On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-01267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Parker and R. B. Coleman.
Defendant Victor Hagood appeals from a judgment of conviction entered on October 7, 2005 after a jury found him guilty of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; and fourth degree resisting arrest, N.J.S.A. 2C:29-2a. After the appropriate mergers, defendant was sentenced on the school zone charge to an extended term of ten years subject to five years parole ineligibility. On the resisting arrest charge, he was sentenced to a term of one year consecutive to the ten-year term, resulting in an aggregate term of eleven years.
The charges against defendant arose from a surveillance operation supervised by Lieutenant Paul Schuster of the New Brunswick Police Department. On July 15, 2004, at 10:00 a.m., Schuster and Detective Christopher Plowucha were observing the corner of Lee Avenue and Seaman Street, a high drug activity area. Plowucha was using binoculars while both officers sat in an unmarked car.
Plowucha observed defendant as he was approached by "an older black male." After defendant had a conversation with the man, they walked together up Lee Avenue, during which time the man gave defendant cash. Defendant crossed the street, ran back across the street to the man a few seconds later and handed something to him. The officers took no action but continued to observe defendant. About ten minutes later, a car pulled up, defendant approached the passenger side, had a conversation and ran back across the street, returning to the vehicle. Plowucha observed defendant hand two bags of what he believed was heroin to someone in the vehicle in exchange for cash. Plowucha lost sight of defendant as he ran across the street in each of the incidents, but saw defendant return and was otherwise able to observe the transactions.
After defendant gave the drugs to the people in the car, a backup team stopped the car looking for the drugs. When the officers approached the car, Jose Ayala, a passenger in the vehicle, put two packets of heroin in his mouth, but ultimately spit them out and they were retrieved by the officers. The occupants of the car were charged with possession of heroin.
Meanwhile, Plowucha continued to observe defendant meeting with various people, running across the street and returning to give them packages. Plowucha advised the backup units to arrest defendant. As the backup team approached defendant, he ran through a nearby news stand and several backyards, climbing over fences. The officers ultimately arrested him, but found no drugs on his person. After arresting defendant, the officers searched the area across the street where Plowucha observed defendant going to get drugs for his customers. They found "brick" wrapping used to wrap heroin but no drugs. Defendant had $244 in cash on his person.
After he was arrested, Ayala gave a tape-recorded statement that he had purchased the heroin from defendant for $25. At trial, however, Ayala testified for defendant that he did not purchase any heroin from defendant but had purchased the two bags from another individual on Seaman Street. He claimed that when the police officers approached his car, he thought he was being hijacked. Ayala testified that he purchased the drugs from a different seller and that he had lied at the police station because he was going through withdrawal.
In this appeal, defendant argues:
POINT ONE THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT EVIDENCE OF HAGOOD'S ALLEGED AND UNCHARGED PRIOR CRIMINAL ACT THROUGH AN INVESTIGATING OFFICER, WHO WAS ALLOWED TO TESTIFY AS BOTH A FACT AND EXPERT WITNESS, WITHOUT THE PROPER FOUNDATION HAVING BEEN LAID FOR THE OFFICER'S EXPERTISE IN NARCOTICS TRANSACTIONS. ANY PROBATIVE VALUE OF THE OFFICER'S OPINION THAT THE PRIOR ACT WAS A DRUG TRANSACTION WAS FAR OUTWEIGHED BY ITS PREJUDICIAL EFFECT ON THE JURY AND SHOULD HAVE BEEN EXCLUDED. N.J.R.E. 403(a), 404(b). (Partially Raised Below)
B. The Trial Court Failed to Balance Whether the Probative Value, if Any, of the Other Bad Acts Evidence Outweighed the Extremely Prejudicial Effect of Such Evidence on the Jury
C. The Trial Court Failed to Assess Whether Detective Plowucha's "Expert" Opinion Testimony Would Assist the Jury in Understanding Something Outside of the Juror's Knowledge and Failed to Weigh the Probative ...