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State v. Simbara

February 27, 2002

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CEESAY SIMBARA, DEFENDANT-RESPONDENT.



On appeal from an interlocutory order, by leave granted, of the Superior Court of New Jersey, Law Division, Passaic County, 00-01-0013.

Before Judges Petrella, Steinberg and Alley.

The opinion of the court was delivered by: Alley, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2002

Defendant was charged in Passaic County indictment 00-01-00013 with having committed the following offenses in Paterson on June 21, 1999: possession of a controlled dangerous substance, cocaine, third degree, N.J.S.A. 2C:35-10a(1)(Count One); possession of a controlled dangerous substance, cocaine, with intent to distribute, third degree, N.J.S.A. 2C:35-5a(1) and b(3) (Count Two); possession of a controlled dangerous substance, cocaine, with intent to distribute within 1,000 feet of school property, third degree, N.J.S.A. 2C:35-7 (Count Three); and possession of drug paraphernalia with intent to distribute, fourth degree, N.J.S.A. 2C:36-3 (Count Four).

Before trial, the State timely furnished to defendant a laboratory certificate as to the nature and composition of the alleged controlled dangerous substances, together with related details, thus invoking the procedure for proffering the certificate as evidence at trial as specified in N.J.S.A. 2C:35-19b, which reads as follows:

b. Upon the request of any law enforcement agency, the laboratory employee performing the analysis shall prepare a certificate. This employee shall sign the certificate under oath and shall include in the certificate an attestation as to the result of the analysis. The presentation of this certificate to a court by any party to a proceeding shall be evidence that all of the requirements and provisions of this section have been complied with. This certificate shall be sworn to before a notary public or other person empowered by law to take oaths and shall contain a statement establishing the following: the type of analysis performed; the result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber's training or experience to perform the analysis; and the nature and condition of the equipment used. When properly executed, the certificate shall, subject to subsection c. of this section and notwithstanding any other provision of law, be admissible evidence of the composition, quality, and quantity of the substance submitted to the laboratory for analysis, and the court shall take judicial notice of the signature of the person performing the analysis and of the fact that he is that person.

Defendant responded by giving the State timely objection under N.J.S.A. 2C:35-19c to the State's intended use of the lab certificate as evidence at trial. That statute provides:

c. Whenever a party intends to proffer in a criminal or quasi-criminal proceeding, a certificate executed pursuant to this section, notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least 20 days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the grounds for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined not later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and specific grounds for that objection that the composition, quality, or quantity of the substance submitted to the laboratory for analysis will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause.

Shortly before trial, a Law Division judge held a hearing pursuant to N.J.S.A. 2C:35-19c and determined that the lab certificate could not be admitted into evidence in lieu of the testimony of the technician who performed the testing referred to therein. In the judge's view, the certificate did not supply the details required by N.J.S.A. 2C:35-19b. The judge entered an order to that effect on September 18, 2001, and the State now appeals by leave granted. We reverse.

The procedures for possible use of laboratory certificates pursuant to these statutes as trial proof of controlled dangerous substances were recently discussed by our Supreme Court in State v. Miller, _____ N.J. _____ (January 23, 2002). Justice Long stated in Miller, supra:

In 1987, the Legislature designed a procedure to streamline the trial of drug cases by weeding out, prior to trial, those cases in which scientific proof is not contested and in which a lab certificate may be admitted in lieu of expert testimony.

The Comprehensive Drug Reform Act prescribes that the certified results of a controlled dangerous substance analysis by a State Forensic Laboratory are admissible evidence of the "composition, quality, and quantity" of the substance tested provided that (1) the lab certificate meets certain criteria regarding the testing process to establish the certificate's reliability; and (2) a "notice and demand" procedure is satisfied. N.J.S.A. 2C:35-19.

The certificate must meet certain formal requirements, including the signature, under oath, of the laboratory employee who performed the analysis attesting to the results; a statement establishing "the type of analysis performed; the result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber's training or experience to perform the analysis; and the nature and condition of the equipment used." N.J.S.A. 2C:35-19b. A party intending to proffer the certificate must convey "notice of an intent" ...


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