On appeal from a final judgment of the Superior Court, Law Division, Middlesex County.
King, Long and Stern. The opinion of the court was delivered by Stern, J.A.D.
This appeal requires us to consider whether "D-cocaine" or synthetic cocaine is a controlled dangerous substance proscribed by New Jersey law. We must also consider whether expert testimony regarding the nature of the controlled dangerous substance was inadmissible because of the absence of proofs concerning the scientific reliability of the gas chromatograph mass spectrometer machine in which it was tested. We reject defendant's arguments on these and other challenges to his conviction.
Defendant was convicted of possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); and possession of cocaine with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three). On count three, defendant was sentenced to a custodial term of five years with three year parole ineligibility. Count one was merged with count two, and defendant was sentenced on count two to a concurrent five year custodial term. An aggregate $2,000 Drug Enforcement and Demand Reduction penalty, $100 laboratory fee, and $60 Violent Crimes Compensation Board penalty were also imposed, and defendant's driving privileges were revoked for two years.
On August 11, 1988, Detectives Marco Chinchilla and James Marshall of the Anti-Crime Unit of the New Brunswick Police Department conducted a surveillance of the dwelling known as 104 Lee Avenue. The detectives conducted the surveillance from a vehicle which was parked "directly across the street from the house" approximately 25 feet away. At approximately 1:30 a.m., the detectives observed three males, including defendant, sitting on the front porch steps. The others were identified as Nathaniel Wilson and "Spanky" Jarvis. After approximately five minutes, Jarvis walked away.
Wilson and defendant, who remained on the steps, were approached by an unidentified "black male" who conversed briefly with Wilson. Detective Chinchilla then observed Wilson "reach to his right rear . . . pull up a white cup . . . reach into it, [hand] something to this black male and then receive something in exchange." The man then walked away and Wilson walked inside the house. Wilson rejoined the defendant on the porch "a short time later and sat back on the front porch." At that time, Chinchilla saw defendant "reach into the cup, pull out the plastic bag, retrieve vials and appeared to be counting them, then placed them back into the bag, into the cup, and then put the cup back in its original location." Detective Marshall also saw defendant "sitting with a plastic cup looking at what appeared to be C.D.S., vials of cocaine."
Suspecting that a drug transaction had just occurred, the detectives radioed Sergeant Tirch and left the scene to meet their backup. They then returned to the scene and approached defendant and Wilson who were "still sitting there" on the steps of the house. Detective Marshall retrieved the cup and removed the plastic bag which contained nine $20 vials of suspected cocaine. Defendant and Wilson were placed under arrest and taken to the police station.
Detective Chinchilla conducted a search at the police station and recovered "a folded one dollar bill . . . contain[ing] a white substance" from defendant's right sock. After having been read his rights, Wilson admitted that the vials in the cup belonged to him and that Jarvis gave him the cup "to watch the drugs for him." He also stated that he had been "drinking out of the cup."
Winifred Kearns of the New Jersey State Police Laboratory was qualified, over objection, to testify at trial as an "expert in the field of detection and analysis of controlled dangerous substances, particularly cocaine." The objection was based on the contention that "this witness does not meet the qualifications for qualifying as an expert witness and for being permitted to give an opinion to the jury on the basis of past training,
experience and work in the field."*fn1 Kearns testified that the white powder contained in the dollar bill (found in defendant's sock) tested positive for cocaine in the amount of 1.58 grams. She stated that the "gas chromatograph mass selector detector" (hereinafter "GC/MS") was used to examine the substance and testified as to its functioning and the reliability of the results. Defendant objected to the opinion rendered by Kearns because of her lack of training and because "no testimony has been presented concerning the accuracy or the precision of the GC-MSD machine."
Lisa Ann Ligato, Senior Forensic Scientist for the New Jersey State Police, was qualified without objection as an "expert in the field of analysis . . . identification of controlled dangerous substances." She testified that the contents of the nine vials found at 104 Lee Avenue tested positive for cocaine in the amount of 7.50 grams. The "gas chromatograph mass selector detector was performed" to test the contents of the vials. Ms. Ligato testified as to the operability of the GC/MS.
Detective Paul Schuster of the New Brunswick Police Department testified that the distance between 104 Lee Avenue and the nearest elementary school was 592 feet. Detective Schuster also testified as an expert in the use and distribution of controlled dangerous substances. He "suspect[ed] that they possessed [the cocaine] with the intent to distribute." He noted that nine vials constituted a quantity "more than a person would possess at one time for personal use."
Defendant did not testify in his own behalf.
During cross-examination of Ms. Kearns, defendant attempted to establish what is known as the "cocaine isomer defense." The defense maintained that there are two types of cocaine,
"L-cocaine" and "D-cocaine," and that only "L-cocaine" is a prohibited form. After hearing arguments of counsel concerning the cocaine isomer defense, the judge determined that the continued cross-examination of Ms. Kearns should be conducted outside the presence of the jury in an Evid.R. 8 hearing. Kearns testified that the GC/MS machine provides "no data with regard to whether the substance is in fact D-cocaine or L-cocaine." She also acknowledged that when cocaine is extracted from the coca leaf, the form of cocaine produced is always the "L" form. She stated that "L-cocaine is a derivative of the coca leave or the coca plant, and D-cocaine is a mirror image of L-cocaine but it is a synthetically produced cocaine." The two forms of cocaine are "chemically equivalent," "because they both have the same molecular weight and the same actions occur by the use of the D-cocaine" and produce the same effect on the central nervous system. In Kearns' view, "D-cocaine is probably even a stronger form of cocaine than L-cocaine." She noted that the only difference between the two forms is the "isomer" or "molecular structure." Kearns further testified that up until a year before trial the laboratory always tested suspected cocaine samples to determine if they were "D-cocaine" or "L-cocaine." During that time, she never came across "D-cocaine" in any of the samples tested. Kearns opined that both forms of cocaine are covered by the statutory definitions of controlled dangerous substance and controlled substance analog and are thus proscribed by Schedule II in N.J.S.A. 24:21-6.
At the conclusion of the Evid.R. 8 hearing, the judge concluded that the Comprehensive Drug Reform Act was "intended to prohibit all forms of cocaine," with certain specified exceptions not relevant to the defense. The judge stated that "[i]f the legislature intended to exclude or except D-cocaine or D-pseudo cocaine or any other isomer form of cocaine in addition to the other exceptions and ...