On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Brody, Muir, Jr. and Skillman. The opinion of the court was delivered by Brody, J.A.D.
[241 NJSuper Page 346] Following a jury trial, defendant was convicted of unlawfully distributing less than one-half ounce of cocaine, a third-degree
crime, in violation of N.J.S.A. 2C:35-5a(1) and -5b(3). In addition to the statutory penalties and laboratory fee, the trial judge imposed a three-year term of probation conditioned upon defendant's serving a 364-day jail term. The judge admitted defendant to bail after conviction because of the substantial issue raised on appeal and the absence of a serious threat to the community if defendant remains at large. R. 2:9-4. The substantial issue is the admissibility of circumstantial evidence offered by defendant that a specific person who looks like him may have committed the crime.
The crime was committed on a Friday night during a three-hour encounter allegedly between defendant, who was then a patron of a bar, and an undercover police detective. The State alleges that the detective struck up a conversation with defendant, whom he had not previously known, in the course of which he asked defendant to sell him crank (methamphetamine). Some time later, a motorcyclist arrived and delivered about a gram of cocaine to defendant who thereupon sold it to the detective for $50. The defense was misidentification.
The only witness to the transaction who testified was the detective. He recounted in detail his meeting with a man he identified as defendant. He testified that defendant had the typical appearance of a "biker," which included long hair, a full beard and moustache, and tattoos on both arms. Defendant was wearing a painter's cap. The detective did not immediately arrest defendant after the sale because he wanted to continue his undercover activities. Defendant drove away from the bar in a blue automobile whose license number the detective noted and placed in his contemporaneous reports.
With the aid of the license number, two officers of the county prosecutor's fugitive unit located defendant two-and-one-half months later at his parents' home. Before taking him into custody, and without having given him the Miranda warnings, the officers questioned defendant about his identity because he told them that his name was not the name of the person they
were there to arrest.*fn1 The arresting officers testified that while in defendant's bedroom examining documentary proof to determine his true identity, they saw a painter's cap that matched the undercover detective's later testimonial description of the cap worn by the person who had sold him the cocaine. Not being familiar with the case, the officers did not realize the significance of the cap and denied defendant's request to bring it with him.
When they arrived at county police headquarters with defendant, the officers took him to a room where they seated him alone before a television camera to await the undercover detective. The detective soon arrived and, while standing in another room so as not to disclose his identity to defendant, he identified defendant by viewing his image on a television monitor.
The State's case rested on the credibility of the undercover detective's testimony, which was vulnerable in several respects. Although identification was almost certain to be an issue in the prosecution, none of the detective's contemporaneous written reports contains a description of defendant, his tattoos or the hat he allegedly wore. The detective acknowledged that while working undercover he had purchased drugs from many people, but the trial judge did not permit defendant's attorney to explore the subject with him to establish whether he may have confused defendant with some other cocaine seller. Also, although the detective testified that at the time of the sale two other undercover officers were nearby to back him up, neither of those officers testified and the trial judge did not permit defendant's attorney to ask the detective whether they were in a position to have seen him and defendant together.
The State presented two items of evidence of defendant's guilt that did not rest entirely on the ...