State v. Andre Higgs

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 and may not summarize all portions of the opinion. State v. Andre Higgs (A-28-21) (085863) Argued October 24, 2022 -- Decided March 30, 2023 PIERRE-LOUIS, J., writing for a unanimous Court. In this appeal, the Court considers several rulings related to discovery and the admissibility of evidence arising from defendant Andre Higgs’s trial for the murder of Latrena May. Defendant and May had been involved in a romantic relationship and shared a child. On the evening of May’s death, defendant and May were arguing on her front porch when East Orange Police Officer Kemon Lee approached them after hearing a woman’s voice shout “police” several times while he patrolled the area. Officer Lee testified that shortly after exiting his patrol car, he asked May to come down from the porch, but defendant began shooting May. Officer Lee returned fire and shot defendant several times. Defendant testified to a different version of events. Defendant stated that May pulled out a gun during their argument, and defendant took the gun away from her. According to defendant, he tried to surrender as Officer Lee approached, but the officer fired his weapon at defendant which led to the involuntary discharge of the gun in defendant’s hand, causing May’s death. Prior to trial, defendant sought access to Officer Lee’s internal affairs file, which included prior incidents of the officer firing his weapon while on duty. Defendant argued that the prior incidents were relevant to his defense that Officer Lee fired first. The trial court denied access to the file. The State then sought to bar defendant from cross-examining Officer Lee about any prior shootings and the trial court granted the State’s motion. Lastly, the State sought to impeach defendant on cross-examination with his prior indictable convictions. Four judgments of conviction were over 20 years old at the time of trial (including convictions for aggravated assault, weapon possession, and CDS distribution and possession), and one (for weapon possession) was over 14 years old. The trial court granted the State’s request, finding that a disorderly persons offense seven years prior to the trial was sufficient to “bridge the gap” between the old convictions and the present matter. 1  At trial, video from Officer Lee’s dashcam was played for the jury during the testimony of Officer Lee, defendant, and Detective Kevin Green, who was not present at the scene of the shooting. Detective Green testified, over objection, that he believed the dashcam footage depicted a gun in defendant’s back waistband as Officer Lee’s patrol car approached. Defendant was convicted of murder, among other offenses, and sentenced to life imprisonment. On appeal, the Appellate Division affirmed defendant’s convictions and sentence, finding no error with the trial court’s rulings. The Court granted certification, 248 N.J. 595 (2021), on the three issues raised in defendant’s petition: (1) whether the trial court erred in not allowing defendant access to Officer Lee’s internal affairs records and not allowing defense counsel to cross-examine Officer Lee regarding his prior on-duty shootings; (2) whether it was error pursuant to N.J.R.E. 701 to allow the lay opinion testimony of Detective Green regarding the image on the dashcam video; and (3) whether defendant’s remote convictions were improperly admitted for impeachment purposes. HELD: The Court reverses as to all three issues and remands for a new trial. The Court prescribes a framework for trial courts to assess requests for access to internal affairs records and provides guidance for the application of that framework on remand in this case. Because the defense argues Officer Lee discharged his firearm first, defense counsel could potentially be allowed to explore Officer Lee’s history of past shootings on cross-examination. On remand, defendant will be entitled to access the internal affairs file as outlined in the Court’s opinion, and that evidence may be used to cross-examine Officer Lee subject to any objections pursuant to N.J.R.E. 403 or 404(b). Detective Green’s testimony was based entirely on his lay opinion from watching the video, which was impermissible under N.J.R.E. 701. The video was already in evidence, so the jury was able to view the video and determine for themselves what the video showed. Finally, applying the factors in N.J.R.E. 609(b)(2), it was error for the trial court to admit defendant’s remote convictions because the State did not meet its burden of establishing that the probative value outweighed the prejudicial effect of admitting the old convictions. 