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02-06-09 STATE v. MAI A-2900-07T4

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2900-07T4

STATE OF NEW JERSEY,
Plaintiff-Respondent,

v.

DANNY MAI,
Defendant-Appellant.
_______________________________

Submitted: January 14, 2009 – Decided February 6, 2009

Before Judges Fisher and C.L. Miniman

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1264.

Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM
Defendant Danny Mai appeals from a January 15, 2008, Judg¬ment of Conviction and Order for Commitment adjudicating him guilty of third-degree unlawful possession of a handgun contrary to N.J.S.A. 2C:39-5(b). Defendant's motion to suppress evidence under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963), was denied by order of October 24, 2007, and defendant thereafter entered a conditional guilty plea on November 26, 2007. Defendant was sentenced to probation for a period of two years conditioned on incarceration in the Hudson County Jail for 364 days and obtaining and main¬taining gainful employment when released. Because the officers did not have "an objective, articulable, and reasonable basis to believe [defendant] was armed and dangerous" based on the total¬ity of the circumstances, State v. Matthews, 398 N.J. Super. 551, 557 (App. Div.) (citing State v. Roach, 172 N.J. 19, 27 (2002)), certif. denied, 196 N.J. 344 (2008), we reverse.
Two witnesses testified at the October 15, 2007, suppres¬sion hearing: Officer Mike Szymanski and Sergeant Joseph Olszewski, both of whom were working the midnight tour on May 4, 2007, in separate police vehicles. Both received an anonymous report at 4:25 a.m. of a male with a gun wearing a black coat and black mask who was in the area of Jefferson and Oakland Ave¬nues. Szymanski and his partner responded to that area within a minute or so. Olszewski had already arrived at the scene and observed a silver Nissan Quest minivan standing in the roadway under a street light near 97 Jefferson Avenue, half a block from the reported intersection. The minivan was surrounded by a group of eight to ten males and had five occupants, whose silhouettes were visible through the windows. None of the males outside the minivan fit the description reported by the tipster and none of them had guns. Szymanski and his partner, with the assistance of three other police units, including Olszewski's unit, then "con¬ducted a motor vehicle stop" of the minivan and used their vehi¬cles to block the street to prevent the minivan from leaving the scene.
Szymanski exited his vehicle and walked up to the passenger side of the minivan while his partner approached the driver side. Although Szymanski shined his flashlight through the windows of the minivan and could see people moving around inside, he could not discern what they were doing. Olszewski, who was standing in front of the minivan, saw that defendant was wearing a leather coat and had a black bandanna around his neck. He then instructed Szymanski to remove defendant from the vehicle and pat him down. Although Szymanski had no search or arrest warrant, he opened the rear passenger-side door. Szymanski testified that he did so because he was concerned for his safety, although he admitted that he had been instructed by Olszewski to remove defendant from the minivan. Olszewski testified that defendant was the target of their investigation because he was the only person who fit the anonymous description.
Once Szymanski had opened the rear door, he saw defendant sitting right next to the door he had opened. The other passen¬gers were seated in the front passenger seat, the left rear pas¬senger seat in the second row, and the third-row seat. Because defendant was wearing a black, leather jacket and had a black bandanna around his neck, Szymanski instructed him to exit the minivan and place his hands on the ground to be patted down for weapons. The pat-down did not produce a weapon.
While Szymanski pulled defendant from the minivan, Olszewski moved around to the passenger side of the minivan. During the pat-down, Olszewski exclaimed, "There's a gun," and he instructed Szymanski to handcuff defendant. Olszewski removed the gun, which was a loaded, black .32 caliber Baretta Tomcat, from the minivan for safety reasons. Olszewski found the gun on the floor of the minivan "right where [defendant] was sitting." The other four occupants were then removed from the vehicle, handcuffed for the officers' safety, and identified. None but defendant matched the descrip¬tion given by the anonymous tipster. After defendant was arrested, another officer searched his person and seized a clip that fit the gun and a holster into which the gun fit. The vehicle was impounded for failure to inspect and make repairs, for which Summons #204486 was issued, and Summons #204487 was issued charging the operator with double-parking the minivan.
After argument on the motion, the judge placed his decision on the record. The judge found Szymanski to be a credible wit¬ness and concluded that, because of the anonymous tip, he had a safety concern for himself and his fellow officers. The judge found that the gun was in plain view and that, after defendant was placed under arrest, the clip and holster were found by a search incident to the arrest. He found that the elements of the tip were confirmed by defendant's attire, the gun, and the location of the minivan and that the circumstances of the individu¬als outside the minivan and the movement of the occupants in the minivan were suspicious given the early morning hour.
The judge concluded that the motor vehicle stop served to distinguish this case from the facts of Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), and found that the search and seizure were, thus, not unreasonable. Cit¬ing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the judge determined that the suspicious activity observed by the officers justified a search for weapons. Additionally, he concluded that a police officer making a traf¬fic stop could order the driver and passengers to exit the vehi¬cle under Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1997), and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997). He determined that the search and seizure were reasonable and that, after the stop, the additional intrusion of instructing defendant to exit the minivan was minimal. He then concluded as follows:
Accordingly, the [c]ourt finds that [defen¬dant] was ordered out of the minivan after a valid investigatory stop of the minivan had taken place. For the reasons I've enumer¬ated, once that happens, we have a plain view of the gun in question which falls within [a] recognized exception to the general warrant requirement to be admissible. Katz v. United States, 389 U.S. 347[, 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967)], State v. George, 257 N.J. Super. 493 [(App. Div. 1992)]. And from there we have . . . there¬after the arrest of the defendant and the search incident to the arrest where the additional paraphernalia connected to this gun are found. Based upon the foregoing, defendant's motion is denied.

Defendant raises the following issue for our consideration:
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED WHERE POLICE SPECIFICALLY STOPPED AND SEARCHED APPELLANT WITHOUT PROB¬ABLE CAUSE, CONTRARY TO [THE] HOLDINGS OF MATTHEWS,[ ] CARSTARPHEN[ ] AND J.L.

The scope of our review is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclu¬sions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could rea¬sonably have been reached on sufficient credible evidence pre¬sent in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwar¬ranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (citations omitted).
However,
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990).

[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]

The Fourth Amendment of the United States Constitution pro¬vides that "[t]he right of the people to be secure in their per¬sons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend. IV; see also N.J. Const. art. 1, ¶ 7; State v. Maristany, 133 N.J. 299, 304 (1993). "[S]earch warrants are strongly favored under the Federal and [New Jersey] constitutions," State v. Malik, 221 N.J. Super. 114, 118 (App. Div. 1987), and we may not lightly dispense with "'[t]he requirement that a search war¬rant be obtained before evidence may be seized,'" State v. Cooke, 163 N.J. 657, 664 (2000) (quoting State v. Alston, 88 N.J. 211, 230 (1981)). In fact, "[a] warrantless search is pre¬sumed invalid unless" the State can establish that the search fell "within one of the recognized exceptions to the warrant requirement." Ibid. (emphasis added); see also State v. Wilson, 178 N.J. 7, 12 (2003). It may only be found valid if "'it falls within one of the recognized exceptions to the warrant require¬ment.'" State v. Moore, 181 N.J. 40, 44 (2004) (quoting Cooke, supra, 163 N.J. at 664). In that case, "[t]he State, as the party seeking to validate the warrantless search, 'has the burden of proving the validity of the search.'" Id. at 44-45 (quoting State v. Maryland, 167 N.J. 471, 489 (2001)).
Not all warrantless searches and seizures are constitution¬ally unreasonable. Our Supreme Court in State v. Hill, 115 N.J. 169, 173-74 (1989), enumerated eleven exceptions to the require¬ment of a warrant before searching or seizing an item or a per¬son, including community caretaking, Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); plain view, Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); searches incident to arrest, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); and evolving principles relating to automo¬bile searches, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925).
A law enforcement officer may conduct a field investigation under Terry when the officer has an objective, articulable, and reasonable basis to believe the subject was armed and dangerous, Roach, supra, 172 N.J. at 27, "so long as the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 131 (1973). In Terry, the Court held that "a police officer may in appropriate circumstances . . . approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest," Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 908, and may conduct a reasonable search for weapons if he is "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," id. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908.
"[T]he level of reasonable suspicion necessary to justify an investigatory stop is 'something less than the probable cause standard needed to support an arrest.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)). "There must be 'some objective manifestation that the suspect was or is involved in criminal activity.'" Ibid. (cita¬tions omitted). In evaluating the factual basis for such a suspicion, courts are to give weight to "the officer's knowledge and experience" as well as "rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." Id. at 10. This evalua¬tion depends on the totality of the circumstances known by the officer at the time, State v. Stovall, 170 N.J. 346, 361 (2002), and requires the court to "'balanc[e] the State's interest in effective law enforcement against the individual's right to be free from unwarranted and/or overbearing police intrusions.'" State v. Caldwell, 158 N.J. 452, 459 (1999) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
An anonymous tip should be considered as one factor in this evaluation because "a descriptive tip by an informant may con¬tribute to a reasonable objective and particularized suspicion to serve as the basis for an investigatory stop." Stovall, supra, 170 N.J. at 361. However, an "anonymous tip standing alone cannot justify a Terry stop." State v. Richards, 351 N.J. Super. 289, 303 (App. Div. 2002).
In J.L., as here, "the officers' suspicion that J.L. was car¬rying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller." J.L., supra, 529 U.S. at 270, 120 S. Ct. at 1378, 146 L. Ed. 2d at 260. The tip did not demonstrate that the caller was honest or reliable as it was a mere anonymous report of "a young black male standing at a particular bus stop and wearing a plaid shirt . . . carrying a gun." Id. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 258-59. The Court acknowledged that its juris¬prudence has permitted officers to act upon anonymous tips, "suitably corroborated," where the tip "exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Ibid. (citing Alabama v. White, 496 U.S. 325, 327, 110 S. Ct. 2412, 2414, 110 L. Ed. 2d 301, 306 (1990) (where police surveillance corroborated the tipster's accurate prediction of the suspect's future behavior)). It characterized White as "a close case" and concluded:
The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibil¬ity. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J. L. of engaging in unlawful conduct: The reason¬ableness of official suspicion must be meas¬ured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who nei¬ther explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.

