Before Judges Kestin and Fall.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County.
The opinion of the court was delivered by
Defendant was charged with and convicted of two third degree crimes: distribution of a controlled dangerous substance, and distribution in a school zone. On the State's motion, and pursuant to N.J.S.A. 2C:43-6f, the trial court imposed an extended term sentence on the merged convictions, requiring defendant to serve a prison term of seven years with three years of parole ineligibility. Appropriate statutory penalties, assessments and fees were also ordered, along with a twelve-month driver's license suspension.
Among the issues defendant raises on appeal are that the State's expert improperly rendered an opinion in the matter, and that the verdict was against the weight of the admissible evidence. Applying prevailing principles governing the admissibility of expert testimony in drug prosecutions, most recently addressed in detail by the Supreme Court in State v. Berry, 140 N.J. 280 (1995), we reverse.
In this prosecution on the two drug distribution charges, the State presented its case through three witnesses. Detective Hector Mejias of the Newark Police Department was on narcotics section duty in an undercover role on the day defendant was arrested. Detective Willie Stroud, also of the Newark police, was working with Mejias and a third officer. Detective Herman Rivera of the Essex County Sheriff's Department testified "as an expert in the field of narcotics." Defendant testified on his own behalf and offered two other witnesses in support.
Detective Mejias testified that, at about 7:15 p.m. on September 11, 1996, his team was near 762 South Seventeenth Street in an unmarked vehicle "on an investigation," observing activities at that address. The officers were at a location some 150 to 170 feet north of the property. Mejias, using binoculars, observed three black males on the sidewalk "in front of a vacant lot in the area * * * just hanging about, talking." A black female approached and *fn1 walked up to the three individuals that were standing in front of the lot and they appeared to engage in some type of conversation. [Defendant (Baskerville)] stepped away from the group. He walked several feet away from them in a northerly direction and went to a black vehicle which was parked . . . inside the vacant lot. The rear of the vehicle was facing the street, so it had been driven straight into this lot.
When he approached the vehicle he bent down at the rear of the vehicle which . . . was facing the street. He . . . bent down [and] reached up under what I described as the undercarriage, somewhere up under the body of the vehicle, up around the chassis area and he pulled out something from there that I believed was a brown paper bag.
He reached inside the bag, he removed something from within the bag and replaced the bag back underneath the car.
He then got up, walked back to the female and an exchange was made where the female handed him what I believe was paper money in exchange for whatever it was that he took from under the car.
Q. And you say what you believe was paper money or currency. Why do you say that?
A. . .[F]rom where I was at I really can't say that it was in fact money. It appeared to me that it was money.
Q. And after he made this exchange with the female what happened?
A. . .[T]he female turned and walked in a southerly direction, basically, the way she had come and [defendant] then placed the money into his pants pocket. [After the female left the area,] the three [males] remained there for maybe two minutes, three minutes and at one point one of them turned and walked away, he just walked out of the area.
Shortly after that a vehicle, a four-door blue vehicle * * * pulled north on South 17th Street and came to a stop in this area here, just past where the males were standing. The passenger of that vehicle exited and the vehicle then continued on and made a right turn to travel east on Springfield Avenue.
The individual that got out of the car [Culver] walked up to the two remaining males[.]
Once again, I observed some type of conversation and, again, Baskerville walked to the vehicle, he then reached up under the car, removed what I believed again was the bag, he removed whatever it was that was in the bag and he held it in his hand and it appeared to me that he was counting it. He then crumpled up the bag and tossed it in the lot, got up and walked back to where [Culver] was.
Again, a similar exchange took place where Baskerville received what I believed was money from Culver, paper money in exchange for the item or items that he had taken from within the bag.
Q. And where did . . . Baskerville place the money?
A. He placed it again in his pocket.
Q. And when he received the money from the female where did he place that money?
A. He placed it in his pants pocket.
Q. Do you recall which pocket it was?
A. I believe it was his right front pants pocket.
Q. Now, after you made this observation what did you guys do?
A. Well, at the completion of that exchange Culver began to walk north on South 17th Street towards Springfield Avenue. He then turned--
Q. So, he was walking towards you?
A. He was walking towards us. When he got to the corner of Springfield Avenue he turned right and he began to walk east on Springfield Avenue[,] * * * * towards South 16th Street. [A]t that point I believed that I had observed two separate drug transactions and I naturally conferenced the matter with my partners and we decided that it was an opportunity for us to apprehend the individual who we suspected to be the buyer as well as apprehend the individual who we suspected to be the seller.
Q. And why did you feel that would be an opportunity?
A. Because of where the other individual was situate when we determined that. He was already on Springfield Avenue out of the view of the individual who we suspected to be the seller which would have been Baskerville and we felt that we could apprehend him and then return and apprehend Baskerville. [W]e believed that we could work our way over there without anybody detecting us and knowing that we were there.
We immediately picked up from where we were at, we made the left turn onto Springfield Avenue and we pulled right alongside the curb near South 16th Street and Springfield Avenue where we could now see Culver walking.
As soon as he saw us coming to a stop he immediately dropped something from his hand. We detained him, myself and Detective Rosania detained him. Detective Stroud recovered the item he dropped and it turned out to be nine vials of suspected cocaine each with a black cap and they were bound with an elastic band.
He was immediately placed under arrest after Detective Stroud made his recovery.
Q. And what did Detective . . . Stroud do with the vials of cocaine?
A. He held them in his possession, he held onto them.
Q. After you made the arrest then where did you go?
A. We immediately made a U-turn and came down this way and went right to 762 South 17th Street. Mr. Baskerville was still there with a second individual, they were still standing there. [W]e exited our vehicle, we identified ourselves once again and based on the findings on Springfield and South 16th we placed Mr. Baskerville under arrest.
Q. After the two individuals were detained where did you go?
A. Well, I eventually walked over to the . . . black vehicle where I had seen Mr. Baskerville reach up under.
Q. And what were you doing over there?
A. I went to see if there was anything under the vehicle in the same area where he had been reaching, I saw him reach on two occasions.
Q. And did you find anything?
Q. And did you notice anything else in the area there?
A. There were numerous paper bags crumpled up and strewn about the area, but up under the undercarriage I gave it a very thorough look and there was nothing under there.
Mejias went on to testify that $897 in cash was discovered by Officer Stroud on defendant's person. It was later established that the money consisted of bills of various denominations including singles, fives, tens, twenties and fifties. Mejias also identified the nine vials of cocaine that had been retrieved when Culver dropped them, and he testified that the location was in a school zone. On cross-examination, it was established that the police had been located about 150 to 170 feet from the objects of their surveillance. After some additional questioning, the following colloquy occurred:
Q. Now, is it also your testimony that when Mr. Baskerville went over to the car [following his conversation with the female] he removed what appeared to be a brown paper bag?
A. The item was brown, I believed it to be a brown paper bag, yes.
Q. But you don't know what it was?
A. I don't know that it was in fact a brown paper bag. It did appear to be one.
Q. Now, is that because you were far away that you couldn't determine exactly what the item was?
A. I couldn't see that it was in fact even paper. The item was brown and the way it was handled it appeared to be a bag, but I can't say for sure because of where I was situated, yes.
Q. Is that because of the distance?
A. Well, the distance, I couldn't say for sure that it was.
Q. Now, isn't it correct that because you were that far away you couldn't determine whether Mr. Baskerville stuck his hands into that object?
A. No. He reached into the object, whatever it was he appeared to reach into it. That's what it looked like he was doing, reaching into it. That's what led me to believe that it was a ...