1. The Court reviews the rules and case law governing discovery in criminal cases to determine whether they require the disclosure of police internal affairs records to a criminal defendant in pretrial discovery. The Court also takes note that, i n 1991, the Attorney General, pursuant to statutory authority, adopted the Internal Affairs Policy and Procedures (IAPP) which established a comprehensive set of procedures to address complaints of police misconduct. The IAPP carries the force of law for State and local law enforcement. In 1996, the Legislature passed N.J.S.A. 40A:14- 181, which requires all law enforcement agencies to “adopt and implement 2 guidelines which shall be consistent with the guidelines governing the [IAPP].” Each iteration of the IAPP has addressed the confidentiality of the disciplinary process and detailed the limited circumstances in which the records of an internal affairs investigation could be released. The current IAPP allows for disclosure in certain limited circumstances -- for example, at the direction of the county prosecutor or the Attorney General, or pursuant to a court order. In 2020, in a significant shift in practice, the Attorney General mandated the public identification of all officers subject to “major discipline,” which includes termination, a reduction in rank, or a suspension of more than five days. Even more recently, the Court held that although internal affairs records are exempt from disclosure under the Open Public Records Act, those records can and should be disclosed under the common law right of access when interests that favor disclosure outweigh concerns for confidentiality. (pp. 22-27) 2. In the present case, defendant sought access to Officer Lee’s internal affairs file to support defendant’s theory that Officer Lee fired his firearm first, which led defendant to involuntarily fire the gun in his hand. Defendant was denied that access after the trial court conducted an in camera review and determined that the records were not relevant to the case. To ensure that defendants in criminal trials are provided with the discovery necessary to adequately prepare for trial, defendants must be allowed, under certain circumstances, to access documents in law enforcement’s internal affairs files. That does not, however, mean that defendants should have unbridled access to internal affairs records. To appropriately balance the important interests involved, the Court adopts the following procedure: Going forward, a defendant who seeks discovery of information from an internal affairs file must first file a motion with the trial court requesting an in camera review of that file. The motion shall identify the specific category of information the defendant seeks and the relevance of that information to the defendant’s case. A general allegation that the defendant is in search of information relevant to a law enforcement officer’s credibility for impeachment purposes would be insufficient to obtain review of the file. In order for a trial court to grant a motion to conduct an in camera review of an internal affairs file, the defendant must point to a specific category or type of evidence and assert that the evidence, if present in the file, has a relevant nexus to an issue in the case. The Court anticipates that many defendants will be in a position to meet the relevancy standard and declines to adopt the more stringent “peculiar evidence” standard articulated over two decades ago in State v. Harris, 316 N.J. Super. 384 (App. Div. 1998). If the trial court determines as a threshold matter that the requested information, if present in the internal affairs file, would be relevant to the defendant’s case -- for impeachment purposes or to support the defense’s theory, for example -- the trial court shall grant the defendant’s motion and conduct an in camera review of the internal affairs records outside the presence of the parties. The in camera review by the trial court 3 would be solely for the purpose of determining whether the category of identified information exists in the internal affairs file. If, upon review, the trial court determines that the requested information is present in the file, both parties shall be allowed to review the relevant portion of the file, subject to any protective orders entered by the trial court. If the evidence sought is present in the file and relevant to the case, the court must balance its relevance against potential undue prejudice, as required in N.J.R.E. 403, prior to allowing that evidence in at trial. The Court provides additional guidance, including as to the application of the new framework in this case. (pp. 27-32) 3. The Confrontation Clause protects a defendant’s right to cross-examine a witness on the possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand, subject to oversight by trial courts under N.J.R.E. 611(a). The denial of effective cross-examination when it should have been allowed would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it. Here, because the defense argues Officer Lee discharged his firearm first, defense counsel could potentially be allowed to explore Officer Lee’s history of past shootings on cross-examination. On remand, defendant will be entitled to access the internal affairs file as outlined in the Court’s opinion, and that evidence may be used to cross-examine Officer Lee subject to any objections pursuant to N.J.R.E. 403 or 404(b). (pp. 32-35) 4. N.J.R.E. 701 directs that “[i]f a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences 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.” The Court reviews cases in which it has addressed the admission of lay opinion testimony by law enforcement officers when identifying defendants in videos or photographs presented to the jury. In State v. Sanchez, the Court adopted the following four factors for courts to consider when deciding whether to admit lay opinion identification testimony: (1) “the nature, duration, and timing of the witness’s contacts” with the subject of the testimony; (2) any change in the subject’s appearance since the time of the events at issue; (3) the availability of other witnesses; and (4) the quality of the photographic or video evidence about which the witness is testifying. 