Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 27, 1999 - Decided: December 9, 1999
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County.
Defendant was convicted of six third degree crimes: two counts of possession of CDS, heroin and cocaine; two counts of possession of the heroin and cocaine with intent to distribute; and two counts of possession of the heroin and cocaine in a school zone with intent to distribute. After granting the State's motion for an extended term and effecting appropriate mergers of the heroin and cocaine convictions respectively, the trial court sentenced defendant to two concurrent prison terms on the school zone convictions, each for seven years with three-and-one-half years of parole ineligibility. The customary assessments, fees and penalties required by statute were also ordered.
On appeal, defendant raises the following issues:
POINT I THE WARRANTLESS SEIZURE AND SEARCH OF THE DEFENDANT WAS UNLAWFUL AND REQUIRES A SETTING ASIDE OF THE VERDICT AND A NEW TRIAL. (NOT RAISED BELOW)
POINT II THE SENTENCE IMPOSED ON THE DEFENDANT WAS IMPROPER AND SHOULD BE VACATED.
According to the testimony of a sheriff's detective, while on surveillance from a parked van for about ten minutes he had observed a female approach defendant on a street corner some forty-six feet away. The two conversed and defendant bent over, removed an object from his sock, and gave the object to the female in exchange for currency. The female walked away. The detective and his team immediately detained defendant and searched him, finding four vials of cocaine in his sock. Defendant was arrested. A subsequent search at headquarters disclosed four bags of heroin in one of defendant's sleeves and $200 in currency in his pants pocket.
We discern no merit in defendant's argument addressed to the convictions, i.e., the search and seizure issue. Defendant has not satisfied plain error standards in that regard.
We are constrained to observe, however, that as part of the State's case, Detective Herman Rivera of the Essex County Sheriff's Department testified as an expert witness "qualified . . . in the field of narcotics." Besides offering the jury the benefit of his expertise regarding the methods and means of drug sales, by way of assisting the jury to understand the evidence relating to the intent-to-distribute charges, Detective Rivera, in response to a hypothetical question, offered, further, an opinion that defendant
was engaging in a street level distribution scheme * * * [and] that this individual was selling to different individuals with different needs.
This was the same practice, in the same county, with the same expert witness we recently held to be fatally flawed in a case charging distribution of CDS. See State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999).
After having reviewed the record in the light of the arguments advanced by the parties, including those in supplemental briefs we requested concerning the impact of Baskerville, we reverse the intent-to-distribute convictions in this case for some of the same reasons we articulated in Baskerville, and remand for a retrial of those charges. To the extent expert testimony bearing upon intent to distribute is appropriate and permissible to assist the jury in understanding the evidence where an offense with that element is charged, see id. at 263, when the expert offers an opinion that a drug transaction occurred he crosses the line of ...