On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-1943.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Arthur Schellinger and co-defendant Tim McGeachy (McGeachy) were charged under Atlantic County Indictment No. 05-09-1943, with possession of cocaine, N.J.S.A. 2C:35-10a(1). The indictment contained multiple counts; however, it only named defendant in count one, possession of cocaine. On October 17, 2006, defendant's case proceeded to trial before a jury which found him guilty as charged. The court sentenced defendant to prison for four years, with credit for 343 days time served. On February 26, 2007, defendant filed a Notice of Appeal.
The facts relevant to this appeal are as follows. On May 3, 2005, Atlantic City Police Officer James Armstrong (Armstrong), in the course of surveying an area of Atlantic City known for narcotics sales, observed McGeachy suspiciously walking back and forth between two streets. Shortly thereafter, Armstrong saw defendant approach McGeachy, at which time the two men had a brief conversation. The two men then walked to the corner of the street and spoke again. There, defendant handed McGeachy an undetermined amount of money. After receiving the money from defendant, McGeachy entered a nearby house while defendant remained on the street. Within a few minutes, McGeachy returned and again conversed with defendant as the two men walked back towards their original location. Next, the two men entered the parking lot of a store and proceeded toward an alleyway. At that time, Armstrong, who had followed the men in his patrol car, witnessed McGeachy hand defendant an item that defendant placed in the front right pocket of his pants.
Believing that the two men had engaged in a narcotics transaction, Armstrong exited his vehicle and instructed the men to stop and place their hands where he could see them. Defendant reached into his pocket, removed a small clear bag and threw it to the ground. Armstrong arrested both men. Upon searching defendant, Armstrong found two glass crack pipes and a copper "brillo pad." A search of McGeachy did not reveal anything of evidentiary value; however, Armstrong did not find this unusual because he believed that McGeachy was acting as a middleman to defendant's drug purchase, receiving a share of the drugs, instead of a monetary fee, in exchange for taking defendant to purchase the drugs.
At trial, Armstrong testified to the events that transpired and explained that he had made over three-hundred arrests for drug-related crimes in that specific area, which is well known for drug sales because a drug rehabilitation clinic is located nearby. Armstrong further stated that he completed a one-month internship with the Atlantic County Prosecutor's Narcotics Strike Force, an eighty-hour course with the Drug Enforcement Agency (DEA) and an eighty-hour narcotics course run by the New Jersey Attorney General. In addition, Armstrong provided other statements indicating that he had an expertise in narcotics sales.
On appeal, defendant raises the following arguments:
POINT I: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING THE DETECTIVE TO OFFER INADMISSIBLE OPINION TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
POINT II: THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND RIGHT AGAINST SELF-INCRIMINATION WHEN THE PROSECUTOR IN SUMMATION COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY. U.S. CONST. AMEND. V, VI and XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (NOT RAISED BELOW).
Initially, we note that defendant did not raise either of these arguments at trial. Therefore, we will not reverse the determination of the trial court unless it constitutes plain error. R. 2:10-2. Plain error is error that is capable of producing an unjust result. State v. Brown, 190 N.J. 144, 160 (2007).
Defendant asserts that Armstrong's specific opinions about drug dealing, when considered in connection with his expertise and training, went beyond the opinion of a lay witness. N.J.R.E. 701 provides: "If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."
N.J.R.E. 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or ...