On appeal from Superior court, Law Division, Bergen County.
R. S. Cohen and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Following a jury trial, defendant Radames Perez was convicted of possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 24:21-19a(1) and N.J.S.A. 24:21-19b(2). He was sentenced to five years imprisonment and ordered to pay $25 to the Violent Crimes Compensation Board.
On appeal defendant contends:
1. The trial court erred in permitting an expert opinion of intention to distribute. (Not raised below).
2. The trial court erred in denying defendant's motion for a mistrial at the end of the State's case.
3. The trial court erred in permitting the State to switch expert witnesses on the day of trial.
The State's evidence reveals that on March 7, 1985, at approximately 1:07 a.m., while New Jersey State Troopers Stephen Serrao and Paul Morris were on routine patrol at the northern end of the New Jersey Turnpike in Ridgefield Park Borough, they noticed a white Econoline van travelling at a high rate of speed. The troopers followed the van, conducted a speed check of the vehicle and determined it was travelling at 65 mph. As Serrao activated the patrol car's overhead lights, the van immediately pulled over to the shoulder and stopped. Serrao exited the patrol car and approached the van from the passenger side; Morris remained toward the rear of the van. Defendant, seated in the passenger side, opened the front door. At this point, the vehicles were parked in a well-lit stretch of the turnpike and Serrao carried a flashlight. Serrao walked up to the open door and asked the driver, Nester Marrero, for his license, vehicle registration and insurance card. Marrero responded in a thick Spanish accent, "No speak English"; Serrao, who spoke some Spanish, attempted to convey the request in a mixture of Spanish and English.
While speaking to Marrero, Serrao saw defendant put his hands in his jacket pockets. When defendant removed his left hand from his jacket, it contained an object which he threw into the rear of the van with an underhand, backhand toss. Serrao was standing inches away from defendant when this occurred and, as soon as he saw defendant throw the object in the rear of the van, he told Marrero to place his hands on the steering wheel and ordered both men from the van.
After exiting the van, they were frisked but no weapons were found. Serrao looked into the rear of the van and recovered a brown paper bag which contained a clear plastic bag with a baseball-size piece of a white substance. Serrao believed the substance to be cocaine. Defendant and Marrero were arrested, handcuffed and given their Miranda warnings. A further search of the van uncovered no other contraband.
After being transported to the Newark barracks for processing, a more thorough search of both men was conducted; $700 in cash was found in Marrero's wallet. Marrero's driver's license, registration card and insurance card identifying him as the owner of the van were also found in Marrero's possession. Laboratory analysis of the white powder ...