247 N.J. 450, 470-73 (2021). No single factor is dispositive, and the factors are “not exclusive” -- “other considerations may be relevant to the question of whether lay opinion testimony will assist the jury in a given case.” Id. at 473-74. (pp. 35-38) 5. In this case, Detective Green testified to a portion of the dashcam video that briefly showed defendant on the front porch of the home prior to the shooting. The video is dark and difficult to perceive. At one point in the video, as Officer Lee approached the house, the overhead lights on his patrol car briefly illuminated defendant and an item appeared to be visible in defendant’s back waistband. 4 Detective Green testified, over defense counsel’s objection, that the item appeared to be a firearm based on his 27 years of law enforcement experience. Detective Green’s lay opinion testimony thus directly contradicted defendant’s testimony that the gun was in his hand and in front of his body when Officer Lee arrived. Detective Green was not testifying as an expert witness despite his years of law enforcement experience. The State did not attempt to qualify him as an expert witness and did not introduce evidence about his qualifications to permit him to testify as an expert. His testimony was based entirely on his lay opinion from watching the video, which was impermissible under N.J.R.E. 701. Detective Green’s testimony invaded the province of the jury by usurping the jury’s assessment of the image in the video. The Court does not rule out the possibility of allowing a law enforcement officer to testify about a sequence in a video that is complex or particularly difficult to perceive, but the video in this case was not overly complex and did not involve a lot of activity or a chaotic scene that the jury needed assistance viewing. (pp. 38-41) 6. The Court reviews the history of the rules governing the admission of prior convictions. In determining whether evidence of a conviction that occurred over 10 years prior to the start of trial is admissible under N.J.R.E. 609(b)(1), courts may consider “(i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses, (ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud, (iii) how remote the conviction is in time, [and] (iv) the seriousness of the crime.” N.J.R.E. 609(b)(2) (emphases added). Through amendments to the rule, a concern about using disorderly persons offenses to “bridge the gap” to a conviction older than 10 years was addressed by shifting the burden of admission onto the proponent of the remote convictions. (pp. 41-44) 7. Here, the State argued that defendant’s June 2009 disorderly persons offense was sufficient to “bridge the gap” and admit defendant’s 24- and 14-year-old convictions. The only intervening offense since defendant’s last conviction in 2003 was a single disorderly persons offense that was not serious in nature and did not involve a lack of veracity. Further, the prior convictions did not involve “dishonesty, lack of veracity, or fraud.” See N.J.R.E. 609(b)(2)(ii). The seriousness of the prior convictions is not disputed, but it is not the only inquiry and cannot alone outweigh the prejudicial impact of remote convictions that have nothing to do with dishonesty. It was error to admit the remote convictions. (pp. 44-47) REVERSED and REMANDED for a new trial. CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON, WAINER APTER, and FASCIALE; and JUDGE SABATINO (temporarily assigned) join in JUSTICE PIERRE-LOUIS’s opinion. 5  SUPREME COURT OF NEW JERSEY A-28 September Term 2021 085863 State of New Jersey, Plaintiff-Respondent, v. Andre Higgs, Defendant-Appellant. On certification to the Superior Court, Appellate Division Argued Decided October 24, 2022 March 30, 2023 John J. McMahon argued the cause for appellant (Law Office of John J. McMahon, attorneys; John J. McMahon, of counsel and on the briefs, and Lois De Julio, on the briefs). Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Matthew E. Hanley, of counsel and on the briefs). Michael R. Noveck, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Michael R. Noveck, of counsel and on the briefs). 