[Id. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260-61.]

In Richards, the police received an anonymous telephone call reporting "'that three black males' were involved in 'nar¬cotics transactions' [and] that 'two . . . were standing in front of 15 [Martin Luther King Avenue],' and 'a third male . . . was on the pay phone at Number 60 Abbett Avenue,' [and] one of the men was 'supposedly car[ry]ing a .22 caliber handgun.'" Richards, supra, 351 N.J. Super. at 294. No physical descriptions were given and no information concerning the informant was conveyed by the dispatcher to the arresting officer. Ibid.
The officers went to 60 Abbett Avenue and observed a black male using the pay phone. Id. at 295. Neither of the officers recognized defendant from any prior encounters. Ibid. They advised the man of the report they had received; defendant did not react or make any furtive gestures. Id. at 296. They asked him for identifica¬tion, but he did not respond. Ibid. They instructed him to go to the police car and put his hands on the hood of the car so they could conduct a pat-down of his outer clothing. Ibid. When he started to put his hand in his pocket, an officer took hold of his arm and instructed him to keep his hands in plain view. Ibid.
When they reached the police car and the officer released defendant's arm, he again reached for his pocket, which alarmed the officer that he might be trying to get a gun. Ibid. At that point, defendant began to loudly pro¬test and continued to do so despite the officer's instructions to lower his voice or face arrest for disorderly conduct. Ibid. The police then advised him that he was under arrest and he again began to reach for his pocket. Ibid. He was then handcuffed, searched, and found in possession of cocaine and mari¬juana. Id. at 297. We observed that "[d]efendant was sim¬ply a man talking on a public telephone late at night who was approached by a police officer on an anonymous tip containing no descriptive content given by a person with no track record as an informant" and concluded that the anonymous tip, alone, could not justify the Terry stop in question. Id. at 303.
Had defendant here been standing on the corner of Jefferson and Oakland, the tip alone would not support a Terry stop. Defendant's black jacket and bandanna were not more descriptive than J.L.'s plaid shirt. There was no predictive content to the tip; no basis for the tipster's knowledge; and no track record for the tipster's veracity. But that is not what happened here. Rather, when the police arrived on the scene at 97 Jefferson Avenue, they observed a minivan stopped in the roadway, which created a reasonable and justifiable suspicion of a violation of N.J.S.A. 39:4-138, prohibiting the operator of a vehicle from standing the vehicle "[o]n the roadway side of any vehicle stopped or parked at the edge or curb of a street." Thus, the investigatory stop of the vehicle was proper under Terry. State v. Cerefice, 335 N.J. Super. 374, 384 n.4 (App. Div. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); Locurto, supra, 157 N.J. at 470; State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Indeed, because the police observed the motor vehicle violation, they had probable cause to stop the vehicle and cite the driver. See, e.g., Smith, supra, 306 N.J. Super. at 380.
As a consequence, we must determine whether the police action in opening the minivan's door and removing defendant from the minivan was constitutional. "Under ordinary circumstances, '[w]hen the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by the police for additional questioning.'" State v. Chapman, 332 N.J. Super. 452, 463 (App. Div. 2000) (quoting United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993) (internal quotation and citation omitted). Neither may the police ask the passengers for identification, remove them from the vehicle, or frisk them without any reasonable grounds to suspect criminal activity. Hornberger v. Am. Broad. Cos., 351 N.J. Super. 577, 614 (App. Div. 2002).
Squarely on point is State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989). In Woodson, the defendant was stopped by two State Troopers on the New Jersey Turnpike after his automobile was clocked at seventy m.p.h. Id. at 538. Trooper McHugh approached the defendant's automobile and, without any preliminary attempt to communicate with the two occupants, opened the passenger-side door to speak with the defendant driver. Id. at 539. When he opened the door, an open can of beer, "which had been resting between the front seat and the passenger's door," fell out of the car. Ibid. Because the open can of beer constituted a violation of N.J.S.A. 39:4-51a, Trooper McHugh conducted a search of the interior compartment of the car. Ibid. During the search, he found a clear plastic bag that he reasonably believed to contain marijuana. Ibid. He then ordered the passenger and the defendant out of the car and conducted a more thorough search, which revealed more controlled dangerous substances. Ibid.
During the suppression hearing, the trial judge found, contrary to the State's assertions, that "the opening of the car door constituted a warrantless search which did not come within any of the recognized exceptions to the rule requiring the suppression of evidence seized during the course of such a search." Ibid. (citing State v. Ercolano, 79 N.J. 25, 42 (1979); State v. DeLorenzo, 166 N.J. Super. 483, 487-88 (App. Div. 1979)). On appeal, the State argued that "the difference between ordering occupants out of a car on the one hand and opening a car door on the other is meaningless and should not control the outcome of this appeal." Id. at 540. We disagreed.
As we explained in Woodson, "[t]here is a significant difference between ordering one out of a car and opening a car door without warning." Ibid. Ordering an occupant out of the car gives the occupant an opportunity to safeguard from public view that as to which he has a real privacy interest. Ibid. Conversely, "[s]uddenly opening a car door is unconstitutionally intrusive because the police officer thereby surprises the occupant when the latter is entitled to consider his private affairs secure from outside scrutiny." Id. at 540-41. We concluded that the "plain view" exception to the search warrant requirement was inapplicable because it applies "only where the officer is lawfully in the viewing area" and the evidence was inadvertently discovered. Id. at 541.
Here, the officers expressed concern for their safety as a basis for ordering defendant to step out of the minivan, but the totality of the circumstances does not suggest any basis for such a concern. Although they saw the occupants of the vehicle moving about, they did not testify that their movements were furtive. They did not testify to any conversation with the driver or any occupant of the minivan, and thus had no cause for concern based on anything the occupants of the vehicle said to them, unlike State v. Baum, 393 N.J. Super. 275, 287-88 (App. Div.), certif. dismissed, 192 N.J. 473 (2007). Indeed, they did not even speak to the driver before opening the right rear door and ordering defendant out of the minivan. They also did not testify that the individuals outside the vehicle did or said anything to cause them to fear for their safety. Thus, the only basis they articulated for their safety concerns was the anonymous tip.
We examine the expressed concern for the officers' safety from the perspective of a reasonable police officer in the particular circumstances. State v. Daniels, 264 N.J. Super. 161, 165 (App. Div. 1993) (citing State v. Lund, 119 N.J. 35, 37, 45 (1990)). "The test is 'whether a reasonably prudent police officer in the circumstances presented would be warranted in the belief that his safety was in danger.'" State v. Johnson, 274 N.J. Super. 137, 154 (App. Div.) (quoting State v. Kennedy, 134 N.J. Super. 454, 458 (App. Div. 1975)), certif. denied, 138 N.J. 265 (1994). In evaluating the officers' concern for their safety, we must give weight to both an officer's knowledge and experience and "'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" Cald¬well, supra, 158 N.J. at 461 (quoting Arthur, supra, 149 N.J. at 10-11). Thus, we must determine whether the officers' belief that defendant was armed and dangerous was reasonable in the circumstances. State v. Garland, 270 N.J. Super. 31, 42 (App. Div.), certif. denied, 136 N.J. 296 (1994).
In this case, we are satisfied that the officers' safety concern was not reasonable because it was based solely on the anonymous tip that, standing alone, could not even justify a Terry stop, much less justify a sudden and intrusive opening of the door and an instruction to step out of the vehicle. Had the door not been opened and defendant not been ordered out of the minivan, the gun would not have been in plain view and, thus, no other exception to the requirement for a warrant existed in this case. The evidence seized from the minivan and from defendant's person should have been suppressed under Wong Sun.
Reversed and remanded for proceedings consistent with this opinion.

Richard Sadowski
Assistant Editor

02-05-09 STATE v. STAMOS A-2547-07T4

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2547-07T4

STATE OF NEW JERSEY,
Plaintiff-Respondent,

v.

ANTONIOS STAMOS,
Defendant-Appellant,
________________________________

Argued January 12, 2009 – Decided February 5, 2009

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 57-07.

Antonios Stamos, appellant, argued the cause pro se.

Rebecca Berger, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Berger, of counsel and on the brief).

PER CURIAM

Defendant Antonios Stamos appeals from a Law Division order dated December 10, 2007, finding him guilty of a traffic offense, on a de novo appeal from the municipal court, and finding him guilty of contempt of court. We reverse.

