On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-01-0079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Espinosa.
Tried to a jury, defendant Heriberto Rivera was convicted of second-degree possession of cocaine with intent to distribute "in a quantity of one-half ounce or more, but less than five ounces," N.J.S.A. 2C:35-5a(1), -5b(2); third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of marijuana with intent to distribute "in a quantity of one ounce or more but less than five pounds," N.J.S.A. 2C:35-5a(1), -5b(11); third-degree possession of marijuana "over one ounce," with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a, -7; fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); and, second-degree possession of firearms while in the course of committing, attempting to commit or conspiring to commit the above-referenced crimes, N.J.S.A. 2C:39-4.1a. The judge imposed a sentence of imprisonment and fines for each conviction and the appropriate fines, penalties and assessments. Defendant's aggregate sentence is twelve years' imprisonment with a three-year period of parole ineligibility.
Around 11:30 p.m. on October 6, 2005, Detective Anthony Ferraioli and his partner were on patrol in Hackensack. Ferraioli saw two men standing in or near an entrance to 333 Park Street, an apartment building. Defendant was holding "a plastic bag with white powder in it" and his companion had money in his hand. Ferraioli and his partner stopped, got out of their car and identified themselves. Defendant ran into the apartment building; his companion fled. The officers followed defendant. He entered an apartment on the first floor, and the officers continued their pursuit. Ferraioli saw defendant throw "the bag he had in his hand" into a garbage can in the kitchen and placed him under arrest. There were three other people in the apartment - Frank Smickley, who rented and lived in the apartment, Kourtney A. Keefe and Michael Sampson. Ferraioli saw four sandwich-size plastic bags containing marijuana and cocaine, three bags of marijuana seeds, six plastic bags of cocaine, two digital scales, empty clear and yellow plastic bags used to package drugs and two firearms. Subsequent testing revealed that the baggies seized, including the baggie which defendant threw into the garbage can, contained a total of at least 16.8 grams (0.59 ounces) of cocaine and 92.7 grams (3.27 ounces) of marijuana.*fn1 The knotted plastic baggie that Ferraioli saw defendant throw in the garbage held .62 grams of cocaine. The firearms were operable BB guns.
At trial, the prosecutor presented expert testimony from Detective Melissa Pera of the Bergen County Prosecutor's Office. The detective had participated in over 500 narcotics investigations and had served as a member of the Narcotics Task Force. The expert testified about practices of drug dealers, including their use of scales, plastic bags, guns and "stash" houses. In response to a hypothetical, she gave her opinion that the "cocaine and marijuana" were possessed with the intent to distribute.
Although defendant elected not to testify, he presented evidence to rebut Detective Ferraioli's testimony. If the jurors credited that evidence, they could have concluded that the officer could not have seen defendant holding cocaine or followed defendant into the building. According to Neil Blake, defendant's friend, he and defendant were talking inside the building when the officers knocked on the door and demanded to speak to the "super" about a truck that they wanted moved.
Blake opened the door, and defendant went to get Frank Smickley. Blake saw the officers follow defendant into Smickley's apartment. Michael Sampson, who was inside, said that the police officers barged in behind defendant and found everything they seized in the bedroom of Smickley's apartment; none of it was visible in the kitchen or the living room.
Defendant raises the following issues on appeal:
I. THE TRIAL COURT'S FAILURE TO CHARGE "MERE PRESENCE" DILUTED THE STATE'S BURDEN OF PROOF AND DEPRIVED DEFENDANT OF HIS DEFENSE AND A FAIR TRIAL. THE COURT THEN FURTHER ERRED IN FAILING TO EXPLAIN THIS CONCEPT TO THE JURY AFTER THE JURY SPECIFICALLY ASKED WHETHER DEFENDANT COULD BE CONVICTED BASED ON HIS PRESENCE IN A ROOM WHERE DRUGS WERE FOUND.
II. THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO SUGGESTED THAT DEFENDANT WAS GUILTY OF "DEALING ON THE STREETS," THAT DEFENDANT WAS PART OF A LARGER DRUG DISTRIBUTION SCHEME, AND THAT THE APARTMENT WHERE THE DRUGS WERE FOUND WAS A "STASH HOUSE" WHERE DEFENDANT AND OTHER MEMBERS OF HIS "ORGANIZATION" STORED THEIR GUNS AND WEAPONS, IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY.
III. DEFENDANT'S CONVICTIONS FOR SECOND-DEGREE POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE AND THIRD-DEGREE POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE MUST BE REVERSED BECAUSE THE JUDGE NEGLECTED TO CHARGE AN ELEMENT OF THOSE CRIMES TO THE JURY. (Not Raised Below).
IV. PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. V. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE ...