March 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK BRANTLEY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Newsstand on Lee and that he was only in New Brunswick for five to fifteen minutes.
When asked if Schuster's testimony was inaccurate, defendant responded that he was "not saying no one sold to Tony Garcia any drugs. But he identified the wrong person as the seller." Defendant also said that Schuster could have misidentified him because he had not seen him in years and he had gained weight since then. Defendant then said that Schuster "committed perjury" when he said he saw defendant selling drugs.
Defendant did not know Garcia or have contact with him or his drugs and denied selling drugs to Garcia. Defendant claimed that the DNA evidence was "planted" because "they realized they erred in their arrest and also from other legal proceedings . . . against them in regards [to] similar matters."*fn5 He explained his theory that, sometime in the chain of custody after the police took a buccal swab of his DNA on December 15, 2005, his DNA was planted on the drugs. The money that defendant had in his pocket was "probably . . . change or something from going to the store or something like that." Defendant, who claimed to be self-employed, carried that amount of money because he did not know how long the fight with his girlfriend was going to last and he thought he might need to stay at a motel.
The jury evidently did not credit the testimonies of Jones and defendant, convicting defendant on all counts. He was then sentenced to an extended term of ten years for the school-zone offense, with five years of parole ineligibility. He was also sentenced to two five-year terms on the other convictions to run concurrently with the ten-year term. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I -- THE STATE'S EXPERT SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY CONCERNING THE RESULTS OF THE STR METHOD OF DNA TESTING (NOT RAISED BELOW).
POINT II -- THE TRIAL COURT'S REFUSAL TO GRANT THE DEFENSE REQUEST FOR A DEFENSE DNA EXPERT TO BE PROVIDED AT PUBLIC EXPENSE DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO CONFRONTATION AND EQUAL PROTECTION AND REQUIRES REVERSAL OF THE CONVICTIONS. MOREOVER, COUNSEL'S FAILURE TO ADEQUATELY INVESTIGATE DNA TESTING PROCEDURE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE.
POINT III -- DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS WERE VIOLATED WHEN THE TRIAL COURT ERRONEOUSLY DENIED THE DEFENSE PRETRIAL REQUEST FOR A WADE HEARING ON THE ADMISSIBILITY OF IDENTIFICATION TESTIMONY.
POINT IV -- SINCE THE STATE FAILED TO SATISFY ITS BURDEN OF DEMONSTRATING THE UNAVAILABILITY OF A WITNESS, ADMISSION OF THE WITNESS'[S]
TESTIMONY FROM THE PRIOR TRIAL VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION.
POINT V -- THE ERRONEOUS RULING PROHIBITING DEFENDANT FROM CROSS-EXAMINING THE POLICE OFFICERS CONCERNING A FEDERAL LAWSUIT HE BROUGHT AGAINST THEM FOR VIOLATION OF HIS CIVIL RIGHTS TO DEMONSTRATE BIAS AND MOTIVATION TO TESTIFY FALSELY WAS PER SE ERROR INFRINGING HIS RIGHT OF CONFRONTATION AND REQUIRING REVERSAL OF HIS CONVICTIONS.
POINT VI -- CONVICTION FOR THIRD[-]DEGREE DISTRIBUTION OF CDS MUST BE MERGED FOR SENTENCING PURPOSES INTO THE CONVICTION FOR THIRD[-]DEGREE DISTRIBUTION OF CDS IN A SCHOOL ZONE.
POINT VII -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Some of the issues raised by defendant involve the exercise of judicial discretion, as to which we have a limited scope of review. However, the exercise of judicial discretion "is not unbounded," State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004), and must have a factual underpinning and legal basis. Id. at 110. We have explained:
"Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of applicable law to avoid a manifest denial of justice." [Cosme v. E. Newark Twp. Comm., 304 N.J.
Super. 191, 202 (App. Div. 1997) (quoting In re Presentment of Bergen Cnty. Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1994)), certif. denied, 156 N.J. 381 (1998).]
Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Moreover, a trial court's error "shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. "The harmless error standard thus requires that there be 'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (alteration in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
We begin with defendant's contention that the trial judge erred in prohibiting him from cross-examining the ACU officers about a federal civil-rights lawsuit he filed against them "to demonstrate bias and motivation to testify falsely" at the time of trial. Defendant urges that this erroneous ruling deprived him of his Sixth Amendment right to confront witnesses against him. He asserts that this error cannot be considered harmless since "[t]he only other evidence supporting the State's case was the ACU officers' testimony concerning their surveillance." The State counters that the lawsuit was filed after the present arrest and was irrelevant and its admission would be prejudicial to defendant. It urges that the trial judge did not abuse his discretion in excluding the evidence.
