS a list of twenty-five potential matches, identified by SBI number. Detective Kappre did not investigate any of those other potential matches to perform a comparison. There was testimony from which it could be inferred that D.H. headed this list, with the word "hit" next to his identification. There was no testimony to explain the significance of the term "hit" and no testimony linking D.H. to that SBI number. Nor did Detective Kappre take defendant's fingerprints to compare them either to the latent prints retrieved from the box or the ten-print card or enlargements he had received from AFIS.

Although Detective Kappre had received some training in fingerprint identification, he had never testified before on the question of fingerprint comparison. There was no attempt to qualify Detective Kappre to testify as an expert with respect to the workings of AFIS.

The trial was unfortunately protracted and heard in segments over eight days from May through September, 2008. Detective Kappre was the last witness for the prosecution. At the conclusion of his testimony on July 10, 2008, the prosecutor stated that the State was resting its case, and she then began to move documents into evidence, including the AFIS print screens Kappre had received from the State Police. Defense counsel objected, asserting they were hearsay, and that no foundation had been laid for their admission.

The trial court permitted the prosecution to recall Detective Kappre to the stand. For unavoidable reasons, the trial did not resume until August 7. Over defendant's objection, Detective Kappre took the stand. He testified that he had received from AFIS the latent prints he had taken from the box, the print screen AFIS had prepared comparing the latent prints and the known prints stored in the AFIS system and the ten-print card. Defendant objected to Kappre's testimony that the ten-print card contained D.H.'s name; he also testified that he believed the latent prints on the GPS box belonged to D.H.

On appeal, D.H. raises the following contentions for our consideration:

POINT I THE TRIAL COURT PERMITTED INADMISSIBLE HEARSAY THAT THE FINGERPRINTS FEATURED ON THE 10-PRINT CARDS SUPPLIED TO INVESTIGATOR KAPPRE BY AFIS AND THE WEST DEPTFORD POLICE, AND ON EXHIBITS D-7 AND D-8 WERE THE JUVENILE'S

POINT II THE COURT'S DECISION TO PERMIT THE STATE TO REOPEN ITS CASE VIOLATED THE JUVENILE'S RIGHT AGAINST DOUBLE JEOPARDY

POINT III THE JUVENILE WAS ENTITLED TO A JUDGMENT OF ACQUITTAL ON EACH OF THE COUNTS

POINT IV THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE

Hearsay is a "statement, other than one by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Admissibility of hearsay evidence is governed both by the hearsay exceptions set forth in N.J.R.E. 803 and 804, in criminal matters, by analysis of whether the proffered evidence is "testimonial" in nature under Crawford v. Washington541 U.S. 36,124 S. Ct. 1354158 L. Ed.2d 177 (2004).

The trial court ruled that the print screens Detective Kappre received from AFIS were admissible under the business records exception to the hearsay rule.

Under N.J.R.E. 803(c)(6), Records of Regularly Conducted Activity, business records are an exception to the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose, or circumstances of preparation indicate that it is not trustworthy.

New Jersey does not require that the custodian of the records testify as a condition to their admission. Supreme Court Committee Comment toN.J.R.E. 803(c)(6) (1991). However, a foundation must be laid establishing that the documents are admissible. Ibid.

Under the old rule, "the custodian or other qualified witness" had to testify as to the identity and mode of preparation of the business record. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2009) (quoting N.J.S.A. 2A:82-35). The new rule is "substantially similar." Ibid. The primary difference is requiring the document be made in regular business practice. Ibid. (cited with approval in State v.Sweet195 N.J. 357, 370 n.8 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2858174 L. Ed.2d 601 (2009)).

The New Jersey Supreme Court in State v. Matulewicz101 N.J. 27, 29 (1985), found that in order for evidence to be admitted under the business records exception: "First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." (finding State Police chemist's laboratory report inadmissible as a business record because the factual record below was "devoid of evidence that would elucidate the 'method and circumstances' involved in the preparation of the . . . report"). Although Matulewicz was decided under the old statute, it has been held as the standard by the New Jersey Supreme Court after the current rule for business records was adopted in 1991. See, e.g.Sweetsupra, 195 N.J. at 370; Feldman v. Lederle Labs. (Feldman III)132 N.J. 339, 354 (1993).

No foundation was ever laid for entry of the AFIS documents. The writing must be made in the regular course of business and made by someone with actual knowledge, or someone who with actual knowledge supplied the information. N.J.R.E. 803(c)(6). While the person with "actual knowledge" need not be the person who lays the foundation for entry of the business record, Hahnemann University Hospital v. Dudnick292 N.J. Super. 11, 17-18 (App. Div. 1996), the foundation must be laid by someone with personal knowledge that the records were kept in the ordinary course of business and the circumstances in which the records were made. N.J.R.E. 803(c)(6); N.J.R.E. 602 (a witness can only testify to matters he or she has personal knowledge of).

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H.

In addition to the enlargements, Detective Kappre also received two 10-print cards, one from AFIS, and one from the municipal police which, testimony indicates, bore D.H.'s name. Those cards were never received in evidence, however. And, even if they had been proffered, they would suffer from the same evidential deficiency as the enlargements; Detective Kappre lacked the knowledge to testify that the cards in fact contained D.H.'s prints for he had no knowledge of their preparation or recordation.

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, "The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original." N.J.R.E. 1005 specifies, however, that the document must be "otherwise admissible." Here, the AFIS records were not "otherwise admissible" in the absence of a proper foundation, which Kappre was not equipped to provide.

We also note, although defendant does not explicitly raise it in his brief, that Kappre testified that the prints received from AFIS were computer-generated and that the process of taking fingerprints by computer, as opposed to by a manual ink roll, involves certain distortions. Kappre was not asked to explain the significance of these distortions and their effect, if any, on his comparison of these prints. We recently addressed an analogous situation in Rodd v. Raritan Radiologic Associates, P.A.373 N.J. Super. 154 (App. Div. 2004), in which we held inadmissible, in the absence of foundational testimony, a computer-generated blow-up of a mammogram. We noted that the radiologist, who testified about this blow-up, "offered no account of how the films were scanned into the computer, or how the computer program operated. Consequently, he added very little to explain the circumstances surrounding the computer images' creation. . . ." Id. at 169. Here, there was no testimony as to the creation of AFIS's records.

Because we are satisfied that these records were improperly admitted into evidence, and they are the only link between D.H. and the theft, his adjudication must be reversed. This makes it unnecessary to address his remaining contentions.

The order adjudicating D.H. a delinquent is reversed.

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We note for the sake of completeness that we are not called upon to consider whether the trial court's determinations should be upheld under the principles of "invited error" recently articulated by the Supreme Court in Division of Youth & Family Services v. M.C. III, __ N.J. __ (2010) (slip op. at 23-25); here defense counsel objected to the admission of these documents.

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