STATE OF NEW JERSEY IN THE INTEREST OF L.B. (FJ-20-0541-18, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                   RECORD IMPOUNDED

                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1227-19

STATE OF NEW JERSEY IN
THE INTEREST OF L.B.,
a Juvenile.
___________________________

                Argued February 23, 2021 – Decided March 29, 2021

                Before Judges Yannotti, Mawla, and Natali.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Family Part, Union County,
                Docket No. FJ-20-0541-18.

                Candace Caruthers, Assistant Deputy Public Defender,
                argued the cause for appellant L.B. (Joseph E.
                Krakora, Public Defender, attorney; Candace
                Caruthers, of counsel and on the briefs).

                Milton S. Leibowitz, Special Deputy Attorney
                General/Acting Assistant Prosecutor, argued the cause
                for respondent State of New Jersey (Lyndsay V.
                Ruotolo, Acting Union County Prosecutor, attorney;
                Milton S. Leibowitz, of counsel and on the brief).

PER CURIAM

       L.B. appeals from a January 16, 2019 adjudication on offenses, which if

committed by an adult, would constitute second-degree unlawful possession of
a firearm, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree possession of

hollow point bullets, N.J.S.A. 2C:39-3(f) (count two); second-degree

possession of a firearm while possessing a controlled dangerous substance

(CDS) with intent to distribute, N.J.S.A. 2C:39-4.1(a) (count three); third-

degree possession of a CDS and possession with intent to distribute, N.J.S.A.

2C:35-10(a)(1) (counts six and seven); third-degree possession of a CDS and

possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (counts

eight and nine); two counts second-degree possession of CDS with intent to

distribute within 500 feet of a public park, N.J.S.A. 2C:35:7.1(a) (count s ten

and eleven); two counts third-degree possession of CDS with intent to

distribute within 1000 feet of a school, N.J.S.A. 2C:35-7(a) (counts twelve and

fourteen); third-degree possession with intent to distribute a prescription

legend drug, N.J.S.A. 2C:35-10.5 (count fifteen); third-degree possession with

intent to distribute an imitation CDS, N.J.S.A. 2C:35-11(a)(3) (count sixteen);

and disorderly persons offenses of obstruction, N.J.S.A. 2C:29-1(a) (count

four); and possession of a CDS (marijuana), N.J.S.A. 2C:35-10(a)(4) (count

thirteen). We affirm in part, vacate in part, and reverse and remand in part.

      The trial in this matter was originally scheduled for June 2018. A month

prior, the trial judge granted the State's motion to obtain a buccal swab from


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                                       2
L.B. and his co-defendant A.W. to test for DNA on a handgun found in a room

where they were arrested. The State's DNA expert produced a report linking

L.B. to the gun. As a result, defense counsel requested an adjournment of the

trial in order to obtain a forensic expert to analyze the DNA. Defense counsel

noted she "received a voluminous packet [the first day of trial] of . . . lab notes

and some other information from the State" that she wished to review. A.W.'s

counsel joined in the adjournment request, and the State did not object. The

trial was adjourned to January 2019.

      When the matter returned for trial, L.B.'s counsel addressed the trial

judge before opening statements and stated:

            The [c]ourt's aware that in this case something that is
            going to come up [is] DNA results. That's the swabs
            taken of [L.B.] And . . . there were some DNA results
            that resulted from the testing that was done on the
            gun.

                  I had wanted to get an expert in the case for a
            few reasons. One is that . . . it's always good to have
            one. And two, the software that was used in this case
            is STRmix.[1] It's my understanding that only recently
            did Union County start using this brand new software

1
   "STRmix™ is expert forensic software, developed by ESR and Forensic
Science South Australia . . . , that can resolve previously unresolvable mixed
DNA profiles. . . . STRmix™ software combines biological modelling and
mathematical processes to achieve results not possible with traditional DNA
interpretation methods." ESR, https://www.esr.cri.nz/our-services/products-
and-tools/strmix (last visited Feb. 26, 2021).
                                                                            A-1227-19
                                       3
            program. In the past had there been a complex
            mixture, which is what is going to come up in this
            case, with a number of people, the contributors that
            were on that mixture, this case would have been
            thrown out prior to something like STRmix existing.