During the first trial, defendant cross-examined Gould about the lawsuit he filed against him, Schuster, Sabo, and other officers in the ACU, and the State objected. The judge ruled that asking the officer if he was aware of the lawsuit was "fair game" for cross-examination as it might impact the officer's "credibility, [and] his motive," but examination respecting the allegations in the lawsuit itself would be "a trial within a trial." Gould testified that he was aware that defendant filed a lawsuit against him, but he was not sure when it was filed. On further objection by the State, the judge ruled that getting into a substantive discussion of the lawsuit, as the State wished to do, "runs the risk of prejudice in terms of the nature of that lawsuit" and "should be tempered in terms of other [N.J.R.E.] 403 balancing factors." That trial ended in a hung jury.
Just prior to the second trial, which was before another judge, the State renewed its objection to cross-examination respecting defendant's lawsuit. The State argued that it should either be excluded as not relevant or the State should be allowed to elicit testimony regarding "what the civil suit's about." Defendant argued that he had a right to impeach a witness any way he could within the purview of the New Jersey Rules of Evidence, and the existence of the suit was relevant to "bias, prejudice, [and] motivation to misrepresent the facts."
The judge at the second trial reversed the earlier ruling and decided that defendant could not use the lawsuit to cross-examine the officers at all. He analyzed the issue under N.J.R.E. 404(b) governing evidence of other crimes. He based his ruling on the fact that there was no evidence that the present charges were brought in retaliation for the lawsuit because it was filed after the arrest in this case. Thus, he did not perceive that it was relevant. He also thought that, if the lawsuit was used to impeach the officers' credibility, the State might bring out additional details regarding the lawsuit itself that would be prejudicial to defendant, and the prejudice outweighed the probative value of the evidence under N.J.R.E. 403.
A criminal defendant has a constitutionally guaranteed "right to confront the 'witnesses against him.'" State v. Branch, 182 N.J. 338, 348 (2005) (quoting U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10). However, the scope and content of cross-examination is a matter committed to the sound discretion of a trial judge, and "an appellate court will not interfere with such control unless clear error and prejudice are shown." State v. Wakefield, 190 N.J. 397, 452 (2007) (citation and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
A witness's credibility is "a proper subject for cross-examination." State v. Farthing, 331 N.J. Super. 58, 79 (App. Div.), certif. denied, 165 N.J. 530 (2000). "Because the right to cross-examine is of constitutional magnitude, '[t]here can be no question that a defendant must be afforded the opportunity . . . to show bias on the part of adverse state witnesses.'" State v. Varona, 242 N.J. Super. 474, 482 (App. Div.) (alteration in original) (quoting State v. Sugar, 100 N.J. 214, 230 (1985)), certif. denied, 122 N.J. 386 (1990). Consistent with that right, N.J.R.E. 607 expansively provides that "any party . . . may . . . introduce extrinsic evidence relevant to the issue of credibility." Accord State v. Gorrell, 297 N.J. Super. 142, 148-49 (App. Div. 1996).
A restriction on the right of confrontation may be grounds for reversal, subject to harmless-error analysis, if a trial judge improperly restricted a defense attorney's cross-examination with respect to a witness's bias. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686-87 (1986). Bias is "the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party." United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450, 457 (1984). "The ability to probe the reasons for possible bias can be critically important when a witness's credibility is at issue." Sugar, supra, 100 N.J. at 231.
First, there can be no question that the existence of the later-filed lawsuit was relevant to the officers' credibility at the time of trial, even though its existence did not directly impeach the arrest at issue here.*fn6 But lack of impeachment for the arrest is not determinative and should not have been considered by the judge. The conclusion that it was not relevant was a "clear error of judgment." State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002).
Second, N.J.R.E. 404(b) was hardly helpful to the analysis of the issue. Although it bars evidence of "[o]ther crimes, wrongs, or acts," the questions seeking to elicit Gould's or Schuster's knowledge of defendant's civil-rights lawsuit against them was not evidence of other crimes, wrongs, or acts because all that was sought to be elicited was the fact that defendant had sued them. Even if it could be thought to fall within the penumbra of N.J.R.E. 404(b), that rule specifically permits admission of otherwise excluded evidence "for other purposes, such as proof of motive."
As defendant quite correctly points out, the issue is governed by N.J.R.E. 607 and 403. Evidence of the existence of the lawsuit was clearly admissible under the former rule as it was "relevant to the issue of credibility." N.J.R.E. 607.
We still must analyze the issue under N.J.R.E. 403, which provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury, or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Mere pendency of the lawsuit per se carried no undue prejudice, would not have confused the issues, and would not have misled the jury. The State could have met this evidence by establishing that the officers were unaware of it at the time of the arrest and that their testimony at trial was based on the events surrounding the arrest and not affected by the subsequent lawsuit. Thus, the State could rehabilitate its witnesses without resort to the allegations in the lawsuit. The judge failed to consider this possibility.
