On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-02-0188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Lintner, Graves and Alvarez.
Defendant, Michael Majette, was found guilty by a jury of possession of cocaine N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6 (Count One); distribution of cocaine, N.J.S.A. 2C:35-5a(1), b(3) and N.J.S.A. 2C:2-6 (Counts Two and Four); and distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a, and N.J.S.A. 2C:2-6 (Counts Three and Five). Following appropriate mergers, defendant was sentenced to a mandatory extended term, N.J.S.A. 2C:43-6f, of nine years with a three-year parole ineligibility on the Count Three conviction. A concurrent five-year term was imposed on the Count Five conviction. Defendant appeals and we affirm.
At approximately 5:00 p.m. on June 14, 2000, Detective Jeffrey Robinson, a three-year member of the Narcotics Division of the Paterson Police Department, began task-force surveillance in a high narcotics trafficking area of Paterson. Robinson, dressed in plain clothes and sitting in the back of a parked Jeep Wrangler, was observing the intersection of Hamilton Avenue and Lake Street. In addition to functioning as a "surveillance man," Robinson's duty was to inform, via police radio, the nearby "scoop team," or arrest teams, to stop individuals that he observed engaging in what he believed to be narcotics transactions.
Over the course of his observations, Robinson saw three hand-to-hand transactions. The first was at approximately 5:10 p.m. and involved a Hispanic man. Robinson watched the Hispanic man approach the intersection and speak with a black male, later identified as Jarel Maggette.*fn1 The two engaged in a brief conversation and then Jarel walked approximately ten to fifteen feet to a man, later identified as defendant. Jarel and defendant spoke for approximately two to three seconds and then defendant reached into his pocket and handed Jarel a number of small items. Jarel returned to the Hispanic male, who accepted the objects in exchange for paper currency. After the exchange, Jarel returned to defendant and handed him the paper currency that was given to him by the Hispanic male.
Robinson believed, based upon his experience, that he had observed a narcotic purchase. Robinson provided the scoop teams with a description of the Hispanic man. The team, however, was unable to apprehend him.
The next observed transaction occurred at approximately 5:20 p.m. Robinson saw a black female, later identified as Angela Joe, pull up in a black Toyota. She exited her vehicle and walked over to Jarel. Jarel and Joe engaged in a brief conversation, after which Jarel while looking in his "right clenched hand," appeared to be "counting some items which he handed to . . . Joe." Joe then gave Jarel some paper currency, and got into her car and drove away. Jarel then walked over to defendant and handed him the money. The entire exchange took place approximately seven feet from Robinson.
Robinson alerted the scoop teams. Joe was stopped by two members of the scoop team in an unmarked Ford Taurus. They showed her their badges and relayed the observations made by Robinson. Joe responded by surrendering two small baggies of crack cocaine. The two bags were red in color and had the words "stay high" written on them.
The final transaction occurred at approximately 5:55 p.m. Robinson observed a black male, later identified as Melvin Robinson (Melvin),*fn2 walk up to Jarel. They engaged in a very brief conversation. Defendant was approximately five feet from Jarel and Melvin. After the conversation, "Jarel Maggette . . . reach[ed] into his right pants pocket, hand[ed] . . . [Melvin] an item in exchange for what appeared to be money."
At that point, Robinson instructed the scoop teams to arrest all the involved parties. Defendant, Jarel, and Melvin were arrested directly in front of 214 Hamilton Ave. Robinson did not assist in the arrest or get out of the Jeep at the time of the arrest, so as not to compromise his undercover use of the vehicle.
At the time of their arrest, Melvin had in his possession one red bag of crack cocaine marked with the words "stay high," identical to the bag recovered from Joe. $22, consisting of 1 ten-dollar bill and 12 one-dollar bills, was found on Jarel, and defendant had $113 on his person consisting of 103 one-dollar bills and 2 five-dollar bills.