1  Dillon Reisman argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Dillon Reisman, Jeanne LoCicero, and Alexander Shalom, on the brief). CJ Griffin argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin and Chanel J. Hudson, on the brief). Sundeep Iyer, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Alec Schierenbeck, Deputy State Solicitor, and Steven K. Cuttonaro, Deputy Attorney General, of counsel and on the brief). JUSTICE PIERRE-LOUIS delivered the opinion of the Court. In this appeal, we are asked to determine whether to uphold several trial court rulings. Defendant Andre Higgs was convicted of murder after a jury trial. Defendant and the decedent, Latrena May, had been involved in a romantic relationship and shared a child. On the evening of May’s death, defendant and May were arguing on her front porch when East Orange Police Officer Kemon Lee approached them after hearing a woman’s voice shout “police” several times while he patrolled the area. Officer Lee testified that shortly after exiting his patrol car, he asked May to come down from the porch, but defendant began shooting May. 2 Officer Lee returned fire and shot defendant several times. Defendant testified to a different version of events. Defendant stated that May pulled out a gun during their argument, and defendant took the gun away from her. According to defendant, he tried to surrender as Officer Lee approached, but the officer fired his weapon at defendant which led to the involuntary discharge of the gun in defendant’s hand, causing May’s death. Prior to trial, defendant sought access to Officer Lee’s internal affairs file, which included prior incidents of the officer firing his weapon while on duty. Defendant argued that the prior incidents were relevant to his defense that Officer Lee fired first. The trial court denied access to the file. The State then sought to bar defendant from cross-examining Officer Lee about any prior shootings and the trial court granted the State’s motion. Lastly, the State sought to impeach defendant on cross-examination with his five prior judgments of conviction; four were over 20 years old at the time of trial and one was over 14 years old. The trial court granted the State’s request, finding that a disorderly persons offense seven years prior to the trial was sufficient to “bridge the gap” between the old convictions and the present matter. At trial, video from Officer Lee’s dashcam was played for the jury during the testimony of Officer Lee, defendant, and Detective Kevin Green, who was not present at the scene of the shooting. Detective Green testified, 3 over objection, that he believed the dashcam footage depicted a gun in defendant’s back waistband as Officer Lee’s patrol car approached. Defendant was convicted of murder, among other offenses, and sentenced to life imprisonment. On appeal, the Appellate Division affirmed defendant’s convictions and sentence, finding no error with the trial court’s rulings. We granted certification on the three issues raised in defendant’s petition: (1) whether the trial court erred in not allowing defendant access to Officer Lee’s internal affairs records and not allowing defense counsel to cross-examine Officer Lee regarding his prior on-duty shootings; (2) whether it was error pursuant to N.J.R.E. 701 to allow the lay opinion testimony of Detective Green regarding the image on the dashcam video; and (3) whether defendant’s remote convictions were improperly admitted for impeachment purposes. As detailed below, we now reverse on all three issues and remand the matter for a new trial. I. A. We rely on the testimony from defendant’s trial for the following summary. 4  According to defendant, he met and began dating Latrena May in 2007. Although defendant was in a long-term relationship with another woman at the time, defendant and May continued their relationship and had a daughter, D.H., in 2011. D.H. primarily resided with May, and defendant testified that he gave May money from time to time to support their daughter and May’s household, but there were no court orders in place regarding child support or visitation. Ten months before May’s death, May and D.H. moved into an apartment in East Orange that May leased from defendant, who owned the property. Defendant testified that on May 1, 2015, May called defendant and asked him to stop by her residence to drop off money and to talk. Defendant stated that he arrived at May’s residence at approximately 10:00 p.m. Defendant said he gave May $350 and the two talked in her bedroom as May sat on her bed watching television. Defendant testified that May was upset because she wanted defendant to leave his fiancée and be in a relationship with May. At some point, defendant told May that she and D.H. should move out of the apartment at the end of the lease term. According to defendant, May became very upset, pulled a gun out from under her pillow, and told defendant that he was “going to cause her to do something to [defendant].” Defendant took those words as an “idle threat” and told May he was leaving. 5  Defendant testified that he walked out of the bedroom and May followed him onto the front porch of the house wearing only underwear and a halter top. According to defendant, once on the porch, he “[g]rabbed the weapon out of [May’s] hand” because he believed “[May] was doing something very stupid.” What occurred next is the subject of disputed testimony. Defendant’s Version Defendant claims that when he and May were on the porch, he did not notice Officer Lee’s police car, but May attempted to alert him to the officer’s presence by saying “police” several times. Defendant testified that after he saw the police car turn on the overhead lights and make a U-turn, May wanted to go back into the house, but he told May to stand still in hopes of not attracting the officer’s attention. As the police car approached, defendant said he tried to hide May behind him due to her state of undress and told her to stay calm. As Officer Lee’s patrol car approached, the vehicle’s dashcam was recording. At one point, the car’s overhead lights briefly illuminated defendant standing on the porch. Defendant claims that at that time his back was facing the police car and the gun was in his hand, in front of his body, between him and May. 6  Defendant testified that “[Officer Lee] was reaching for his gun the minute he was trying to get out of the car . . . . [H]e was basically grabbing his gun before he was out of the seat.” Defendant stated that after Officer Lee exited his patrol vehicle and before he approached defendant and May, May yelled to Officer Lee to “stop.” Defendant testified that he tried to talk to Officer Lee to explain the situation and yelled, “my man, you ain’t going to believe this.” By then, Officer Lee was in front of his car and said, “I’m not your M-ing F-ing man, come down here.” Defendant stated that he then tried to alert Officer Lee that he had a gun in his hand and took a “surrendering position” with his hands up and the gun “point[ing] up, straight up.” Defendant testified that Officer Lee began shooting at that moment. When defendant heard the shot, he claims he tried pushing May out of the way and then he “went black” and felt like he had been “beat with a sledgehammer.” A total of four bullets struck defendant’s legs. It is undisputed that May was fatally struck by three bullets that came from the firearm in defendant’s hand. Defendant testified that after he was shot by Officer Lee, the gun in his hand went off but he “[didn’t] remember pulling the trigger.” Defendant stated that the shooting was “involuntary.” After being shot, defendant “pushed [himself] back into the hallway” of the home on his buttocks and maneuvered back into the foyer where he threw 7 the gun over his left shoulder in order to “get the gun as far away from [him] as possible.” Defendant testified that he never hid the gun and did not know where the gun landed exactly. Defendant then woke up his daughter D.H., told her to go upstairs, and yelled to the second-floor tenant Reshanda Richmond to let D.H. in. Defendant testified that after he heard officers tell him to come out of the house over a loudspeaker, he tried to communicate with the police by yelling that he could not walk and that the front door was unlocked. Defendant eventually pushed himself towards the front door and opened it. When officers entered the house, they found defendant lying across the threshold of the door on his stomach with his hands stretched out. Officers arrested defendant without incident. Officer Lee’s Testimony Officer Lee testified that while on patrol on May 1, 2015, at approximately 10:15 p.m., he heard a woman’s voice screaming “officer” approximately four to six times and observed the woman outside on a porch. Officer Lee turned on his marked patrol car’s overhead lights, made a U-turn, and stopped in front of the porch. As he approached, Officer Lee saw May “standing at the top of the stairs” and defendant standing “really close to [May] with very little space in between them.” Officer Lee exited his vehicle 8 and testified that he did not notice the gun in defendant’s hand until defendant shot May. Officer Lee stated that when he approached the porch, he “already unholstered [his gun],” which was “in [his] right hand, pointed toward the ground with [his] finger off of the trigger and on the slide.”1 Officer Lee stated that as he was approaching the porch, neither defendant nor May said anything to him. Officer Lee testified that with his left hand he “ordered the female to come down,” but before she could do so, defendant “pulled out a gun and started to shoot [May].” Officer Lee testified that defendant shot May “at least twice,” and immediately thereafter, Officer Lee shot the defendant several times. Testimony of Other Witnesses Reshanda Richmond, her son, and Joseph Jackson lived in the second- floor apartment of the same house as May. Richmond testified that at approximately 10:15 p.m., right before the gunshots, she heard arguing and a commotion outside. When she looked out the window, she saw the police, May, and defendant, whom she referred to as her landlord. According to 1 When other officers arrived at the scene, Officer Lee first told a supervisor that he did not draw his weapon until he saw defendant shoot May. During the internal affairs investigation interview, when Officer Lee saw the conflicting dashcam video footage for the first time, Officer Lee seemed surprised that he had his gun out when he initially exited his vehicle. 