The evidence that the State touted on defendant's behalf as prejudicial was an altogether different issue and one properly the subject of analysis under N.J.R.E. 403. The judge's error was in conflating the two issues. This might have become clear had the judge conducted a hearing under N.J.R.E. 104(a), as is generally required when an objection is made under N.J.R.E. 403. See State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984) (holding that judge should conduct a hearing "to adequately explore the issue before making a ruling"), aff'd, 103 N.J. 169 (1986). Such a hearing must be conducted on remand if the State presses its desire to delve into the issues underlying the civil-rights lawsuit.
Here, Schuster's credibility in identifying defendant as the seller was critically important because Garcia did not testify at the second trial and there was some uncertainty in his in-court identification during the first trial, making Schuster the only eyewitness to the drug transaction who testified live at the second trial. Precluding defendant from impeaching Schuster was a clearly mistaken exercise of discretion much to defendant's prejudice.
We also note that the judge failed to address defendant's claim that there was a "long history," which included the dismissal of criminal charges after defendant had been assaulted by the ACU officers and another complaint defendant filed against an ACU officer years before this arrest. These facts may well further impeach the officers' testimony respecting this arrest itself. If a N.J.R.E. 104(a) hearing is conducted at the behest of the State, the judge may require defendant to make an offer of proof respecting this other evidence so the judge can explore its admissibility prior to the retrial.
Although defendant's theory that the police planted evidence on him may be far-fetched, it is "[n]o matter that the likelihood of defendant's contentions might be slim; under our system [the defendant] was entitled to fully test the State's proofs and show any possible bias, prejudice, interest or ulterior motive." State v. Crudup, 176 N.J. Super. 215, 221 (App. Div. 1980). The jury was deprived of the opportunity to fully judge the credibility of the only eyewitness to the drug sale who testified live. Denying defendant the opportunity to develop a possible bias on the part of police witnesses long familiar with him was unfair and produced an unjust result, which is especially clear where this evidence was admitted during the first trial and the jury could not reach a verdict.
Defendant argues that the trial judge erred in denying his request for a Wade*fn7 hearing. On appeal, defendant argues that a Wade hearing was required because: (1) Garcia's in-court identification was uncertain; (2) Garcia testified that he was shown numerous photographs while the police testified that only one photograph was used; (3) Garcia was intimidated by the police into identifying defendant; (4) Shuster "viewed the suspect from a considerable distance, albeit with binoculars"; and (5) defendant's witness, Jones, contradicted Shuster's testimony.
For the first time on appeal, defendant further claims that Shuster's misidentification of him implicates the theory of "unconscious transference." We will not consider this latter claim because it was not presented to the trial judge, Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973), and defendant has failed to explain how this claim falls within the exceptions to the Nieder rule, ibid.
Defendant's request for a Wade hearing was first argued on the eve of the first trial. He asserted then that there was no array presented to Garcia; the photograph was clearly a mug shot; and it was unduly suggestive because Garcia would assume it was the photograph of the person who sold him cocaine. The judge denied the motion on the merits without a hearing. She found that defendant had failed to meet his burden to prove a substantial likelihood of misidentification because Garcia was involved in the transaction and officers testified at a suppression hearing that Garcia's identification was made two hours after the alleged purchase by Garcia.
On October 18, 2006, just prior to the second trial before a new judge, defendant renewed his request for a Wade hearing. He based his request on the testimony Garcia gave at the first trial that he was shown three or four photographs, including the "mug shot" of defendant, not just a photograph of defendant. He compared this testimony to that of Martinez, who claimed that he only showed Garcia one photograph of defendant. The prosecutor replied by representing that Garcia was incorrect--there was only one photograph. Defendant then argued that presenting a photograph of only one person was inconsistent with the Attorney General's Guidelines that single-photo identifications should not be used. The judge, ignoring the factual dispute that developed during the first trial, held that the ruling by the first judge was the law of the case. The judge also held that the Attorney General's Guidelines were not mandatory and so did not require reconsideration of the first judge's ruling.
Because we have ordered a new trial, prior evidentiary rulings lack any continuing force or effect, State v. Munoz, 340 N.J. Super. 204, 220 (App. Div.), certif. denied, 169 N.J. 610 (2001). The second trial judge was clearly in error in finding that he was bound by the prior judge's denial of a Wade hearing. See State v. Ruffin, 371 N.J. Super. 371, 390 (App. Div. 2004) (noting that "[t]he trial judge correctly found that the denial of the defendant's motion to suppress the out-of-court identification at the first trial did not foreclose subsequent consideration of the issue"). Thus, defendant is free to again seek a Wade hearing. If the issue is raised again, it should be considered under Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243, 2251, 53 L. Ed. 2d 140, 151 (1977), and State v. Madison 109 N.J. 223 (1988).
