STATE OF NEW JERSEY v. ANDREW GRANDISON
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2721-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREW GRANDISON,
Defendant-Appellant.
___________________________
Submitted April 11, 2018 – Decided April 26, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. 2016-
042.
Mark A. Bailey, attorney for appellant.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Andrew Grandison appeals his conviction of
disorderly persons simple assault,
N.J.S.A. 2C:12-1(a)(1),
sentence to a 120-day jail term, and $500 fine. On appeal,
defendant seeks a reversal of his conviction and dismissal of the
assault charge or, alternatively, a remand to the Law Division for
a new, de novo trial. He contends the Law Division erred when it
held a video of the incident was not sufficiently authenticated
and, therefore, inadmissible. He further argues he was prejudiced
by the trial court's failure to sequester a witness while
explaining the legal standard to authenticate a video. He also
contends the jail sentence imposed was excessively harsh and the
case should be remanded for resentencing. Alternatively,
defendant argues the case should be remanded to the Law Division
because the court did not apply the correct standard of review.
We reject these arguments and affirm the conviction and sentence.
On March 15, 2016, defendant was involved in an altercation
with three other men, Kenneth,1 Ekene Atanmo, and Ebere
Chukwunyere, over a parking spot in the driveway of a body shop
located in Newark. After blocking the car of the other men,
defendant began shouting at them to move their car and stop
blocking his business. As the argument escalated, defendant
punched Kenneth. While Chukwunyere was holding Kenneth back from
retaliating, defendant punched Chukwunyere twice. After being
1
Kenneth's surname is not identified in the record.
2 A-2721-16T4
punched, Chukwunyere blacked out and fell to the ground. Defendant
was later arrested.
Defendant was charged with simple assault and pled not guilty.
The case proceeded to trial before a Newark Municipal Court judge
(MCJ). Defendant did not request sequestration of witnesses. On
the first day of trial, defendant sought to admit a video recording
of the incident into evidence. In the presence of State's witness
Chukwunyere, the MCJ explained the standard for admissibility of
the video.
Chukwunyere and Atanmo testified for the State. Defendant
did not testify and presented no witnesses. At trial, defense
counsel played a video recording for both witnesses in an effort
to impeach their testimony. After questioning the witnesses
regarding the contents of the video, defense counsel sought to
admit the video into evidence. The MCJ declined to admit the
video into evidence, finding the witnesses could not properly
authenticate it.
Following the two-day trial, the MCJ issued an oral decision
finding defendant guilty of simple assault. After recounting the
facts in detail, the MCJ found Chukwunyere's testimony to be
"compellingly credible, believable, and truthful." The MCJ also
found his testimony to be consistent, forthright, straight
forward, and honest, noting "[h]is version of the events made
3 A-2721-16T4
sense." The MCJ further found that Chukwunyere's testimony was
corroborated by Atanmo's testimony. Additionally, the MCJ found
Atanmo's testimony to be "whole[ly] credible, believable, and
truthful. His testimony was consistent with that of [Chukwunyere],
and provided the [c]ourt with a clear picture of what happened in
this case." The MCJ placed great weight in their testimony.
Noting defendant had recently been convicted of aggravated
assault, placed on probation for three years, and ordered to pay
$8000 in fines and assessments, the MCJ applied aggravating factors
three,
N.J.S.A. 2C:44-1(a)(3) (risk defendant will commit another
offense), six,
N.J.S.A. 2C:44-1(a)(6) (prior criminal record and
seriousness of offense), and nine,
N.J.S.A. 2C:44-1(a)(9) (need
for deterrence). The MCJ also applied mitigating factor eleven,
N.J.S.A. 2C:44-1(b)(11) (imprisonment would entail excessive
hardship to defendant or his dependents). He concluded the
aggravating factors outweighed the mitigating factor and
determined a jail sentence was appropriate. The MCJ sentenced
defendant to a 120-day county jail term, required him to complete
an intensive anger management program while incarcerated, ordered
him to pay a $500 fine and appropriate penalties and assessments,
and prohibited him from having any contact with the victim.
