On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Parrillo, Lihotz and Messano.
Tried by a jury, defendant Robert Glover was found guilty of third-degree possession of a controlled dangerous substance (CDS), Xanax, N.J.S.A. 2C:35-10(a)(1) (Count 1); third-degree possession of Xanax with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)(b)(3) (Count 2); and second-degree possession of Xanax with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count 4).*fn1 He was sentenced to a six-year term with a three-year parole bar on Count 4 and two concurrent three-year terms with an 18-month parole bar on Counts 1 and 2. Appropriate fees and penalties were also imposed. Defendant appeals. Save for a remand for resentencing to reflect the merger of Counts 1 and 2 with Count 4, we affirm the judgment of conviction in all other respects.
According to the State's proofs, on October 5, 2006, at around 9:15 p.m., Detective Richard Webber and other members of the Newark Police Narcotics Enforcement Team (NET) responded to the Carlton Hotel on information that an individual was selling Xanax pills on the sixth floor. The hotel, which is located within 500 feet of Military Park, a public park, is a low-rent residence consisting of 200 rooms that rent by the day or week. It is a location notorious for narcotic sales and about which there are chronic complaints of drug activity.
The officers arrived at the hotel in unmarked vehicles and plain clothes, and when they entered the lobby did not identify themselves as police officers. Officers Webber and Jarvier Rivera took the elevator up to the sixth floor while other NET members followed by walking up the adjacent stairwell. When Webber and Rivera exited the elevator on the sixth floor, they saw defendant standing in the hallway in front of room #622. When defendant saw the pair, who were no more than ten feet away at the time, he said, in a loud voice, "I got them sticks." The officers, who knew from their training that "sticks" referred to Xanax pills, then approached defendant, showed him their badges, and stated "Newark Police." Looking shocked and nervous, defendant put his right hand into his pocket. When asked to remove his hand, defendant complied, revealing an orange prescription bottle with no label and containing seventy white Xanax pills. When defendant admitted having no prescription for the pills, he was placed under arrest, and $58 was recovered from his person.
Expert testimony at trial established that Xanax tablets are called "sticks" because of their shape. In Detective Holloway's experience, the pills are not individually packaged for sale but are normally sold in hand-to-hand transactions from a pill bottle. In his opinion, they sell for $10 to $30 per pill.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT PERMITTED POLICE OFFICER WEBBER TO TESTIFY IN VIOLATION OF NEW JERSEY'S HEARSAY RULES AND DEFENDANT'S CONSTITUTIONAL RIGHT UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO CONFRONT THE WITNESSES AGAINST HIM THAT AN INFORMANT HAD TOLD HIM A PERSON WAS SELLING XANAX IN THE HALLWAY OF THE CARLTON HOTEL ON THE EVENING OF OCTOBER 5, 2006 (NOT RAISED BELOW).
II. IT WAS PLAIN ERROR TO ALLOW DETECTIVE HOLLOWAY TO TESTIFY AS AN EXPERT IN THIS CASE GENERALLY BECAUSE HIS TESTIMONY WAS MORE PREJUDICIAL THAN PROBATIVE AND ALLOWING HIM TO TESTIFY THAT DEFENDANT WAS ADVERTISING TO PASSERBYS THAT HE WAS IN POSSESSION OF XANAX TABLETS TO DISTRIBUTE FOR MONETARY GAIN INVADED THE PROVINCE OF THE JURY AND PROVIDED AN ENHANCED PROOF OPPORTUNITY FOR THE STATE (NOT RAISED BELOW).
A. THE LEGAL STANDARDS APPLIED TO USE OF EXPERT TESTIMONY IN DRUG CASES.
B. THE TESTIMONY OF OFFICER HOLLOWAY SHOULD HAVE BEEN EXCLUDED BECAUSE IT BOLSTERED THE TESTIMONY OF THE ARRESTING OFFICERS, IT DID NOT AID THE JURY IN UNDERSTANDING A NUANCED DRUG DISTRIBUTION SCHEME, AND HOLLOWAY EXPRESSED AN OPINION ON THE ULTIMATE ISSUE IN THE CASE THAT SEEMED TO BE BASED ON KNOWLEDGE OF THE DEFENDANT BEYOND THE EVIDENCE AT TRIAL.
C. THIS TESTIMONY WAS HIGHLY PREJUDICIAL TO DEFENDANT'S CASE.
III. N.J.S.A. 2C:35-7.1 VIOLATES THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION BY IMPROPERLY SHIFTING THE BURDEN OF PROVING AN ELEMENT OF THE CRIME - I.E., THAT THE DEFENDANT DID NOT INTEND TO DISTRIBUTE A CDS FOR PROFIT - TO THE DEFENDANT AND REQUIRING HIM TO DISPROVE THIS ELEMENT BY A PREPONDERANCE OF THE EVIDENCE (NOT RAISED BELOW).
A. THE STATE IS REQUIRED TO PROVE EVERY ESSENTIAL ELEMENT OF AN OFFENSE BEYOND A REASONABLE DOUBT.
B. DEFENDANT'S CASE DIFFERS IN IMPORTANT RESPECTS FROM THE BODY OF AFFIRMATIVE DEFENSE CASES THAT INVOLVE 'MENTAL' ELEMENTS AND ELEMENTS THAT LIE UNIQUELY WITHIN THE ABILITY OF THE DEFENDANT TO PROVE.
IV. BECAUSE DEFENSE COUNSEL'S PERFORMANCE AT TRIAL WAS CONSTITUTIONALLY INADEQUATE, THIS COURT SHOULD FIND THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE ...