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State of New Jersey v. Fernando Perez

July 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FERNANDO PEREZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-09-3030.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 19, 2012

Before Judges Grall and Skillman.

A jury found defendant Fernando Perez guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree employing a juvenile in a drug-distribution scheme, N.J.S.A. 2C:35-6; and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1). The judge merged defendant's convictions and, for the crime of employing a juvenile in a drug-distribution scheme, sentenced him to a fifteen-year term of imprisonment with a parole ineligibility term of seven-and-one-half years. The judge also imposed the requisite fines, penalties, fees and assessments.

On appeal defendant argues that reversal is required to address errors involving: opinion testimony given by the investigating troopers who were not qualified as experts; testimony about the crime area's notoriety for drug dealing; and the prosecutor's arguments stressing both. Although defense counsel did not object, the opinion testimony was improper and invaded the province of the jury. State v. McLean, 205 N.J. 438 (2011). Setting aside the irrelevant and prejudicial testimony about the neighborhood, admission of this opinion testimony was "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, in the interest of justice, we reverse and remand for a new trial. Ibid.

At about 3:00 p.m. on a clear and dry day in April 2008, State Troopers Ryan Plantier and Thomas M. Rawls were patrolling in a marked troop car in the City of Camden, near the intersection of 6th and Royden Streets, an area within 1000 feet of a public school.

The troopers were assigned to the "high impact team" of the Strategic Investigations Unit and working on "high intensity crime suppression details." In that role, they "assist the [officers of the] Camden Police Department with quality of life crimes for the citizens that live [t]here, and [they] also do proactive work, doing narcotics investigations . . . ."

Plantier was familiar with the area because he had "been involved in numerous narcotics arrests" there. According to him, it is an "area of high drug sales [and] a lot of gun violence." Both troopers had seen hand-to-hand drug transactions and made arrests in the area before; it was one of their "main target areas." They had observed "a lot of drug activity" and "multiple sets" - pairs consisting of one person holding money and directing the buyer to another who keeps the drugs in a "stash" spot, rather than on his person in case "something" happens - in the area.

As the troopers approached the intersection, they were traveling at a speed of twenty-five mph or less. From a distance of about fifty yards, they saw a man approach a teenage girl, who accepted currency he gave her.

The troopers had an unobstructed view of that encounter and the events that followed. Plantier saw the teenage girl step closer and speak to the man but did not hear what was said. Rawls testified that she "directed" that man to defendant but did not describe what he saw or heard that led him to conclude that she had. After speaking to the teenage girl, the man crossed the street and talked to defendant, who was standing by a public trash can. Although there were other people around, the troopers did not see anyone else near the trash can during this incident.

Following a brief conversation with the man, which the troopers did not hear, defendant moved to the trash can, retrieved a pink box, removed "items" from it and returned the box to the trash can. Defendant then handed the man the object or objects he had taken from the box, and the man walked away.

The troopers then heard someone yell "state boys." They had different recollections about what defendant was doing at that time. Plantier recalled defendant being "next to the trash can" at the time of the shout and then crossing the street toward the teenage girl. As Rawls remembered it, defendant was already crossing the street when "state boys" was shouted and then altered his path toward the teenage girl. Neither trooper testified to observing defendant and the teenage girl interact as or after defendant approached her.

At that point, Plantier "radioed another unit in the area" and the troopers left their car. Trooper Joseph Dickerson, whose troop car was behind the one Plantier was driving, assisted Rawls with the arrest of defendant and the teenage girl. Plantier went to the trash can and retrieved the box, which was on top of other trash in the receptacle.

The box was a "Mike & Ike" candy box that contained fifty-three small heat-sealed bags of crack cocaine. The candy box and the drugs were admitted into evidence at trial, and the parties stipulated to the admission of a lab report identifying the substance as cocaine.

Defendant had no drugs and no money on his person but the teenage girl had $175 in cash, which consisted of $20, $10, $5 and $1 bills. The parties stipulated to the admission of the teenage girl's birth certificate, which established that she was sixteen years old when the incident occurred, and they stipulated that defendant was then twenty-two. The opinion testimony given by Plantier and Rawls and the use of that testimony by the prosecutor and defense attorney is discussed below.

Defendant did not present any testimony or evidence. On appeal he raise these issues:

I. THE TESTIMONY OF TWO STATE'S WITNESSES THAT THE NEIGHBORHOOD WAS NOTORIOUS AS A DRUG DISTRIBUTION AND "HIGH CRIME" AREA, WAS IRRELEVANT AND UNDULY PREJUDICAL, IMPLYING "GUILT BY ASSOCIATION," AND REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. SIMILARLY, THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS THAT THE AREA WAS A "NOTORIOUS DRUG DISTRIBUTION AREA" IN WHICH HOMICIDES HAD RECENTLY OCCURRED CONSTITUTED PROSECUTORIAL MIDCONDUCT. U.S. Const. Amends. V, XIV; N.J. Const. Art. I, [¶] 1. (Not Raised Below).

A. The Testimony of Two State's Witnesses That the Neighborhood Was Notorious As A Drug Distribution And "High Crime" Area, Was Irrelevant And Unduly Prejudicial.

B. The Prosecutor's Opening And Closing Statements That The Area Was A "Notorious Drug Distribution Area" In Which Homicides Had Occurred Recently Constituted Prosecutorial Misconduct.

II. THE TROOPERS' OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE V. ODOM, 116 N.J. 65 (1989), BY NOT REFERRING TO THE EVIDENCE IN THE FORM OF A HYPOTHETICAL QUESTION, BY SPECIFICALLY REFERRING TO DEFENDANT AS THE PERSON THEY BELIEVED WAS DISTRIBUTING THE DRUGS AND BY THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY. ADDITIONALLY, THE OPINION TESTIMONY WAS UNNECESSARY TO THE STATE'S ...


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