                   So for that reason I wanted to get an expert. I
            was in touch with my supervisors and I've been in
            touch with people in Trenton. And I was able to find
            someone named . . . Nate Adams, who works for Bio-
            forensics.    And I had been in touch with him
            throughout the course of the call. However, he wasn't
            vendor compliant with our office. And because it was
            an S corporation, they had shareholders in [fifty]
            states. He was not able to become vendor compliant
            until the end of November, leaving him not enough
            time to prep this case and testify as a witness in this
            trial.

                   The [c]ourt has given me a lot of time. I
            understand that. It has been seven months since I
            indicated that I did need this expert. But given that
            the new software is being used and the fact that . . .
            this is kind of outside of my control because we've got
            a compliance issue, I wanted to put that on the record
            because I think it goes directly to my client's [Sixth]
            Amendment right to confrontation.

In response, the judge stated:

            The [c]ourt understands in this matter that . . . part of
            the State's case rests on DNA evidence and expert
            testimony. That came to the [c]ourt's attention back in
            June of 2018. Motions were filed, buccal swabs were
            taken, DNA tests were performed. That information
            was turned over quite early at that time to the
            [d]efense.


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                                      4
       The [d]efense has had seven months to obtain an
expert. I understand the [d]efense's statements that
this is a new test and they located one person. And
the Public Defender's Office has to go through the
procurement process. It's been seven months. It's
more than ample time to acquire that.

. . . [T]he [c]ourt's dockets cannot be held up on
defendants constantly coming up with ["]well we got
another matter here, another matter here.["] Certainly
. . . and I don't put this on the attorneys before me
because it's not partially their problem. They work for
the Public Defender's Office, which has to go through
certain procedures.

       But in any other case a private attorney and so
forth, they would be given a little . . . amount of time
to go and get that [expert] . . . . He'd need to pay him
and bring him in or not. We don't leave an open-
ended matter here when the trial was scheduled in this
case, quite some time ago, back in September or so.
And it was scheduled and the [d]efense was told to go
get it fixed. If you need the expert, get him. I gave
you plenty of time to do so. You do not have it at this
time.

       So the matter is going to proceed. I understand
the [d]efense's argument, but . . . the need to get an
expert is not an open-ended need that you have a[n]
unlimited amount of time to do so. There has to be a
finite time to do so. The [c]ourt has to proceed.
Otherwise the . . . juveniles' rights to a speedy trial are
also affected because they're sitting waiting, [A.W.] in
particular has been sitting in detention for some
months waiting for this matter to proceed.




                                                              A-1227-19
                           5
      The trial proceeded over the course of four days during which the State

presented six witnesses, including fact witnesses and three expert witnesses.

We take the following facts from the trial record.

      On January 23, 2018, Officer Scott Pavonis, and Detectives Luis Garcia

and Athanasios Mikros, responded to a rooming house in Elizabeth.           The

owner of the building had previously provided a key to the building to police

to monitor its common areas, which police used to enter the building.

Detective Garcia testified that as he entered the vestibule of the building, he

saw "a person to the left by the window, . . . wearing all red with long dreads.

Then [he] saw another gentleman next to him to his left.        He . . . had a

[m]ohawk haircut. . . . And there was another person closest to the staircase

. . . [a]nd he had . . . a twisty hairstyle." The three individuals were later

identified as Jaquil Ellison, A.W., and L.B.

      After Detective Garcia entered the building he yelled "Elizabeth Police,

Elizabeth Police," and L.B. looked at the officers, "placed . . . his right hand

and secured a black object [on the] . . . right side of his waistband area . . .

[a]nd . . . immediately took off up the stairs." Ellison and A.W. followed L.B.

up the stairs. All three officers followed and "once [Ellison, A.W. and L.B.]

got to the second floor landing[,] they went into room four." When Officer


                                                                         A-1227-19
                                      6
Pavonis tried to open the door it was locked. Detective Garcia knocked the

door down.

      The officers entered and Detective Garcia "smelled a strong odor of raw

marijuana in the room." The officers turned on the lights and saw three men

and a woman who was renting the room, laying with their eyes closed. The

officers handcuffed the room's occupants. As Detective Garcia searched L.B.

he observed a nine-millimeter handgun in a nearby cubbyhole, which was later

found to be loaded with six live rounds. Officers found baggies of cocaine on

A.W., and heroin on Ellison. A search of the room yielded quinine, cocaine,

and marijuana.

