On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-12-0551.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Rodríguez, Waugh and Newman.
Following a jury trial, defendant Floyd Nance III was convicted of third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1); and second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1a. The judge merged the third-degree convictions into the second-degree conviction and imposed a five-year term. We reverse because the judge erroneously excluded the testimony of two defense witnesses, deeming them to be alibi witnesses whose identity was not disclosed contrary to Rule 3:12-2.
On the day of trial, defendant provided a list of witnesses that he would call. Among them were the names of Carmen Mejias and Gloria Copes. The State objected to these witnesses. Defense counsel proffered that these witnesses would testify that it was defendant's habit to go crabbing on summer afternoons after being released from work. The judge found them to be alibi witnesses. Because defense counsel had not complied with the relevant alibi defense notice requirement, pursuant to Rule 3:12-2, the judge barred Carmen Mejias and Copes from testifying. Defense counsel objected on the record, requesting instead that the judge grant a reasonable postponement of the matter. The State objected and the judge agreed, denying defendant's request.
Because defendant had a 1990 conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), for which he received a three-year term, a pretrial Sands-Brunson*fn1 hearing was held to determine whether defendant's prior convictions could be used to impeach his credibility. The judge ruled that the State could use defendant's prior convictions for impeachment purposes; with defense counsel being permitted to comment on the remoteness of the conviction. The judge gave a limiting instruction to the jury after such evidence was admitted.
One witness testified for the State, Detective Braheem Days of the Burlington County Prosecutor's Office. He testified that on July 10, 2006, acting in an undercover capacity, he purchased twelve bags of CDS from defendant for $100. On the day of the controlled purchase, Days went to a location where he was briefed. Days placed a telephone call to a police informant to arrange for a meeting with defendant. Days drove to meet defendant at an area within 500 feet of the Westside Apartment Complex, a public housing project. Shortly after, Days made the telephone call, defendant arrived and got into the rear passenger side of Days' car. Days told defendant he wanted to purchase $100 worth of cocaine. Defendant reached into his pocket and grabbed a clear plastic bag with small pink plastic bags inside. Defendant handed twelve of the small pink bags to Days. Days paid him $100.
Days testified that when he is involved in a controlled buy, he pays close attention to a suspect's facial features because he knows he will have to identify the person later. Days identified defendant in court as the person from whom he purchased the cocaine on July 10, 2006. After defendant got out of the car, Days went back to the meet location. He completed two other controlled buys that day, not involving defendant. At the meet location, Days identified defendant in a single photograph shown to him. Days initialed and dated the back of the photograph. This photograph was the same as was shown to him prior to meeting defendant that afternoon. Days testified that the substance obtained from defendant tested positive for .16 grams of cocaine. Defendant stipulated to chain of custody regarding the CDS.
Defendant called Juan Mejias as a character witness. He testified to knowing defendant for about nine years. According to Juan Mejias, defendant was a "nice guy" who "gets along with everybody." Mejias testified that every day after work, unless it was lightning, defendant and his family would go crabbing. Mejias, however, could not testify whether this occurred on July 10, 2006.
Defendant testified that every day at 2:30 p.m., at the end of his work shift, he would return home to retrieve his crabbing bucket. At 3:00 p.m., defendant's girlfriend would pick him and his children up to take them to Red Bridge for crabbing. They would continue to crab until about 8:30 p.m. or 9:00 p.m. Defendant would sell the crabs to people who had pre-placed orders through defendant's mother. He has done this for the past four years. Defendant remembered crabbing on July 10, 2006, because it was just a few days after his birthday.
At the close of the State's case and, again after the close of all evidence, defendant moved pursuant to Rule 3:18-1 to dismiss the indictment based on lack of evidence presented. The judge denied the motions. Pursuant to Rule 3:20-1, defendant moved for a new trial arguing that the verdict was against the weight of the evidence. Defendant also moved for a new trial, based on the exclusion of the testimony of Carmen Mejias and Copes. The judge denied the motions.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN PRECLUDING DEFENSE WITNESSES, INCORRECTLY DEEMED TO BE "ALIBI" WITNESSES, ...