STATE OF NEW JERSEY IN THE INTEREST OF A.R.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2710-12T1

STATE OF NEW JERSEY IN THE

INTEREST OF A.R.S., a minor.

_____________________________

November 5, 2014

Submitted October 28, 2014 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-2314-12.

Joseph E. Krakora, Public Defender, attorney for appellant A.R.S. (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A.R.S., a fifteen-year-old juvenile at the time the offenses were committed, appeals from an adjudication of six acts of delinquency that, if committed by an adult, would constitute first-degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1a(1); first-degree robbery, N.J.S.A. 2C:15-1a(1); first-degree carjacking, N.J.S.A. 2C:15-2; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirm.

The judge tried two juveniles together, A.R.S. and J.J.H.,1 on charges related to a robbery, carjacking, and the killing of a victim. We discern the following facts from the evidence adduced at the bench trial.

The victim asked an acquaintance, K.O., to drive him to an intersection in Newark. K.O. drove the victim to the requested location and pulled over. Two males crossed the street and approached K.O.'s car. One of the males had a gun and told K.O. to exit the vehicle and leave his wallet on the seat. K.O. followed the instructions. The victim remained in the vehicle.

The individual without the gun urged the gunman to shoot K.O., but K.O. fled the scene. K.O. then heard a single gunshot and called the police. The police arrived in the vicinity of the shooting and found the victim's body lying against a nearby fence with a single fatal gunshot wound to the neck. The police located K.O.'s vehicle several blocks away from the victim's body.

Detective Michael Chirico investigated the killing and interviewed K.O. K.O. described the gunman as being five feet seven inches to five feet eight inches tall, weighing one hundred and fifty pounds, with dreads or braids, and wearing a white t-shirt. K.O. described the other individual as wearing a tank top, shorts, a du-rag, and a glittery belt.

The detective obtained a surveillance video from a nearby restaurant that showed two individuals near the murder scene that matched the description given by K.O. The detective learned from the victim's cell phone records that the victim had spoken with another individual, A.G., around the time of the shooting. The detective interviewed A.G., who was unavailable to testify at trial.2

The police then compiled a photographic array and showed it to K.O. within a week of the killing. K.O. identified the juveniles as the people who robbed him and stole his vehicle. The juveniles were arrested and charged with committing the offenses.

The judge found A.R.S. guilty after the bench trial. A.R.S. filed a motion for a new trial, which the judge denied. The judge sentenced A.R.S. to an aggregate ten-year custodial term.

On appeal, A.R.S. raises the following point

POINT I

THE ADMISSION OF TESTIMONIAL HEARSAY FROM A NON-TESTIFYING WITNESS ON THE CRUCIAL AND DISPUTED ISSUE OF IDENTIFICATION VIOLATED [A.R.S.'S] RIGHT TO CONFRONTATION AND TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, 1, 9, 10.

A.R.S. contends that Detective Chirico obtained the restaurant surveillance video and subsequent identifications based on his conversation with A.G. A.R.S. asserts that he was deprived of a fair trial because he was unable to cross-examine A.G.

The United States Constitution and the New Jersey Constitution guarantee a criminal defendant the right to confront "the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, 10. The Confrontation Clause has been interpreted to exclude the statements of witnesses who are unavailable for trial and where the defendant did not have a prior opportunity to cross examine. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004); State v. Branch, 182 N.J. 338, 368 (2005). Excluding such testimony "protect[s] a defendant from the incriminating statements of a faceless accuser who remains in the shadows and avoids the light of court." Branch, supra, 182 N.J. at 348.

At the outset, we note that the detective obtained the surveillance video from the restaurant before he contacted A.G. The detective testified that the restaurant voluntarily turned over the video so that he could confirm whether the individuals described by K.O. were in the area. The judge did not abuse his discretion by admitting into evidence the properly identified restaurant video. See State v. Frisby, 174 N.J. 583, 592 (2002) (noting that an officer will be allowed to testify to explain the course of his or her investigation).

The detective also did not testify as to the content of his conversation with A.G. The judge stated that

I do not believe [the photograph] is anything else but a result of good police investigation on that evening . . . . Detective Chirico went to this location . . . [and] as a result . . . he reviews the video tape, he does see . . . pictures apparently of [the juveniles]. . . . The [c]ourt [will] give whatever weight that it deems appropriate to it as the finder of fact.

I tried to keep the testimony of Detective Chircio on a very limited basis. I believe that we did so. His testimony was in no way substantive based on his interviews or the statement that was given by [A.G.]. The [c]ourt fully understands as the find[er] of fact that I'm not going to be able to consider anything with regard to [A.G.] . . . .

The judge noted further that

Detective Chircio's testimony . . . [was used] for only [a] very-limited purpose[], that [the police] were able to get a photograph . . . . [and] based on their investigation, without going into the testimony of [A.G.], that I would not allow in testimony, . . . were able to identify two different individuals, namely [J.J.H.] and [A.R.S.] . . . .

. . . .

Detective Chirico's testimony was very, very[,] limited, although he did indicate . . . that there was a check made of [the victim's] phone and certain information was provided, which we didn't go into in any great detail, was gotten from that cell phone, which the police were able to utilize in order to . . . come up with [the names of the juveniles] who were later identified by [K.O.].

As a result, the judge placed very little evidential value on the detective's testimony about how he compiled the photographic array. We conclude that any reference by the detective to A.G. was harmless, especially in light of the overwhelming independent evidence of guilt.

The judge found K.O. to be a credible witness. K.O. testified that he was so close to the juveniles during the robbery and carjacking that he could smell the young men's breath, and that A.R.S. stood right next to J.J.H. K.O. heard the gunshot within one minute of fleeing the scene. K.O. gave the detective a detailed description of the juveniles immediately after the shooting, and the detective recovered a surveillance video from a nearby restaurant. It showed two individuals, who matched K.O.'s detailed description of the juveniles, in the area at the time of the shooting. The police subsequently arrested the juveniles only after K.O. independently identified them.

We therefore conclude that the record does not support A.R.S.'s claims that his rights to confrontation, due process, and a fair trial were violated by the trial court.

Affirmed.

1 J.J.H., a seventeen-year-old juvenile at the time of the offenses, was also found guilty and appealed from adjudications of three acts of delinquency that, if committed by an adult, would constitute first-degree robbery, N.J.S.A. 2C:15-1a(1); first-degree carjacking, N.J.S.A. 2C:15-2; and first-degree felony murder, N.J.S.A. 2C:11-3a(3). We affirmed these adjudications in a separate opinion. State ex rel. J.J.H., No. A-3086-12 (App. Div. November 5, 2014).

2 The State requested two adjournments to secure A.G. for testimony at trial, but was unable to locate him.