Defendant next contends that the judge erred in allowing Garcia's testimony from the first trial to be read into the record because the State failed to satisfy its burden of demonstrating Garcia's unavailability. He urges that he was "denied the opportunity to have the jury observe Garcia's demeanor and assess his credibility." Defendant maintains that the State's "last minute mad-dash effort" to locate Garcia was insufficient, there was no testimony about the prosecutor's efforts to subpoena Garcia, and the State improperly introduced hearsay regarding Garcia's alleged claim that Jones threatened him if he testified.
We need not address the merits of this issue on appeal because we have ordered a new trial. However, the issue may well arise again, which leads us to briefly comment upon it. Our Supreme Court has held that "a witness is not unavailable for purposes of . . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his [or her] presence at trial." State v. Maben, 132 N.J. 487, 497 (1993) (citation and internal quotation marks omitted). "Good faith is determined based on the circumstances of each case." Id. at 498.
Martinez testified that he first attempted to find Garcia for the second trial the week before the October 24, 2006, hearing on the admissibility of Garcia's earlier testimony.*fn8 He was unsuccessful. On cross-examination, Martinez admitted that he knew in advance Garcia would be difficult to find. Martinez admitted that he did not check any aliases, and he did not check to see whose name was on the utilities or phone records for the residence.
Investigator Daniel Ruschak testified that he was approached by his sergeant on October 18, 2006, to locate Garcia for the trial. Ruschak checked the records of the New Jersey Division of Motor Vehicles, the State Police, and the "Labor Office [Online] Payment System," with no results. Ruschak spoke with the Postal Investigator, who found no change of address or forwarding requests. Ruschak next contacted the Middlesex County Probation Department and was told that Garcia was still listed as living at the stated residence, but an "absconder warrant" was listed in the computer system.
Neither officer checked the national database for out-of-state incarcerations or local hospitals. They did not contact the owner of the residence nor find out whether anyone knew in which apartment Garcia had lived in order to speak with the occupants. Although they did speak to Garcia's reported employer, when he denied knowing Garcia, they did not show him a photograph to determine whether he recognized him.
The prosecutor advised the judge that she mailed the subpoena to Garcia "a very long time" before trial, and the envelope came back marked as "undeliverable." She did not explain why a search for Garcia, an allegedly reluctant witness, was not begun long before the week prior to trial.
The State will have to renew its efforts to locate Garcia and would be well advised to do so quickly, rather than wait to the week before or of trial, as delay in proceeding to locate him should not be confused with "a good-faith effort to obtain his presence at trial." Maben, supra, 132 N.J. at 497 (citation and internal quotation marks omitted).
Defendant argues that the State's expert should not have been permitted to testify about the result of the STR method of DNA testing because the State failed to establish that the STR method was scientifically accepted. Defendant maintains that it was plain error for the court to allow the testimony without conducting a Frye*fn9 hearing.
Defendant never objected to the State's expert witness nor did he request a Frye hearing at either trial. Neither has he demonstrated by reference to reported decisions that the STR method of DNA testing is unreliable. Thus, he has not met his burden of showing plain error in its admission. Because we have ordered a new trial, we deem this issue on appeal moot and will not address it.
We also find no merit to defendant's argument that it was reversible error for the court to refuse to "grant the defense request for a defense DNA expert to be provided at public expense." The Public Defendant exercises discretionary control over the funds available to it for the testimony of expert witnesses pursuant to the Public Defender Act, N.J.S.A. 2A:158A-1 to -25, and we may not interfere with the exercise of that discretion, In re Cannady, 126 N.J. 486, 492-93 (1991). Defendant's claim of ineffective assistance of counsel based on his failure to "adequately investigate DNA testing procedure" is moot in light of our reversal of his convictions.
Because we have ordered a new trial, we need not address defendant's concerns respecting the length of his sentence.
Because defendant may be convicted of the same offenses after a retrial, we briefly address the merger issue. The State and defendant agree that the judge erred in failing to merge the conviction for third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5, with the conviction for third-degree distribution within a school-zone, contrary to N.J.S.A. 2C:35-7. There is another merger issue. Pursuant to N.J.S.A. 2C:1-8a(1), a defendant may not be convicted of more than one offense if "[o]ne offense is included in the other." If defendant is again convicted of cocaine possession, contrary to N.J.S.A. 2C:35-10a(1), that offense must be merged with the third-degree cocaine distribution because "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1). Thus, only one sentence may be imposed for all three offenses.
Reversed and remanded for further proceedings consistent with this opinion and for a new trial following the guidance given in this opinion.