I

Defendant was originally ticketed on August 26, 2006, at approximately 10:30 p.m., for creating a risk of an accident, N.J.S.A. 39:4-56. He was convicted of that offense in municipal court. However, on his Law Division appeal, defendant was convicted of making an illegal U-turn, N.J.S.A. 39:4-125. The municipal court also fined defendant $150 for what it characterized as "contempt of court," a penalty also imposed by the Law Division on defendant's appeal.
The original traffic ticket advised defendant of a September 12, 2006 court date. On August 28, 2006, defendant submitted a written adjournment request due to his college schedule and asked for a Friday hearing. The Municipal court clerk wrote back to defendant on September 11, 2006, explaining that court only met on Tuesdays and asking defendant to contact the court to obtain a new hearing date. However, on September 22, 2006, the court sent defendant a notice for failure to appear. Defendant responded on October 19, 2006, indicating that he was still waiting for a new trial date. The trial was rescheduled for November 28, 2006. By letter dated October 27, 2006, defendant announced that "I am adjourning the above case" until the court allowed him to depose Trooper James Dolan, the officer who had ticketed him, and until the court responded to several additional requests.
The hearing was later rescheduled to January 9, 2007. On January 8, 2007, defendant faxed the court a letter confirming an earlier conversation with "Chris" at the clerk's office, that defendant was requesting an adjournment because he was ill. He sent a follow-up letter on January 12, 2007. However, on January 22, 2007, the court issued defendant a notice that an arrest warrant had been issued for contempt of court as the result of an unanswered traffic summons. On January 23, 2007, defendant faxed the court a long letter explaining why he had not appeared and asking that the warrant be recalled. He also filed an appeal to the Law Division from the issuance of the warrant.
The court hearing was rescheduled to March 6, 2007. It was sent to defendant with a letter from the municipal court administrator advising that the warrant had been recalled but defendant must appear on March 6. Although the State has provided us with an illegible copy, there seems no dispute that when defendant did not appear on March 6, another warrant issued on March 7, 2007. On March 28, 2007, defendant sent the court a letter advising that he "did not forget about the pending traffic case" and "I am temporarily adjourning this case" because he was attending college and had not yet received a decision on his earlier appeal to the Law Division.
The municipal trial finally took place on June 26, 2007. Trooper James Dolan testified that on August 26, 2006, he was on routine patrol in Bordentown. He was traveling behind a silver Acura on Route 130 southbound. Both vehicles stopped for a red light at the intersection of Route 130 and Crosswicks Avenue. Trooper Dolan saw the Acura turn right onto Crosswicks and "make an illegal U-turn in order to catch the green light to go up to 130 northbound instead of going around the jug-handle, which is what you needed to do." Dolan stopped the Acura, which defendant was driving. After explaining the offense to defendant and observing that defendant's car had New York plates, Dolan "figured he may be unfamiliar with the area." Defendant also indicated that he did not know what he had done wrong. Dolan therefore decided to give defendant "a break" by citing him for creating a risk of an accident, a "no-point violation," instead of for making an illegal U-turn, which was a "two-point violation."
According to Dolan, there were no other vehicles traveling on the roadway at the time. He testified that there was a "jughandle" available about fifty feet after the traffic light at Crosswicks, and that defendant should have used the jughandle instead of turning right onto Crosswicks, making an immediate U-turn in the roadway, and proceeding through the green light to make a left turn onto Route 130 northbound. Although Dolan testified that defendant made a right turn while the light was red, he agreed this was lawful, and he only stopped defendant after observing him making the U-turn on Crosswicks. On cross-examination, Dolan clarified that he stopped defendant's car after defendant had turned left at the light from Crosswicks onto Route 130 northbound. Dolan "noticed that there was no oncoming traffic coming from northbound or coming out of Crosswicks and I made a U-turn to . . . pull [defendant] over."
Dolan also admitted that there was no solid double yellow line on Crosswicks where defendant made his U-turn. The weather was dry and clear, the street lighting was good, and the officer did not see any "no U-turns" signs on Crosswicks Avenue. The municipal judge precluded defendant from asking Dolan whether there were any signs on Route 130 advising drivers of an upcoming jughandle or a legal U-turn opportunity beyond the intersection, and the State presented no evidence of such a sign. Nor did Dolan present any testimony as to how defendant's U-turn created a risk of an accident, in the apparent absence of other traffic on Crosswicks Avenue.
Defendant, who was representing himself, testified that he and his fiancé were "lost and . . . were just driving around to find a hotel or motel room." They saw a motel across the street on northbound Route 130 and decided to stop there. He turned right at the light at Crosswicks and drove to where the "double yellow line broke" before turning around. Defendant observed that "[t]here [were] no vehicles around." He "pulled far to the right side of the road, waited for a couple of seconds, looked, no vehicle was behind, coming, whatsoever. I made what's called a three-point K-turn." When the light turned green, he turned left onto Route 130 northbound.
Defendant testified that the next day he returned to the scene and took pictures of the roadway to document that there was "no sign indicating where or when you can make a legal U-turn." The judge sustained the State's objection to the pictures on the grounds that they were irrelevant to the charge of creating a risk, and defendant "didn't get cited for [an] illegal U-turn." Defendant's fiancé, Maritza Couto, gave testimony consistent with that of defendant.
The municipal judge made the following findings:
The officer indicates he was . . . on routine patrol . . . [in] the vicinity of Route 130 and Crosswicks. He indicated he noted the operation of a vehicle. He noticed that there was, in fact, a turn onto Crosswicks with an accompanying U-turn. He noted that there was, in fact, a jug-handle available to, in fact, effect a U-turn which was approximately 50 feet away.

He indicated that the defendant probably should've used a jug-handle. He indicates after . . . his view of what he perceived to be an illegal U-turn, he did, in fact, follow the vehicle, activate the overheads, and he stopped the defendant in a parking lot [off] of Route 130 northbound at approximately 10:30. . . .

He indicated that the traffic was real light on that date, and he . . . observed that there was . . . a New York registered vehicle with a New York license. It appeared that the defendant may have, in fact, been lost. He indicated that he felt there was sufficient grounds to issue a ticket for an illegal U-turn, but instead he used his professional discretion to issue a ticket of a lesser magnitude, not that a ticket for an illegal U-turn would constitute in and of itself a consequence of magnitude . . . but he did, in fact . . . write a ticket for creating a risk of an accident, creating a risk of a hazard due to the operation of a vehicle for which he cited the defendant under 39:4-56.

The passenger indicates . . . that a three-point K-turn was made. And that's what Mr. Stamos indicated that he did, as well.

I'm satisfied that the trooper was in a good position to observe the Stamos vehicle. He noticed a vehicle late a night on a sparsely traveled roadway at that time. They did . . . make a right on red, which was permitted there.
He also indicated in his position to observe, that the Stamos vehicle did . . . then make a U-turn which maneuvered for risk in traffic could've been just as successfully accomplished by using the jug-handle which was only approximately 50 feet further up the road.

That being the case, the officer . . . wrote him the less invasive ticket using his professional discretion, creating a risk of an accident. . . .

For all the above reasons, I render my decision as a finding of guilty.

The judge imposed a fifty-six dollar fine, and court costs of thirty-three dollars. The judge also imposed "[a] hundred and fifty dollars for contempt for your prior failure to appear." The judge refused to hear any oral argument or testimony from defendant with respect to the contempt issue.
Defendant's appeal to the Law Division was heard on December 10, 2007. The judge explained to defendant that "if I find you guilty of some motor vehicle offense, it doesn't have to be the one with which you were charged." Defendant argued that the municipal court erred in refusing to allow him to introduce in evidence his photographs showing that at the time of the incident, there were no signs alerting motorists to the upcoming jughandle. The Law Division judge also refused to consider the proffered evidence. Defendant also contended that there were mitigating circumstances that should be reviewed with respect to the fine for contempt of court.
The State argued that defendant's exhibits demonstrated that he "chose, on several dates, not to come to court." The prosecutor candidly admitted that "I will say, whether there are . . . substantial enough proofs before this Court for . . . the risk of causing an accident, I'm not sure that charge was proved beyond a reasonable doubt." She then argued that the court had authority to "amend" the charge to making an illegal U-turn. She argued that the State proved the U-turn charge because "[i]t's undisputed that a red light was made on a road with one lane of travel each way. And that's not permissible circumstances . . . for making a [U]-turn on a public highway."
In response to the contempt of court charge, defendant contended that he did not receive some of the court notices. He also contended that he did not receive a speedy trial.
In his decision the Law Division judge concluded that Dolan was a credible witness and that he did not, as defendant contended, misidentify defendant's car. He also concluded that the photographs were "not relevant to the issue before the Court." He found as fact that defendant "did a k-turn" on Crosswicks in order to accomplish his objective of turning onto northbound Route 130. Addressing the defendant, the judge found
you made the right turn on Crosswicks and then executed a k-turn . . . where you shouldn't have and you could have continued down that road, probably an unknown distance, made a legal turn, but did not. The fact that there was no road sign telling you how to get from southbound to northbound Route 130, frankly, I don't see how that, in any way, is helpful to your case.

The judge continued:
Interestingly [the prosecutor] does make a compelling argument that there may not be enough evidence to convict you of the ticket which you actually received. I am, however, authorized to find you guilty if I find the facts sufficient of making an illegal u-turn. Candidly, I'm satisfied that those facts do exist. I'm satisfied that in the presence of the credible officer, you . . . executed a k-turn in an area where it was prohibited so that you could get back onto Route 130 northbound and that carries with it probably economic penalties in about the same range that you were assessed.

