SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0546-01T5
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CEESAY SIMBARA,
Defendant-Respondent.
Submitted February 4, 2002 - Decided February 27, 2002
Before Judges Petrella, Steinberg and Alley.
On appeal from an interlocutory order, by
leave granted, of the Superior Court of New
Jersey, Law Division, Passaic County, 00-01-
0013.
Peter A. Garcia, Acting Public Defender,
attorney for appellant (Marcia Blum,
Assistant Deputy Public Defender, of counsel
and on the brief).
Boris Moczula, Passaic County Prosecutor,
attorney for respondent (Jane E. Hendry,
Special Deputy Attorney General, Senior
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
ALLEY, J.A.D.
Defendant was charged in Passaic County indictment 00-01-
00013 with having committed the following offenses in Paterson on
June 21, 1999: possession of a controlled dangerous substance,
cocaine, third degree, N.J.S.A. 2C:35-10a(1)(Count One);
possession of a controlled dangerous substance, cocaine, with
intent to distribute, third degree, N.J.S.A. 2C:35-5a(1) and b(3)
(Count Two); possession of a controlled dangerous substance,
cocaine, with intent to distribute within 1,000 feet of school
property, third degree, N.J.S.A. 2C:35-7 (Count Three); and
possession of drug paraphernalia with intent to distribute,
fourth degree, N.J.S.A. 2C:36-3 (Count Four).
Before trial, the State timely furnished to defendant a
laboratory certificate as to the nature and composition of the
alleged controlled dangerous substances, together with related
details, thus invoking the procedure for proffering the
certificate as evidence at trial as specified in N.J.S.A. 2C:35-
19b, which reads as follows:
b. Upon the request of any law enforcement
agency, the laboratory employee performing
the analysis shall prepare a certificate.
This employee shall sign the certificate
under oath and shall include in the
certificate an attestation as to the result
of the analysis. The presentation of this
certificate to a court by any party to a
proceeding shall be evidence that all of the
requirements and provisions of this section
have been complied with. This certificate
shall be sworn to before a notary public or
other person empowered by law to take oaths
and shall contain a statement establishing
the following: the type of analysis
performed; the result achieved; any
conclusions reached based upon that result;
that the subscriber is the person who
performed the analysis and made the
conclusions; the subscriber's training or
experience to perform the analysis; and the
nature and condition of the equipment used.
When properly executed, the certificate
shall, subject to subsection c. of this
section and notwithstanding any other
provision of law, be admissible evidence of
the composition, quality, and quantity of the
substance submitted to the laboratory for
analysis, and the court shall take judicial
notice of the signature of the person
performing the analysis and of the fact that
he is that person.
Defendant responded by giving the State timely objection under
N.J.S.A. 2C:35-19c to the State's intended use of the lab
certificate as evidence at trial. That statute provides:
c. Whenever a party intends to proffer in a
criminal or quasi-criminal proceeding, a
certificate executed pursuant to this
section, notice of an intent to proffer that
certificate and all reports relating to the
analysis in question, including a copy of the
certificate, shall be conveyed to the
opposing party or parties at least 20 days
before the proceeding begins. An opposing
party who intends to object to the admission
into evidence of a certificate shall give
notice of objection and the grounds for the
objection within 10 days upon receiving the
adversary's notice of intent to proffer the
certificate. Whenever a notice of objection
is filed, admissibility of the certificate
shall be determined not later than two days
before the beginning of the trial. A
proffered certificate shall be admitted in
evidence unless it appears from the notice of
objection and specific grounds for that
objection that the composition, quality, or
quantity of the substance submitted to the
laboratory for analysis will be contested at
trial. A failure to comply with the time
limitations regarding the notice of objection
required by this section shall constitute a
waiver of any objections to the admission of
the certificate. The time limitations set
forth in this section shall not be relaxed
except upon a showing of good cause.
Shortly before trial, a Law Division judge held a hearing
pursuant to N.J.S.A. 2C:35-19c and determined that the lab
certificate could not be admitted into evidence in lieu of the
testimony of the technician who performed the testing referred to
therein. In the judge's view, the certificate did not supply the
details required by N.J.S.A. 2C:35-19b. The judge entered an
order to that effect on September 18, 2001, and the State now
appeals by leave granted. We reverse.
