On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication March 21, 1997.
Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Pressler, P.j.a.d. Humphreys, J.A.D. (concurring). Stern, J.A.D. (concurring).
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
Following a trial by jury, defendant Curtis Middleton was convicted of two counts of distributing drugs within 1,000 feet of school property, N.J.S.A. 2C:35-7. Convictions of lesser-related drug offenses were merged into the school-zone convictions, on which defendant was sentenced to concurrent prison terms of nine years subject to a four-year parole ineligibility term. Defendant appeals, and we reverse and remand for a new trial. In sum, we agree with defendant's assertions on appeal that the trial Judge inadequately responded to a jury question regarding the State's identification evidence, that the Judge gave an inadequate identification charge, and that the errors made by the State prior to trial regarding the date and time of the alleged crimes deprived him of a fair opportunity to prepare and present an alibi defense. The facts underlying the State's charges against defendant are as follows: the Jersey City police undertook an investigation in response to complaints of drug trafficking at the Currys Woods housing project. On the night in question a police team set up an undercover buy operation, intending, however, not to make any immediate arrests in order to protect the identity of the undercover officer during the course of the ongoing investigation. Participating in that operation, among others, were Sergeant Costigan and Officer Sullivan of the Jersey City police and Investigator Carlos Aguiar, a Union City police officer on assignment to the Hudson County Prosecutor's office. Investigator Aguiar was to attempt to make the buy. Officer Sullivan was secreted in a neighboring backyard, using binoculars to observe the proceedings. Sergeant Costigan was in a vehicle. Aguiar approached the west patio of one of the buildings in the project on a bicycle. Two men were standing there.
According to Aguiar's testimony, the transaction occurred at 12:30 a.m. on Saturday, July 23, 1994. He approached the two men on the patio. One of them asked him if he wanted "coke or dope," which Aguiar understood to mean cocaine or heroin. He replied that he wanted both, and the man took from his pocket a small vial, which later proved to contain cocaine, and a small packet, which later proved to contain heroin. Aguiar gave him a twenty dollar bill, the man handed Aguiar the drugs, and Aguiar rode away. The seller also left the area. Sullivan, who testified that he was about one hundred feet away and observed the transaction, then radioed Costigan, who was to make the identification. The seller, however, apparently eluded Costigan. Costigan did not testify. At this point, all the police knew of the seller's identity was Aguiar's description, which included, as the man's most distinctive feature, a hairstyle described by Aguiar as shaven to about two or three inches above the ears and topped by a "small Afro."
Three days later, Sullivan testified, while he was again a surveillant in the same area but watching other transactions by other persons, he fortuitously recognized Aguiar's seller. Sullivan was able to ascertain the name of that person, obtained his photograph, apparently a mug shot, and showed it to Aguiar. Aguiar identified the person as the man from whom he had purchased the drugs three days earlier. The mug shot was a picture of defendant. Complaints were filed against him, and the grand jury ultimately returned a ten-count indictment charging five separate crimes related to the sale of the cocaine, less than one-half ounce, and five parallel, separate crimes relating to the sale of the heroin, also less than one-half ounce.
The indictment alleged that the crimes had occurred on or about July 26, 1994. Aguiar, apparently the sole witness at the grand jury hearing, there testified that the transaction had taken place on July 26, 1994, at 12:30 p.m. The police report indicated at the top that the transaction had taken place on July 23 but at the bottom, the date specified was July 26. The complaints alleged the transaction to have taken place on July 23, 1994, and were also sworn and subscribed to on that date, although it is clear that defendant's identity was not known to the police until July 26. Finally, the police report's indication of the 12:30 hour of the transaction was also confused. Although not introduced into evidence or included in the appendices, Aguiar described the report thus: "On the bottom it's a.m. On the top it's p.m. That's on the bottom." It appears, however, that the a.m. specification was inferred on the basis of military time, the time designated being simply 12:30, which translated to standard time, however, would be 12:30 p.m. *fn1
The case was called for trial on Tuesday, September 12, 1995. Midway through jury selection, the State moved for leave to amend the indictment to change the date of the crimes from July 26, 1994, to July 23, 1994. Defense counsel objected, but only in general terms. The amendment was allowed. When jury selection had been completed but the jury not yet sworn, defense counsel again objected to the amendment, explaining that defendant had advised her that he had alibi witnesses for July 23, although he had none for July 26, and that, in fact, all the investigation done by her office had been in terms of July 26. The prosecutor argued that defendant should have realized that any references to July 26 in the police reports, the grand jury testimony, and the indictment were erroneous since July 23 had been specified as the date of the crime in the complaints as well as in other portions of the police report. In any event, the Judge refused to reconsider his ruling permitting the amendment of the indictment, finding no prejudice to the defendant.
Trial resumed the next morning, Wednesday. Defense counsel immediately moved for relief explaining to the Judge that defendant told her that at 12:30 p.m. on July 23, 1994, a Saturday, he had been with many members of his family and family friends preparing an outdoor birthday party for a young niece. She asked, at the very least, for a continuance of the trial until the following Monday so that she could investigate defendant's assertion. The prosecutor joined in that application, taking the position that if the alibi were to be asserted so late, she too needed an opportunity to investigate the alibi witnesses. As far as we understand the record, the Judge, fully appreciating the obvious problems of both sides, agreed that the requested continuance would be appropriate. The Judge, however, said that as "it's not my case," he would have to talk to the presiding Judge. He took a recess for that purpose, and when he resumed the bench, advised that "the presiding Judge has suggested ... [that defense counsel] reach out for your witnesses now." A colloquy ensued in which defense counsel argued the necessity of an opportunity to interview the potential witnesses, of whom there appeared to be eight, in order to make an informed decision as to which, if any, she should call in support of the alibi defense. The Judge responded as follows:
Well, you may have to make a determination based upon availability ... rather than quality. Alright? Because ... this case is going to go forward.
He assured counsel, however, that when her investigator, assisted by defendant himself, managed to assemble all the witnesses in the courtroom//--an event he hoped would take place by noon that day//--"we will take an appropriate break for you to talk to them and ... [the prosecutor] to talk to them." At that point, the jury was finally sworn, preliminary instructions given, and counsel opened. Understandably, defense counsel made no reference to the still uninvestigated and unascertained alibi defense, which both defendant and the defense investigator were then trying to establish.
While those efforts were being made, the State called its first witness, Investigator Aguiar. He testified, on extensive direct and cross examination on the point, that the transaction had taken place not on Saturday, July 23, at 12:30 p.m., as by that time both defendant and the court had assumed to be the fact, but rather just after midnight, namely on Saturday morning at 12:30 a.m. He further asserted that any mistake in the date or time was simply due to typographical error. Upon the Conclusion of Aguiar's testimony, defense counsel advised the Judge that in an effort to comply with the court's earlier directives, she was ...