STATE OF NEW JERSEY v. DEM-QUAN ROYAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEM-QUAN ROYAL, a/k/a DEMQUAN B. ROYAL

DMEQUAN ROYAL, DEQUAN B. ROYAL, DENQUAN

B. ROYAL, DEM QUAN B. ROYAL, ROYAL DEM,

ROYAL DEMQUAN, ROYAL QUAN and DEM-QUAN

B. ROYAL,

Defendant-Appellant.

________________________________________________________________

April 19, 2016

Submitted March 1, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-02-0194.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, SpecialDeputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted of third-degree possession of heroin and shoplifting. He raises one issue in his appeal

THE LIMITATION BY THE COURT OF THE CROSS-EXAMINATION OF DETECTIVE KAHORA DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION OF THE WITNESSES AGAINST HIM.

This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

Several officers responded to a store in Springfield Township where a security officer had observed defendant and another suspect, G.E.J., engage in behavior that appeared to be shoplifting. After additional investigation, Detective Danielle Kahora arrested defendant and conducted a search incident to his arrest. At that time, the detective recovered store merchandise, wire cutters and defendant's wallet from his person.

When defendant was transferred to police headquarters, Detective Kahora searched his wallet to find his identification. She also found six glassine envelopes containing a substance, later determined to be heroin, which was secured as evidence. Detective Kahora prepared a report of her investigation and defendant's arrest.

G.E.J. was also arrested. Detective Kahora did not participate in G.E.J.'s arrest.

The case was assigned number 2012-9240, with both defendant and G.E.J. listed as co-defendants. A separate investigation report was prepared by a different officer, Detective Voorhees. Only one evidence custody form was prepared for case 2012-9240. Items recovered from both defendants were listed by Kahora and Voorhees were included on the list. However, only G.E.J.'s name was listed on the evidence custody form.

At trial, defendant sought to impeach Kahora's testimony that the heroin was in his possession by using the evidence custody form as an adoptive admission, N.J.R.E. 803(b)(2), that the heroin had been possessed by G.E.J.

N.J.R.E. 803(b)(2) permits the admission of a statement "offered against a party which is . . . a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief." There are two criteria for a hearsay statement to qualify as an adoptive admission

First, the party to be charged must be aware of and understand the content of the statement allegedly adopted. . . . [T]he proponent of the evidence must show, not merely that the party was present when the remark was made . . . but also that the party actually heard and understood what was said. Second, it must be clear that the party to be charged with the adoptive admission "unambiguously assented" to the statement.

[McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 529-30 (2003).]

Following a Rule 104 hearing, the trial judge concluded that the fact Kahora had added information to the evidence custody form did not show she "adopted the writing of [G.E.J.]'s name on the top of the form." The judge observed that Kahora would be unable to explain or deny that writing and the fact that G.E.J.'s name was the only one listed on the form could be elicited from Detective Voorhees. Although Voorhees was available to testify, he was not called as a witness.

We discern no abuse of discretion in the trial judge's evidentiary ruling. See State v. Koedatich, 112 N.J. 225, 312-14 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

Affirmed.