      The State also called Sergeant Krsysztof Audinis as an expert in the field

of forensic firearm identification and Detective Anthony Reimer as an expert

in the field of narcotics and narcotics distribution. Sergeant Audinis testified

the firearm was operable. Detective Reimer explained the differences between

crack and powder cocaine; how they are ingested, packaged, and priced; and

the use of quinine. He also explained why the drugs discovered were not for

personal use and were meant for distribution.

      Monica Ghannam testified on behalf of the State as a forensic DNA

analysis expert. She utilized the STRmix computer program to analyze swabs


                                                                         A-1227-19
                                      7
from the gun's trigger, slide, frame, and magazine. She opined the STRmix

results showed "it [was] approximately 107,000 times more likely that the

DNA is a mixture of [L.B.'s] and three unknown individuals than a mixture of

DNA from four unknown individuals."

      The trial judge concluded the State had proven "all the charges alleged

in this matter" beyond a reasonable doubt against L.B. 2 He found all of the

State's witnesses "direct and credible."    The judge made the following

findings:

            The State has proved that [L.B.] was in the vestibule.
            When he saw the police officers, he placed his hand
            on a black object in his waistband. And in defiance of
            orders, ran upstairs. He was visible to the officers.
            Never took his hand off the object in his waistband.
            And he entered . . . Room [Four].

                   When the police entered the room, he was on the
            floor pretending to be sleeping. By him was the
            cutout in the wall in which was a loaded nine
            millimeter handgun. . . . [T]he handgun was a black
            item, which the State has shown to be the black item
            in his waistband, by the testimony.

                  DNA shows that [L.B.] is strongly found to be
            in possession of the weapon.

                  ....


2
  A.W. was tried together with L.B. and was likewise adjudicated on all
charges.
                                                                      A-1227-19
                                     8
                  . . . His DNA was on it and on the magazine.

                  He was also in the room with the codefendants
            who were each in possession of . . . various CDS's.
            Cocaine, heroin, marijuana, prescription alleging
            quinine, which was . . . on the person of the adult
            codefendant . . . and in the mattress.

                   The amount of CDS was identified as an amount
            which would not be . . . for personal use, but was . . .
            packaged and in amounts that was normally associated
            with distribution and sale. It was construed in the
            totality of the facts to be in his possession as a
            codefendant with the others in the enterprise of
            distribution.

                  As all parties were together in the vestibule and
            in the room, the drugs were easily within the reach –
            particularly, the ones in the mattress and on the . . .
            dresser . . . were easily within the reach of [L.B.].

      The judge placed L.B. on probation for three years with eighteen months

participation in the Juvenile Intensive Supervision Program followed by an

additional eighteen months' probation.

      L.B. raises the following points on appeal:

            POINT I – THE TRIAL COURT IMPROPERLY
            REFUSED TO GRANT THE JUVENILE'S DNA
            EXPERT FURTHER TIME TO PREPARE FOR
            TRIAL, THEREBY DENYING THE JUVENILE OF
            HIS RIGHTS TO PRESENT WITNESSES IN HIS
            DEFENSE AND EFFECTIVELY CONFRONT THE
            WITNESSES AGAINST HIM.



                                                                       A-1227-19
                                      9
                  A.    Reversal is Required Because the
                  Juvenile's DNA Expert Was Necessary for Him
                  to Present a Complete Defense and Effectively
                  Challenge the State's Most Important Evidence.

                        i.    The Trial Court Improperly Denied
                        L.B.'s Expert Additional Time to Prepare
                        for Trial.

                        ii.   The Trial Court's        Erroneous
                        Decision Was Harmful Because the
                        Expert Would Have Provided Favorable
                        and Indispensable Testimony about the
                        Novel Probabilistic Genotyping Software.

                  B.    Alternatively, this Court Should Remand
                  for a Frye Hearing to Determine Whether the
                  STRmix Software is Reliable.

            POINT II – THE STATE'S DRUG EXPERT'S
            TESTIMONY VIOLATED THE HOLDINGS OF
            STATE V. CAIN AND STATE V. SIMMS BY
            OPINING DIRECTLY ON THE JUVENILE'S
            INTENT, WHICH WAS AN ULTIMATE ISSUE OF
            FACT SOLELY FOR THE FACT-FINDER,
            REQUIRING REVERSAL. (Not Raised Below).

            POINT III – THE MAXIMUM PROBATIONARY
            TERM OF THREE YEARS IMPOSED BY THE
            COURT WAS EXCESSIVE AND REMAND IS
            REQUIRED.

      Our standard of review in juvenile delinquency bench trials "is narrow

and is limited to the evaluation of whether the trial judge's findings are

supported by substantial, credible evidence in the record as a whole." State in


                                                                        A-1227-19
                                    10
the Int. of J.P.F., 

368 N.J. Super. 24

, 31 (App. Div. 2004). "Although we defer

to the trial court's findings of fact, especially when credibility determinations

are involved, we do not defer on questions of law." N.J. Div. of Youth & Fam.

Servs. v. V.T., 

423 N.J. Super. 320

, 331 (App. Div. 2011) (citing N.J. Div. of

Youth & Fam. Servs. v. R.L., 

388 N.J. Super. 81

, 88-89 (App. Div. 2006)).

                                        I.

      Adjournment decisions due to the unavailability of an expert witness lie

within the discretion of the trial court and will not be disturbed unless there is

an abuse of discretion. Kosmowski v. Atlantic City Med. Ctr., 

175 N.J. 568

,

574 (2003). Whether there was an abuse of discretion depends on the amount

of prejudice the aggrieved party suffered. State v. Smith, 

66 N.J. Super. 465

,

468 (App. Div. 1961); see also State v. Hayes, 

205 N.J. 522

, 537 (2011)

(holding an appellate court will reverse for failure to grant an adjournment

only if the trial court abused its discretion, causing a party a "manifest wrong

or injury.").

      If the aggrieved party is unable to fully present his case as a result of the

denial of an adjournment, then his or her substantial rights were infringed.

Pepe v. Urban, 

11 N.J. Super. 385

, 389 (App. Div. 1951). "No eagerness to

expedite business, or to utilize fully the court's time, should be permitted to


                                                                            A-1227-19
                                      11
interfere with [the court's] high duty of administering justice in the individual

case."

Id. at 389.

  Reversal is not warranted for a refusal to grant an

adjournment "unless an injustice has been done." Nadel v. Bergamo, 160 N.J.

Super. 213, 218 (App. Div. 1978).

         Furthermore, "[b]oth the Sixth Amendment to the United States

Constitution and Article I, Paragraph 10 of the New Jersey Constitution

guarantee to the accused the right 'to have a compulsory process for obta ining

witnesses in his favor.'" State v. Garcia, 

195 N.J. 192

, 201-02 (2008). Both

"guarantee criminal defendants 'a meaningful opportunity to present a

complete defense.'" State v. Garron, 

177 N.J. 147

, 168 (2003) (quoting Crane

v. Kentucky, 

476 U.S. 683

, 690 (1986)). "Indeed, the right of an accused to

present witnesses in his own defense 'is a fundamental element of due process

of law.'" 

Garcia, 195 N.J. at 202

(quoting Taylor v. Illinois, 

484 U.S. 400

, 409

(1988)); see also State v. Sanchez, 

143 N.J. 273

, 290 (1996) ("[F]ew rights are

more fundamental than that of an accused to present witnesses in his own

defense." (quoting Chambers v. Mississippi, 

410 U.S. 284

, 302 (1973))).

         As we noted, the trial judge reasoned he could not grant a second

adjournment because: there were speedy trial concerns; defense counsel was

afforded seven months to obtain an expert; the court could not permit its


                                                                          A-1227-19
                                     12
calendar to be delayed; and litigants represented by assigned counsel should be

treated the same as those who have private counsel and required to have their

experts ready for trial. These reasons are unpersuasive.