The judge accepted the prosecutor's argument that although the illegal U-turn conviction carried motor vehicles points, that was a collateral consequence, and he found defendant guilty of making an illegal U-turn. Defendant, in argument after the court's finding, insisted that "the double yellow line was broken. . . . five to ten feet from the intersection." The judge responded that he was glad defendant was "not testifying" because he would not find that assertion credible.
The Law Division imposed the same fines as did the municipal judge. He concluded, without further discussion, that "the circumstances do warrant me to find Mr. Stamos guilty of the contempt of court charge" for which he imposed a $150 fine.
II
On this appeal defendant, who is pro se, contends that he was unfairly denied an adjournment resulting in sanctions for contempt when he had valid reasons for failing to appear; that he was improperly denied discovery; and that he was erroneously barred from introducing photographs in evidence. In response, the State contends that the court's discovery and evidence rulings were correct and that there was sufficient credible evidence to support the conviction and the finding of contempt of court.
Turning first to defendant's conviction for making an improper U-turn, we conclude that the record requires reversal. On an appeal from the municipal court, the Law Division makes a de novo determination based on the record made in the municipal court, "giving due, although not necessarily controlling, regard" to the credibility findings of the municipal judge. State v. Johnson, 42 N.J. 146, 157 (1964). In reviewing the determination of the Law Division, we must defer to that court's findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470 (1999); Johnson, supra, 42 N.J. at 162.
We will only disturb the Law Division's findings if they are clearly erroneous, either because they are not supported by sufficient evidence or because they are inconsistent with applicable law:
But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others.

[Johnson, supra, 42 N.J. at 162 (citations omitted).]


In this case, we conclude that the evidence cannot support defendant's conviction for making an improper U-turn. The applicable statute provides:
The driver of a vehicle shall not turn such vehicle around so as to proceed in the opposite direction upon any curve or upon the approach to or near the crest of a grade or at any place upon a highway as defined in R.S. 39:1-1 where the view of such vehicle is obstructed within a distance of 500 feet along the highway in either direction; and no such vehicle shall be turned around so as to proceed in the opposite direction on a highway which shall be conspicuously marked with signs stating "no U turn."

[N.J.S.A. 39:4-125.]

Having reviewed the record, we are satisfied that it will not support a conviction for this offense. There is simply no evidence that defendant committed any of the acts prohibited by section 125. Defendant, an out-of-state motorist traveling on Route 130 southbound and apparently unfamiliar with New Jersey's "jug-handle turn" approach to the making of U or left turns on major highways, turned right onto a side street and then made a K-turn in order to reach the traffic light where he could make a legal left turn onto Route 130 northbound. There is no proof that defendant made his K-turn on a curve, near the crest of a grade, or at a place where his view was obstructed within 500 feet along the roadway. Nor did the State present any proof that Crosswicks Avenue was posted with any signs prohibiting the making of a U-turn. Consequently, defendant's conviction must be reversed.
Although the evidence cannot support defendant's conviction, we also comment on the impropriety of the State's effort in this case to convict defendant in the Law Division of an offense with which he was not charged in municipal court. State v. Kashi, 180 N.J. 45 (2004), on which the State relies, does not stand for the proposition that a defendant may be convicted by the Law Division of an entirely different offense than the one charged in the municipal court. Rather, the Court held that a DUI charge could be proven with breathalyzer evidence in municipal court or with the observations of a police officer in the Law Division: "[W]e agree with the Appellate Division that N.J.S.A. 39:4-50(a) creates one offense that may be proved by alternative evidential methods." Id. at 48 (emphasis added).
Likewise, the State's reliance on State v. DeBonis, 58 N.J. 182 (1971), is misplaced. In that case, the Court held that on a municipal appeal, the Law Division may not impose a greater penalty than that imposed by the municipal court:
[A]s a matter of policy and apart from constitutional compulsion, a defendant who appeals from a municipal court should not risk a greater sentence. . . . [T]he need remains to afford the litigant, frequently a stranger to the locality, the opportunity to seek a redetermination by a court at a higher level without the risk of a larger penalty.

[Id. at 188-89.]

The facts of this case further illustrate the unfairness inherent in trying defendant on a charge of making an illegal U-turn when he was convicted of a different offense, creating a risk of an accident, N.J.S.A. 39:4-56, in the municipal court. Section 56 provides: "No person shall drive or conduct a vehicle in such condition, so constructed or so loaded, as to be likely to cause delay in traffic or accident to man, beast or property." The State candidly conceded in the Law Division that there was insufficient evidence to support defendant's conviction of this offense. That was an understatement; there was absolutely no evidence to support a conclusion that defendant created a risk of an accident, and the Law Division appeal should have ended there, with an acquittal.
However, after conceding it had insufficient evidence to support the municipal court conviction, the State insisted on proceeding against defendant on a charge of making an illegal U-turn. Not only did the State lack record evidence to support the charge, but the municipal court had precluded defendant from presenting a defense to making an illegal U-turn, because he was not then accused of that offense. In addition to lacking record support for the conviction, the resulting Law Division proceeding was a clear violation of due process.
We turn next to defendant's conviction for contempt of court. This conviction, as to which the municipal judge did not permit defendant to present a defense and as to which the Law Division judge made no findings, was based on defendant's failure to appear for his scheduled municipal court trial. Although we have recognized a court's power to charge a defendant with contempt in some circumstances for failure to appear, we have also noted that imposition of civil sanctions under Rule 1:2-4 may be more appropriate: "While defendant was subjected to no greater sanction than would have been appropriate under R. 1:2-4 for failure to appear, we are persuaded that the best practice would have been to proceed under this administrative rule, rather than direct contempt." State v. Kordower, 229 N.J. Super. 566, 585 (App. Div. 1989). More importantly, the proceeding here in no way conformed to the requirements of Rule 1:10-2 concerning the adjudication of a charge of contempt of court, and defendant was not even permitted to present a defense to the charge in the municipal court. See State v. Quintana, 270 N.J. Super. 676, 684-85 (App. Div. 1994).
Further, while defendant should understand that he had no authority to "adjourn" any of his scheduled hearings without the court's permission, the imposition of a $150 sanction in these circumstances would be unjustified. Defendant was required to travel at least twice to Burlington County from his home in Yonkers, New York, to answer charges for which there was insufficient evidence. Although some of his letters to the court were disrespectful, whether or not defendant intended them to be, we reverse the contempt conviction, vacate the $150 fine, and conclude that no monetary civil sanction is warranted. See Quintana, supra, 270 N.J. Super. at 686; R. 2:10-5.
Reversed.

Richard Sadowski
Assistant Editor

05-04-09 State v. Coder A-28-08

State v. Terry W. Coder (A-28-08)

Argued February 17, 2009 -- Decided May 4, 2009

RIVERA-SOTO, J., writing for a unanimous Court.

In this criminal action involving claims of sexual assault on a three-year-old child, the Court determines whether the child’s out-of-court statements, as testified to by her mother, were admissible at trial.

Defendant Terry Coder was the superintendent of the apartment building in which the victim, Joyce, lived. On August 28, 2001, when Joyce was three years old, Coder invited her and her friend, eleven-year-old Susan, into the basement of the apartment building. There, Coder pulled his pants and Joyce’s pants down and sexually touched her. Witnessing this, Susan ran out of the basement and straight to Joyce’s apartment, where she told Joyce’s mother, Denise, what had happened and that Joyce was still in the basement. Denise went to get Joyce and found her climbing the stairs. After examining Joyce, Denise found no obvious injuries. Denise asked Joyce if anything hurt, and Joyce pointed to her vagina and buttocks. Denise called police and, while waiting for their arrival, Joyce again pointed to her vagina and said, “Mommy, he touched me.”

An indictment charged Coder with crimes that included assault, lewdness, and endangering the welfare of a child. The court conducted a hearing to address the admissibility at trial of Denise’s testimony concerning what Joyce told her on the day of the assault. After Denise testified about Joyce’s statements, Joyce was called to the stand. In response to the court’s questions, Joyce denied remembering the incident, and shook her head “no” when asked questions such as whether there were places on her body that no one was supposed to touch or whether she had ever been in the basement with Susan. Defense counsel waived cross-examination and did not object to the admission of Joyce’s hearsay statements at trial. Applying the tender years exception to the hearsay rule, the court found that Joyce was available to testify and that her failure to recall was a factor that went to the “totality of the circumstances.” In sum, the court ruled that it would permit Denise to testify at trial about Joyce’s statements.

After Denise testified at trial concerning the statements Joyce had made on the day of the assault, the trial court explained to the jury that a hearing had taken place at which Joyce was unable to recall the incident and therefore she would not be testifying. The jury found Coder guilty of second-degree assault with a minor, second-degree attempt to commit sexual assault, fourth-degree lewdness, and third-degree endangering the welfare of a child. Coder was sentenced to eleven years imprisonment with a minimum of seventy-one months to be served without parole.

