On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Number 00-5-1217.
Before Judges Braithwaite, Parker and Bilder.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2003
Defendant appeals from his conviction by a jury of fourth degree false swearing, N.J.S.A. 2C:28-2 (Count 10). He was acquitted on the remaining counts alleging official misconduct, terroristic threats, filing a false police report and aggravated assault. He was sentenced to two years probation and fined $1,500 in addition to the mandatory penalties and assessments. We affirm.
Defendant was a Newark Police Officer assigned to the Narcotics Interdiction To Remove Open Air Narcotics (NITRO) unit. On September 28, 1999, he and his partner/co-defendant came upon Tyree Collins, a/k/a Raqui Gilbert, riding a bicycle on his way to a Kennedy's Fried Chicken to buy cigarettes at 2:00 a.m. The co-defendants were in plain clothes, driving an unmarked white Jeep when they pulled alongside Collins and called him to come over. Thinking they were "stick-up kids," Collins rode away and kept riding on alternate sides of the streets until he reached the parking garage of Beth Israel Hospital. By that time, he realized the men were police officers but was afraid to stop because he had been beaten by police officers in the past. Collins jumped over a wall where he was a found a few minutes later by defendant. Collins pleaded with defendant not to hit him, but defendant hit him above the eye with his flash light.
Collins was taken into custody, and the officers called for backup to search the area. Collins had no drugs on his person, nor were there any drugs found in the area where he was arrested. The officers took him to the precinct station, and about forty-five minutes later, another officer came into the station holding a bag containing eight to ten bags of marijuana. Collins denied that the marijuana belonged to him but he was, nevertheless, charged with possession of a controlled dangerous substance (CDS) and possession with the intent to distribute in a school zone.
Collins remained in custody for two days. After his release, he reported the incident to the Internal Affairs Bureau (IAB). An investigation was undertaken and Lt. Ronald Kinder of the IAB retrieved an audiotape from the precinct with recorded conversations of defendant, co-defendant and Collins between 2:18 a.m. and 2:40 a.m. that night. Defendant and his partner were ultimately charged in a thirteen count indictment.
In this appeal, defendant argues:
POINT I THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO SPEAKING [SIC] DIRECTLY TO A JUROR DURING HIS SUMMATION AND ASKED JURORS TO CALL ON PERSONAL EXPERIENCE NOT FACTS TO REACH A VERDICT.
POINT II DEFENDANT MORAIS WAS DENIED HIS RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO USE THE TERM "BLUE WALL."
POINT III THE TRIAL COURT ERRED IN MISLEADING THE JURY IN ITS PROPER ROLE.
POINT IV THE TRIAL COURT ERRED IN NOT PERMITTING THE FIELD OPERATIONS MEMORANDUM INTO EVIDENCE. POINT V THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON THE LAW OF POSSESSION WITH INTENT TO DISTRIBUTE.
In his first three points, defendant contends that reversible error occurred during the prosecutor's closing 3
argument. He argues that (1) the prosecutor improperly spoke directly to a juror; (2) the prosecutor improperly referred to the "blue wall" when describing the testimony of defendant's fellow police officers; and (3) the prosecutor improperly called upon the jury to insure the integrity and honesty of all police officers by convicting defendant.
Counsel for co-defendant gave the first closing argument and told the jury: "Make no bones about it, ladies and gentlemen, the war that is being waged out there is a war against drugs, a war against crime, but a war against drugs. That's why this NITRO unit was created." He told the jury that the City of Newark wanted cops to be aggressive and to attack the "cancer" of drug use and that the City invested a lot of money and manpower to make sure that people like Collins did not come into the City to buy or sell drugs. Counsel also argued that the State wanted the jury to judge whether the officers did anything wrong even though the jurors did not have any law enforcement background and were not provided with any rules or regulations by which to judge defendants' ...