Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 24, 2000
On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
In this appeal, we reverse defendant's conviction for possession of a controlled dangerous substance because the State failed to disclose, during discovery, that one of its trial witnesses, Erle Lovell, had previously been convicted of sexual assault and was placed on four years probation subject to the condition that he serve 364 days in the Somerset County Correctional Facility.
In a one-count indictment, defendant was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Lovell had been arrested with defendant, and was charged with the same offense. *fn1 According to the State's proofs at trial, on July 30, 1997, Somerville patrolman Thomas O'Donnell went to 2 West Main Street, Apartment 6, in Somerville based upon a complaint made by Armel Lashley regarding a dispute he was having with other persons that resided in the apartment building. When they got there, Lashley knocked on the door. An occupant, Margaret Stokes, opened the door. O'Donnell saw that the room was filled with smoke. He saw five persons in the room, including Lovell and defendant. Lovell was seated directly in front of him and had "what appear[ed] to be a homemade crack pipe in his hand, he was raising to his mouth". Defendant was one of the persons in the room. O'Donnell observed defendant make "a fast move to the left of the apartment towards the bathroom".
Based upon his observations, O'Donnell entered the apartment. He observed another "homemade pipe" on the stove. He also observed a small dish on the stove "with chunks and some white powder" which he believed "was probably crack cocaine". He also saw a spoon "with water and some chunks of the same white substance in the water". Finally, he saw a small box of baking soda on the counter which "is commonly used to cook the cocaine to a more ... pure form". The apartment was described as a one room apartment. O'Donnell said he "wasn't really comfortable with [so many people] in a small room" and ordered two of the occupants, who did not appear to be engaged in the use of any of the controlled dangerous substances, to leave. He then arrested defendant, Stokes and Lovell. He transported defendant and Stokes to police headquarters in his patrol vehicle.
O'Donnell testified that in accordance with standard Somerville police procedure, at the beginning of his shift he had pulled out the rear seat of the patrol car to assure that contraband or weapons had not been left there from the prior shift. He found nothing. Furthermore, again in accordance with Somerville police procedure, he patted down defendant before placing him in the patrol car. Apparently, he found nothing during the pat-down. He handcuffed defendant and Stokes, with their hands behind their backs. He placed Stokes behind the driver's seat, and defendant behind the passenger seat.
Pursuant to consent given by Lovell, who was the actual tenant, other officers began to search the apartment. O'Donnell was asked by a Lieutenant "to remain for a short while". While O'Donnell was standing outside the car, he observed defendant "squirming and moving around inside the back seat". Also, while transporting defendant and Stokes to police headquarters, O'Donnell observed defendant continuing "to move about the back of the vehicle".
After defendant and Stokes were taken into police headquarters and placed in custody, O'Donnell went back to the vehicle and, again, pursuant to Somerville procedure, "checked the rear seat" and "just to the right of where [defendant's] hands are [sic] was a small, tiny plastic bag that had the white substance in there. It was later tested positive for cocaine". He found the bag in the area "where the bench seat meets the back of the seat", near the door. *fn2
Lovell testified that defendant and Stokes were living with him. He said they did not pay rent but he permitted them to stay because they had nowhere to live and, in return, defendant supplied him with drugs. He said that when the police arrived he and defendant were "partying ... doing drugs". He identified the drugs as "crack cocaine" which had been supplied by defendant. He acknowledged that he had entered into a plea agreement which required him to "testify truthfully" against defendant in return for the State's recommendation for probation. He said that on July 30, 1997, defendant had brought the cocaine into the apartment in "little bags". He said defendant was "cooking" the cocaine.
On cross-examination, in response to a question as to whether the drugs affected Erle's "mental abilities that day", he responded that he "already have mental problem". He said he was on medication for depression. However, he denied that the drugs he had been using on the day of his arrest affected his ability to think clearly.
Defendant testified. He said he did not use narcotics and denied giving Lovell narcotics in exchange for a place to stay. He also denied purchasing any of the cocaine found in the apartment, and denied using any of that cocaine. He also denied leaving cocaine in the patrol car. He explained that the reason he was "squirming" in the back seat was because the handcuffs were extremely painful due to a prior fracture to his wrist which had necessitated surgical repair, including a bone graft from his hip. While testifying, defendant acknowledged he had previously been convicted of criminal contempt and terroristic threats in New Jersey and "resisting an officer with violence" in Florida. Moreover, he conceded he was still on probation for the New Jersey offenses.
The jury deliberated for portions of two days. During the course of its deliberations, the jury asked four separate questions, including a request for a read-back of Lovell's testimony. Ultimately, ...