On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-01428.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges A. A. Rodríguez, Collester and C. L. Miniman.
Following a jury trial, defendant Charles Martino was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). He was also convicted of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. The judge granted the State's motion for an extended term and imposed a twelve-year term with a six-year period of parole ineligibility on the second-degree offense and concurrent terms of four years on the third-degree offense and six months on the disorderly persons offense.*fn1 We reverse.
These are the salient facts. On October 5, 2002, defendant and co-defendants Ahmat B. Amat and Ruben Otero*fn2 were returning from New York City over the George Washington Bridge in a 1992 white Cadillac with Pennsylvania license plates. At a pre-trial hearing on a motion to suppress, Bergen County Police Officer Marcel Schacht testified that he saw the Cadillac speeding, weaving in and out of traffic and tailgating other vehicles. Schacht stopped the Cadillac. Defendant, the driver, could not produce identification. Schacht detected the smell of marijuana emanating from the driver's side. Otero was sitting in the front passenger seat, and Amat was in the back seat. Schacht looked into the Cadillac and saw a "High Times" magazine on the rear seat and a baggie on the front-seat floorboard. Schacht ordered defendant out of the vehicle.
Schacht questioned defendant at the back of the Cadillac. The officer first did a protective pat-down search based on his observation of a bulge in defendant's pants. Defendant was fidgeting with the bulge. Schacht reached in and pulled out a wad of $2,016 in cash that was interspersed with two baggies filled with marijuana.
Another officer arrived to assist. This allowed Schacht to walk to the passenger side of the Cadillac and speak with Otero. As he did so, Schacht saw a plastic bag full of cigar shavings on the front floorboard. He ordered Otero out of the car and told him to sit on the guardrail next to defendant. He then turned his attention to Amat, who was removed from the vehicle and also ordered to the guardrail.
Schacht searched the Cadillac and recovered a clear plastic bag with forty-seven Ecstasy pills inside a pouch draped over the driver's seat. The pouch also contained a digital scale and baggies containing marijuana. A white powdery substance, which Schacht identified as cocaine, was found underneath a jacket on the back seat. The weight of the cocaine was later determined to be 4.8 ounces. The three men were arrested.
Schacht testified for the State at trial consistently with his testimony at the suppression hearing. Detective Elliot Cookson testified as an expert witness regarding illegal narcotics and trafficking activity. He was not a fact witness. He opined that defendant and his passengers constructively possessed the narcotics seized with intent to distribute them to others. Specifically, he opined that:
Based upon my training, experience and education and working in an undercover capacity I felt that the amount of cocaine and Ecstasy found in this case and marijuana were possessed with the intent to distribute.
Cookson also opined that narcotics purchased in the New York City area could be sold for a greater amount in Pennsylvania. Subsequently, at side bar, the judge admonished the prosecutor that Cookson "really can't give an opinion as to this case." Instead of posing a hypothetical question, the prosecutor then questioned Cookson about the value of narcotics seized in Pennsylvania as compared to New York.
The prosecutor then asked the following hypothetical question:
So, Detective, in your opinion, a case where there are three individuals who are traveling on 95 south coming from the direction of New York who are found with Ecstasy, cocaine, marijuana and large quantities in their possession would that be indicative of possession with intent to distribute?
Cookson replied and volunteered:
And from what I've seen, these guys pool their money together and make trips to New York City. You're not going to bring someone who has no idea what's going on because you're going to go to the city and you're going to do a drug deal on a street corner. Everyone has a role. You're not going to bring someone who doesn't know what's going on because you want that person to look out for you because the deals go down in apartments, side streets. . . . You need someone to look out for cops, make sure no one is going to rob you because these deals take place in alleyways and apartments.
On cross-examination, Cookson testified that he felt "100 percent confident in stating that these three individuals all were aware, all had a ...