On appeal, Coder argued, in part, that because Joyce did not testify at trial, the admission of her out-of-court statements violated the Confrontation Clause. In an unpublished decision, the Appellate Division affirmed Coder’s convictions and sentence. The panel disagreed with the trial court’s finding that Joyce was available to testify, explaining that even though she was physically present, her responses had indicated that any cross-examination would be fruitless. After finding that Joyce was “unavailable” for Confrontation Clause purposes, the panel concluded that Joyce’s statements to her mother were not testimonial because the statements were made before police involvement, shortly after the incident when the child was frightened, and there was no indication that Denise was asking the child questions in the hopes of obtaining evidence for a future prosecution against Coder. The panel found, therefore, that Coder’s Confrontation Clause rights were not violated.

HELD: In defendant’s criminal trial on charges of sexual assault on a minor, the out-of-court statements by the victim—a three-year-old child—as testified to by her mother, were properly admitted because the statements were relevant and admissible under the tender years exception to the hearsay rule. Additionally, because the child’s statements were not testimonial, they did not implicate the defendant’s Confrontation Clause rights.

1. Under New Jersey’s Rules of Evidence, relevant evidence is admissible at trial with certain exceptions. Joyce’s out-of-court statements to her mother constituted relevant evidence that was not otherwise subject to a relevance bar. The Court turns, therefore, to the question whether Joyce’s out-of-court statements were not admissible because they were hearsay. N.J.R.E. 801(c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Joyce’s out-of-court statements spoke to the core matter asserted; that is, whether Coder had assaulted and endangered her. As a result, the statements were hearsay and the admissibility of those statements through her mother’s testimony at trial hinges on whether an exception to the hearsay rule applies. (Pp. 13-15).

2. Joyce’s statements were offered at trial through her mother under the “tender years” exception to the hearsay rule. The tender years exception, N.J.R.E. 803(c)(27), consists of three component parts. The first requires that the proponent of a hearsay statement of a child sexual abuse victim provide advance notice of the statement “at such time as to provide the adverse party with a fair opportunity to meet it.” There was no question that the State provided Coder ample notice that Joyce’s hearsay statements would be offered at trial. Second, the exception requires that the trial court conduct a hearing and determine the trustworthiness of the statements. Here, the trial court conducted the hearing and, on the basis of the time, content and circumstances of the statement, found that the statements were trustworthy. Coder has not made a serious challenge against the trial court’s determinations on either of these points. At issue is the final component, which requires either that the child testify or that the child is unavailable as a witness and admissible evidence corroborates the act of sexual abuse. (Pp. 15-18).

3. The hearing transcript demonstrates that Joyce did not recall the events that occurred when she was three. The trial court’s conclusion that Joyce was “available to testify” was not correct. In part, N.J.R.E. 804(a) defines unavailability as including a lack of memory of the subject matter of the statement. Joyce’s inability to testify at the hearing concerning the events of August 28, 2001, rendered her “unavailable.” The tender years exception provides, however, that if the child-witness is unavailable, hearsay statements may be admissible if there is offered admissible evidence corroborating the sexual abuse. In this case, Susan testified to having witnessed Coder pulling down his pants and Joyce’s pants and sexually touching Joyce. Because Joyce’s hearsay statements satisfied all three prongs of the tender years exception, the trial court did not abuse its discretion in admitting those statements through Joyce’s mother. (Pp. 18-21).

4. Because Joyce was unavailable to testify at trial, the Court determines also whether the admission of her hearsay statements violated Coder’s Confrontation Clause rights. The Confrontation Clause commands that the reliability of evidence be tested through cross-examination. However, only testimonial statements trigger Confrontation Clause rights. In a previous case, the Court ruled that a child’s statement was not testimonial because it did not bear the indicia of a formal statement to government officers, but instead was akin to a casual remark to an acquaintance. The Court finds that the same result applies here. Because Joyce’s hearsay statements lack any indicia that they resulted from law enforcement efforts to establish or prove past events potentially relevant to later criminal prosecution, Joyce’s statements to her mother were nontestimonial and, therefore, Coder’s Confrontation Clause rights were not compromised by the admission of the statements into evidence. (Pp. 21-23).

5. Joyce’s out-of-court statements, testified to by her mother, were relevant, their probative value was not outweighed by their prejudicial effect, they were not subject to a relevance or privilege bar, they were hearsay but were admissible under the tender years exception, and they were not testimonial and, thus, did not implicate Coder’s Confrontation Clause rights. (P. 23-24).

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO’s opinion.


SUPREME COURT OF NEW JERSEY
A-28 September Term 2008


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY W. CODER,

Defendant-Appellant.


Argued February 17, 2009 – Decided May 4, 2009

On certification to the Superior Court, Appellate Division.

Kevin G. Byrnes, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Patricia B. Quelch, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney).

Johanna Barba Jones, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Anne Milgram, Attorney General, attorney).


JUSTICE RIVERA-SOTO delivered the opinion of the Court.
This appeal focuses on the tension between evidence admitted under an exception to the hearsay rule and the Confrontation Clause concerns initially highlighted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), as explained and amplified in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), and as interpreted and applied in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), State v. Buda, 195 N.J. 278 (2008), and State in the Interest of J.A., 195 N.J. 324 (2008). Following the roadmap outlined in N.J.R.E. 803(c)(27), both the trial court and the Appellate Division ruled that the out-of-court statements of sexual assault made by a three-year-old girl to her mother, although hearsay, were admissible under the “tender years” exception to the hearsay rule, and that the admission of those hearsay statements did not run afoul of the Confrontation Clause.
Once a trial court determines that a hearsay statement made by an unavailable declarant is admissible under an exception to the hearsay rule, an additional task remains: the determination of whether the otherwise admissible hearsay statement nonetheless is barred under the Confrontation Clause, that is, whether the statement is testimonial. Our application of that paradigm in this case leads us to hold that the three-year-old’s hearsay statements were admitted properly. We therefore affirm the Appellate Division’s judgment.
I.
The relevant facts require little explanation. Defendant Terry Coder was the superintendent of the apartment building in which Joyce, a three-year-old child, lived. On August 28, 2001, defendant invited Joyce and her friend, eleven-year-old Susan, into the basement of the apartment building, purportedly to see different colored pieces of wood. Because defendant was known to both girls and Susan previously had been in the basement with defendant to see defendant’s model train set, they agreed and followed defendant into the basement. While there, defendant pulled his pants and Joyce’s pants down, and sexually touched Joyce. Witnessing this, Susan tried to grab Joyce and leave; defendant prevented their escape by holding on to Joyce. Susan, telling defendant she had to use the bathroom, ran out of the basement and straight to Joyce’s apartment, where she told Denise, Joyce’s mother, what had happened and that Joyce was still in the basement.
Denise went to get her daughter, only to encounter a frightened Joyce climbing the stairs. Denise took her daughter into their apartment and examined her; there were no physical injuries she could identify. Denise then asked her daughter if anything hurt, and Joyce said “it hurts” as she pointed to her vagina and buttocks. Denise called the police and, while waiting for their arrival, Joyce again pointed to her vagina and buttocks and said, “Mommy, he touched me.” Shortly after the police arrived and were informed of those events, defendant was taken to the police station, where he denied touching Joyce but admitted exposing himself to the girls while in the basement. Defendant was arrested, and the Monmouth County grand jury later returned a ten-count indictment that charged defendant with first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1); second-degree sexual assault with a minor at least four years his junior, in violation of N.J.S.A. 2C:14-2(b); second-degree attempt to commit aggravated sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1); two counts of second-degree attempt to commit sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1); third-degree attempt to lure or entice a child, in violation of N.J.S.A. 2C:13-6; fourth-degree lewdness, in violation of N.J.S.A. 2C:14-4(b)(1); third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3(a); and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a).
Before jury selection, the State moved to dismiss three of the ten counts. The trial court then conducted two Rule 104 hearings. See N.J.R.E. 104. During the first of these, defendant sought to suppress the statement he had given the police when he was first taken to the station house; that motion was denied. In the second Rule 104 hearing, the trial court addressed “the testimony regarding Rule 803(c)(27) statements of witnesses of tender age or victims of tender age.” The trial court received the testimony of Joyce’s mother, Denise, who testified as to what Joyce had said to her immediately following the sexual assault. Once Denise completed her testimony, Joyce -- by then four years old -- was called to the stand.
In response to questions posed by the court, Joyce did not remember being with her friend Susan in the basement of her apartment building; she did not remember “something with a man in the basement[;]” and she did not “remember speaking to a policeman[.]” The assistant prosecutor then asked Joyce if she knew “why you’re here today[,]” whether “there are places on your body that nobody’s supposed to touch[,]” whether she ever went into the basement with Susan, and whether “anything ever happen[ed] with you and [Susan] that made you feel sad[.]” In each instance, Joyce shook her head “no.” Defense counsel waived cross-examination. No one -- neither the trial court, nor the prosecutor, nor defense counsel -- ever asked Joyce to corroborate her mother’s testimony, that is, if she ever told her mother that defendant had touched her and that it hurt where he touched her.
Defining the question presented as whether Denise, Joyce’s mother, would be permitted to testify as to Joyce’s two out-of-court statements, the trial court directly inquired whether defendant was objecting to their admission. Defense counsel advised that he was “going to leave that in your discretion, Judge.” The trial court then observed that Rule 803(c)(27) explicitly addresses statements made by “a child under the age of 12 relating to sexual misconduct committed with or against that child[.]” Parsing the Rule into its component parts, the trial court first addressed the provisions of N.J.R.E. 803(c)(27)(a), noting that such statements are “admissible in a criminal proceeding if . . . the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time to provide him with a fair opportunity to prepare to meet it.” After receiving uncontested assurances from the State that there had been compliance with the notice provisions of Rule 803(c)(27)(a), the trial court moved on to subsection (b) of the Rule, ruling that, based on “a hearing conducted pursuant to Rule 104, [and] that on the basis of the time, content and circumstances of the statement[,] there is a probability that the statement is trustworthy[.]”
The trial court then shifted its focus to the application of N.J.R.E. 803(c)(27)(c), which provides that, as a condition precedent to the admission of a hearsay statement under the “tender years” exception, “either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse[.]” The trial court remarked that “we did hear from [Joyce], now age four, and she’s just about communicative, and all the references to the defendant, to the basement, to any contact, she has denied.” The trial court ultimately determined that Denise could testify as to Joyce’s hearsay statements, finding that Joyce “is available to testify [and that] the fact that she doesn’t recollect is just something I have to consider in the totality of the circumstances.” In sum, the trial court ruled that it would “permit [Denise] to testify in regard to . . . the verbal responses from her daughter [Joyce].”
After Denise testified at trial concerning the statements Joyce had made on the date of her assault, the trial court explained to the jury that one of the trial court’s tasks
as a judge, is to make a determination as to the ability of a witness to testify, especially when it comes to somebody of very tender years as [Joyce] is four now. And when this thing allegedly happened she was three.