The procedures for possible use of laboratory certificates
pursuant to these statutes as trial proof of controlled dangerous
substances were recently discussed by our Supreme Court in State
v. Miller, _____ N.J. _____ (January 23, 2002). Justice Long
stated in Miller, supra:
In 1987, the Legislature designed a
procedure to streamline the trial of drug
cases by weeding out, prior to trial, those
cases in which scientific proof is not
contested and in which a lab certificate may
be admitted in lieu of expert testimony.
The Comprehensive Drug Reform Act
prescribes that the certified results of a
controlled dangerous substance analysis by a
State Forensic Laboratory are admissible
evidence of the "composition, quality, and
quantity" of the substance tested provided
that (1) the lab certificate meets certain
criteria regarding the testing process to
establish the certificate's reliability; and
(2) a "notice and demand" procedure is
satisfied. N.J.S.A. 2C:35-19.
The certificate must meet certain formal
requirements, including the signature, under
oath, of the laboratory employee who
performed the analysis attesting to the
results; a statement establishing "the type
of analysis performed; the result achieved;
any conclusions reached based upon that
result; that the subscriber is the person who
performed the analysis and made the
conclusions; the subscriber's training or
experience to perform the analysis; and the
nature and condition of the equipment used."
N.J.S.A. 2C:35-19b. A party intending to
proffer the certificate must convey "notice
of an intent" to do so to the opposing party
at least twenty days before the trial.
N.J.S.A. 2C:35-19c. That notice must include
a copy of the lab certificate. Ibid.
A party who objects to the admission of
the certificate in turn [must object as
provided in N.J.S.A. 2C:35-19c].
[State v. Miller, supra, ____ N.J. at _____ (slip op.
at 1113).]
Justice Long further explained in Miller:
The effect of the procedure established
by N.J.S.A. 2C:35-19 is rather straight-
forward: to cull out the cases that may
require live testimony from, in our
experience, the vast majority of cases in
which the defendant does not oppose the
admission of the lab certificate either
because the focus of the defense is otherwise
or because he or she may not wish to suffer
the piling-on effect of a live witness when
there is no true contest over the nature of
the tested substance.
[State v. Miller, supra, ____N.J. at _____ (slip op.
at 16-17).]
Here, defendant timely interposed an objection to the
certificate under N.J.S.A. 2C:35-19c. What the State then must
establish, consistent with Miller, is that the certificate
supplies the information required by N.J.S.A. 2C:35-19b, supra.
We conclude that the trial court erred in ruling that the lab
certificate could not be admitted.
We note first that, consistent with the statute, N.J.S.A.
2C:35-19b, the document under review is a written certificate and
there is no dispute that it was signed under oath by an
appropriate laboratory employee as required by that section. It
further appears that the certificate furnishes "a statement
establishing the following: the type of analysis performed; the
result achieved; any conclusions reached based upon that result;
that the subscriber is the person who performed the analysis and
made the conclusions; the subscriber's training or experience to
perform the analysis; and the nature and condition of the
equipment used." N.J.S.A. 2C:35-19b.
We see no reason why a certificate under this Statute ought
to be interpreted in a stilted manner that deprives it of its
context. It is apparent to us, for example, that the certificate
in this case, which is entitled "New Jersey State Police Special
Technical Services Section, Forensic Science Bureau, Certified
Laboratory Report," can be fairly read to show the "results of
drug analysis." Specimen 1, for example, is indicated to be
"cocaine." With regard to that substance, the certificate notes
that tests "3" and "4" were performed. On the certificate's
"Test Procedure Key," the tests so performed are identified as
"3. Color Tests" and "4. Gas Chromatography-Mass Spectrometry"
tests. To use another example, Specimen "2," is marijuana, as
shown by "test procedures" stated to be "1. Microscopic
examination" and "2. Duquenois-Levine Color Test."
