On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-377.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Skillman, Graves and Grall.
Defendant was indicted for numerous third-degree drug offenses, including three counts for distributing heroin or possessing heroin with the intent to distribute, in violation of N.J.S.A. 2C:35-7. A jury found defendant guilty of all charges. The trial court sentenced defendant to concurrent five-year terms of imprisonment, with three years of parole ineligibility, for the violations of N.J.S.A. 2C:35-7, and merged defendant's other convictions into those convictions.
Defendant's convictions were based on evidence obtained by Newark Police Department undercover narcotics officers during the early afternoon of November 9, 2005. Officer Willie Thomas, who was dressed in plain clothes, observed defendant and another individual, Michael Johnson, engage in a brief conversation on the street and then walk over to a parked silver Lincoln. Defendant opened the door and removed a cigarette box. Defendant took items later identified as heroin out of the cigarette box, handed them to Johnson, and put the box back in the car. In return, Johnson handed defendant currency. The two men then separated. Johnson began walking away from the scene of the apparent drug transaction, and defendant got into the Lincoln from which he had removed the cigarette box.
At this point, Officer Thomas radioed his back-up unit, provided a description of Johnson, and directed the officers in the unit to detain him. A few minutes later, those officers intercepted Johnson. When the officers told Johnson why they had stopped him, he said, "I'm not going to give you any trouble, officers," and handed them four glassine envelopes of heroin. These envelopes were labeled "On Fire" in red. Officer Thomas subsequently identified Johnson as the person he had observed engage in an apparent drug transaction with defendant.
The officers in the back-up unit placed Johnson under arrest and informed Thomas that they had apprehended the person he described to them with heroin in his possession. After receiving this information and being joined by several other officers, Officer Thomas approached defendant, who was seated in his Lincoln, told him what he had observed, and removed him from the car. Thomas saw the cigarette box from which the items defendant sold to Johnson had been taken on the side of the car door. Thomas picked up the box and opened it. This search revealed thirteen glassine envelopes containing heroin labeled "On Fire" in red, identical to the four envelopes of heroin the back-up team had found in Johnson's possession. Thomas also discovered seven zip-lock bags containing crack cocaine in the cigarette box and $50 cash in defendant's pocket. At this point, Thomas arrested defendant.
At trial, defendant testified on his own behalf. Although defendant acknowledged speaking with Johnson on November 9, 2005, he asserted that Johnson asked him if he wanted to buy drugs, and that he had told Johnson he did not. Johnson then walked away from him. Defendant denied opening the door to his car while speaking to Johnson. He also denied possessing any drugs or having a cigarette box in his car. In short, defendant alleged that Officer Thomas' testimony regarding his observations of the drug transaction between defendant and Johnson and his arrest of defendant and seizure of the cigarette box containing the heroin and crack cocaine was a fabrication.
On appeal, defendant's sole argument is that he is entitled to a new trial because the trial court improperly allowed the State to present expert opinion testimony regarding the ultimate issue in the case. The State's expert witness was Detective Robert Liput of the Essex County Sheriff's Department, who has extensive experience investigating the retail distribution of drugs. He testified that the envelopes of heroin and zip-lock bags of crack cocaine contained in the cigarette box from which defendant removed the items sold to Johnson were packaged in the most common form in which those drugs are distributed. Liput also testified that it would be unusual for a person who was a drug user and not involved in illegal drug distribution to loiter in a "high narcotics area" for an extended period of time while in possession of drugs. In addition, he testified that a "stash item" is an object, such as a shoe or a can with a false bottom, where a dealer will place drugs for the purpose of concealing them from law enforcement. He said that it is very common for street-level narcotics dealers to employ such a secret place.
After Liput gave this testimony, the prosecutor asked him the following hypothetical question:
Q. Detective, I want you to assume the following hypothetical. Plain clothes police officer is at a location. He sees an individual that we'll refer to as subject A. Subject A is seen having a brief conversation with another person who we'll refer to as Subject B. Subject A and B is, are then seen walking to a car and subject A is seen opening the car door. Subject A is seen removing a cigarette box from that car. Subject A then removes some items from that cigarette box and gives them to subject B. Subject B in return gives him some money. Subject B then walks away. This plain clothes officer believing that he had just seen a drug transaction contacts his back-up officers. He tells them what has happened. He also gives a description of subject B and the direction subject B is walking in.
Subject B is detained by the back-up officer. After searching him, he's found to have four envelopes of heroin. The back-up unit then contacts the officer and confirms that subject B did indeed have illegal narcotics ...