A New Jersey Appellate Division panel reversed the criminal conviction of a man whose trial featured the videotaped deposition of a key witness. The criminal appeals court judges found that Marcus Hollen’s 6th Amendment right to confront the witnesses against him had been violated by allowing the jury to view the videotape.
New Jersey Court Rule 3:13-2(c) allows the use of videotaped depositions in a criminal trial only if a material witness is unable to testify because of death or incapacity. In Holland’s case, a key witness had left the country and returned to his home country, Pakistan.
The criminal appeal was from Hollen’s Passaic County conviction for violating N.J.S.A. 2C:39-7, which prevents any person convicted of a crime to possess a weapon. In 2004, Paterson Police responded to a report of shots fired in front of a fast food restaurant. Hollen, the defendant, was in the vicinity and reportedly approached the window of the restaurant and demanded that the witness, O. Khan, hide a handgun for him. Hollen threatened to kill Khan if he refused.
Police then approached and observed Hollen fleeing the scene. Police then questioned Khan, who claimed that Hollen only passed coins through the window. However, other witnesses told police they saw a gun passed between Hollen and Khan.At about the same time, police officer Jose Torres, responding to the call, drove up and saw Hollen walking away from the stand. Torres said when Hollen saw him, he turned around and shoved a dark object into the rotating window. When Torres questioned Khan about what was placed in the window, Khan replied that it was only some coins. Khan soon admitted the same, and police then discovered a loaded nine-millimeter pistol from the restaurant. Hollen was then arrested and found to possess bullets matching the gun. A spent shell casing was found nearby also matching the gun.
Khan soon returned to Pakistan after giving prosecutors a taped statement. The case was tried in a New Jersey Criminal Part Court in 2006. The public defender representing Hollen failed to object to the videotape deposition being played to the jury before trial. On appeal, prosecutors argued that Khan’s return to Pakistan constituted a physical incapacity under the applicable court rule. The appeals court disagreed and ordered that Hollen receive a new trial where the videotape could not be used against him.
Hollen’s criminal appeal attorney was a Newark-based defense attorney assigned the case by the public defender’s office. If you feel you have been convicted of a crime based on improper or inadmissible evidence, contact a New Jersey criminal appeal attorney for a free consultation.