9 Richmond, she heard May say “[c]all the police.” Richmond recalled hearing May yell for the police more than once. Richmond testified that she heard defendant say “[t]hat’s my man” and Officer Lee respond, “I’m not your man.” Jackson testified that on the day of the shooting, before hearing the gunshots, he heard a female voice yelling outside. After the yelling and prior to the shooting, Jackson heard the female say “No, stop.” Juliet Kerr also testified at trial. Kerr lived on the second floor of the building next to May’s residence. Kerr also overheard arguing and “loud talking” between a male and female prior to the shooting. When Kerr looked out of her window, she saw a police car and a woman standing near the doorway in her underwear and bra. Kerr testified that as the officer approached, May spoke to the officer and said “stop.” B. On November 6, 2015, an Essex County grand jury returned a seven- count indictment charging defendant with first-degree murder, third-degree aggravated assault, second-degree unlawful possession of a handgun, second- degree possession of a firearm for an unlawful purpose, second-degree endangering the welfare of a child, third-degree hindering apprehension, and third-degree possession of a controlled dangerous substance. On the same day, 10 a separate indictment charged defendant with first-degree unlawful possession of a weapon and possession of a weapon by a convicted felon. Prior to trial, the defense made discovery requests that included information from the New Jersey State Police Office of Professional Standards that pertained to the manner in which officers seized evidence during the investigation. Through the information provided in response to that request, defendant learned of Officer Lee’s prior on-duty shootings. Defense counsel later moved for discovery of Officer Lee’s internal affairs file, arguing that the file was “crucial to the defendant’s ability to thoroughly and properly cross examine [Officer Lee].” The trial court granted the motion out of “an abundance of caution” and noted that “in fairness to [defendant] . . . I want to at least take an in camera look to see if there would be anything that would be appropriate for the defense to have, since he is, I think we all agree, [Officer Lee] would be the primary witness here.” Thereafter, the trial judge reported that he had completed the in camera review of the internal affairs file and determined that there was nothing relevant in the file that should be turned over to defendant. The State then filed a motion in limine to prevent defendant from cross- examining Officer Lee about prior shootings that occurred while he was on - duty. Defendant opposed the motion and sought permission from the court to 11 ask Officer Lee whether he had been the subject of 22 prior internal affairs investigations or complaints, in order to challenge the officer’s credibility and bias. The trial court granted the State’s motion and denied defendant’s request to question Officer Lee about the prior shootings and the internal affairs investigations. The court found that the prior shootings were not relevant and there was no basis for believing the prior shootings would impact Officer Lee’s behavior absent a medical diagnosis of post-traumatic stress disorder. The trial court prohibited defense counsel from mentioning Officer Lee’s prior shootings. C. The State also filed a pretrial motion seeking to impeach defendant with his prior indictable convictions pursuant to N.J.R.E. 609(b)(2), in the event he testified at trial. Of the five prior judgments of conviction, four had the same sentence date of February 16, 1993. 2 The fifth judgment related to a January 17, 2003 conviction for third-degree unlawful possession of a weapon resulting in a sentence of eighteen months’ probation. 2 The judgments included convictions for second-degree aggravated assault; second-degree possession of a weapon for an unlawful purpose; third-degree distribution of CDS within 1,000 feet of a school zone; and second-degree possession of CDS. 12  In assessing the factors under N.J.R.E. 609(b)(2) to determine the admissibility of defendant’s convictions, which were all more than 10 years old at the time of trial, the trial court first noted that defendant’s previous convictions were for serious offenses but were also remote and not for crimes involving dishonesty. Initially, the court acknowledged that standing alone, the remoteness of the convictions favored exclusion. The court determined, however, that defendant’s 2009 disorderly persons offense for simple assault “bridged the gap” between the present case and defendant’s prior convictions. In admitting all of defendant’s prior convictions, the court emphasized the effect of the intervening 2009 disorderly persons offense, opining that, had it not occurred, the court likely would have excluded the past convictions. D. During trial, Detective Kevin Green of the Essex County Prosecutor’s Office Homicide Task Force