On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1038.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2010
Before Judges A.A. Rodriguez, Grall and C.L. Miniman.
Defendant Mark Brantley appeals from three convictions: third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1); third-degree distribution of less than one-half ounce of cocaine, contrary to N.J.S.A. 2C:35-5a(1) and -5b(3); and third-degree possession of cocaine with intent to distribute near school property, contrary to N.J.S.A. 2C:35-5a and -7. He was sentenced to an aggregate ten-year extended term.*fn1 We now reverse and remand for a new trial and other proceedings consistent with this opinion.
On May 6, 2005, Lieutenant Paul Schuster, the head of the New Brunswick Anti-Crime Unit (ACU), was in a surveillance vehicle parked near the intersection of Lee Avenue and Seaman Street. Using binoculars, Schuster was watching for drug activity on two blocks of Lee, a high crime area.
Schuster had known defendant for more than fifteen years. He described him as a large man, over six feet tall, heavy-set, and with a beard. At 3:50 p.m., Schuster saw defendant, dressed all in black, walking up Seaman toward Lee. Defendant turned left on Lee and walked towards Handy Street. At first, defendant walked alone, but after he turned onto Lee, "four or five people, men and women, who were in the area began walking in the same direction as him."
Schuster first saw Kim Montgomery talk to and walk with defendant towards Harry's Newsstand. Defendant stopped there, and Schuster saw him "spit into his hand a small, light[-]colored object," which defendant handed to Montgomery. The newsstand was about 150 feet from Schuster's vehicle. Schuster believed the object was a packet of cocaine based on his experience with narcotics transactions. Montgomery gave the object to a white male standing behind her; the male gave Montgomery cash; and Montgomery handed the cash to defendant. Schuster did not arrest Montgomery or defendant at that time because Montgomery handed the drugs to the white male, who continued walking out of Schuster's line of sight.
Within seconds, another woman from the group walking behind defendant approached and spoke to him; a similar exchange occurred. The woman then walked into Harry's Newsstand. Schuster did not arrest her because she was out of his sight and small bags of cocaine are easily swallowed.
Next, Schuster saw a large African-American man cross Lee and speak to defendant. The transaction was repeated, and defendant and the man crossed the street to a parked car. The buyer got in the driver's seat and pulled away, and defendant returned to his spot in front of Harry's Newsstand. Schuster could not see the license plate of the car, but he gave a description of the car and the direction it was headed to his back-up officers. The car was not stopped.
Schuster then watched defendant walk down Lee towards Seaman and turn right towards Remsen Avenue. "Almost immediately," a short woman approached defendant. The same transaction began, but Schuster's view of the entire transaction was blocked by defendant. Defendant and the woman then walked away down Seaman, out of Schuster's sight. Schuster did not "order for either of them to be arrested" because he had not seen the full transaction.
Defendant was out of Schuster's sight for "maybe 30 seconds" when he walked back in Schuster's direction. An Hispanic man, later identified as Tony Garcia, had a brief conversation with defendant. Defendant "went to his mouth, removed what [Schuster]
believed to be packets of cocaine," and put them in Garcia's left hand. Schuster was about forty feet away from the pair at the time of this transaction but, using his binoculars, it was "[l]ike four or five feet." Schuster saw the two packets in Garcia's hand and saw Garcia hand cash to defendant. This transaction took place within a thousand feet of school property during school hours. Defendant then walked down Seaman, out of Schuster's sight, and Garcia walked down Lee with the two packets in his hand. Schuster called a back-up unit and watched as Garcia was arrested two blocks away from him. Schuster also gave defendant's name and description to another back-up unit, but he did not witness defendant's arrest. The five transactions took place over a ten-minute period.
