On appeal from the Superior Court, Law Division, Union County.
Tried to a jury, defendant was convicted of possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three). The trial judge merged the first count into the second and sentenced defendant thereon to the custody of the Commissioner of Corrections for 5 years. On the third count, defendant was sentenced to 5 years, with a mandatory 3 year parole ineligibility term, concurrent with the sentence imposed on count two. Separate mandatory Drug Enforcement Demand Reduction and Violent Crimes Compensation Board penalties and Forensic Laboratory fees were imposed. Defendant's driver's license was also suspended. No issue is raised with respect to the sentence.
On this appeal defendant argues:
I. A CONVICTION CANNOT BE OBTAINED UNDER N.J.S.A. 2C:35-7 (THE 'SCHOOL ZONE STATUTE') WHEN THE STATE PROVES POSSESSION OF NARCOTICS WITHIN 1,000 FEET OF A SCHOOL BUT FAILS TO DEMONSTRATE THAT THE DEFENDANT INTENDED THAT THE NARCOTICS BE DISTRIBUTED WITHIN THE SCHOOL ZONE.
II. THE TESTIMONY OF THE STATE'S EXPERT IMPERMISSIBLY CONSTITUTED AN EXPRESSION OF HIS OPINION THAT DEFENDANT WAS GUILTY OF THE CRIME CHARGED AND FURTHER TAINTED THE FAIRNESS OF THE TRIAL BY INTRODUCING HIGHLY INFLAMMATORY, IRRELEVANT MATTERS.
A. The State's Expert Impermissibly Expressed His Opinion as to Aaron Bethea's Guilt Regarding Intent to Distribute CDS.
B. The Expert's Testimony Included Inflammatory References Which Were Calculated to Prejudice the Jury.
On the late evening of March 24, 1988, Police Officers Torner and Perrotti, of the Elizabeth Police Department, were on routine patrol when Torner observed defendant walking towards them, drop an object, continue towards them and then reverse direction and walk away. The officers exited their patrol car, and Perrotti patted down defendant as Torner went to the location where the object was dropped a few yards away. Torner picked up a plastic bag which contained numerous little envelopes which he suspected to contain heroin. According to the testimony of the City Engineer, these events occurred within 1,000 feet of a school.
Investigator Kevin Foley of the Union County Narcotics Strike Force was qualified as an expert and testified for the State. He described the process by which he and other investigators decide whether a defendant's possession is with intent to distribute and testified that "[t]he main motive" of the sale of drugs "is to make money" on which no taxes are paid.
Defendant testified on his own behalf and denied that he possessed or dropped a package of drugs. He testified that the police just "walked over" to him with their "guns drawn" and that there was a "crowd of people" in the vicinity.
We adhere to State v. Ogar, 229 N.J. Super. 459, 464-471, 551 A.2d 1037 (App.Div.1989) and conclude that defendant did not have to intend to distribute the drugs within the school zone in order to be convicted under N.J.S.A. 2C:35-7. It may be true that the federal cases cited in Ogar did not examine the 1988 amendments to 21 U.S.C. § 845a(a), as did United States v. Roberts, 735 F. Supp. 537 (S.D.N.Y.1990), and United States v. Liranzo, 729 F. Supp. 1012 (S.D.N.Y.1990), but Ogar examined the New Jersey legislative history. Further, the federal statute does not embody the "affirmative defense" provision of N.J.S.A. 2C:35-7, and as Judge Scalera stated in Ogar, "[u]nlike ...