Before Judges Pressler, Ciancia and Alley.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2000
On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Following a trial by jury, defendant David Hernandez was convicted of third-degree possession of crack cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), and its possession with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. He was, however, acquitted of simple possession of crack cocaine, N.J.S.A. 2C:35-10a(1). The court merged the conviction of possession with intent to distribute into the school-zone conviction, on which it sentenced defendant to an extended term of ten years subject to a five-year term of parole ineligibility together with mandatory statutory penalties. Defendant appeals, and we reverse and remand for a new trial because of the prejudicial error resulting from the improvident admission of other-crimes evidence barred by N.J.R.E. 404(b).
The charges against defendant arose out of a Paterson police surveillance of the corner of River Street and Sixth Avenue, a known high drug trafficking area, on February 11, 1997. According to his State's testimony, Officer Morales, through the use of binoculars at an undisclosed nearby surveillance point, observed defendant and his co-defendant, George Gerardi, standing in front of a pool hall at the corner. Both were known to the officer by sight but not by name. Shortly after the start of the surveillance, the officer saw a woman approach the two men, and a conversation among the three of them ensued.
The woman then handed currency to Gerardi and received from him an unidentified object which he had taken out of his sleeve. Gerardi then handed currency to defendant. Believing that they had witnessed a narcotics transaction, Morales and his partner immediately left their surveillance point and drove to the corner, arriving there within minutes. The woman they had seen had disappeared, but both Gerardi and defendant were still there. Both were immediately arrested and searched. Gerardi had several pieces of crack cocaine in his possession but no money, and defendant had no narcotics but $363 in cash. During the arrest, Morales noticed the woman he had earlier seen emerging from a hallway next to the pool hall. He arrested and searched her, finding neither money nor drugs on her person but a so-called crack pipe in her purse, which he said was warm. The woman was not charged in this indictment and did not testify at trial.
Gerardi and defendant were both named in each of the three counts of the indictment, which, however, contained no conspiracy count and which specified only February 11, 1997, as the date of the criminal conduct alleged. Gerardi, who has an extensive criminal record of both theft and drug crimes, testified for the State pursuant to a plea agreement whose terms included a prosecutorial recommendation of a three-year sentence subject to an eighteen-month parole ineligibility period and Gerardi's undertaking to testify against defendant. Gerardi testified not only to the events immediately prior to the transaction the police had believed they had observed, but also detailed his alleged business relationship with defendant during the two months preceding their arrest on February 11. He explained that in order to obtain money to support his heroin habit after his December 1996 release from incarceration, he had decided to try the drug trade rather than theft and had made an arrangement with defendant, whom he had known since childhood and whom he knew to be a drug dealer, whereby defendant would give him crack cocaine to sell at a commission rate of $30 for each $100 in sales. He further explained that defendant always remained in the immediate vicinity of the transaction in order to receive the sale proceeds from Gerardi before Gerardi had a chance to use them to purchase heroin for himself. He testified not only to about twenty selling stints he had conducted with defendant in this manner in the two months between his release and arrest, but also related an occasion during that period when he had accompanied defendant to New York City to purchase stock, explaining that defendant had bought a large piece of crack cocaine which he then cut up and packaged into $5 bags. *fn1 Gerardi was the only witness at trial other than Morales.
In challenging the ensuing conviction, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN ADMITTING CERTAIN HIGHLY PREJUDICIAL PRIOR ACTS TESTIMONY AND/OR IN FAILING TO ADEQUATELY INSTRUCT THE JURY CONCERNING THE USE OF SUCH EVIDENCE AS REQUIRED BY N.J.R.E. 404.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR IN HIS OPENING STATEMENT INDICATED THAT HE DID NOT KNOW WHAT THE DEFENDANT WOULD SAY IN HIS DEFENSE, THUS VIOLATING DEFENDANT'S FIFTH AMENDMENT RIGHTS AND DENYING HIM A FAIR TRIAL.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN, CONTRARY TO N.J.R.E. 410, THE PROSECUTION ELICITED TESTIMONY FROM A PROSECUTION WITNESS CONCERNING PLEA OFFERS AND DISCUSSIONS RELATING TO DEFENDANT.
IV. THE JURY VERDICT IN THIS CASE WAS FATALLY INCONSISTENT AND MUST BE REVERSED.
V. THE CUMULATIVE EFFECT OF THE ERRORS BELOW CONCERNING ADMISSION OF PREJUDICIAL PRIOR ACTS EVIDENCE, IMPROPER PROSECUTORIAL COMMENT ON DEFENDANT'S RIGHT TO SILENCE AND EVIDENCE OF ...