The New Jersey Appellate Division today reversed our client’s conviction for second degree unlawful possession of a handgun.
The Court agreed with James Wronko’s argument at trial that the testimony of his client’s father, in an unrelated trial, should not have been admitted during this trial. Gilbert G. Miller, Esq., of the firm, successfully argued the case on appeal.
This is the initial Appellate decision interpreting N.J.R.E. 808(b)(9), the so-called forfeiture-by-wrongdoing exception to the hearsay rule.
At trial, our client’s father did not appear to testify on behalf of the State. The State argued that it could use his prior testimony because our client had either directly or indirectly caused his father to be unavailable to testify at his trial.
Despite Mr. Wronko’s arguments to the contrary, the Trial Court erroneously concluded that our client had procured his father’s absence at trial. The Appellate decision held that there was no evidence that our client engaged in any wrongdoing designed to make his father unavailable as a witness.
The Appellate Court therefore held that the State failed to prove by a preponderance of the evidence the necessary predicates for admission of our client’s father’s testimony from the unrelated trial as evidence in this case pursuant to the Rule.
Our client is now entitled to a new trial at which hopefully the State will only be allowed to introduce lawful evidence.
