New Jersey v. Gerena

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                     State v. William A. Gerena (A-72-20) (085359)

(NOTE: The Court did not write a plenary opinion in this case. The Court affirms
the judgment of the Appellate Division substantially for the reasons expressed in
Judge Sabatino’s opinion, published at  465 N.J. Super. 548 (App. Div. 2021).)

Argued November 29, 2021 -- Decided December 30, 2021

PER CURIAM

       The Court considers the Appellate Division’s determination that the trial court did
not abuse its discretion in admitting two eyewitnesses’ lay opinions estimating the range
of heights and ages of children they observed near defendant in a public park.

       In April 2018, a seventeen-year-old civilian called police and reported that she had
seen a man, later identified as defendant, exposing himself to a group of children at a
playground. Police officers responded to the scene and saw defendant sitting on a bench
facing the playground, with his penis exposed and erect. Defendant was charged with
second-degree sexual assault by contact and fourth-degree lewdness, which both require
the State to prove that at least one of the victims was under the age of thirteen.

        At trial, one of the police officers and the civilian eyewitness recounted to the jury
what they had seen at the park. Over defendant’s objection, the trial court admitted the
witnesses’ lay opinions about the children’s ages and heights. The officer estimated that
the children were around three to thirteen years old and that the smallest child appeared
to be no higher than his waist. The civilian testified that the children were approximately
six to fifteen years old and that the shortest child appeared no taller than her hip. The
State relied on that testimony to prove that one or more of the children was under the age
of thirteen, and the jury found defendant guilty of fourth-degree lewdness.

       The Appellate Division affirmed, finding that the two witnesses had an adequate
opportunity to view the physical characteristics and activities of the group of children to
enable them to provide lay opinions under N.J.R.E. 701 about the perceived ranges of the
children’s heights and ages. See  465 N.J. Super. 548, 551 (App. Div. 2021). However,
the court remanded for a hearing on jail credits, see id. at 573, a determination not
challenged here.


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       The Appellate Division reviewed the relevant Rules of Evidence: N.J.R.E. 701,
which states that a lay witness’ opinion testimony may be admitted if it “(a) is rationally
based on the witness’ perception; and (b) will assist in understanding the witness’
testimony or determining a fact in issue”; and N.J.R.E. 403, under which an opposing
party is free to argue that the witness’ testimony should be excluded if its prejudicial risks
substantially outweigh its probative value. See id. at 568-69.

       The Appellate Division declined to apply the flat prohibition on lay opinion
testimony about age announced by the Court of Errors and Appeals in State v. Koettgen,
 89 N.J.L. 678, 679-80 (E. & A. 1916) because the court found that it was contrary to the
evidence rules and case law governing lay opinion. See  465 N.J. Super. at 551-52. The
appellate court instead applied a contextual, case-by-case analysis that it determined was
consistent with the State’s modern Rules of Evidence and prevailing case law principles.
See id. at 552. The court agreed with Professor Wigmore’s treatise on evidence and the
case law of other states that allows trial courts to admit such opinion testimony where it
has a reasonable foundation. See id. at 569. The Appellate Division noted that in the
present case, the opinion testimony about the children’s ages was based in part upon the
witnesses’ separate perceptions and that no reported case in this State categorically
forbids lay witnesses from offering such height estimates. See id. at 567.

        The Appellate Division offered a variety of factors it found a court should
consider in evaluating the admissibility of such lay opinions: (1) distance of the
eyewitness to the person observed, (2) length of time of the observation, (3) any observed
activity of the person, (4) physical comparisons with the height or size of nearby objects
or other persons, (5) whether the eyewitness attests to a range rather than a specific height
or age, (6) whether the observed individual has a comparatively similar age or height as
the witness, (7) whether there is corroborating proof, and (8) the totality of
circumstances. See id. at 551. The court applied those factors to the present case and
found that they supported admission of the witnesses’ lay opinions. See id. at 570-72.

HELD: The Court affirms the judgment of the Appellate Division substantially for the
reasons expressed in Judge Sabatino’s published opinion. The determination of whether
to admit, under N.J.R.E. 701, lay opinion testimony estimating the perceived ranges of
children’s ages or heights is best suited for case-by-case assessment. The Court
disapproves of State v. Koettgen and its categorical approach to the admission of such lay
opinion evidence about age. Henceforth, the trial court, acting as gatekeeper, shall assess
whether there exists a proper foundation for the lay opinion being offered, and if so,
allow its admission subject to a Rule 403 balancing of the relative probative value and
prejudicial effect of the testimony. The Court generally endorses and adds to the
Appellate Division’s helpful guidance to trial courts when performing that gatekeeping
role and protecting against the admission of unreliable age-related lay opinion testimony.



