On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-06-00564.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Collester and Lisa.
By leave granted, the State appeals from a pretrial order allowing defendant to present evidence at trial of prior police misconduct in support of his defense of planted evidence or fabricated charges. We now reverse.
Defendant is the subject of an indictment charging him with: (1) third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3); (2) second-degree distribution of a CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1; and (3) third-degree maintaining a fortified structure for CDS purposes, N.J.S.A. 2C:35-4.1c. All of the offenses are alleged to have occurred on December 11, 2003. On that date, the State alleges that Detective Keith Franklin, acting in an undercover capacity, purchased CDS from defendant at 702 South Park Street. Detective Franklin was an employee of the Union County Prosecutor's Office and was working in cooperation with the Elizabeth Police Department in this drug investigation. Detective Franklin had also assisted the Elizabeth Police in executing a search warrant in October 2003 at defendant's premises at 702 South Park Street.
Defendant was not a target in this investigation. Detective Franklin was unfamiliar with defendant and, when he allegedly made the undercover buy on December 11, 2003, did not know defendant's identity. After making the buy, Detective Franklin identified a photograph of defendant at police headquarters as the person who sold him the CDS. After making the identification, Detective Franklin heard, for the first time, that defendant had filed a civil lawsuit against the
Elizabeth Police Department as a result of some earlier unrelated incident.
The incident underlying the civil suit occurred nearly six years earlier, on February 9, 1998. Defendant was arrested on drug charges, and it was ascertained that the police acted improperly in planting drugs and fabricating the charges against him. His civil suit was still pending as of December 11, 2003. It was settled in early 2004. Defendant received $30,000 as a settlement.
Detective Christopher Flatley, of the Elizabeth Police Department, was in charge of the 2003 investigation that resulted in defendant's arrest. Detective Flatley had no involvement in the 1998 incident, and, at that time, he was not a member of the narcotics unit. Detective Flatley was not named in the civil suit. He contends he was not aware of the suit until 2005, although Detective Franklin said that it might have been Detective Flatley who commented about the existence of the civil suit after Detective Franklin made his photo identification of defendant. Detective Franklin was not sure who made the comment. Detective Flatley was familiar with defendant prior to December 11, 2003, and was aware that defendant owned 702 South Park Street. According to Detective Flatley, the property, not its owner, was the focus of the
investigation because of complaints by neighbors about drug activity there. The investigation lasted several months and resulted in arrests of several other individuals in addition to defendant.
According to defendant, during the intervening years between 1998 and 2003, some members of the Elizabeth Police Department made threats of retaliation against him because of the civil action. Defendant could not identify any officers allegedly making such threats, other than to say they were white males. Detectives Franklin and Flatley were not among them. The Elizabeth Police Department has about 360 members.
Defendant filed a motion in limine for an order, pursuant to N.J.R.E. 404(b), "to admit other act evidence of the City of Elizabeth Police Department and Officers with regard to the Defendant and their previous history of having falsely accused him of drug related offenses for which he won a sizeable civil rights judgment in Federal District Court." After conducting an evidentiary hearing, the trial judge granted the motion and entered an order allowing the evidence on July 13, 2005. By order of September 7, ...