On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2183.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
Defendant Ronnie Green was tried to a jury and convicted of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a; third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a; third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7; and second-degree possession of CDS within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1. The judge merged defendant's conviction for possession and possession with intent to distribute and sentenced defendant to an aggregate seven-year term of imprisonment with a three and one-half year term of parole ineligibility. The judge also imposed fines, penalties assessments and fees applicable to each conviction on which he imposed a sentence and a LEOTEF penalty on the conviction.
Defendant appeals and raises two issues:
I. THE COURT ERRED IN DENYING A MISTRIAL, AND IN REFUSING TO ISSUE A CURATIVE INSTRUCTION, WHEN THE STATE VIOLATED THE BANKSTON RULE WHEN ITS KEY WITNESS TESTIFIED THAT THE POLICE RESPONDED TO
11 THOMAS STREET BASED UPON A COMPLAINT OF DRUG DEALING AT THAT LOCATION, THUS VIOLATING THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. (1947), ART. 1 PARS. 1, 9 AND 10.
II. THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO PRECLUDE THE TESTIMONY OF THE STATE'S EXPERT WITNESS FOR VIOLATING THE DISCOVERY ORDER AND IN REFUSING TO GRANT THE DEFENDANT'S RESULTING MOTION FOR AN ADJOURNMENT.
We hold that a new trial is required due to the State's presentation of testimony implying that the police had information about defendant's guilt that was not introduced at trial and the judge's failure to direct the jurors to disregard that testimony when he denied defendant's motion for a mistrial. Given that determination, there is no reason to address the issue raised in Point II of defendant's brief.
These are the pertinent facts. On October 27, 2008, Officer Edwin Padilla of the Newark Police Department was on patrol with three of his fellow officers. Padilla and defendant were the only witnesses to the crime who testified at trial. The State's other witness, Officer Michael Lippet, testified as an expert.
Padilla testified as follows. He and his fellow officers were assigned to patrol a "high narcotics area." The area was "11 Thomas Street." The prosecutor asked Padilla what he did first on "Thomas Street." Padilla responded, "We entered the apartment building. We had a complaint that - -" Defense counsel objected to Padilla's reference to a complaint, and the prosecutor withdrew the question and asked Padilla to explain what he did when he entered 11 Thomas Street. Padilla responded, "We - - the officers and myself entered 11 Thomas Street to further investigate some complaints we had received of open distribution of narcotics at which time we - -" Defense counsel asked to be seen at sidebar and requested a mistrial. The prosecutor argued that a mistrial was inappropriate because he had withdrawn his question and the court had not ruled on defense counsel's objection.
Noting that he had not heard anything impermissible, the trial judge denied the request and asked defense counsel "what [she] want[ed him] to tell the jury[.]" Defense counsel responded by advising the judge that the propriety of a "curative instruction" was up to him, and the judge said there was "no reason" for a curative instruction and that an instruction would be "more ...