On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1930.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Lisa, Reisner and Alvarez.
Defendant Todd Stathum appeals guilty verdicts rendered after trial by jury on multiple counts of third-degree drug distribution. After conviction, defendant entered a guilty plea to a second-degree certain persons not to possess weapons. For the reasons that follow, we reverse the jury verdicts, vacate the guilty plea, and remand for a new trial.
Defendant was convicted of four counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (counts one, eleven, fourteen, and nineteen); four counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (counts two, twelve, fifteen, and twenty); two counts of third-degree possession of CDS within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35(b)(3) and 2C:35-7 (counts sixteen and twenty-one); four counts of third-degree drug distribution, N.J.S.A. 2C:35-5(b)(3) (counts four, thirteen, seventeen, and twenty-two); and two counts of third-degree drug distribution within 1000 feet of school property, N.J.S.A. 2C:35-5(b) and 2C:35-7 (counts eighteen and twenty-three). Defendant was acquitted of count three, possession of CDS within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7, and count five, distribution within 1000 feet of school property, N.J.S.A. 2C:35-7. After the jury verdicts were rendered, defendant entered a guilty plea to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count twenty-five) and agreed to a sentence of ten years imprisonment, subject to five years of parole ineligibility, to run concurrent to the sentences imposed for defendant's trial convictions.
On August 15, 2007, the trial judge imposed concurrent extended terms of ten years, subject to five years of parole ineligibility, on counts four, ten, thirteen, eighteen, and twenty-three, for an aggregate sentence of ten years with a five-year parole bar. Count twenty-four of the indictment was dismissed by the State and all the remaining offenses were appropriately merged. The judge imposed a mandatory extended term, N.J.S.A. 2C:43-6(f), because defendant was a prior drug distributor.
Defendant was convicted principally on the testimony of officer Adam Pharo, then assigned to serve in an undercover capacity with the Monmouth County Prosecutor's Office Narcotics Strike Force. Pharo testified that on February 2, 2006, he received information from a confidential informant concerning the sale of heroin from an individual known as "Todd." Because the testimony is key to our determination of the issues raised on appeal, it is reproduced in its entirety:
Q I take your attention to the date of February 2nd, 2006. Were you with the Narcotics Strike Force on that date?
Q And on that date, did you have occasion to become involve[d] in an investigation which was centered around an individual at the time named Todd?
Q And who did you get that information from?
A That information was promulgated through a confidential informant.
Q Can you tell the Jury briefly what a confidential informant is?
A Yes. A confidential informant is an individual, male or female, that basically provides law enforcement officials with illegal information, whether it be drugs. In . . . this case, it was narcotic related.
Q Okay. Now, on that date, February 2nd, 2006, you received information from a confidential informant?
Q And . . . what was that information?
[DEFENSE COUNSEL]: Objection.
THE COURT: I'm going to permit him to summarize what direction he took, based on the information. He's not going to [be] permitted to tell me word-for-word what was said, however, unless you're going to present that witness.
[PROSECUTOR]: I'll try to weed through it then, . . . if I may.
Q Did you receive information about an individual named Todd?
Q And did that information concern making a purchase of heroin from Todd?
Q As a result of getting that information, what was done with the confidential informant?
A The confidential informant was then introduced to myself, . . . as well as other members of the strike force, and a plan was formulated on that date.
Q And pursuant to that plan, was a phone call made?
Q And who made that phone call?
A May I refer to my report, please?
A On February 2nd, the phone call was made to Todd from the confidential informant.
Pharo went on to testify that the Narcotics Strike Force implemented the plan of action by arranging for the confidential informant to phone defendant about purchasing heroin. During the conversation, Pharo overheard the informant arrange to purchase two bundles of heroin*fn1 in exchange for $180, and to meet defendant at his residence.
On the designated date, the informant and Pharo arrived at defendant's residence in an unmarked car. Defendant looked out an upstairs window and called down that he would be right out. A few minutes later, he emerged from the residence and entered the vehicle. After exchanging greetings, defendant produced a bundle of heroin. When Pharo questioned why only one was produced when he wanted to buy two, defendant said he had to obtain the other bundle from "his boy's house," located nearby. When they drove to that location, defendant left the vehicle, disappeared briefly from view, and returned with a second bundle of heroin. Pharo gave defendant $180 and drove him back to his home.
Later, when the officers inspected the drugs, they found one of the bundles was missing a bag of heroin. Pharo instructed the informant to call defendant to ask about the discrepancy. She reported that defendant "stated that it was his bag, and he would provide me with the extra bag the next time we met . . . ." Pharo went on to testify that this conduct was not unusual, as "sometimes, they're just taking their --they're taking some for themselves, a finder's fee, to support their own habits. I'm not there to -- to nickel and dime them to death. So, I'm not going to argue over one bag." The drugs were subsequently tested and found to be heroin.
A few days afterwards, Pharo personally arranged a second transaction. He ordered two more bundles of heroin, this time priced at $190, as well as $40 worth of cocaine. When Pharo arrived at defendant's residence, defendant and his cousin, known as "Red," came outside, entered Pharo's unmarked vehicle, and directed Pharo to another location. Once there, Red walked into the rear of an apartment complex and returned with a ...