On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-08-676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges J. N. Harris and Fasciale.
Defendant appeals from his convictions, after a jury trial, for second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(2) (Count One); third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-5a(1) (Count Two); fourth-degree unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3f(1) (Count Three); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-10a(1) (Count Four). We reverse and remand for a new trial.
On April 16, 2009, at approximately 9:30 p.m., Detective Michael Powell executed a search warrant of a small apartment with the assistance of the Gloucester County S.W.A.T. team. The detective testified on direct examination that defendant was the "target" of the narcotics investigation. Defendant was one of several people, including four adults and two small children, located in the apartment during the search.
The detective entered the residence, searched defendant, and seized from him "several yellow glassine heat-sealed bags with a white rock-like substance in them [and] another green ziplock bag with a substance in it." He then seized an additional bag located near defendant which contained a "digital scale, numerous packaging . . . [of yellow, blue, and clear] glassine bags," and "a clear plastic bag with . . . a white rock [in it]." The detective then continued searching the apartment and located a safe containing another scale, approximately $1,600 in cash, and "hollow-point ammunition." Thereafter, the police arrested defendant and charged him with the drug and weapons offenses.
At the trial in June of 2011, the State called Briea Brenner, a detective in the prosecutor's office, as "an expert in the area of the use and distribution of [CDS]." The prosecutor posed a hypothetical involving a drug investigation that mirrored the factual details of defendant's case, and the judge permitted Detective Brenner to opine, over a defense objection, that the "target" of the hypothetical drug investigation was "[p]robably . . . distribut[ing] drugs." The jury then found defendant guilty of all the charges. The judge granted the State's motion for an extended term and sentenced defendant to an aggregate term of fourteen years in prison with six years of parole ineligibility.*fn1 This appeal followed.
On appeal, defendant raises the following points:
THE ADMISSION OF THE STATE'S DRUG EXPERT'S OPINION WITHOUT AN IMMEDIATE CURATIVE INSTRUCTION WAS PLAIN ERROR[,] THE RESULT OF WHICH WAS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT ERRED BY NOT EXCLUDING THE JURY'S CONSIDERATION [OF] S2 AND ANY TESTIMONY REGARDING ITS CHARACTER.
We begin by addressing defendant's primary contention that the judge (1) committed error by allowing Detective Brenner to opine that the prosecutor's hypothetical target was "[p]robably . . . distribut[ing] drugs," and (2) failed to issue an immediate curative instruction following Brenner's opinion. Defendant contends that it is undisputed defendant was the target of the drug investigation. He maintained at trial, and maintains now on appeal, that Brenner's opinion testimony, that ...