So we had a hearing yesterday out of the presence of the jury. And she sat up here and I asked her some questions about who she was and where she was. And she whispered in the lowest whisper as you could possibly understand. But I asked her questions about this incident. And she had no recollection at all. She didn’t remember anything or anybody. Her answer was no, I don’t know, don’t know, don’t know, she knew nothing.

So rather than put her back on the stand and go through the same thing, I’ve asked both counsel if this would be acceptable for me to advise you. Ms. [assistant prosecutor] you agreed I guess.

[Assistant Prosecutor]: Yes, sir.

THE COURT: Mr. [defense counsel] you agreed also. So rather than bring her up here . . . you know who she is and she’s not going to testify today.

Defendant was convicted of four of the remaining seven counts: second-degree sexual assault with a minor at least four years his junior, in violation of N.J.S.A. 2C:14-2(b); second-degree attempt to commit sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b); fourth-degree lewdness, in violation of N.J.S.A. 2C:14-4(b)(1); and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). He later was sentenced to an aggregate of eleven years imprisonment, with a minimum of seventy-one months to be served without parole, together with appropriate penalties and assessments.
Defendant appealed and, in an unpublished decision, the Appellate Division affirmed defendant’s convictions and sentence. Addressing specifically “defendant’s claim that because [Joyce] did not testify at trial, the admission of her out-of-court statements was a violation of the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, supra[,]” the panel noted that “‘[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.’” (quoting Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203). It noted that, although Crawford “declined to define ‘testimonial,’” that term “‘applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.’” (quoting Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203).
Seeking further definition for the term “testimonial,” the panel looked to Davis, supra, which explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

[Id. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237 (footnote omitted).]

It additionally noted that “‘interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator[,]’ constituted ‘testimonial hearsay[,]’” id. at 826, 126 S. Ct. at 2276, 165
L. Ed. 2d at 240, and that “‘it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate[,]’” id. at 822 n.1, 126 S. Ct. at 2274 n.1, 165 L. Ed. 2d at 237 n.1.
Turning to the application of its reasoning, the Appellate Division initially disagreed “with the judge’s finding that [Joyce] was ‘available’ to testify.” It noted that “[w]hile she was physically present, her responses on voir dire demonstrate that cross-examination would have been utterly fruitless.” For that reason, the panel determined that Joyce “was unavailable for Confrontation Clause purposes.” However, the panel “conclude[d] that [Joyce]’s several statements to her mother were not testimonial.” It reasoned as follows:
The statements were made before any police involvement. The first statement made to [Denise] was made before the police were even contacted about the incident. Additionally, the statement was made shortly after the incident occurred when [Joyce] was frightened, nervous and very scared. The record also shows that while the statements were in response to questioning, the questions were open-ended and designed to determine if [Joyce] was physically injured. The second statement came within an hour of the alleged assault when [Denise], while waiting for police, sought to determine the events that caused [Joyce] to point to her vagina and buttocks and to say, “Mommy, it hurts.” There is no indication in the record that [Denise] was asking these questions in the hopes of obtaining evidence for a future prosecution against defendant. This was simply a situation where a mother was attempting to determine if her young daughter was injured, and if so, how and to what extent. There was no confrontation violation under the circumstances.

We granted defendant’s petition for certification to determine whether the trial court abused its discretion in admitting Joyce’s out-of-court statements under N.J.R.E. 803(c)(27). 196 N.J. 341 (2008). We also granted the application of the Attorney General for leave to appear as amicus curiae. For the reasons that follow, we affirm the judgment of the Appellate Division.
II.
Defendant’s challenge to the admission of Joyce’s hearsay statements is two-fold. First, he claims that Joyce’s statements do not meet the criteria for admission under the “tender years” exception to the hearsay rule, N.J.R.E. 803(c)(27), and, hence, their admission constituted an abuse of discretion. Second, defendant asserts that, even if Joyce’s hearsay statements qualified under the “tender years” hearsay exception, their admission nevertheless violated his Confrontation Clause rights.
In response, the State urges the converse: that Joyce’s hearsay statements properly qualified under the “tender years” exception to the prohibition against hearsay, and that statements of a child-victim to his or her parents about abuse suffered are nontestimonial and, for that reason, do not raise Confrontation Clause concerns.
Amicus the Attorney General of New Jersey argues that the trial court laid a proper foundation for the admission of Joyce’s hearsay statements pursuant to the “tender years” exception, and that no constitutional infirmity infected that determination.
As a threshold matter, we address the analytical paradigm that applies whenever a hearsay statement is offered into evidence. We then apply that analysis to the “tender years” exception embodied in N.J.R.E. 803(c)(27). Finally, we consider whether the absence of confrontation rights in respect of Joyce’s hearsay statements violated the Confrontation Clause.
III.
Our Rules of Evidence provide the basic blueprints for the admission of evidence. As an initial inquiry, we examine whether evidence tendered is relevant, that is, whether it is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. If the evidence is deemed relevant, our Rules are clear: “[e]xcept as otherwise provided in these [R]ules or by law, all relevant evidence is admissible.” N.J.R.E. 402. That general proposition -- that relevant evidence is presumptively admissible -- establishes the backdrop against which we consider the admission of Joyce’s out-of-court statements. In particular, because it cannot be disputed that Joyce’s out-of-court statements to her mother constitute relevant evidence not otherwise subject to a relevance bar, we turn to whether those out-of-court statements are hearsay.
A.
In a strikingly similar context, we recently addressed the admission of an out-of-court statement by a child sexual abuse victim as follows:
N.J.R.E. 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[,]” and N.J.R.E. 802 starkly explains that “[h]earsay is not admissible except as provided by [the Evidence Rules] or by other law.” Stated differently, “the hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant.” State v. Long, 173 N.J. 138, 152 (2002). The opposite also holds: “if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial.” Ibid. (citation omitted).

[Buda, supra, 195 N.J. at 292.]

Buda’s reasoning applies four-square here. As in Buda, “[a]ll parties agree, as they must, that defendant was charged with assaulting and endangering [Joyce] and, for that reason, [Joyce]’s out-of-court statements speaking to the core matter asserted -- whether defendant had assaulted and endangered [Joyce] -- were hearsay.” Ibid. The legal conclusion thus becomes inescapable: “the[] preliminary admissibility [of those hearsay statements] hinges on whether an exception to the hearsay rule applies.” Id. at 292-93. We therefore must turn to whether Joyce’s hearsay statements are admissible under an exception to the hearsay rule.


B.
Joyce’s out-of-court hearsay statements were offered at trial through her mother, Denise, as qualifying under the “tender years” exception to the hearsay rule. As codified in N.J.R.E. 803(c)(27), the “tender years” exception provides in full as follows:
Rule 803. Hearsay Exceptions Not Dependent on Declarant’s Unavailability. The following statements are not excluded by the hearsay rule:

. . . .

(c) Statements Not Dependent on Declarant’s Availability. Whether or not the declarant is available as a witness:

. . . .

