On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-1655.
Submitted November 28, 2011 -
Before Judges Sabatino, Ashrafi and Fasciale.
Defendant appeals from his conviction for third-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1).*fn1 The judge sentenced defendant to five years in prison with two years of parole ineligibility. The central question is whether the admission of trial testimony of the investigating state trooper violated the prohibition explained in State v. McLean, 205 N.J. 438, 461 (2011), precluding a police witness not qualified as an expert from testifying that he believed he observed a hand-to-hand drug transaction. Because the New Jersey Supreme Court decided McLean while defendant's appeal was pending, we remand for the trial judge to consider whether McLean applies, and if so, to address the merits of defendant's argument that he is entitled to a judgment of acquittal because the trooper rendered inadmissible lay opinion testimony.
Trooper Joseph Walters testified on direct examination that he conducted surveillance in an area that had a history of violence and drug activity. He observed defendant standing on a street corner and a man, "a seller," standing across the street, "almost diagonal to each other." A female "buyer" approached defendant and exchanged what appeared to be currency. Defendant then pointed to the man across the street, who walked to an abandoned building out of the trooper's view. The man returned to the intersection and gave the woman an object, which "appeared to be drugs." On direct examination, without any objection, the following exchange occurred:
Prosecutor: Okay. Based on what you saw, what do you believe happened?
Trooper: A drug transaction.
Prosecutor: Okay, and what -- how would you characterize [defendant's] participation in that?
Trooper: What we refer to as a director, as not necessarily personally touching the drugs[,] but it's directing that activity[,] and not in this case but a lot of times there's [sic] lookouts and stuff like that[,] and it's all part of the big conspiracy of it.
Prosecutor: And isn't that unusual to have more than one person working a drug area?
Trooper: Almost always especially in what we consider a drug set.
Prosecutor: Now after you saw the interaction between the . . . female and the other gentleman on the corner, what did you do?
Trooper: At that point I believe what I saw was a drug transaction and I alerted via radio to the unmarked units who were close by[.]
The police then arrested defendant, seized $120 in cash from him, and located twenty small bags of cocaine underneath a rock in ...