On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-06-2070 and 06-06-2071.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2009
Before Judges Wefing, Grall and Messano.
Following a jury trial, defendant Darryl Proctor was convicted of: third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(2); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of heroin, with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1; fourth-degree violation of the regulatory provisions relating to firearm purchase permits, N.J.S.A. 2C:39-10; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a firearm while committing a narcotics offense, N.J.S.A. 2C:39-4.1; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6. Following a brief second trial before the same jury pursuant to a separate indictment, defendant was convicted of second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7(b).
After appropriate mergers, the trial judge sentenced defendant to ten years imprisonment on the second-degree possession of heroin with intent to distribute conviction; a concurrent five-year sentence with a two-year period of parole ineligibility on the school-zone conviction; a concurrent eighteen-month sentence on the regulatory conviction; a concurrent eighteen-month sentence on the tampering conviction; and a consecutive eight-year sentence on the possession of a firearm during the commission of a narcotics offense conviction.
On the second indictment, the judge imposed a consecutive sentence of ten years with a five-year period of parole ineligibility.
Defendant raises the following issues on appeal:
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO OFFER IMPROPER EXPERT TESTIMONY THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT THE ISSUANCE AND EXECUTION OF AN [SIC] SEARCH WARRANT FOR THE DEFENDANT'S PURPORTED RESIDENCE WITHOUT PROVIDING THE JURY WITH A CURATIVE INSTRUCTION THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE ADMITTANCE INTO EVIDENCE OF DEFENDANT'S CRIMINAL CONVICTION CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
THE TRIAL COURT'S RESTRICTIONS ON MR. PROCTOR'S TESTIMONY DEPRIVED HIM OF HIS RIGHT TO TESTIFY ON HIS OWN BEHALF AND OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
A. THE PROSECUTOR'S COMMENTS TO THE JURY DURING SUMMATION, WHICH SUGGESTED THAT THE TESTIMONY OF THE STATE'S POLICE WITNESSES WAS INHERENTLY CREDIBLE PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)
B. THE PROSECUTOR'S COMMENTS DURING SUMMATION EXPRESSING HER PERSONAL OPINION ABOUT THE MERITS OF THE CASE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)
C. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT HAD A BURDEN OF PROOF VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ERRED BY REQUIRING MR. PROCTOR TO APPEAR BEFORE THE JURY IN HANDCUFFS THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ERRED IN FAILING TO CONFIRM WITH MR. PROCTOR THAT HE INTENDED TO WAIVE HIS RIGHT TO BE PRESENT IN COURT FOR THE RETURN OF THE VERDICT AND, INSTEAD, ACCEPTING DEFENSE COUNSEL'S WAIVER OF HIS CLIENT'S APPEARANCE. (Not Raised Below)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We reverse.*fn1
On December 13, 2005, Sergeant Albert Rivera, Jr. and officers of the Essex County Anti-Crime Partnership, "a multi-agency" law enforcement "task force," executed a search warrant at 690 South 20th Street, Newark. A trained narcotics dog signaled the presence of drugs in the bedroom and bathroom. The officers came upon defendant as he was exiting the bathroom, and twelve glassine envelopes of suspected heroin were found floating in the toilet bowl. Rivera also found an additional seven-hundred and fifty*fn2 glassine envelopes in the bathroom, the majority of which were in a cabinet underneath the sink, with the remainder on the floor.
In addition to the drugs, the officers found a bullet-proof vest in a bedroom closet that also housed a safe. Inside the safe, the officers found a loaded .32 caliber revolver, $5,791 in cash, and the title to a 1998 Ford Expedition in defendant's name and listing 690 South 20th Street as his residence.
Two women, defendant's girlfriend and daughter, were also in the apartment. After being advised of his Miranda*fn3 rights, defendant "voluntarily blurted" out to Rivera, "they had nothing to do with it, it's all mine." Cross-examination revealed that defendant's statement was not contained in any of the police reports of the incident, and Rivera acknowledged that he did not tell the prosecutor of this fact until the week of trial.*fn4
Defendant's vehicle was parked in front of the premises, and defendant executed a consent form permitting the officers to search the Ford Expedition. In the driver's side door, the officers recovered two packages containing twenty glassine envelopes of heroin similar to those recovered in the apartment.
Detective Reginald Holloway of the Essex County Sheriff's Department was called by the State as an expert in the field of narcotics distribution. We discuss in greater detail below his testimony; it suffices to say that Holloway opined that the heroin found by the officers was intended for distribution and not for personal use.
Defendant testified and generally denied having any knowledge of the drugs, gun, or bullet-proof vest. He claimed that the apartment was his girlfriend's, and that he lived in East Orange. He further claimed that he and his girlfriend maintained a sporadic relationship, and that he had spent the night before his arrest with her in the apartment. Defendant admitted that he owned the Ford Expedition, but denied knowing that any drugs were in the car, and he further denied making any statements to the officers when arrested.
We now turn to defendant's legal arguments. Rather than discuss them separately, we consider the issues regarding Holloway's testimony (Point I) and evidence regarding the search warrant and prior drug activities at the address (Point II), together with the alleged improprieties of the prosecutor (Point V). While we acknowledge the relative strengths of the State's case, we must conclude that cumulatively the errors that occurred denied defendant a fair trial and clearly had the capacity to bring about an unjust result. See R. 2:10-2.
We recite Holloway's testimony at length. After qualifying as an expert in the field of narcotics distribution, Holloway looked at the plastic bag containing the evidence seized from the apartment and testified that glassine envelopes "are the number one items utilized for the ...