Defendant appealed to the Law Division. After conducting a
trial de novo, the Law Division judge issued a comprehensive
4 A-2721-16T4
written opinion, which recounted Chukwunyere's and Atanmo's
testimony in detail. The Law Division judge found their testimony
to be credible. In ruling the video recording was inadmissible,
the judge stated: "[T]here is no evidence accepted by this [c]ourt
that would impeach the credibility of the witnesses' testimony."
The evidence showed that with others present, defendant
turned and punched Kenneth twice. Chukwunyere placed himself
between Kenneth and defendant to prevent further escalation.
Chukwunyere was then punched twice in the face by defendant.
Chukwunyere fell to the ground and blacked out. The police were
called and defendant left before they arrived. Chukwunyere was
taken to the hospital by Atanmo.
With regard to the admissibility of the video recording
proffered by defendant, the Law Division judge stated:
The [defendant] submits that the video
footage demonstrates inconsistencies in the
witnesses' testimony- damaging their
credibility. However, I find that Judge
Batista properly denied the admission of the
video into evidence because neither witness
authenticated the video. Recalling [State v.
Wilson,
135 N.J. 4 (1994)], above, a person
present when the film was made must testify
that the film accurately depicts the events
as that person saw them when they occurred.
First, Mr. Chukwunyere could not identify
that it is his vehicle that appears in the
film. He could not identify the individuals
in the video. He could not confirm the video
was a video of the incident. He testified
5 A-2721-16T4
that two people were moving their hands, but
could not testify that the video accurately
depicted what happened because it was too far
away. He could not testify to how many people
were gathered around together. Mr.
Chukwunyere did testify that it appeared to
be the driveway in question. Likewise, Mr.
Atanmo could not identify any events happening
in the video recording because the camera was
too far away and unclear.
I am in agreement with the municipal
judge. The time the video was taken is
questionable, as there is a 'jump' of six
minutes at the beginning of the video. The
witnesses did not identify any of the parties
involved. The video cuts of in the middle of
what appears to be a fight. The video is
taken from a great distance away, and any
figures are grainy and impossible to identify.
[Defendant] relies on Wilson, however,
which in part states that "a witness need only
identify the persons, places, or things shown
in the photograph or videotape." This is of
little help to the [defendant], as it is
evident that neither witness could not
identify any of the parties, even if they do
admit that the location of the video appears
to be an accurate representation of the scene
of the incident. [Defendant] sought to
challenge the version of events according to
the State's witnesses, and this video in no
way is reliable enough to merit such a
challenge. The video was not properly
authenticated by defense counsel and the
municipal judge did not err in excluding it
from evidence.
. . . .
As noted above, I find that the video was
not properly authenticated by the State's
witnesses. They did not testify that the
6 A-2721-16T4
events depicted in the video were an accurate
reflection of how they perceived the incident.
With regard to the alleged failure to sequester the witness,
the Law Division judge stated:
[Defendant] next argues that Mr. Chukwunyere's
testimony was tainted because he was present
when the judge explained the standard of
admissibility. N.J.R.E. 615 states that "at
the request of a party, or on the court's own
motion, the court may, in accordance with the
law, enter an order sequestering witnesses."
Sequestration is within the discretion of the
trial judge. State v. Williams, 404 N.J.
Super. 147, 159 (App. Div. 2008). Its purpose
is to prevent "prospective witnesses from
hearing what the other witnesses detail in
their evidence, for the less a witness hears
of another's testimony, the more likely is he
to declare his own knowledge simply and
unbiased." Here, defense counsel made no
request to have Mr. Chukwunyere sequestered
during the discussion as to the admissibility
of the videotape.
