For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Mountain and Sullivan, and Judges Lewis and Collester. For reversal -- None. The opinion of the Court was delivered by Collester, P.J.A.D., Temporarily assigned.
[63 NJ Page 264] Defendant was convicted of the unlawful possession of heroin and sentenced to a term of 12 months in the county penitentiary.
On appeal, the Appellate Division reversed the conviction in an unreported opinion and remanded the case for a new trial. The Appellate Division held that hearsay testimony of a police officer's conversation with an informer was erroneously admitted into evidence and that its admission, together with the prosecutor's reference thereto, constituted reversible error. This court granted the State's petition for certification. 62 N.J. 261 (1973).
The State's proofs indicated that at approximately 10:15 P.M. on January 28, 1971, acting on an informer's tip, four Newark detectives went to a tavern known as Charlie's Lounge. Before entering they looked through a window and saw defendant and three other black males inside. Defendant was seated at the middle of the bar. No other person was seated within three or four bar stools from him. Defendant was wearing a green jacket, a gray hooded sweatshirt and blue pants which matched the description of the clothing of the man they were looking for.
The detectives entered the tavern and approached defendant who was then standing up. As they were identifying themselves, one of the officers, Detective Walsh, noticed a pair of gloves on the bar near where defendant had been seated, which had a "distinguishable bulge protruding." The detective picked up the gloves and found a stack of 16 glassine envelopes underneath. (The contents of the envelopes were subsequently found to contain heroin.) Defendant was placed under arrest and searched but no narcotics were found on his person.
Detective Genzone, one of the arresting officers, testified that when they entered the tavern the gloves were on the bar in front of defendant and he observed Detective Walsh pick them up and pull the stack of glassine envelopes from underneath. He also said that on the bar in front of defendant there was a drink, some change and a package of cigarettes. However, Genzone's recollection of other details of the arrest were hazy. The detective could not remember which way defendant was facing while seated at the bar,
whether he was watching a game of pool being played, whether the police found a jacket on the bar stool on which defendant had been seated, or whether defendant denied ownership of the gloves when the narcotics were found.
Detective Walsh, the only other officer to testify, said that the gloves were on the bar about one and a half to two feet away from where defendant was standing. He also said that when confronted with the glassine envelopes defendant denied ownership of the gloves, the change, the drink and the cigarettes. The detective further testified that after defendant was placed under arrest he asked for the cigarettes and change which were on the bar next to the gloves. On cross-examination the witness admitted he had not noted this last fact in his arrest report nor had the cigarettes and change been seized as evidence.
At the close of the case the court granted the State's motion requiring defendant to try on the gloves in the presence of the jury. Defendant did not testify or call any witnesses on his own behalf.
The Appellate Division's decision was based on testimony given by Detective Genzone and comments made by the prosecutor.
During his opening statement the prosecutor told the jury, over defendant's objection, that the detectives "were actively engaged in an investigation of this man" and that the investigation led them to the tavern where they saw defendant and approached him.
Detective Genzone testified that shortly before defendant was arrested the officers had been talking to an informer and that based on information received they went to the tavern. He said that before entering he saw four black males inside whom he did not know by name. He testified, "* * * we were looking for a certain individual. We had a description of his clothing. He was inside the tavern. * * * We were looking for an ...