Officer Ronoldy Martinez, a member of the ACU, was part of the first arrest team located in an unmarked police vehicle parked near Schuster's surveillance spot. Martinez had known defendant for three or four years. Within seconds of receiving instructions from Schuster, Martinez saw Garcia, who matched Schuster's description of the Hispanic male who had just purchased drugs from defendant. Garcia was arrested, and the two packets of cocaine were found in his pocket. Martinez placed the packets of cocaine directly in an evidence bag to preserve any DNA evidence, and the bag was sealed. Martinez and the other officers transported Garcia and the evidence back to headquarters, where the evidence was turned over to the evidence officer, Detective Michael Paul Sabo.
Sabo and Detective Scott Lamont Gould, also members of the ACU, were part of the second arrest team. Sabo had known defendant for about three years. Gould had known him for "[o]ver three to four years in [his] law enforcement career." Gould also had "had encounters with him."*fn2 Within forty-five seconds or two minutes of receiving instructions from Schuster,*fn3 they arrested defendant on the corner of Remsen and Seaman. Defendant had $419 in small denominations "just piled on top of each other, stuffed in his pocket, some crumpled up." No cocaine was found on or near defendant. However, DNA evidence from the packet of cocaine taken from Garcia matched that of defendant according to the State's expert witness at trial.
Martinez testified that Garcia cooperated with the investigation and gave a taped statement. He showed Garcia a photograph of defendant showing two poses, one a frontal view and the other a profile. Garcia then positively identified defendant as the man who sold him the drugs. The photograph, clearly mug shots because of the numbers inscribed on them, was not published to the jury.
Garcia pled guilty to possessing cocaine and was sentenced to a three-year probationary term. At the first trial, Garcia testified that he did not know the seller's name but, when prompted, said that he "believe[d] it's him over there sitting there.*fn4 I think it's him. I'm not too sure because he had a beard at the time." When asked whether the man in court was the same man as in the picture police showed Garcia the day he was arrested, Garcia again said he believed it was defendant but did not "remember very well because at the time he had a beard." When prompted with the photograph used to identify defendant at the time of his arrest, Garcia said, "That is him."
On cross-examination, Garcia denied being told that he would be let go if he identified defendant. Garcia testified that he was at the station for about five hours and was shown "about two or three" other photographs, one at a time. Police asked Garcia to cooperate and told him that he was "not as guilty" because he was an addict. When asked if police told him that defendant was the one who sold him the drugs, Garcia said, "No. No. They showed me the photographs and I picked out one." Garcia then said he did not remember exactly how many photographs, "[b]ut there were about three--three to four. And [he] picked out the photograph and  said that this was the man."
Also on cross-examination, Garcia twice stated that he was "sure" it was defendant who sold him the drugs "[b]ecause he had a beard and he had a missing tooth. And [he] saw him in court . . . the other day" at Garcia's plea hearing. Garcia admitted he was scared that he was going to lose his job or go to jail when he got arrested, and that is why he cooperated with the police.
Gregory Jones, defendant's "cousin by marriage," testified that, on May 6, 2005, defendant got out of a cab in front of Jones's house on Remsen. At that time, Jones was sitting alone on the front porch of his house. Defendant told Jones about an argument he had with his girlfriend. The conversation lasted three or four minutes. Defendant decided to go to the liquor store on the corner of Remsen and Seaman. Jones said that he looked away for a "couple seconds" to talk to someone who came out of the house and, when he looked back, defendant was by the liquor store. Jones saw "people . . . searching [defendant] down" and "[t]hey just locked him up and threw him in the van."
Defendant testified that he had taken the train to New Brunswick that morning to pay some traffic fines. His girlfriend picked him up to take him home. On the way back to their residence, defendant and his girlfriend got into an argument. As a result, defendant left their residence and took a cab back to New Brunswick. After arriving in New Brunswick, defendant talked to Jones briefly in front of his house. He then described his walk to the liquor store and his sudden arrest. Defendant claimed that he "don't know about cocaine" and did not learn that he had been arrested for selling cocaine until he was arraigned. No cocaine was found on him when he was searched.
Defendant claimed that he did not speak to anyone besides Jones before getting arrested and had not been on Lee where Schuster was conducting surveillance. Defendant denied encountering people on the street and denied selling or distributing drugs. He asserted that he was not near Harry's ...