On certification to the Superior Court, Appellate Division, whose opinion is reported at 202 N.J. Super. 297 (1985).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, Justice.
Defendant, Paul Gibbons, was tried before a jury on two counts each of possession, possession with intent to distribute, and distribution of methamphetamine. Defendant raised the affirmative defense of entrapment. The jury rejected the defense, returning a verdict of guilty on all six counts.
In its charge to the jury, the trial court instructed the jury that in assessing defendant's entrapment defense, defendant's two prior convictions for receiving stolen property and single previous conviction for larceny and breaking and entering could be considered in evaluating defendant's predisposition to commit the drug offenses, as well as for purposes of appraising defendant's general credibility. Defendant unsuccessfully raised objections to this instruction at the close of the charge, and subsequently in a motion for a new trial. Following the jury verdict, the trial court merged each of the counts of possession into the distribution convictions and sentenced defendant to two concurrent terms of six years in state prison. On appeal, the Appellate Division affirmed in a reported decision, State v. Gibbons, 202 N.J. Super. 297 (1985). We granted certification, limited to the issue of whether the defendant's prior property-related convictions could properly be used to demonstrate a propensity to commit the drug-related offense.*fn1 103 N.J. 456 (1986). For the reasons set forth in this opinion, we now reverse and remand for a new trial.
Defendant's arrest and convictions stemmed from two meetings between defendant and an undercover police detective in November of 1981. The undercover officer, Robert Pincus of the Atlantic City Police Department, and defendant related differing accounts of these two meetings. They agreed that a
confidential paid informant, identified as Linda, introduced defendant to Pincus on November 22, 1981. Pincus testified that at that initial meeting, which occurred in the informant's apartment, the defendant sold Pincus a small quantity of methamphetamine in exchange for $20. Pincus further testified that after this transaction he informed the defendant that he was interested in purchasing a larger quantity of the same type of drug, whereupon the defendant quoted him prices for varying amounts. According to Pincus, the defendant then provided him with his phone number, and agreed that Pincus would contact the defendant the next day to arrange the details of the drug purchase.
Pincus testified that he called the defendant on November 23, 1981, and arranged to meet the defendant later in the day in Atlantic City to purchase methamphetamine. Pincus related that he met with the defendant on November 23, 1981, eventually proceeding to a room in the Caesar's Boardwalk Regency hotel. Pincus stated that once at the hotel, the two discussed future drug purchases and a trip to Philadelphia to buy more drugs. Defendant then produced approximately 2.5 grams of methamphetamine for Pincus's inspection and a $30 bag for Pincus to sample. Pincus subsequently signalled his fellow officers, who entered the room under the pretense of a room service delivery. Atlantic City Detectives McKnight and Mooney, along with a Caesar's security agent, were let into the room by Pincus, and defendant was placed under arrest. Pincus testified that when the defendant learned of Pincus's real identity, the defendant stated, "I thought you were Pincus but I wasn't sure." Detective McKnight confirmed this statement. The State contends that defendant was referring to Pincus's reputation in the area as an undercover narcotics officer.
Defendant admitted that he was a methamphetamine addict, thereby conceding guilt on the possession counts, but claimed that he neither distributed nor intended to distribute the drug. Defendant testified that he first began to use methamphetamine to relieve the pain resulting from crushed heels sustained
in an industrial accident. According to defendant, Linda called him 4 or 5 times on a day in November asking him to sell her drugs. He subsequently "stopped by" her apartment, where he found Pincus, whom he assumed was the informant's boyfriend, and the informant. Defendant testified, "he [Pincus] sat down at the table and I took the speed out of my pocket and gave it to Linda, and he put twenty dollars on the table which I just thought was the courtesy of a boyfriend or something like that." The defendant further testified, in contradiction to Pincus, that he left the $20 on the table and that Linda never left the room. Pincus then asked defendant about obtaining more methamphetamine, whereupon defendant "reluctantly" and "abstractly" related prices to Pincus.
Defendant testified that Pincus called him at home the following day, and invited him to take a ride to Philadelphia to buy some clothes with $16,000 that the detective's brother had just won in a casino. Defendant agreed to meet Pincus, thinking that he could "separate him from some of that money." Defendant testified that when he met Pincus the next day, he was carrying drugs for his own personal use and that only after Pincus asked him several times for drugs did he put two "lines" on a table for them to use. Defendant denied stating "I thought you were Pincus" when the officers entered the hotel room, although he conceded saying "something to that effect regarding school with him."
At the close of the State's case, the trial court held a Sands hearing*fn2 and determined that the State could introduce evidence of defendant's three prior convictions -- receiving stolen property in 1972, larceny and breaking and entering in 1975, and receiving stolen property in 1976 -- for purposes of impeaching the defendant's credibility. Thereafter the trial court instructed the jury that the prior convictions could be considered
also on the issue of defendant's predisposition to commit the offense as well as to assess the defendant's credibility.
The New Jersey Code of Criminal Justice expressly provides entrapment as an affirmative defense. N.J.S.A. 2C:2-12.*fn3 The Court has interpreted N.J.S.A. 2C:2-12 as requiring that a defendant claiming entrapment prove both subjective and objective entrapment; he must prove, in other words, both "that the police conduct . . . by its nature created a 'substantial risk' that the crime would be committed by an average person who was not otherwise ready to commit it" (objective element) and "that the police conduct in fact caused him to commit the crime" (subjective element). State v. Rockholt, 96 N.J. 570, 581 (1984). Prior to the enactment of the entrapment defense as part of the Code, our common law had recognized the subjective entrapment defense, which allowed a defendant to demonstrate that prior to the commission of the crime, he had no predisposition or intent to commit the crime and that the law enforcement
authorities were responsible for inducing him to commit the crime. State v. Dolce, 41 N.J. 422 (1964). We had also recognized the relevance of objective evidence of entrapment in particular circumstances. The entrapment defense could be established by objective evidence of especially egregious police misconduct, even if predisposition was shown. State v. Talbot, 135 N.J. Super. 500 (App.Div.1975), aff'd, 71 N.J. 160, 167-68 (1976) ("as the part played by the State in the criminal activity increases, the importance of the factor of defendant's criminal intent decreases, until finally a point may be reached where the methods used by the State to obtain a conviction cannot be countenanced, even though a defendant's predisposition is shown"). See State v. Molnar, 81 N.J. 475 (1980).
With respect to subjective entrapment we had followed the general rule regarding the use of other-crimes evidence as relevant to the defendant's predisposition to commit the crime charged. In Dolce, the Court, relying on Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932), stated:
When a defendant interposes the defense of entrapment, the State may introduce evidence of his predisposition to commit crime. The purpose is to demonstrate that he was not an innocent person who would not have committed the offense were it not for the proposal and inducement of the police officer. Predisposition is evidenced by previous conviction of crime, reputation for criminal activities, ready compliance with minimal inducement, or easy yielding to the opportunity to commit the offense. [41 N.J. at 433 (emphasis added).]
Although the Court also expressed hesitancy over the admission of prior conviction evidence in the State's case in chief, it endorsed the use of such evidence on cross-examination not only to affect credibility but also to show a defendant's propensity to commit crime when a defendant's direct testimony or other evidence adduced by him created a factual issue regarding the defense of entrapment. Id. at 434. Our pre-Code approach comports with the general common law according to which the prosecution could introduce "other-crimes" ...