Jarel testified at trial. He arrived at Lake and Hamilton on the afternoon of his arrest to hangout and mingle. According to Jarel, defendant arrived later that afternoon. Jarel denied selling narcotics to any of the apprehended buyers, and testified that Joe spoke to and purchased narcotics from another individual lingering nearby, who was more commonly known as "Big Marv." By the time Jarel was arrested, Big Marv had left the scene and had not been apprehended by the officers. Jarel conceded that he may have handed defendant money, however, he claimed that he was giving defendant money he owed him, approximately $10.
On appeal, defendant raises the following contentions:
I. THE TRIAL COURT ERRED IN ALLOWING HIGHLY PREJUDICIAL TESTIMONY ABOUT THE DEFENDANT'S EARLIER ENCOUNTER WITH THE UNIDENTIFIED HISPANIC MALE -- WHICH ENCOUNTER DID NOT RESULT IN ANY CRIMINAL CHARGE AND FOR WHICH THERE WAS NO EVIDENCE OF WRONGDOING --BECAUSE SUCH TESTIMONY UNFAIRLY PORTRAYED DEFENDANT AS A LIKELY DRUG DEALER, MAKING THE JURY MORE LIKELY TO CONVICT HIM FOR CDS POSSESSION AND DISTRIBUTION IN CONNECTION WITH THE [SUBSEQUENT] ENCOUNTERS.
A. ALL TESTIMONY CONCERNING THE HISPANIC MALE ENCOUNTER SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403, BECAUSE SUCH TESTIMONY PRESENTED A HIGH RISK OF UNDUE PREJUDICE, ESPECIALLY WHERE THE ENCOUNTER WAS PRESENTED BY THE STATE (WITHOUT PROOF) AS A "NARCOTICS TRANSACTION."
B. THE TESTIMONY CONCERNING THE HISPANIC MALE CONSTITUTED "OTHER BAD ACT[S]" EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 404(b).
C. BASED ON THE JURY'S OWN QUESTION, THE ERRONEOUS ADMISSION OF TESTIMONY CONCERNING THE HISPANIC MALE ENCOUNTER WAS NOT "HARMLESS," BUT CLEARLY INFLUENCED THE JURY'S DECISION TO FIND DEFENDANT GUILTY OF CDS POSSESSION AND DISTRIBUTION.
II. THE TRIAL COURT ERRED IN ALLOWING THE INVESTIGATING OFFICER TO GIVE "OPINION" TESTIMONY THAT THE HISPANIC MALE ENCOUNTER WAS A "NARCOTICS TRANSACTION," WHERE SUCH TESTIMONY UNFAIRLY "FILLED THE GAPS" IN THE STATE'S CASE AND INVADED THE PROVINCE OF THE JURY. (NOT RAISED BELOW).
A. DETECTIVE ROBINSON WAS NEVER QUALIFIED AS AN EXPERT, AND SO COULD NOT PROPERLY GIVE AN OPINION THAT DEFENDANT'S ENCOUNTER WITH THE HISPANIC MALE WAS A "DRUG TRANSACTION"; FURTHER, HIS OPINION DID NOT QUALIFY AS A LAY OPINION UNDER N.J.R.E. 701.
B. EVEN IF DETECTIVE ROBINSON WAS PROPERLY CONSIDERED AN EXPERT IN THE FIELD OF LAW ENFORCEMENT, CONTROLLING LAW PROHIBITED HIM FROM OPINING THAT AN OBSERVED ENCOUNTER WAS A "DRUG TRANSACTION," WHERE IT WAS THE PROVINCE OF THE JURY TO SO CONCLUDE.
III. THE TRIAL COURT ERRED IN ALLOWING THE INVESTIGATING OFFICER TO "OPINE" THAT THE ENCOUNTER WITH ANGELA JOE WAS A "NARCOTICS TRANSACTION." (NOT RAISED BELOW).