The net weight is indicated in grams as to each item tested,
and the person executing the report has certified as follows:
Pursuant to the provisions of N.J.S. 2C:35-19
(P.L. 1987, c. 106), I hereby certify and
attest that I am employed by a State Forensic
Laboratory which has been designated by the
Attorney General (copy of letter of
designation on file with the Prosecutor's
Office) for 12 years, I have a B.S. degree,
and I have qualified as an expert witness on
42 occasions in Municipal and Superior Courts
in New Jersey; that the above laboratory
report, fairly and accurately documents the
type and results of the analysis performed;
that I am the person who performed analyses,
reviewed results, and made the conclusions
set forth in the above laboratory report;
that my training and experience is fairly and
accurately documented in a curricula vitae,
which is on file with the Prosecutor's Office
and incorporated by reference herein; that
the equipment used to perform the type of
analysis described above was functioning
properly. The test procedures used are
accurate, reliable, objective in nature, and
performed on a routine basis within the
laboratory.
In reviewing the certificate in this case, the trial court
identified what it perceived to be deficiencies therein,
including the following:
[T]he certificate . . . says . . . color
tests, plural . . . . There is nothing to
indicate what color tests were performed. It
does not indicate in any way the result that
was achieved by that color test . . . .
Although the box "cocaine" is checked .
. . there is nothing in the report that says
that specimen number one was tested using
some type of analysis and that the result of
that indicates that it was cocaine.
The fact remains that there is nothing
linking whatever test was actually performed
on this specimen with what that finding was
or what the basis of that finding was. It
does not indicate the result that was
achieved.
You can go down the line. The next test
is number four, gas chromatography-mass
spectrometry. It does not say what the
result was of that test, and it does not
indicate that it was a combination of the
tests or what type of test was actually
performed. It simply contains insufficient
information . . . .
We think that the trial court erred as a matter of law in applying the statute too narrowly and rigidly to the certificate before it. Obviously, the question is of constitutional moment because, as discussed in Miller, under the Confrontation Clause, defendant has the right to have the State present the lab technician as a witness who can be cross-examined unless compliance with N.J.S.A. 2C:35-19 is established. The document is not filled with unintelligible scientific jargon, nor is it prepared so that it would be mere gobbledygook to one qualified to understand standard testing for controlled dangerous substances. We see no reason, if the certificate states what tests were performed, why further specifics as to testing need to be recited on the form. Presumably, any expert sufficiently qualified to testify on behalf of a defendant on these issues would be well aware of the meaning of the tests identified on the form and of the equipment needed to perform the tests.
It is beyond legitimate dispute that, consistent with the statutory requirements, the certificate here contains particular and reliable information for a qualified reader concerning "the type of analysis performed; the result achieved, any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber's training or experience to perform the analysis; and the nature and condition of the equipment used." N.J.S.A. 2C:35- 19b.
With regard to "the equipment used," it is clear to us in the present context that the certification that "the equipment used to perform the type of analysis described above was functioning properly" is sufficient to comply with the statute. Any qualified expert upon whom a defendant would call to analyze or refute the evidence in a lab certificate pursuant to this statute, or indeed the live testimony of the laboratory employee which the State might proffer in lieu of the certificate, presumably would be familiar with such tests as Gas Chromatography and Mass Spectrometry testing. We see no reason why a qualified expert would not be able to glean from the certificate sufficient information concerning the equipment used to perform such tests to satisfy the statute.See footnote 11 The trial judge, sometimes described as the "gatekeeper" under the rules of evidence, has wide discretion in the admission or exclusion of evidence, subject of course to the requirements of those rules, of the law, and in a case such as this, of the Confrontation Clause. As we stated in Dinter v. Sears, Roebuck & Co., 252 N.J.Super 84, 92 (App. Div. 1991):
As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge, whose ruling is not disturbed unless there is a clear abuse of discretion . . . . Even where there may have been error, reversal is required only when an unjust result occurred.
