On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Tried by a jury, defendant Brian Holmes, also known as Richard Holmes, was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); two counts of fourth-degree falsifying records, N.J.S.A. 2C:21-4(a) (counts four and nine); second-degree theft, N.J.S.A. 2C:20-3(a) (count five); and three counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (counts six, eleven, and thirteen). Defendant was acquitted of first-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count three); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count seven); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count eight); and third-degree theft, N.J.S.A. 2C:20-3(a) (count ten). A fourth count of second-degree official misconduct was dismissed prior to trial.
On January 23, 2009, defendant was sentenced to an aggregate of fourteen years subject to three and one-third years of parole ineligibility. Count one was merged into count two and, on the latter offense, a term of imprisonment of ten years, subject to three and one-third years of parole ineligibility, was imposed. Two one-year terms on the fourth-degree falsifying records counts were imposed concurrent to count one. A three-year concurrent sentence was imposed on a second-degree official misconduct.*fn1 A four-year sentence was imposed on count eleven, third-degree official misconduct, consecutive to count two. On count five, a second-degree theft, and count thirteen, a second-degree official misconduct, sentences of six years were imposed concurrent to count two. Defendant appealed and for the reasons set forth below, we reverse the conviction and remand for a new trial.
In 2005, a wire tap in an unrelated case disclosed that Sergeant Moises Hernandez of the New Jersey State Police had assisted a suspected drug dealer. Further investigation established that Hernandez was heavily involved in drug distribution; he was subsequently indicted for racketeering and other offenses.
When, on April 11, 2006, he was arrested a second time on drug-related charges, he was questioned as to whether other state troopers were involved in criminal wrongdoing. Hernandez eventually revealed defendant had been his accomplice on certain transactions. A plea agreement was reached whereby in exchange for his testimony against defendant, the prosecutor agreed to advise the Parole Board of Hernandez's cooperation, although he would not recommend parole.
Hernandez eventually pled guilty to charges of official misconduct, money laundering, conspiracy to distribute CDS, witness tampering, and racketeering. He was sentenced to twenty-four years imprisonment subject to five and one-half years parole ineligibility.
Hernandez's disclosure about defendant came after he failed a polygraph examination on the issue of whether other officers were involved in his crimes. After inculpating defendant, Hernandez passed a subsequent polygraph.
During the trial, the prosecutor elicited testimony from Hernandez regarding his change of heart without discussing the polygraph, but stated:
Q. Mr. Hernandez, let me back you up to a point where you are still denying [defendant's] involvement.
At that time, was anybody discussing a resolution of your case?
A. Well, there was some evidence pointing --
Q. Mr. Hernandez, I'm going to ask you --
[Defense counsel]: Your Honor, can he finish answering the question?
THE COURT: She could -- are you withdrawing the question?
[Prosecutor]: Let me speak to [defense counsel].
[Defense counsel]: You could ask the question.
Q. Mr. Hernandez, when you were denying [defendant]'s involvement, was anyone discussing a plea agreement with you?
A. They told me that if I cooperated and tell them what I have done, truthfully, without omitting anything, that they would recommend 20 to 24-year sentence, State Prison.
Q. And, at that point, were you still denying [defendant]'s involvement?
A. To a certain extent, yes, I'm denying. Then --
Q. Mr. Hernandez, let me ask you a question.
When you say to a certain extent, were you denying that [defendant] committed criminal actions with you?
Q. At some point that day, this is still the day of your arrest, were you confronted with evidence that you were lying about [defendant]'s involvement?
Q. And, at that point --[Defense counsel]: Can we come to side bar?
At that juncture, the court excused the jury from the courtroom and a lengthy discussion ensued. When the jury returned, the prosecutor continued with the examination in this fashion, although defense counsel's objection had been overruled:
Q. Mr. Hernandez, I believe where we left off, you were talking about telling the investigators that [defendant] was involved. Is that correct?
Q. And after you told the investigators about [defendant's] involvement, did your plea number, that we were discussing at the time, change?
Because Hernandez implicated defendant, an investigation ensued and, on June 20, 2006, defendant and Paul Bergrin, his attorney, met with Assistant Prosecutor Thomas Isenhour. Defendant agreed to take a polygraph test and signed a polygraph stipulation agreement in which he consented to use of the results in evidence if the case went to trial.
Lieutenant John Kaminskas of the Union County Prosecutor's Office administered the polygraph and described the testing process in addition to testifying about the results. He first explained the test to defendant, and did some preliminary questioning to ensure that defendant was a proper subject. Kaminskas told defendant in advance the questions that he intended to ask.
Once undergoing the test, defendant exhibited the strongest reactions to Kaminskas' three "relevant" questions: (1) "Were you ever involved with Moises Hernandez in his illegal drug activities?"; (2) "[S]ince becoming a State Trooper, did you ever come into possession of an illegal drug that you did not submit as evidence?"; and (3) "[D]id you ever pick up or drop off illegal drugs for Moises Hernandez[?]"
At trial, Hernandez testified regarding defendant's involvement in two police drug buys: the first, in August 2002, involved the seizure of fifty-six kilograms of cocaine; the second, in October 2002, ...