On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-01-0015.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
This appeal requires us to decide whether the trial judge's rulings, authorizing the State to use a seventeen-year-old prior conviction to impeach defendant's credibility and permitting the prosecutor to argue that a testifying police officer had no incentive to lie, deprived defendant of his right to a fair trial. We agree with defendant's contention that the prosecutor's summation exceeded the boundaries of legitimate advocacy when she vouched for the credibility of her witness. We likewise agree with defendant's claim that because he had no intervening convictions, this seventeen-year-old conviction was so stale that its probative value was vastly outweighed by its prejudicial effect, and the judge therefore erred by permitting the State to use it to impeach his credibility. In this trial, where the State's proofs were far from overwhelming, we decline to consider these errors harmless. Consequently, we reverse defendant's conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10, and remand for a new trial.
On the afternoon of August 1, 2007, Asbury Park police officers Gabriel Carrasquillo and Stephen Love were conducting a surveillance operation near the Asbury Park train station in response to citizen complaints of narcotics activity at that location. Both were dressed in black pants and in black shirts with the word "Police" emblazoned in large yellow letters on the front and back. Both wore police badges hanging from their necks.
While conducting their surveillance at the train station, Carrasquillo and Love observed a man, later identified as Douglas Crimi, flag down a man who was riding a bicycle. The man on the bicycle, later identified as defendant, stopped just long enough for Crimi to hand him some currency, after which defendant immediately rode away. Police did not observe defendant hand anything to Crimi in exchange for the currency.
Carrasquillo and Love continued to observe Crimi for another twenty minutes, while he continually looked left and right on the train platform as though waiting for someone to return. Believing such conduct to be suspicious in light of what they had already observed, the two officers approached Crimi.
While Love was speaking to Crimi, Carrasquillo observed defendant pedaling toward them. Carrasquillo testified that as defendant got closer, he approached defendant and identified himself as a police officer. As he did so, based upon his experience and training, Carrasquillo specifically focused his attention on defendant's hands. While only three to four feet away from defendant, Carrasquillo observed defendant open his right hand and drop an item to the ground. Carrasquillo retrieved the item, which was later analyzed and found to be cocaine.
Defendant testified and gave a vastly different account of what had transpired. Defendant explained that he knew Crimi and the two had combined their money so that defendant could ride over to a nearby liquor store and purchase some beer for the two to share. After purchasing two cans of beer, defendant rode back to the train station; however, before he reached the spot where Crimi had been standing, he saw that Crimi was surrounded by two police officers. Fearing that he would be arrested for being in possession of an open container of beer, defendant hid the beer on the side of the train station and then resumed pedaling toward Crimi and the two officers because he "just was trying to see what was going on."
Defendant denied being in possession of cocaine. Indeed, defendant testified that he was already 100 feet past the point where the officers were speaking with Crimi when Carrasquillo yelled "hey you" and instructed defendant to come back. Defendant complied, at which time Love began to search him. According to defendant, while he was being searched by Love, Carrasquillo was pacing back and forth over a twenty-foot area looking on the ground. Defendant maintained that after ten to fifteen minutes, Carrasquillo showed defendant crack cocaine and told defendant that it was his.
In his summation, defense counsel argued to the jury that Carrasquillo's testimony was "totally incredible" because no person who had cocaine in his possession would ride his bicycle toward two men with badges around their necks and the word "Police" written in large yellow letters on the front and back of their shirts. Defense counsel also forcefully argued to the jury that nobody would do what Carrasquillo described: within four feet of a police officer, stare him in the eye and then drop cocaine to the ground. He argued:
I'm sorry, it doesn't make sense. I think the officer's credibility is seriously in question. His actions belie some of the words that came out of ...