Yet even with the wide latitude that is accorded a trial court's discretionary judgment, such a decision will not withstand appellate scrutiny if it proceeds from a mistake of fact or an erroneous legal premise. We observed in State v. Steele, 92 N.J. Super 498, 507 (App. Div. 1966), that
[i]t is well settled that discretion means legal discretion, in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly. If the trial judge misconceives the applicable law or misapplies it to the factual complex, in total effect the exercise of legal discretion lacks a foundation and becomes an arbitrary act.
See also, State v. Brown, 118 N.J. 595, 604 (1990)
We are persuaded that the trial court's decision to exclude the lab certificate in this case was predicated on an erroneous legal conclusion: that N.J.S.A. 2C:35-19 requires a greater degree of specificity than it actually does. We reach this determination cognizant of what the Supreme Court has identified as the statute's "fundamental purpose: to weed out prior to trial those cases in which there is a contest over the scientific proof and with respect to which the State will be required to produce a witness or prove why one is not necessary." Miller, supra, slip op. at 24. To effectuate that purpose, a review of the certificate's sufficiency should not be premised on an unfounded implicit assumption that the Legislature contemplated that it would be reviewed and evaluated, not by experts, but only by lay persons who are wholly non-conversant with chemistry and with tests of the type that are ordinarily used to identify controlled dangerous substances. A lab certificate's sufficiency under the statute must be considered in the practical context of whether it fairly and reliably informs a potential defense expert of the factors the statute specifies:
the type of analysis performed; the result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber's training or experience to perform the analysis; and the nature and condition of the equipment used.
[N.J.S.A. 2C:35-19b].
The Law Division judge failed to do so, and instead applied an erroneous legal standard that resulted in giving the statute too preclusive a reading. Because of this legal error, our determination is not an improper invasion of his discretion. To summarize, defendant interposed an objection to the admission of a lab certificate in accordance with N.J.S.A. 2C:35- 19c. At that point, the State was required either to present trial testimony of the lab employee who performed the alleged tests, or show at a hearing before trial that the proffered certificate was in conformity with the statute, to assure the certificate is reliable and thus admissible at trial. For the reasons stated, in our evaluation of the applicable statutory requirements, appropriately construed in the context in which lab certificates are to be furnished and scrutinized, we have determined that the certificate before us complies with N.J.S.A. 2C:35-19. We accordingly reverse the order appealed from and remand for trial.
Reversed and remanded.
Footnote: 1 1To assume that a defendant's expert would be appropriately
qualified is not at all inconsistent with the ruling in Miller on
the issue regarding the extent, if any, to which a defendant
could be required to provide details as to his or her objections
to the admission of a lab certificate which the State proposed to
use pursuant to N.J.S.A. 2C:35-19. On that issue, Justice Long
stated:
We agree with the majority view
expressed in legislation and case law that a
defendant cannot, as a matter of
constitutional imperative, be assigned any
burden to detail an objection to the
admission of an lab certificate. However,
unlike some other jurisdictions, we see no
reason to invalidate the entire notice and
demand procedure. Rather, to avoid
constitutional infirmity, we interpret
N.J.S.A. 2C:35-19c to require only that a
defendant object to the lab certificate and
assert that the composition, quality or
quantity of the tested substance will be
contested at trial. That interpretation
insulates the statute from constitutional
challenge and serves its fundamental purpose:
to weed out prior to trial those cases in
which there is a contest over the scientific
proof and with respect to which the State
will be required to produce a witness or
prove why one is not necessary.
[State v. Miller, supra, ____ N.J. at _____ (slip op.
at 24).]
Standards for admissibility of a lab certificate under
the evidence rules were outlined in State v. Matulewicz,
101 N.J. 27 (1985). Of course, unlike the court in Matulewicz, we are not
here dealing with the admissibility of documents pursuant to the
hearsay exceptions for business records or public reports, but
with whether the lab certificate, apart from any possible
admissibility as a hearsay exception, which was not sought to be
established here, nevertheless can be admitted consistent with
the Confrontation Clause because it comports with N.J.S.A. 2C:35-
19 and thus evidences "'particularized guarantees of
trustworthiness' [that] assure its reliability." Miller, supra,
slip op. at 8.