(27) Statements by a Child Relating to a Sexual Offense. A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

Assuming the proffered hearsay statement qualifies as one made “by a child under the age of 12 relating to sexual misconduct committed with or against that child[,]” the “tender years” exception consists of three component parts. The first, under N.J.R.E. 803(c)(27)(a), requires that the proponent of a hearsay statement of a child sexual abuse victim must provide advance notice of the statement “at such time as to provide the adverse party with a fair opportunity to prepare to meet it[.]” Here, there was no question that the State provided defendant ample notice that Joyce’s hearsay statements concerning the sexual abuse she suffered at defendant’s hands would be offered at trial. Second, under N.J.R.E. 803(c)(27)(b), the trial court must conduct a hearing under Rule 104(a) and determine whether “on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy[.]” Again, in this case, the trial court conducted a Rule 104 hearing concerning the admissibility of Joyce’s hearsay statements and ruled that “on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy[.]” No serious challenge is mounted against the trial court’s determinations in respect of the satisfaction of both subsections (a) and (b) of N.J.R.E. 803(c)(27).
The true core of the dispute between the parties rests in the trial court’s determinations in respect of the final two-part prong of the “tender years” exception: whether the victim-witness “testifies at the proceeding” or whether the victim-witness “is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse[.]” N.J.R.E. 803(c)(27)(c)(i) and (ii). It is on that conflict that we now focus.
C.
The trial court determined at the Rule 104 hearing that Joyce was “available” as a witness pursuant to N.J.R.E. 803(c)(27)(c)(i) and, hence, all conditions precedent to the admission of her hearsay statements through her mother were present. Defendant challenges that conclusion, and we are compelled to agree. The transcript of the Rule 104 hearing makes clear that Joyce, by then four years old, did not recall the events that occurred when she was three. Indeed, her failure of recollection was so severe that defendant waived any cross-examination of her. Yet, the trial court nevertheless concluded that Joyce “is available to testify [and that] the fact that she doesn’t recollect is just something I have to consider in the totality of the circumstances.” That conclusion was in error.
Although Rule 803(c)(27)(c) does not define its meaning plainly when it juxtaposes a child-witness “testif[ying] at the proceeding” against the child-witness being “unavailable as a witness[,]” helpful informational guidance is found within the Rules of Evidence themselves. N.J.R.E. 804(a) sets forth a clear and cogent definition of the “unavailability” of a witness. It provides that
[e]xcept when the declarant’s unavailability has been procured or wrongfully caused by the proponent of declarant’s statement for the purpose of preventing declarant from attending or testifying, a declarant is “unavailable” as a witness if declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or

(2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the statement; or

(4) is absent from the hearing because of physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant’s attendance at trial[.]

[N.J.R.E. 804(a).]

Clearly, Joyce’s inability or unwillingness to testify at the Rule 104 hearing concerning the events of August 28, 2001, coupled with the fact that she was not even called as a witness at trial, rendered her “unavailable” under N.J.R.E. 804(a)(3) because she did not recall the events. For those reasons, we conclude that the trial court abused its discretion when it concluded that the condition precedent codified at N.J.R.E. 803(c)(27)(c)(i) was satisfied.
That, however, does not end the inquiry. The “tender years” exception further provides that, even if the child-witness is unavailable, the child-witness’s hearsay statement concerning sexual abuse nonetheless may be admissible if “there is offered admissible evidence corroborating the act of sexual abuse[.]” N.J.R.E. 803(c)(27)(c)(ii). And, in this case, there was corroboration: Susan testified to having witnessed defendant pulling his pants and Joyce’s pants down, and sexually touching Joyce. Therefore, because Joyce’s hearsay statements concerning the sexual abuse she suffered satisfied all three prongs -- subsections (a), (b) and (c)(ii) -- of the “tender years” exception, the trial court did not abuse its discretion in admitting those statements through Joyce’s mother. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (“In reviewing a trial court’s evidential ruling, an appellate court is limited to examining the decision for abuse of discretion.”); Brenman v. Demello, 191 N.J. 18, 31 (2007) (“Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard.”).
D.
Because Joyce was “unavailable” to testify at trial, we also must determine whether the admission of her hearsay statements violated defendant’s Confrontation Clause rights. We need not linger long on this point.
Crawford, supra, explains that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” 54 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. Not all hearsay evidence, however, is interdicted by the Confrontation Clause. As Crawford made clear, “[t]he constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.” Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192-93. Thus, only “testimonial” statements trigger a defendant’s Confrontation Clause rights. See Id. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 192 (explaining that Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination”).
Buda specifically addressed the question presented in this appeal. In that case, a child-victim told his mother that “Daddy beat me.” Buda, supra, 195 N.J. at 304. The Court concluded that the child-victim’s hearsay statement qualified under an exception to the hearsay rule and did “not bear the indicia of ‘a formal statement to government officers’ but instead [is] akin to ‘a casual remark to an acquaintance[.]’” Ibid. (quoting Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192). We therefore held that the child-victim’s “statement to his mother that ‘Daddy beat me’ is nontestimonial.” Ibid.
For Confrontation Clause purposes, we discern no substantive difference between the child-victim’s statement to his mother in Buda and Joyce’s statements to her mother here: both were given to the children’s respective mothers, and neither mother acted “predominantly as an agent/proxy or an operative for law enforcement in the collection of evidence of past crimes for use in a later criminal prosecution, circumstances that may well render the hearsay statements thereby procured testimonial under Crawford.” Id. at 307. Because Joyce’s hearsay statements lack any indicia that they resulted from law enforcement efforts “to establish or prove past events potentially relevant to later criminal prosecution[,]” Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2274, 165 L. Ed. 2d at 237 (footnote omitted), we do not hesitate in concluding that Joyce’s hearsay statements to her mother were nontestimonial and, hence, defendant’s Confrontation Clause rights were not compromised by the admission of those statements into evidence.
IV.
In sum, we conclude that Joyce’s out-of-court statements, as testified to by her mother, were relevant; that their probative value was not substantially outweighed by their prejudicial effect, and were not otherwise subject to a relevance or privilege bar; that they were offered to prove the truth of the matter asserted and, therefore, were hearsay; that they were admissible under the “tender years” exception to the hearsay rule; and that they were not “testimonial” and, thus, did not implicate defendant’s Confrontation Clause rights. For those reasons, the judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-28 SEPTEMBER TERM 2008

ON CERTIFICATION TO Appellate Division, Superior Court




STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY W. CODER,

Defendant-Appellant.



DECIDED May 4, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice Rivera-Soto
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7

Richard Sadowski
Assistant Editor

04-23-09 SINGLETARY v. WAWA A-5723-07T2

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5723-07T2



GERALDINE SINGLETARY,
Petitioner-Respondent,

v.

WAWA,
Respondent-Appellant/
Respondent.
_____________________________

Submitted March 18, 2009 – Decided April 23, 2009

Before Judges Stern, Payne and Ashrafi.

On appeal from the Division of Workers'
Compensation, Department of Labor, Docket
Nos. 2002-7797 and 2006-28483.

Worthington & Worthington, attorneys for
appellant Wawa as self-insured (Francis W. Worthington, of counsel and on the brief).

Capehart & Scatchard, attorneys for respondent
Wawa as insured by AIG (Ian G. Zolty, of
counsel and on the brief).

Howard J. Batt, attorney for respondent
Geraldine Singletary, joins in the brief of
respondent Wawa as insured by AIG.

The opinion of the court was delivered by
ASHRAFI, J.S.C. (temporarily assigned).