Neither did the judge make a
sequestration request. "Absent a clear
showing of prejudice an inadvertent violation
of a sequestration order does not trigger
automatic exclusion of the witness'
testimony." Defense has not made a clear
showing of prejudice. I add that the second
witness, Mr. Atanmo, was sequestered and, like
Mr. Chukwunyere, could not authenticate the
video.
The Law Division judge held the State had proven defendant
committed simple assault beyond a reasonable doubt by purposely
punching Chukwunyere twice, causing him physical pain. He found
defendant guilty and imposed the same sentence the MCJ had imposed.
7 A-2721-16T4
This appeal followed. On appeal, defendant makes the
following arguments:
POINT I
THE LAW DIVISION COMMITTED REVERSIBLE ERROR
WHEN IT HELD THE VIDEO WAS NOT SUFFICIENTLY
AUTHENTICATED AND THEREFORE INADMISSIBLE.
POINT II
THE DEFENSE ESTABLISHED A CLEAR SHOWING OF
PREJUDIC[E] RESULTING FROM THE FAILURE TO
SEQUESTER THE WITNESS WHILE EXPLAINING THE
LEGAL STANDARD TO AUTHENTICATE A VIDEO.
POINT III
SENTENCING THE DEFENDANT TO THE MAXIMUM JAIL
SENTENCES WAS [E]XCESSIVE, HARSH AND THEREFORE
THE COURT SHOULD REMAND THE CASE FOR
RESENTENCING.
POINT IV
THE LAW DIVISION COMMITTED REVERSIBLE ERROR
WHEN IT APPLIED THE WRONG STANDARD OF REVIEW.
Defendant argues the Law Division judge erred in ruling the
video allegedly depicting the incident was inadmissible because
it had not been properly authenticated. He contends the testimony
presented satisfied the standard for authentication under N.J.R.E.
901. We disagree.
"[T]he decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 383-84 (2010) (citing
8 A-2721-16T4
Green v. N.J. Mfrs. Ins. Co.,
160 N.J. 480, 492 (1999)). "We review
the trial court's evidentiary ruling under a deferential standard;
it should be upheld absent a showing of an abuse of discretion,
i.e., there has been a clear error of judgment" which is "so wide
of the mark that a manifest denial of justice resulted." State
v. J.A.C.,
210 N.J. 281, 295 (2012) (citations omitted).
"Since a videotape falls within the definition of a 'writing'
under N.J.R.E. 801(e), a videotape containing relevant evidence
is 'generally admissible' if properly authenticated." State v.
Loftin,
287 N.J. Super. 76, 98 (App. Div. 1996) (quoting Wilson,
135 N.J. at 16-17). "Authentication of a videotape is much like
that of a photograph, that is, testimony must establish that the
videotape is an accurate reproduction of that which it purports
to represent and the reproduction is of the scene at the time the
incident took place." Ibid. (citing Wilson,
135 N.J. at 15).
When a party appeals from a de novo trial on the record, we
generally "consider only the action of the Law Division and not
that of the municipal court." State v. Oliveri,
336 N.J. Super.
244, 251 (App. Div. 2001) (citing State v. Joas,
34 N.J. 179, 184
(1961)). In determining that the video had not been properly
authenticated and was thus inadmissible, the Law Division judge
found:
9 A-2721-16T4
The time the video was taken is questionable,
as there is a 'jump' of six minutes at the
beginning of the video. The witnesses did not
identify any of the parties involved. The
video cuts off in the middle of what appears
to be a fight. The video is taken from a
great distance away, and any figures are
grainy and impossible to identify.
Each of these findings is amply supported by the record. We
discern no abuse of discretion in ruling the video inadmissible.
We next consider defendant's claim that he was prejudiced by
the failure to sequester witnesses while the trial court discussed
the standard for authentication of video recordings. We, again,
disagree. We review a trial judge's sequestration decision under
an abuse of discretion standard. Williams,
404 N.J. Super. at 159
(citing State v. Miller,
299 N.J. Super. 387, 399 (App. Div.
1997)). As defendant did not request sequestration before the
trial court, we apply a plain error standard of review. State v.
Hyman,
451 N.J. Super. 429, 455 (App. Div. 2017) (citing State v.
Townsend,
186 N.J. 473, 498 (2006)).
The purpose of sequestration is "to prevent prospective
witnesses from hearing what other witnesses detail in their
evidence" so that their testimony is not shaped or tailored by
another witnesses' testimony. Williams,
404 N.J. Super. at 160
(quoting State v. DiModica,
40 N.J. 404, 413 (1963)). The MCJ's
discussion of the requirements for authentication was not
10 A-2721-16T4
testimony of a witness. Therefore, there was no need to sequester
witnesses during that discussion. Moreover, although Chukwunyere
was present in the courtroom during the MCJ's discussion of the
authentication standard, Atanmo was not. Yet their testimony
regarding authenticating the video was similar. Both were unable
to authenticate the video. We discern no abuse of discretion,
much less plain error.
Defendant further argues the Law Division judge applied the
wrong standard of review. He argues the Law Division judge failed
to properly evaluate the credibility of the witnesses and conduct
an independent analysis of the facts. We are unpersuaded by this
argument.
On appeal from a municipal court ruling, the Law Division
conducts a trial de novo. See R. 3:23-8(a)(2); State v. Kuropchak,
221 N.J. 368, 382 (2015). The Law Division is obliged to
"determine the case completely anew on the record made in the
Municipal Court, giving due, although not necessarily controlling,
regard to the opportunity of the magistrate to judge the
credibility of the witnesses." State v. Johnson,
42 N.J. 146, 157
(1964) (citations omitted). The Law Division judge does not affirm
or reverse what occurred in the municipal court. "Rather, [the
judge] reviews the transcript and makes an independent
determination of the sufficiency of the evidence presented, giving
11 A-2721-16T4
appropriate deference to any credibility assessments that the
municipal court judge may have made." State v. Kashi,
360 N.J.
Super. 538, 545 (App. Div. 2003), aff'd,
180 N.J. 45 (2004).
The Law Division judge conducted an appropriate trial de
novo, undertaking a thorough review of the evidence, and
determining the case completely anew. The Law Division judge
rendered independent credibility determinations, findings of fact,
and legal conclusions in his well-reasoned written opinion.
Finally, we address defendant's argument that his sentence
to the maximum jail term was excessive and unduly harsh. Defendant
was on probation when he committed the instant offense. He
contends, however, he was fully compliant with his conditions of
probation. He claims the sentence ensured he would lose his job,
have bills and fines he would not be able to pay once he is
released from jail, and be prevented from completing batterer's
counseling. He claims the sentence is even more problematic given
the alleged lack of credibility of the witnesses. We find this
argument to be without merit.
We first note defendant was sentenced to a 120-day jail term,
not the maximum jail term of six months. See
N.J.S.A. 2C:43-8.
Second, this was not defendant's first offense. He had recently
been convicted of aggravated assault and was on probation for that
crime. Third, the victim was knocked unconscious and suffered
12 A-2721-16T4
other injuries. Fourth, defendant was ordered to complete an
anger management program while serving his jail term.
"Appellate review of sentencing is deferential, and appellate
courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case,
220 N.J. 49, 65 (2014)
(citing State v. Lawless,
214 N.J. 594, 606 (2013)). "The test 'is
not whether a reviewing court would have reached a different
conclusion on what an appropriate sentence should be; it is rather
whether, on the basis of the evidence, no reasonable sentencing
court could have imposed the sentence under review.'" State v.
Roach,
146 N.J. 208, 236 (1996) (quoting State v. Ghertler,
114 N.J. 383, 388 (1989)).
Having considered the record, we are satisfied the sentence
is not manifestly excessive or unduly punitive and did not
constitute an abuse of discretion.
Affirmed.
13 A-2721-16T4
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