State v. Gerena

Appellate Docket No.: A-3655-18T2

Decided January 5, 2021

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

In a published opinion, the Appellate Division of New Jersey ruled that lay witnesses, under the right circumstances, can testify as to the approximate age of children, overturning a Supreme Court ruling from 1916.

In State v. Gerena, a seventeen year old was walking her dog in the park when she observed defendant exposing himself to children in the park.  The witness described the children on the playground to be younger than 15 years old.  The witness called police and police also observed the defendant’s behavior.  Defendant was arrested. A grand jury charged defendant with second-degree sexual assault by contact, N.J.S.A. 2C:14-2(b), and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1), plus a child endangerment count that was voluntarily dismissed before trial.

At trial, the witness and officers recounted their version of events, including the estimated heights and ages of the children on the playground.  This evidence was admitted over defense counsel’s objection.  The jury found defendant not guilty of second-degree sexual assault by contact but convicted him of fourth-degree lewdness.

Defendant appealed. The Appellate Division affirmed the ruling, overturning State v. Koettgen, 89 N.J.L. 678, 683 (E. & A. 1916) which stood for the proposition that lay witnesses could not estimate the ages of children.  The Appellate Division ruled lay opinions are admissible and helpful to the trier of fact, subject of course to cross-examination and other forms of impeachment.

In evaluating the admissibility of such evidence, a court should consider a variety of factors, such as: (1) distance, (2) length of time of the observation, (3) any observed activity of the person, (4) physical comparisons with the height or size of nearby objects or other persons, (5) whether the eyewitness attests to a range rather than a specific height or age, (6) whether the observed individual has a comparatively similar age or height as the witness, (7) whether there is corroborating proof, and (8) the totality of circumstances. In appropriate cases, the court may exclude or limit the opinion testimony in its discretion under N.J.R.E. 403 and, if warranted, provide jurors with a limiting or cautionary instruction.

This case is important because the age of the children was an element of the offense, as the children were believed to be under the age of 15.  Prior to this case, the testimony of the age of the children would be inadmissible, and it would have been almost impossible to prove the children were under the age of 15 without testimony of a parent.  Now, witnesses can testify as to ages of children who they do not know, crucial in these child sex cases.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.



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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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