In this appeal, we consider whether the Division of Workers' Compensation erred in determining that petitioner Geraldine Singletary's current injury and disability were caused by her continuing employment rather than earlier work-related accidents while employed by the same employer. The dispute is between the employer while self-insured and the workers' compensation insurance carrier that covered the employer at the time of the earlier accidents. Finding no error, we affirm.
Petitioner Singletary has worked continuously at a Wawa convenience store from 1987 to at least 2007. In September 1992 and again in December 2001, she suffered work-related slip and fall accidents causing injury to her cervical spine. At the time of each accident, Wawa had a workers' compensation insurance policy with respondent AIG Domestic Claims, Inc., which paid Singletary's claims for medical treatment and partial disability caused by each accident.
On January 1, 2002, Wawa became self-insured for workers' compensation claims. Approximately five years after the second accident, Singletary learned that she needed cervical fusion surgery. After a hearing, the judge of compensation determined that Wawa as self-insured (hereinafter referred to as "Wawa") is liable for Singletary's latest medical costs and disability.
Wawa filed a notice of appeal. Wawa as insured by AIG (hereinafter referred to as "AIG") is the primary respondent in this appeal. Counsel for Singletary has written a letter in support of AIG's position, adding that the compensation rates payable to Singletary are higher if Wawa is liable for a condition that became manifest in 2006 than if AIG were to be held liable for a claim dating back to 2001.
"[T]he scope of appellate review is limited to determining whether the findings of the Judge of Compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise and his opportunity of hearing and seeing the witnesses." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988); see Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "However, where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," the scope of appellate review is somewhat broader. Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div. 1990). "Where our review of the record 'leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made,' we may 'appraise the record as if we were deciding the matter at inception and make our own findings and conclusions.'" Ibid. (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
Here, the judge of compensation placed an oral decision on the record that included detailed findings of fact, which he described as essentially undisputed.
After the first accident of September 1992, an MRI of Singletary's cervical spine revealed a disc herniation at C5-6. In 1996, she underwent an anterior cervical discectomy and fusion at C5-6. On June 22, 1998, the Division of Workers' Compensation awarded Singletary 30% of permanent partial total disability for the cervical spine injury. AIG was responsible for compensating her.
On December 12, 2001, Singletary suffered a second slip and fall injury to her cervical spine. An MRI taken in January 2002 revealed the intervertebral disc fusion of C5-6, a right focal disc herniation at C4-5, and a central disc herniation at C6-7. The course of treatment for the injuries, including physical therapy and cervical injections, lasted through May 21, 2002, about five months. Singletary did not lose any time from work. On November 13, 2003, the Division of Workers' Compensation awarded her 45% of permanent partial total disability for the 2001 cervical spine injury, with a credit of 30% for the prior award. The medical expenses and disability award were again paid by AIG.
Singletary continued to work for Wawa and did not receive any further treatment for her neck injuries for more than four years after May 2002. In 2006, she consulted her family physician because she was feeling pain. The doctor referred her for an MRI, which was performed in July 2006. Subsequently, a specialist examined Singletary and recommended surgery, an anterior cervical discectomy at C4-5.
On October 19, 2006, Singletary filed both a claim petition against Wawa for occupational exposure beginning on November 13, 2003, and an application to re-open her claim against AIG based on the December 2001 accident. Both Wawa and AIG denied liability. In August 2007, Singletary filed a motion for temporary and medical benefits, seeking to require one or the other respondent to pay for the recommended surgery. The judge of compensation entered an order in September 2007, without prejudice, requiring AIG to cover expenses for diagnostic testing and treatment and to pay temporary disability benefits, subject to a possible order of reimbursement.
Wawa and AIG jointly referred Singletary for diagnosis and treatment to Dr. Delasotta. Following his examination, Dr. Delasotta concluded that Singletary needed surgery. On March 25, 2008, she successfully underwent an anterior cervical discectomy with interbody fusion at C4-5.
The Division of Workers' Compensation conducted a hearing on October 11, 2007, and March 6, 2008, to determine which of the respondents should pay for medical treatment and temporary disability benefits. Singletary and Dr. Delasotta were the only witnesses, and the judge found both of them credible.
Singletary testified that her job responsibilities at Wawa included running the cash register, stocking the shelves, doing inventory, making deposits, preparing orders, waiting on customers, and working in the deli. She testified further that many of her job responsibilities caused pain to her head, neck, arm, and shoulder, in particular stocking the shelves with milk, bagging heavy items, reaching overhead to stock the cigarette shelves or to retrieve cigarettes for customers, operating the meat slicer, and running the trash compactor.
Singletary also testified that in 2007 she reduced her work schedule from about forty-five to thirty-six hours per week because she could not work as many hours anymore. She testified that the pain had gotten worse since November 2003, and that she was feeling pressure at the base of her skull that was not there in 2003. She said she now suffered from daily headaches.
Dr. Delasotta testified that Singletary's MRIs from January 2002 and July 2006, as well as results from a myelogram done in November 2007, provided objective medical evidence of worsening pathology at the C4-5 level. He explained that although her condition in 2002 did not require surgery, the progression of the degenerative process at C4-5 now necessitated surgery.
Dr. Delasotta described as a medical fact rather than merely his opinion that Singletary's work duties at Wawa from January 2002 forward aggravated and accelerated the underlying pathology at C4-C5 resulting in her need for surgery. The doctor explained that "it is impossible to medically place one particular event that is only responsible for the patient's condition." He indicated that the previous fusion surgery resulting from the 1992 accident, as well as the 2001 accident, were also material contributing factors to the current condition. Significantly, Dr. Delasotta testified that if Singletary had stopped working or taken a sedentary job after the 2001 accident, she probably would not have needed the C4-5 surgery. He testified that if she continues to do the same heavy workload after her C4-5 surgery, she will "end up with the same situation between three to five years at C6-C7."
Based upon Dr. Delasotta's testimony, the judge of compensation concluded that there was "objective medical evidence of a significant increase in petitioner's disability to require further surgery, which is directly attributable materially to a meaningful degree to the work performed by the petitioner beginning in January 2002 and continuing until she sought medical treatment." The judge found further that "petitioner's continued employment at Wawa, as self-insured, legally and materially contributed to petitioner's disability." Therefore, he concluded that Wawa is responsible for Singletary's medical treatment and for all temporary disability benefits attributed to this period of disability. The judge ordered Wawa to reimburse AIG for all medical expenses and temporary disability benefits paid on Singletary's behalf since the court order of September 20, 2007, and to begin paying her continuing medical expenses and temporary disability benefits.
In this appeal, Wawa relies heavily upon Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994), and Kozinsky v. Edison Prods. Co., supra, 222 N.J. Super. 530, to argue that it is in the position of a subsequent employer that should be spared responsibility for pre-existing injuries. It contends that AIG, as the insurer on the risk at the time of the slip and fall accidents and injuries, should continue to provide coverage for Singletary's current claims.
In both Peterson and Kozinsky, petitioners suffered work-related injuries and then asserted claims of occupational exposure against subsequent employers, alleging that the subsequent employment aggravated the original injury and caused increased disability. Peterson, 267 N.J. Super. at 496; Kozinsky, 222 N.J. Super. at 533. In both cases, we held that the petitioners' subsequent employment did not legally and materially contribute to the petitioners' disabilities and, therefore, that the subsequent employers could not be held liable. Peterson, 267 N.J. Super. at 509; Kozinsky, 222 N.J. Super. at 537-39. In this case, the judge of compensation distinguished Peterson and Kozinsky, concluding that Singletary's continuing work duties legally and materially caused her latest disability.
Under the workers' compensation statute, N.J.S.A. 34:15-31a, "compensable occupational disease" is defined as "all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." "Material degree" is "an appreciable degree or a degree substantially greater than de minimis." Peterson, supra, 267 N.J. Super. at 504 (quoting N.J.S.A. 34:15-7.2). Therefore, to receive an award for compensable occupational disease, "a petitioner must show that the alleged occupational exposure contributed to the resultant disability by an appreciable degree or a degree substantially greater than de minimis." Ibid.
Wawa points to Dr. Delasotta's testimony regarding the January 2002 MRI, in which he causally related the disc protrusions at C4-5 and C6-7 to the 2001 accident. Wawa argues that there is no evidence that Singletary's job at Wawa would have necessitated fusion surgery if not for the prior slip and fall injuries. It cites testimony of Dr. Delasotta that he knew after reviewing the 2002 MRI that Singletary would require additional fusion surgery at some point in the future.
After Wawa filed a notice of appeal, the judge of compensation placed a supplementary oral opinion on the record, in which he emphasized that:
there is demonstrative objective evidence of a material worsening in the pathology at C4-5 based upon the comparison of the MRI film of January 2002 and the MRI film of July 2006, as well as, the myelogram of November, 2007. Doctor Delasotta was of the opinion that the worsening was such, that there was now impingement on the spinal cord, which he attributed to the heavy work load that the petitioner continued to perform. Thus, there was not only a worsening of the condition, manifested after five years of additional continuous heavy employment, but there is the opinion of a doctor that this heavy work load contributed in a material way, to the need for additional surgery. This type of opinion and these types of conclusions and testing were not available and did not exist in the Peterson and Kozinsky cases.

Both Peterson and Kozinsky hold that the determinative issue in finding an employer liable is whether the employment materially contributed to the petitioner's disability. Peterson, supra, 267 N.J. Super. at 504, 509; Kozinsky, supra, 222 N.J. Super. at 537-39. In that respect, the length of time worked for a particular employer may be relevant. Very short periods of employment, such as in Peterson and Kozinsky, may allow no reasonable inference of material contribution to disability. In contrast, long periods of physically taxing employment, such as the five years that Singletary worked at Wawa after her December 2001 accident, may reasonably support a finding of material contribution to disability. Cf. Ort v. Taylor-Wharton Co., 47 N.J. 198 (1966) (petitioner who had earlier been awarded 30% of total permanent disability for inhalation of dust now found to be 100% disabled as a result of five additional years of inhaling dust at same employer but while employer was insured by different carrier).
Wawa argues that no deference is due to the judge's interpretation of the facts or conclusions because he made errors "in the recitation of the factual testimony." For example, Wawa asserts that the judge was inaccurate in stating that Singletary was working full duty without any real problems until 2006. This argument overstates the judge's finding, which recognized a substantial deterioration in the condition of Singletary's cervical spine that became manifest in 2006.
Credible evidence in the record supports the judge's finding that "[t]here was a clear worsening of the petitioner's condition which . . . is attributable in a material degree to the work she performed during the time Wawa was self-insured." That evidence includes testimony that lifting and other tasks stressful to her neck were among Singletary's job duties, that beginning in 2006 she had difficulty operating the trash compactor, that she worked continuously for almost five years before seeking further medical treatment, that only in 2006 did she reduce her hours because the pain was too great, that she began to feel a vice-like pressure in the back of her skull and to experience daily headaches that were not present in 2003, and that she started to increase her medication in 2006.
In addition, the judge's findings are supported by Dr. Delasotta's opinion that surgery would not be needed if Singletary had retired or taken a sedentary position after the 2001 accident. Although Dr. Delasotta testified that the 2006 MRI showed degenerative changes at C4-5 and C6-7, he also testified that Singletary's heavy work load had accelerated the degenerative process.
The judge's findings and conclusions were "reasonably . . . reached on sufficient credible evidence present in the whole record." Kozinsky, supra, 222 N.J. Super. at 537. We find no "error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Manzo v. Amalgamated Indus. Union Local 76B, supra, 241 N.J. Super.
at 609.
Finally, we have considered Wawa's public policy arguments that subsequent employers will be reluctant to hire employees with prior claims if they can be held liable for benefits for an injury suffered through previous employment. See Peterson, supra, 267 N.J. Super. at 505. We do not find those arguments persuasive in the context of this case. This is not a case where the subsequent employment "merely cause[d] pain from pre-existent conditions to be manifested." Ibid. Rather, Singletary suffered additional "physical insult," ibid., every day she worked at Wawa because of the heavy lifting and other stressful tasks required by her job.
The judge relied on the evidentiary record to conclude reasonably that Singletary's need for surgery was materially attributable to her job duties after January 2002, and that Wawa as self-insured is responsible for paying her workers' compensation benefits.
Affirmed.

Richard Sadowski
Assistant Editor