testified about the investigation he conducted on the night of the shooting in his capacity as the lead detective in the case. The dashcam video from that evening was already in evidence and had been played for the jury during Officer Lee’s testimony. The State played the video again during Detective Green’s testimony as he walked the jury through what transpired that evening. At one point during Detective Green’s testimony, the prosecutor stopped the video, and the following colloquy ensued: 13  PROSECUTOR: What do you see in black right here where I’m pointing on the screen? DETECTIVE GREEN: It appears to be a firearm. DEFENSE COUNSEL: Objection. Judge, that’s absolutely impossible to determine. THE COURT: Let me come down and just -- so I can make it an open/closed ruling. At this point, it appears the parties discussed the objection with the judge outside of the jury’s ability to hear the discussion. DEFENSE COUNSEL: You know [defendant] is wearing a cell phone clip. There is no way you can say you know what that is. DETECTIVE GREEN: That appears to be a firearm. DEFENSE COUNSEL: I appreciate that this witness wants to say that . . . . .... DEFENSE COUNSEL: This is an opinion. It is not a fact. The witness can’t offer an opinion. I mean, we can all look at the image and form our own opinions at the end of this case. .... DEFENSE COUNSEL: It’s [a] basic principle of evidentiary rules. We can’t offer an opinion unless he’s an expert. THE COURT: Well, first of all, the detective has said that he’s seen this video many times. He did the investigation, obviously. The video, sort of, speaks for 14  itself. The jury will have the video. They can see it for themselves and make whatever determination they feel is appropriate. It’s not inappropriate for Detective Green to be able to view the video and give his opinion, just like he gave his opinion that he could see people on the top of the steps, the vehicle . . . he can offer opinion. Whether or not the jury finds that opinion to be credible or not is up to the jury to make a call. So I’ll permit the question because the jury is going to have the video. They can see it for themselves, but I’ll permit it. Detective Green’s testimony then resumed: PROSECUTOR: Describe to me why it looks to you like that was a firearm? .... DEFENSE COUNSEL: Objection. Judge, you just said it speaks for itself. THE COURT: I said he could give his opinion and now the prosecutor is asking for the basis of the opinion, which I think would go hand in hand, so I’ll permit that too. .... DETECTIVE GREEN: In my [27 years of] experience, I’ve seen firearms in waistbands in the . . . location where it is. In that location, to me, that appears to be a firearm. On direct examination, defendant testified that the image on the dashcam video -- that Detective Green believed was a firearm -- was not a firearm. Defendant stated that the gun, at the point in time captured in the video, was in 15 his hand, in front of his body, between defendant and May, contrary to Detective Green’s testimony. E. At the conclusion of the first phase of defendant’s bifurcated trial, the jury found defendant guilty of first-degree murder, third-degree aggravated assault, and charges related to unlawful possession and use of a handgun. The jury found defendant not guilty of second-degree endangering the welfare of a child. In the second phase, the jury convicted defendant of unlawful possession of a weapon and possession of a weapon by a convicted felon. The trial court sentenced defendant to an aggregate term of life imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. F. On appeal, defendant made numerous arguments challenging his convictions and sentence. In an unpublished opinion, the Appellate Division rejected defendant’s arguments and affirmed his convictions and sentence. With regard to the issues currently before this Court, the Appellate Division rejected defendant’s arguments without discussion. 16  G. Defendant petitioned this Court for certification on three issues: (1) whether the trial court erred in denying defendant access to Officer Lee’s internal affairs file and not allowing defense counsel to cross-examine Officer Lee about his prior shootings in the line of duty; (2) whether Detective Green should have been allowed to provide his lay opinion regarding the dashcam video footage; and (3) whether the trial court abused its discretion in allowing defendant to be impeached on his remote prior convictions. We granted defendant’s petition on all three issues. 248 N.J. 595 (2021). We also granted the applications of the American Civil Liberties Union of New Jersey (ACLU), the New Jersey Office of the Public Defender, the Association of Criminal Defense Lawyers of New Jersey (ACDL), and the Attorney General of New Jersey to participate as amici curiae. II. A. Defendant argues that the trial court erred in denying him access to Officer Lee’s internal affairs file. Defendant reasons such evidence of prior on-duty shootings would tend to discredit Officer Lee’s testimony and support defendant’s theory that Officer Lee fired firs