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State v. Spano

Decided: February 23, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK SPANO, DEFENDANT-APPELLANT



For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

Defendant was convicted of (1) unlawful distribution of marijuana on January 27, 1973 and (2) unlawful distribution of cocaine on February 3, 1973, both a violation of N.J.S.A. 24:21-19(a)(1). He was sentenced to two indeterminate terms to be served concurrently in the Youth Correctional Institutional Complex. The Appellate Division affirmed in an unreported opinion. This Court granted certification, 68 N.J. 167 (1975), to review defendant's contention of substantial trial error. We reverse the judgment of conviction and remand for a new trial.

The State's case was largely based on the testimony of an undercover narcotics officer who said that he met defendant on January 27, 1973 at a bar in Rahway. A discussion took place about defendant's selling cocaine to the officer. Defendant said he would have to get it from his connection and would let the officer know at a later date. The officer then asked defendant if he had any marijuana, whereupon defendant produced a plastic bag of vegetative matter, later shown to be marijuana, and sold it to the officer for $20. Also present were defendant's girl friend Lynne and a mutual acquaintance of defendant and the officer named D.L. No arrest was made at that time.

Thereafter, defendant, through D.L., got in touch with the officer for the purpose of selling him cocaine, and on February 3, 1973, by prior arrangement, the two met at D.L.'s home where the sale of a packet of cocaine was consummated. The officer testified that the same four persons were present on this occasion. Defendant was arrested at a later date.

Defendant claimed alibi as to the alleged January 27 marijuana transaction. In addition to his own testimony that he was at a friend's house in Kenilworth at the time, defendant produced four witnesses who supported his story. They included defendant's girl friend Lynne and defendant's sister.

The sister, after verifying defendant's presence in the friend's house at the time in question, testified that she kept a diary in which she made daily notations. However, when she was asked if there was a notation in her diary covering January 27, 1973, the State's objection to any reference to the contents of the diary was sustained.

As to the February 3 incident, defendant admitted being present at D.L.'s house with his girl friend on that date. However, he said he went there to arrange for the purchase of tickets to a concert. He denied that the undercover officer had been present.

After defendant's case was rested, the State called D.L. as a witness in rebuttal. Her testimony fully supported the undercover officer's story as to the January 27 and February 3 incidents involving defendant.

On cross-examination when she was asked if she had been arrested for drug possession, the court sustained the State's objection to the question, stating that unless there was a record of conviction (which defense counsel admitted he did not have) the question was improper.

In fact, the witness had been previously arrested for possession of a controlled dangerous substance. Since this was her first offense, she was eligible for supervisory treatment under N.J.S.A. 24:21-27 which, if successfully concluded, would result in a dismissal of the criminal charge. In January 1974, on the recommendation of the prosecutor, she had been placed in the program and when she appeared as a witness in the instant case in February 1974, she was in the program undergoing treatment and the criminal charge against her had not yet been dismissed. Apparently defense counsel was unaware of the foregoing disposition of the matter, as he made no effort to pursue it beyond his original question. Although the trial judge's ruling was correct as the record then stood, defendant was nonetheless substantially prejudiced thereby.

The entire case turned on the question of credibility. Until D.L. was called in rebuttal, it was ...


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