IV. THE PROSECUTOR MADE IMPROPER COMMENTS DURING HIS SUMMATION, WHICH PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL AND WHICH WARRANT REVERSAL.
A. THE PROSECUTOR IMPROPERLY REFERRED TO THE DENOMINATIONS OF MONEY FOUND ON DEFENDANT AS BEING EVIDENCE OF A NARCOTICS TRANSACTION, WHERE THERE WAS NO EXPERT TESTIMONY (OR ANY TESTIMONY) TO THAT EFFECT.
B. THE PROSECUTOR ALSO IMPROPERLY GAVE THE JURY HIS UNSUPPORTED "EXPERT" OPINION THAT IT WOULD NOT BE POSSIBLE TO OBTAIN FINGERPRINTS FROM THE BAGS OF DRUGS THAT WERE RECOVERED.
C. DURING HIS SUMMATION, THE PROSECUTOR IMPROPERLY COMMENTED THAT THE SURVEILLANCE OFFICER HAD "NO REASON TO LIE" AND SUGGESTED THAT JURORS WOULD HAVE TO FIND THAT THE OFFICER FABRICATED TESTIMONY OR PLANTED EVIDENCE IN ORDER TO REJECT HIS TESTIMONY AND ACQUIT THE DEFENDANT. (NOT RAISED BELOW).
D. DURING HIS SUMMATION, THE PROSECUTOR IMPROPERLY DISPARAGED THE ARGUMENTS OF DEFENSE COUNSEL. (NOT RAISED BELOW).
V. THE DEFENDANT WAS SUBSTANTIALLY PREJUDICED BY THE JURY VERDICT SHEET, WHICH DID NOT INSTRUCT THE JURORS TO STOP DELIBERATING IF THEY COULD NOT FIND DEFENDANT GUILTY OF CDS POSSESSION, WHICH WAS A NECESSARY ELEMENT OF THE DISTRIBUTION OFFENSES.
VI. THE TRIAL COURT ERRED BY NOT ACQUITTING DEFENDANT AT THE CLOSE OF THE STATE'S CASE, OR ALTERNATIVELY THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHERE THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT POSSESSED AND DISTRIBUTED CDS PARTICULARLY WITH RESPECT TO THE MELVIN ROBINSON ENCOUNTER.
VII. EVEN ASSUMING ARGUENDO THAT NONE OF THE ABOVE ERRORS, STANDING ALONE, WAS SUFFICIENTLY EGREGIOUS TO DEPRIVE DEFENDANT OF A FAIR TRIAL, THE COMBINATION THEREOF CONSTITUTES ERROR SUFFICIENT TO WARRANT REVERSAL.
VIII. THE SENTENCE SHOULD BE VACATED WHERE (A) AN EXTENDED TERM WAS IMPOSED WITHOUT THE STATE HAVING PROVIDED WRITTEN NOTIFICATION TO THE DEFENDANT AND COURT OF THE DECISION TO SEEK AN EXTENDED TERM, AND WITHOUT THE STATE SETTING FORTH THE BASIS FOR REFUSING TO WAIVE AN EXTENDED TERM; (B) THE SENTENCE VIOLATED NATALE II; AND (C) THE SENTENCING COURT ENGAGED IN A DEFICIENT "BALANCING" ANALYSIS WHICH RESULTED IN AN EXCESSIVE SENTENCE.
A. AN EXTENDED TERM WAS IMPOSED WITHOUT THE STATE HAVING FIRST SERVED AND FILED A WRITTEN APPLICATION; AND WITHOUT THE STATE PROVIDING A BASIS FOR REFUSING TO WAIVE AN EXTENDED TERM.
B. THE SENTENCE OF IMPRISONMENT ON COUNT THREE AND COUNT FIVE VIOLATED NATALE II WHERE A SENTENCE ABOVE THE PRESUMPTIVE TERM WAS IMPOSED, BASED ON AGGRAVATING FACTORS ...