      Although we appreciate the judge's desire to move cases in an

expeditious manner, this usurped L.B.'s fundamental right to mount a defense,

which could have changed the outcome.            Furthermore, the speedy trial

argument was primarily L.B.'s to make. We understand the Public Defender

should not be treated differently than private counsel, however, as L.B.'s

counsel explained the process for retaining an expert utilizing public funds is

entirely dissimilar to a litigant who can afford to retain private defense counsel

and an expert. See Vendor Contract Compliance Requirements, NEW JERSEY

OFFICE         OF         THE          PUBLIC          DEFENDER           (2019),

https://www.nj.gov/defender/documents/Waiver%20VCC%

20Requirements%20%2003-19-2019.pdf (articulating a detailed six step

process required by the Department of Treasury for qualification of vendors

capable of conducting business with the Office of the Public Defender). The

record lacks any evidence defense counsel was lackadaisical in her efforts to

retain a forensic DNA expert who was vendor compliant.




                                                                           A-1227-19
                                      13
      For these reasons, we reverse the adjudications related to the gun

charges. However, we reject L.B.'s argument a reversal of the gun charges

warrants reversal of the drug charges. Ghannam's testimony pertained solely

to the handgun.     Neither the State's presentation nor the judge's findings

correlated the DNA evidence to the drug charges.

                                         II.

      For the first time on appeal, L.B. challenges Detective Reimer's expert

testimony relating to the CDS distribution. Detective Reimer was qualified as

an expert in the field of narcotics and narcotics distribution without objection.

He testified the drug amounts seized and the lack of paraphernalia in the room

where police discovered the drugs signified the drugs were not for personal

use, but instead for distribution. He also stated the presence of more than one

type of drug, namely, heroin and cocaine, also signified a distribution

operation and L.B. and his co-defendants were operating "like a convenience

store" offering "something for everybody" to "increase[] . . . the amount of

profits they could potentially gain."

      N.J.R.E. 702 states "[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,


                                                                          A-1227-19
                                        14
experience, training, or education may testify thereto in the form of an op inion

or otherwise." To satisfy N.J.R.E. 702,

            the proponent of expert evidence must establish . . .
            (1) the subject matter of the testimony must be
            "beyond the ken of the average juror"; (2) the field of
            inquiry "must be at a state of the art such that an
            expert's testimony could be sufficiently reliable"; and
            (3) "the witness must have sufficient expertise to offer
            the" testimony.

            [State v. J.L.G., 

234 N.J. 265

, 280 (2018) (quoting
            State v. Kelly, 

97 N.J. 178

, 208 (1984)).]

      An expert witness may not opine on a defendant's state of mind because

whether a defendant possessed a CDS with the intent to distribute is an

ultimate issue of fact. State v. Cain, 

224 N.J. 410

, 427 (2016). In State v.

Odom, the State presented a police detective as an expert witness who testified

the defendant was in possession of a bag containing eighteen vials of crack

cocaine with the intent to distribute. 

116 N.J. 65

, 68 (1989). Our Supreme

Court upheld the drug distribution conviction, holding "as long as the expert

does not express his opinion of defendant's guilt but simply characterizes

defendant's conduct based on the facts in evidence in light of his specialized

knowledge, the opinion is not objectionable even though it embraces ultimate

issues that the jury must decide."

Id. at 79.


                                                                          A-1227-19
                                      15
      Detective Reimer's testimony was detailed and grounded in his

experience of having conducted over 100 narcotics arrests as a member of a

narcotics strike force "assigned daily to engage in investigations [involving]

narcotics related crimes, [such as] dealing, distribution, street level sales, mid-

level sales and upper level sales." The purpose of his testimony was to inform

the court why the amount and types of the drugs discovered in the room and

the absence of paraphernalia evidenced distribution rather than personal

consumption of CDS.        Although this testimony may have embraced the

ultimate issue the judge was to decide, it was not an opinion of L.B.'s guilt.

                                         III.

      Finally, we do not reach the disposition-related arguments raised by L.B.

as his final disposition must abide the outcome of the remanded gun charges.

However, the parties agree the adjudication under N.J.S.A. 2C:35-10(a)(4)

must be vacated as a result of the passage of A. 1897 (2021). Therefore, this

aspect of the adjudication is vacated.

      Affirmed in part, vacated in part, and reversed and remanded in part.

We do not retain jurisdiction.




                                                                            A-1227-19
                                         16

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