On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 99-7-2545-I.
Before Judges Kestin, Fall and Weissbard
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 26, 2003
Defendant was charged with six third-degree crimes relating to controlled dangerous substances. Three involved cocaine, and three involved heroin. They were, with respect to each substance: possession, possession with intent to distribute, and possession within 1,000 feet of a school with intent to distribute.
The charges were tried to a jury, which acquitted defendant of the school zone offenses and convicted him on the remaining four charges. After mergers were effected, defendant was sentenced, on February 9, 2001, to two concurrent four-year prison terms with 188 days of jail credit. The customary assessments, penalties and fines were ordered. Defendant's driver's license was suspended for twelve months.
On appeal, defendant raises the following issues:
POINT I: THE PROSECUTOR'S INTRODUCTION INTO
EVIDENCE OF THE DEFENDANT'S LACK OF EMPLOYMENT AND HER COMMENT IN SUMMATION WHICH INFERRED THAT THIS GAVE THE DEFENDANT A MOTIVE TO COMMIT THE CRIME, DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (Partially Raised Below).
POINT II: THE HIGHLY PREJUDICIAL REMARK BY DETECTIVE MARTINEZ, TO WHICH THE TRIAL COURT SUSTAINED DEFENDANT'S OBJECTION BUT FAILED TO DELIVER A CURATIVE JURY INSTRUCTION, VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 1)
Because of unremediated prejudice in the evidence as presented to the jury, we reverse the two convictions for possession with intent to distribute. Because the evidence to which we refer did not bear upon the simple possession charges, we affirm as to those convictions.
The drugs and $965 in cash were discovered on defendant's person when he was searched incident to an arrest on a warrant. At the commencement of trial, before the jury was empanelled, defendant moved to suppress that evidence. An evidentiary hearing was held, and the trial judge determined that both the arrest and the search had been valid. Accordingly, he denied the motion to suppress.
The next day, the officer who had executed the warrant, Detective Nicholas Martinez of the East Orange Police Department, testified before the jury. He began, naturally, by establishing the circumstances. At the court's express behest after defense counsel had alerted a problem, the detective had been instructed by the assistant prosecutor assigned to the case to avoid mentioning in his testimony any particulars of the arrest warrant. Nevertheless, the detective testified that, as part of his duties, he was assigned to the F.B.I. Violent Crimes Fugitive Task Force and that one of his functions was to receive requests for assistance from "local detectives" for locating "an individual who's wanted for a violent crime[.]" Defense counsel objected, and, in a sidebar conference, the trial court, invoking N.J.R.E. 403, ruled that the use of the term "violent crime" was prejudicial to defendant with no offsetting probative value. The judge stated:
. . . I will accept the objection. . . . I would only highlight [the response to the last question] if I told the jury to disregard that nature of it. But at this time, . . . I will instruct you not to . . . ask the question and have him respond . . . where he uses the ...