On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Landlord Tenant Division, Monmouth County, Docket No. LT-3083-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued December 15, 2009
Before Judges Cuff and Waugh.
By leave granted, we review the interlocutory order of the Law Division, Special Civil Part, granting an in limine motion to bar the proposed testimony of a Highlands Borough police officer with respect to a "controlled buy" of purportedly illegal drugs from defendants' unit in a public housing facility owned and operated by plaintiff Highlands Housing Authority (Authority). We reverse the order on appeal and remand to the Law Division for a trial consistent with this opinion.
We discern the following facts from the record. Defendants George Eikens and Corinne Sommer reside in an apartment complex owned and operated by the Authority. One provision of their lease requires tenants to: refrain from illegal or other activity which impairs the physical or social environment of the [housing] project. Further, the Tenant, any member of Tenant's household or guest or other person under the Tenant's control shall not engage in criminal activity, including drug related criminal activity, on or near public housing premises, while the Tenant is a Tenant in public housing, and such criminal activity shall be cause for termination of tenancy.
The term "drug related criminal activity" means the illegal manufacture, sale, distribution, use or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 102 of the Controlled Substance Act (21 U.S.C. 802)) . . . .
On July 23, 2008, Eikens was arrested and charged with distributing oxycodone, contrary to N.J.S.A. 2C:35-5(a)(1). Sommer was arrested the following day and charged with distributing or possessing with intent to distribute a prescription legend drug, contrary to N.J.S.A. 2C:35-10.5(a)(3); "distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility," contrary to N.J.S.A. 2C:35-7.1(a); and agreeing "to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime," contrary to N.J.S.A. 2C:5-2(a)(2).
Based upon the allegations concerning distribution of illegal drugs at their unit, the Authority sent Eikens and Sommer a "Notice to Quit/Demand for Possession" dated September 12, 2008, requiring them to vacate the premises by November 1, 2008. When they did not do so, the Authority sent a second notice dated May 15, 2009, requiring them to vacate the premises by May 21, 2009. The notices described the alleged violations and informed defendants that non-compliance would result in the filing of an action to evict them from the Authority's property.
When Eikens and Sommer did not comply with the second demand that they vacate their unit, the Authority filed a complaint for possession on May 28, 2009, seeking termination of defendants' tenancy.
The summary dispossess action was scheduled for trial in the Special Civil Part on June 19, 2009. Defendants made an oral application to preclude the Authority's proposed testimony about a "controlled buy" that took place in connection with the investigation that resulted in the arrest of Eikens and Sommer, arguing that it constituted impermissible hearsay.
The trial judge directed counsel to brief the issue and adjourned the trial. The judge heard oral argument on July 2, 2009, but did not take any testimony or conduct a preliminary hearing pursuant to N.J.R.E. 104(a).*fn1 She based her decision on the following summarization of the challenged testimony: Police Sergeant Rogers "patted this confidential informant down before he went into this apartment. He ...