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1. First, the trial court should conduct a Rule 104 hearing, on request, and state on the
record its basis for finding a sufficient foundation exists for the proposed lay opinion
testimony. The Court commends the use of the eight factors the Appellate Division
identified as aids, recognizing that the determination will be case-specific. Second, in the
use of those factors, a trial court’s determination of admissibility may be much more
easily resolved in cases where the witness is estimating the approximate age of a person
or persons to be at the extremes of old age and very young, distant from the relevant legal
threshold age -- in this case, over or under the age of thirteen. The closer the perceived
age of the individual is to the legal threshold age to be proved, the greater the need for
precise evidence and the less appropriate it is to rely on lay testimony. (pp. 3-4)

2. In some prosecutions, an expert might be necessary, such as in a child pornography
case where the witness is estimating age from a video or picture. Other times, it may be
necessary to establish age with more reliable proof, for example, through date-of-birth
records or personal knowledge. The Court notes that this concern is not present in the
instant matter, where two witnesses testified to seeing children as young as six years old
engaged in age-appropriate activities, with parents apparently present and supervising, at
the playground where defendant was apprehended. The Court sees no error in the trial
court’s admission of the witnesses’ lay opinion testimony because the witnesses observed
children who appeared significantly younger in their developmental age than the age of
thirteen, the age threshold for a lewdness offense. (pp. 4-5)

3. The Court agrees with the Appellate Division and other courts that require the jury be
carefully instructed in appropriate cases when lay opinion testimony is presented
concerning estimation of a child’s age. Trial judges have the “discretion to provide
appropriate charges, on request or sua sponte, as the situation may warrant.” Gerena,  465 N.J. Super. at 572 n.9. At a minimum, the charge should remind the jury that the State
bears the burden of proof on all elements of a criminal offense, including satisfying any
age requirement. The jury should be informed that speculation about age is not permitted
and that it must be persuaded by the evidence when determining whether the State has
satisfied its burden. The Court recommends that a model charge be prepared on this
subject and refers the matter to the Model Jury Charges Committees for further
development. (pp. 5-6)

       AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in this opinion.




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       SUPREME COURT OF NEW JERSEY
             A-
72 September Term 2020
                       085359


                 State of New Jersey,

                Plaintiff-Respondent,

                          v.

                 William A. Gerena,

                Defendant-Appellant.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
        465 N.J. Super. 548 (App. Div. 2021).

     Argued                        Decided
 November 29, 2021             December 30, 2021


Melanie K. Dellplain, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Melanie K. Dellplain, of counsel and
on the briefs).

Stephanie Davis Elson, Assistant Prosecutor, argued the
cause for respondent (Esther Suarez, Hudson County
Prosecutor, attorney; Ednin D. Martinez, Assistant
Prosecutor, on the briefs).

Frank Muroski, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Andrew J. Bruck, Acting Attorney General, attorney;
Frank Muroski, of counsel and on the brief).



                          1
            Rachel E. Simon argued the cause for amicus curiae
            Association of Criminal Defense Lawyers of New Jersey
            (Pashman Stein Walder Hayden, attorneys; Rachel E.
            Simon, of counsel and on the brief).


                                 PER CURIAM


      The judgment of the Appellate Division is affirmed substantially for the

reasons expressed in Judge Sabatino’s thorough and thoughtful published

opinion. We add the following brief comments.

      We concur with the Appellate Division’s reasoning that the

determination of whether to admit, under N.J.R.E. 701, lay opinion testimony

estimating the perceived ranges of children’s ages or heights is best suited for

case-by-case assessment. State v. Gerena,  465 N.J. Super. 548 (App. Div.

2021). Further, we agree that the categorical prohibition of such lay opinion

testimony endorsed in the now century-old case of State v. Koettgen,  89 N.J.L.
 678, 680 (E. & A. 1916) (stating that age “is not within the category of things

. . . which . . . can be proved by [lay] opinion testimony”), constitutes an

overbroad generalization that is discordant with our modern Rules of

Evidence. Gerena,  465 N.J. Super. at 561-69.

      We disapprove of Koettgen and its categorical approach to the admission

of such lay opinion evidence. Henceforth, the trial court, acting as gatekeeper,

shall assess whether there exists a proper foundation for the lay opinion being

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offered, and if so, allow its admission subject to a Rule 403 balancing of the

relative probative value and prejudicial effect of the testimony.

      The Appellate Division has offered helpful guidance to trial courts when

performing that gatekeeping role and protecting against the admission of

unreliable age-related lay opinion testimony. We generally endorse the

considerations espoused by the Appellate Division and add the following.

      First, the trial court should conduct a Rule 104 hearing, on request, and

state on the record its basis for finding a sufficient foundation exists for the

proposed lay opinion testimony. We commend the use of the eight factors the

Appellate Division identified as aids, recognizing that the determination will

be case-specific. Gerena,  465 N.J. Super. at 569-73. Second, in the use of

those factors, we note that a trial court’s determination of admissibility may be

much more easily resolved in cases where the witness is estimating the

approximate age of a person or persons to be at the extremes of old age and

very young, distant from the relevant legal threshold age -- in this case, over or

under the age of thirteen.  1 See N.J.S.A. 2C:14-4(b)(1) (defining “Lewdness”

to include proscribed acts “where the actor knows or reasonably expects he is

likely to be observed by a child who is less than 13 years of age”). For


1
  When the proof requires demonstration of the exact age of a person, it is
difficult to imagine a scenario where lay opinion testimony based on
observations would suffice.
                                        3
example, common sense supports the inference that the approximation of a

child to be around the age of two or three years old as against a statutory

threshold of “less than 13” can be fairly readily resolved through lay opinion

testimony based on observations.

      Relatedly, the closer the perceived age of the individual is to the legal

threshold age to be proved, the greater the need for precise evidence. In other

words, as the margin narrows towards the poles of an age-range limit, the less

appropriate it is to rely on lay testimony. Thus, if the proposed testimony of a

witness estimates the age of a child to be close to the upper threshold of a

statutory age limit, such lay witness testimony may not suffice under a

gatekeeper’s assessment for reliability. As the Appellate Division’s decision

reflected, an important consideration will be “where the children appear to fit

along the spectrum of ages.” Gerena,  465 N.J. Super. at 565.

      In some prosecutions, an expert might be necessary, such as in a child

pornography case where the witness is estimating age from a video or picture.

See, e.g., State v. May,  362 N.J. Super. 572, 594-95 (App. Div. 2003) (noting,

in a child pornography prosecution, that whether an expert is needed to

determine the age of a child depicted requires a case-by-case analysis that calls

upon the trial court’s gatekeeping functions and requires a careful jury

instruction). Other times, it may be necessary to establish age with more

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reliable proof, for example, through date-of-birth records or personal

knowledge. We note that this concern is not present in the instant matter ,

where two witnesses testified to seeing children as young as six years old

engaged in age-appropriate activities, with parents apparently present and

supervising, at the playground where defendant was apprehended. Because

those witnesses observed children who appeared significantly younger in their

developmental age than the age of thirteen, the age threshold for a lewdness

offense, their testimony was not problematic. Like the Appellate Division, we

see no error in the trial court’s admission of the witnesses’ lay opinion

testimony.

      Finally, we agree with the Appellate Division and other courts that

require the jury be carefully instructed in appropriate cases when lay opinion

testimony is presented concerning estimation of a child’s age. Gerena,  465 N.J. Super. at 565. Trial judges have the “discretion to provide appropriate

charges, on request or sua sponte, as the situation may warrant.” Id. at 572

n.9. The guidance provided by Judge Kestin in May offered an appropriate

baseline for such an instruction, as was duly noted in the matter before us.

Gerena,  465 N.J. Super. at 565-66. At a minimum, the charge should remind

the jury that the State bears the burden of proof on all elements of a criminal

offense, including satisfying any age requirement. See May, 362 N.J. Super. at

                                        5
595. The jury should be informed that “speculation about age is not

permitted,” and that it must be persuaded by the evidence when determining

whether the State has satisfied its burden. Ibid.

      Accordingly, we recommend that a model charge be prepared on this

subject and refer the matter to the Model Jury Charges Committees for further

development.

      For the reasons expressed, we affirm the judgment of the Appellate

Division.



       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in
this opinion.




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