On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-01-0052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012
Before Judges Sapp-Peterson and Haas.
Tried before a jury on a multi-count indictment, defendant was convicted of third-degree conspiracy to distribute a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); third-degree possession of CDS, cocaine, N.J.S.A. 2C:35-10a(1) (count two); third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5b(3) (count three); and second-degree distributing CDS, cocaine, within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four).
At sentencing, the judge merged the conviction for count two into count three. The judge sentenced defendant to eight years in prison on count four; four and one-half years in prison on count one; and four and one-half years in prison on count three. All of the sentences were to run concurrent with each other. Defendant was also assessed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT WHEN SHE: 1) ASKED DEFENDANT WHETHER "EVERYBODY" WHO IDENTIFIED HIM WAS "LYING"; 2) ASSURED THE JURY THAT THE POLICE ARE "OBLIGATED TO TELL THE TRUTH"; 3) QUESTIONED DEFENDANT FOUR TIMES ABOUT HIS "LACK OF INCOME"; AND 4) INTRODUCED REPEATED REFERENCES TO THE FACT THAT DEFENDANT, WHO WAS CHARGED ONLY WITH A DRUG SALE, WAS ARRESTED AS PART OF A "GANGS, GUNS, AND NARCOTICS-RELATED" INITIATIVE. (Not Raised Below).
A. Attacking Defendant's Credibility and
B. Repeatedly Questioning Defendant About His Financial Circumstances at the Time of the Offense.
THE POLICEMAN'S TESTIMONY SUGGESTING THAT HE KNEW DEFENDANT AND THAT HE SHOWED DEFENDANT'S PHOTOGRAPH TO THE UNDERCOVER OFFICER BECAUSE HE BELIEVED DEFENDANT MATCHED THE DESCRIPTION OF THE PERPETRATOR SHOULD HAVE BEEN EXCLUDED AS PREJUDICIAL. (Not Raised Below).
THE CONVICTIONS FOR CONSPIRACY TO DISTRIBUTE AND DISTRIBUTION SHOULD MERGE. (Not Raised Below).
After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's convictions and sentence and remand to the trial court for further proceedings.
Through the testimony of two witnesses, Detective Angel Santiago of the City of Bridgeton Police Department and Officer Walter Christy of the Salem City Police Department, the State presented the following proofs at trial.
On August 6, 2008, Detective Santiago was working undercover by posing as the owner of a tree-cutting business, who was interested in purchasing drugs on the streets of Salem.
Around 7:45 p.m., he parked his pick-up truck in front of 121 Thompson Street, where four men were standing. Detective Santiago knew three of the men by sight. The fourth man was later identified as defendant. Detective Santiago had never had any contact with defendant prior to August 6.
Detective Santiago asked one of the men, Allen Gresham, for "$20 worth of cocaine." Gresham told him "that the police were in the area and it was hot at that time." Gresham gave the detective a telephone number and told him to call him later. Detective Santiago left Thompson Street and, approximately ten minutes later, he called the number. Gresham answered and instructed Detective Santiago to go to a nearby liquor store on Route 49 in Salem.
Detective Santiago drove to the store's parking lot, where he waited in his truck. About five minutes later, he was approached by an individual on a bicycle, who Detective Santiago identified at trial as defendant. Defendant reached in the truck's passenger window and gave the detective a blue glassine bag containing what the detective recognized as crack cocaine.*fn1
Detective Santiago gave defendant $20. Defendant said his name was "Lucky," and that Detective Santiago should "contact him in the future." Defendant then took his bicycle and walked toward the front of the liquor store. After defendant entered the store, Detective Santiago drove from the scene to a "predetermined debriefing location."
As he drove away, Detective Santiago radioed the back-up team that he had just made a drug purchase. He described the suspect "[a]s an older black male, tall and thin, mid to late 50s, wearing a black shirt, black shorts red trim, and black sneakers." ...