On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 03-06-2107.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2005
Before Judges Kestin, Lefelt and R. B. Coleman.
After a trial, defendant and a co-defendant were convicted by a jury of second-degree conspiracy, contrary to N.J.S.A. 2C:5-2, to violate laws respecting possession of heroin and cocaine and possession of those drugs with intent to distribute; two counts of third-degree possession of controlled dangerous substances, cocaine and heroin, in violation of N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of those drugs with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and b(3); and two counts of possessing those drugs in a school zone, contrary to N.J.S.A. 2C:35-7, also third-degree crimes. After appropriate mergers were effected, the court sentenced defendant to two concurrent three-year terms of imprisonment with three years of parole ineligibility. Appropriate, statutorily mandated assessments, penalties and fees were ordered along with a two-year suspension of defendant's driving privileges.
In challenging the convictions on appeal, defendant raises the following issues:
THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO THE OPINION THAT DEFENDANT HAD DISTRIBUTED DRUGS IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY. (Not Raised Below)
THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT HAD POSSESSED CDS.
Given the circumstances developed, our review of the record in the light of the arguments advanced by the parties and prevailing standards of law discloses substantial merit in defendant's argument that the testimony of the State's expert on drug trafficking impermissibly invaded the province of the jury.
The factual scenario upon which the proffered "opinion" of the expert was premised was well-framed for our purposes in the opening statements of the prosecutor and counsel for this defendant. The prosecutor stated:
[O]n Thursday, May 1st, 2003 at about 12:45 in the afternoon a group of plainclothed detectives from the Essex County Sheriff's Bureau of Narcotics arrived in the area of Magnolia Street and 18th Avenue to conduct an investigation. * * * And as part of that investigation Detective Stanley Garnes was set up to do an undercover surveillance near 26 Magnolia Street. This was done by his sitting in a car parked a little ways down the block and he made certain observations of the comings and goings and activities of people on that block. One very significant observation that he made was that he saw a woman come down the block and approach this defendant, Ja-Quanda Boston, who was out in the street and there was a brief conversation. After that conversation Miss Boston then went over to Mr. Jaleel Frazier, the co-defendant, and spoke with him. Mr. Frazier then proceeded inside the house, came out with something which he gave to Miss Boston. Miss Boston, in turn, gave the article to the person that approached her and took money in exchange for it. At that point, Detective Garnes radioed the back-up unit which was stationed a couple of blocks away to move in. When they came in they arrested Miss Boston. They approached Mr. Frazier, he ran into the house, up from the first floor to the second floor and then the third floor pursued by the detectives, and he was discovered . . . on the third floor hiding under a table that was covered with plastic bags.
Now, before he ran he threw down four envelopes of heroin rubber banded together. They were marked with a green stamp that same Monster. [sic] Upstairs on the third floor Detective James Bradley picked up a bag, a plastic bag near where the defendant was found containing -- it was open, by the way -- containing 40 more decks of --envelopes of heroin -- decks is a street term for envelopes -- which were also stamped in green and said Monster on them. He also found in that bag 33 vials of cocaine.
Defense counsel, in her opening statement, countered that defendant had insisted from the outset that she never conspired with Jaleel Frazier to possess and distribute cocaine and heroin, never was involved with Mr. Frazier on May 1st, 2003 as charged in the indictment with any constructive possession . . . of heroin and cocaine, never engaged in any distribution or sale to anyone on May 1st, 2003 as alleged by the State.
. . . [W]hat the Bureau of Narcotics' officer or officers who we expect will testify saw and did is, in fact, just their version of what occurred. They may be ...