On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-05-0311.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Grall and Messano..
Following a jury trial, defendant Kevin Scott was convicted of possession of cocaine, N.J.S.A. 2C:35-10(a)(1). The trial judge also convicted defendant of the disorderly persons offense of possession of narcotics paraphernalia, N.J.S.A. 2C:36-2. On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING MR. SCOTT'S MOTION TO SUPPRESS EVIDENCE RECOVERED DURING A WARRANTLESS VEHICLE SEARCH WHERE MR. SCOTT AND THE PASSENGER HAD BEEN REMOVED FROM THE VEHICLE, HANDCUFFED, ARRESTED, AND SECURED IN POLICE VEHICLES.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. SCOTT'S PURPORTED REFUSAL TO SUBMIT TO A URINE TEST AT HIS EMPLOYER'S REQUEST AFTER HE WAS ARRESTED AS IT WAS IRRELEVANT, LACKED ANY PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL PURSUANT TO N.J.R.E. 404(b).
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. SCOTT'S PURPORTED REFUSAL TO SUBMIT TO A URINE TEST AT HIS EMPLOYER'S REQUEST AFTER HE WAS ARRESTED, AND FURTHER ERRED IN ALLOWING THE PROSECUTION TO COMMENT ON THE EVIDENCE, IN VIOLATION OF MR. SCOTT'S RIGHT AGAINST SELF-INCRIMINATION.
CUMULATIVE ERRORS DENIED MR. SCOTT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm the denial of defendant's motion to suppress; however, we conclude that the admission of evidence concerning defendant's post-arrest refusal to submit to a urine test at the request of his employer was harmful error. See R. 2:10-2. As a result, we reverse defendant's convictions and remand the matter for a new trial.
At the pre-trial evidentiary hearing on defendant's motion to suppress, the State's sole witness was Bound Brook police officer Gary Ulmer. After testifying as to his training and experience, which included assignment to the Somerset County Organized Crime and Narcotics Task Force, and over five-hundred narcotics investigations, Ulmer indicated that on March 9, 2007, he was assigned "as [a] quality of life officer . . . concentrat[ing] on high crime areas throughout" the town.
At approximately 11:00 p.m., he was on duty in plainclothes in the area of 230 East Main Street, "a large commuter parking lot between the Main Street of Bound Brook and the train station." There were "approximately . . . six bars" within a "quarter mile stretch" of the station, and Ulmer testified that he had made "[n]umerous" narcotics arrests in the area. He saw two men "standing outside a vehicle directly behind Torpedo's Bar." They entered the car, and Ulmer approached.
He saw the "passenger . . . using what [he] believed to be cocaine." While standing "[l]ess than three feet away" from the man, Ulmer observed "a white powdery substance underneath [the passenger's] nose and on his mustache." Ulmer identified himself as a police officer and displayed his badge. The passenger, Felton Jones, immediately tried to brush the powder off his face and shirt; defendant, who was in the driver's seat, quickly tried to place "an object in his hand . . . down between himself and the driver's door."
Ulmer drew his weapon and ordered defendant to "show his hand." Defendant did not immediately comply; instead Ulmer "could see his hand moving . . . as if he was continuing to reach for something." Ulmer threatened defendant with pepper spray, causing him to comply and display his hand. Ulmer radioed for backup assistance, and three other officers responded.
Jones was removed from the passenger's seat, handcuffed, and taken into custody by another officer. Ulmer ordered defendant out of the car, handcuffed him, and passed him into the custody of another officer. Ulmer then searched the area where defendant's hand had been. He found "[a] small amount of loose marijuana and a white paper fold that contained a white . . . powder[-]like substance[,]" that Ulmer suspected was cocaine. In the console between the two front seats, Ulmer found a cigarette pack; he opened that and found another paper fold containing suspected cocaine.
In denying defendant's motion, the judge concluded that the "automobile exception" to the warrant requirement applied. He found Ulmer's testimony to be credible, and concluded that
"[p]robable cause" existed to believe criminal conduct was afoot and evidence was in the car. The judge also determined that exigent circumstances existed, noting it was "unforeseen by the police officer that he would come upon this particular ...