On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008 - April 15, 2008
Resubmitted June 10, 2008
Before Judges Coburn, Fuentes and Chambers.
We granted the State's motion for reconsideration of this court's decision reversing defendant's conviction and remanding this matter for a new trial. In State v. Robinson, 399 N.J. Super. 400 (App. Div. 2008), we suppressed illicit drug evidence seized from defendant's apartment during an improper execution of a search warrant. This suppressed evidence was part of the State's case against defendant.
The indictment charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), third-degree distribution of cocaine, N.J.S.A. 2C:35-5b(3), and second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1. The judgment of conviction incorrectly described the latter two offenses as possessory crimes, citing N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:35-7.1.
Based on the proofs presented at trial, the two distribution offenses were committed by defendant when he sold a quantity of cocaine to an undercover police officer, thirty-seven days before the search warrant was executed. Robinson, supra, 399 N.J. Super. at 405-06. The State now argues that defendant's conviction for these offenses should be affirmed, because the evidence underlying these crimes was presented in a separate and distinct manner from the evidence supporting the remaining charges in the indictment.
Defendant argues that the evidence supporting this offense cannot be considered in isolation from the overall case presented by the State at trial. The suppressed evidence, consisting of drugs, money, scales, and other distribution paraphernalia, improperly corroborated the testimony of the officer involved in the undercover purchase. According to defendant, the State's theory of culpability was to show that defendant was a drug dealer. Any evidence that supported this characterization had the capacity to influence the jury.
We agree with defendant's position. The State's strategic decision to prosecute defendant for all counts, within a single trial, had the advantage of evidential interdependence. That is, that each piece of evidence corroborated and supported the other pieces, and painted a portrait of defendant as an active drug dealer, brazenly operating his nefarious business from his home. This strategy also carried the unavoidable risk that any successfully challenged and excluded piece of evidence could undermine the validity of the entire case. This is what occurred here. There is no rational way to determine what role the excluded evidence played in the jury's assessment of defendant's activities. It is reasonable to assume that, as defendant suggests, the jury could have viewed the excluded evidence as corroborating the officer's account of the undercover purchase. If defendant keeps drugs, paraphernalia and money in his home, there is a greater likelihood that he may be a drug dealer.
Finally, the State's predicament here was of its own making. Under Rule 3:15-2(b), the State could have moved to sever the counts involving the undercover purchase. Indeed, the State could have indicted defendant in a separate instrument for these offenses. When all of the charges are tried together, however, there is no way to isolate the effect each piece of evidence may have had on the jury. We reached a similar result in State v. Morant, 241 N.J. Super. 121 (App. Div.), certif. denied, 127 N.J. 323 (1990), where we reversed a conviction partly procured through tainted evidence. In so doing, we rejected the trial court's approach at dealing with this problem by providing the jury with a limiting instructions, because "we [could not] say with any degree of assuredness that [defendant] was not unduly prejudiced by the introduction of the suppressed evidence." Id. at 138.
We thus reaffirm our decision in State v. Robinson, reversing defendant's conviction and remanding the matter for a new trial.
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