On certification to the Superior Court, Appellate Division.
O'hern, Wilentz, Clifford, Handler, Pollock, Garibaldi, Stein
The opinion of the court was delivered by
This appeal concerns the degree of scientific reliability that must attend the proof that an illegal drug transaction has occurred within one thousand feet of school property in violation of N.J.S.A. 2C:35-7. The specific question is whether a steel tape measure used by investigating officers must bear a certificate of authentication from the State Division of Weights and Measures in order for the testimony of the officer to be admitted. The stakes are high for an accused, because, if defendant is convicted, the court must impose a minimum term of three years imprisonment except in cases involving less than one ounce of marijuana. We believe, however, that because the subject matter of such measurements is within the common knowledge and experience of jurors, when the tape measure itself has been produced at trial, the rulings of the trial court admitting the scientific evidence in the form of a measuring device and allowing the officer's testimony as competent were within its discretion and therefore do not merit a reversal of the conviction.
For purposes of the appeal, we rely on defendant's statement of facts. On December 14, 1989, a joint Middlesex and Somerset County Drug Task Force conducted a narcotics investigation at the Edgemere Apartment Complex on Phillips Road in Franklin Township. With the aid of binoculars, officers viewed a number of people engaged in suspected drug deals in and around the apartment complex. One officer saw defendant remove what appeared to be vials of cocaine from his person and give the vials to a motorist in exchange for what appeared to be money. Later, defendant walked over to a nearby telephone pole and appeared to bury vials of cocaine in the snow. A short time later, defendant appeared to engage in two additional drug transactions. During the second transaction, he removed a vial from an area alongside a building at 176 Phillips Road to give to another driver. Following the third transaction, one officer went to the area alongside 176 Phillips Road where he found two vials of cocaine alongside the building and ten vials of cocaine buried in the snow near the telephone pole.
The authorities obtained arrest and search warrants. They arrested defendant on December 14, 1989, along with approximately fifteen others involved in the drug transactions. The State charged defendant with possession of cocaine, possession with intent to distribute, and possession with intent to distribute within one thousand feet of school property.
On February 20, 1991, after the arrest, a county police lieutenant and two other investigators went to 176 Phillips Road, several blocks away from the Pine Grove School. They measured the distance between the telephone pole, near where the drugs had been recovered, and another telephone pole located fifty feet inside the property line of the school. The lieutenant used a steel tape measure to calculate the distance.
At trial, defendant objected to the admission into evidence of the tape measure and any testimony regarding the measurement, because the certificate of accuracy that had been provided to the defense during discovery did not match the tape actually used in the measurement. During a hearing outside the jury's presence, the lieutenant indicated that although he had no certificate of accuracy from the Superintendent of the Division of Weights and Measures, he believed that a number stamped on the device indicated that it had been calibrated by the Division of Weights and Measures at some time. However, he did not indicate when such calibration might have taken place. He also conceded that he did not check his tape measure against any other prior to making the investigation. He did state that to the best of his knowledge "an inch reflects an inch and a foot reflects a foot. The trial court held that the testimony concerning the measurement would be admissible without a certification of the measuring device. At trial, the officer testified that according to his calculations the distance between the telephone pole near where the drugs were found and the telephone pole on school property was 965 feet.
Defendant denied any involvement in the drug transactions. He claimed to have been in the area solely to visit his father and friends who resided there. The arresting officers found no drugs or money on defendant's person. Prior to trial, defendant, aided by his step-father and a friend, measured the distance between the place where the police said they found the vials of cocaine and a school-zone sign located near the school property. They calculated the distance to be 1,018 feet. Defendant testified to that measurement and introduced his tape measure into evidence.
The jury convicted defendant of possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within one thousand feet of school property, and possession of cocaine. After denying a defense motion for a new trial based on the State's failure to certify the accuracy of the tape measure, the trial court merged the possession of cocaine count with the possession-with-intent-to-distribute count. The court sentenced defendant to a four-year term with a three-year parole disqualifier on the school-zone violation and a four-year concurrent term on the merged count.
The Appellate Division, in an unreported decision, reversed the conviction, ruling that the State had failed properly to authenticate the accuracy of the tape measure.
Where the State's evidence involves proof of measurements, the State is required to authenticate the accuracy of the device used for those measurements. The usual method of authentication of a tape measure or similar measuring device is the introduction of a certification issued by the ...