On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-09-0963.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Following a jury trial, defendant Roger Fuller was convicted of third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of a controlled dangerous substance with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1a; third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b and second-degree possession of a weapon while committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1a. Thereafter, in a separate deliberation, the same jury found defendant guilty of possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b. The trial judge sentenced defendant to an aggregate term of 16 years imprisonment with an aggregate minimum period of parole ineligibility of eight years.
In addition, the judge imposed statutory fines, penalties and assessments. On appeal, we affirmed the conviction and remanded for resentencing consistent with State v. Natale, 184 N.J. 458 (2005). The Supreme Court denied certification. State v. Fuller, 192 N.J. 596 (2007).
Subsequently, defendant filed a timely Petition for Post- Conviction Relief (PCR). After ordering and conducting an evidentiary hearing, Judge Ostrer, in the Law Division, granted the requested relief and ordered a new trial. We granted the State's motion for leave to appeal and now affirm.
In his opinion, which we quote at length, the judge set forth his factual findings relevant to the PCR.
In general, the conviction rests largely on the testimony of the arresting officers, Marlon Parrott and Brian Suschke, and an admitted heroin addict, Ryan Albert. The addict testified that early in the afternoon of April 8, 2003, after shooting up heroin, he went to Fuller's apartment to buy heroin. Allegedly, Fuller previously sold heroin to Albert. Fuller allegedly told Albert he had nothing to sell, and Albert lent Fuller his 1994 Ford Explorer. Fuller agreed to give him five bags of heroin in return for use of the car. Albert testified that Fuller asked him to clean out the car before he took it, so Albert removed his used needles (the suggestion being that Albert did not leave heroin in the vehicle, and Fuller intended to use the vehicle to purchase heroin and did not want other evidence of wrongdoing in the vehicle).
Albert testified that he had waited in Fuller's apartment with a man named Cliff, and Cliff's girlfriend, and that Clifford had also in the past supplied him with heroin. When Fuller did not return with the vehicle after roughly 36 hours, Albert became fearful and alerted police. Albert spoke to Parrott and Suschke and their sergeant on the street near Fuller's apartment. Albert also testified that after his truck was recovered he called Cliff the next day.
However, Albert's credibility was questionable. He admitted that he lied to the police, saying he had lent the car for $50, that it was missing only two hours, and the borrower of the car was named Dex. Furthermore, Parrott testified that Albert's conversation occurred before midnight April 8, 2003, roughly twenty-four hours earlier than Albert said it occurred. Also, Albert admitted to prior convictions and that he was on parole. Moreover, he admitted to attempting to purchase heroin - itself a crime.
The officers testified that they stopped Fuller when they spotted him driving what looked like the missing Explorer (which Albert said had a broken window). They also testified that Fuller had failed to signal a lane change. Suschke claimed to have seen furtive movements, including Fuller leaning forward - although none of that appeared in Parrott's report. Upon effecting the stop, the two officers noticed Fuller, and two passengers in the vehicle - Velvet Brown, an adult woman, in the front passenger seat, and a juvenile female Shakira Johnson in the rear bench seat. Parrott saw marijuana in plain view, removed the passengers from the vehicle, and then spotted the nose of a gun barrel peaking out from under the rear of Brown's seat, pointing toward the rear passenger seat.
Parrott and Suschke also saw two McDonalds drink cups in the front center console's cup holders, Parrott said he saw a couple of McDonalds food bags - Suschke said he saw one - in the console, too. Suschke said the drinks were half full with watered-down ice. Suschke testified that as Fuller exited the truck, he took a food bag and tossed it to the sidewalk, where it spilled out a half-eaten hamburger. Suschke retrieved the bag, and found three packages of heroin, one of which had been ripped open.
Testifying on behalf of Fuller was Velvet Brown, who was the mother of Fuller's daughter, and was Fuller's live-in girlfriend in April 2003 (but was no longer living with him at time of trial and claimed to have had a falling out with him). She testified that Albert arrived with a man named Cliff and another man. She said that Fuller asked Albert if he could borrow his truck, but did not promise anything in return. She claimed that the McDonald's drinks and food bag were in the car when she entered it. She claimed that Fuller and she had used the truck so that she could drop off her cousin.
She said that she put the gun in the vehicle without telling Fuller. She obtained the gun from another man with whom she was romantically involved and she ultimately but reluctantly identified as Chase Williams. She did not want Fuller to know about the relationship. She claimed that she carried it for protection because her cousin had been stabbed.
She admitted that Fuller smoked marijuana while in the truck. She also claimed that Fuller did not remove the McDonalds bag from the vehicle, nor did he throw it to the sidewalk. She also said that Fuller had been homeless before meeting her; he lived at her apartment; he had no money; and had not been a drug dealer to her knowledge.
Defense counsel conceded that he may have - apparently unintentionally - opened the door to Fuller's possible past drug dealing by asking Velvet Brown if she knew him as a drug dealer. He admitted at a sidebar, "Well, I think, unfortunately, I've already opened the door to that." Eliciting her negative answer only made sense assuming Fuller had no prior history of drug dealing.
Fuller testified that he was unaware that there was heroin or a gun in the truck.
He said that Ryan arrived at Velvet Brown's apartment with Cliff and another man. He, Brown and Brown's cousin, Shakira Johnson were already there. He asked Ryan if he could borrow his truck to take Shakira Johnson home. Ryan agreed. Fuller admitted that he kept the truck longer than expected - but about an ...