NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2470.
Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall, Waugh, and Nugent.
Defendant Terrel F. Goldsmith appeals his conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1), as well as the resulting sentence of incarceration for seven years with a three-and-a-half-year period of parole ineligibility. We reverse.
We discern the following facts and procedural history from the record on appeal.
Newark Police Detectives Henry Suarez and Philip Turzani, both assigned to the narcotics unit, testified that they were dispatched to the area of South 16th Street in response to citizen complaints about drug dealing in the area on July 1, 2009. The detectives were dressed in plain clothes and were driving an unmarked police car. They arrived at the area around 12:45 a.m.
The detectives observed a green Audi parked on South 16th Street. They were approximately seventy feet from the Audi. Suarez testified at the suppression hearing that they had an unobstructed view, and that the street was illuminated by the streetlights and adjacent house lights.
According to the detectives, a black male was in the driver's seat and a female was in the front passenger's seat. Both detectives identified Goldsmith as the driver of the Audi and co-defendant Latoya Paige as the passenger.
The detectives testified that they observed Goldsmith waving at people to come over to his car. A black male, dressed in dark clothing, approached Goldsmith and engaged in a brief conversation, after which Goldsmith reached into the vehicle, retrieved something, and handed it to the man. The unknown male then walked past the officers in their unmarked police vehicle. They observed a second black male approach the passenger side of the Audi. At the suppression hearing, Suarez testified the second black male was wearing a white shirt and blue jeans. He engaged in a similarly brief conversation with Paige, obtained something from Paige in return for some paper currency, and left the area.
As the detectives started to exit their vehicle to approach the Audi, Goldsmith pulled away from his parking spot and drove in a southerly direction. Suarez made a U-turn, followed the Audi, and stopped Goldsmith several blocks later. As Suarez pulled alongside the Audi, Turzani displayed his badge and directed Goldsmith to park the Audi. Goldsmith complied.
Suarez approached the vehicle on the driver's side with his flashlight in hand, while Turzani approached the vehicle on the passenger's side. Suarez asked for Goldsmith's license, registration, and insurance card. According to Suarez, as Goldsmith reached for his documents in his back pocket, he observed the handle of a gun in Goldsmith's waistband. Suarez testified that he notified Turzani of the presence of the weapon using police code. He then ordered Goldsmith to show his hands by putting them out the window.
Suarez directed Goldsmith to step out of the vehicle, after which he handcuffed him and, according to Suarez, retrieved the gun from his waistband. Turzani ordered Paige out of the vehicle and placed her under arrest. Turzani estimated that the arrests occurred approximately fifteen minutes after he and Suarez observed the two transactions described above.
According to Turzani, he observed a napkin containing white material, which he believed to be cocaine, in the middle of the car's console. Both detectives testified that they observed seventy baggies of cocaine in the car.
In September, Goldsmith and Paige were indicted for the following offenses: second-degree conspiracy to commit the crime of possession of CDS, N.J.S.A. 2C:5-2 (count one); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), b(3) (count three); third-degree possession of CDS with the intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count four); and second-degree possession of CDS with the intent to distribute within 500 feet of a public housing, contrary to N.J.S.A. 2C:35-7.1 (count five).
The indictment also charged Goldsmith with second-degree unlawful possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5(b) (count six); third-degree receiving stolen property, a Glock 21 semi-automatic handgun, N.J.S.A. 2C:20-7 (count seven); second-degree possession of a weapon while committing a violation of N.J.S.A. 2C:35-5 and 2C:35-7, N.J.S.A. 2C:39-4.1 (count eight); fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count nine); and fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count ten).
Goldsmith filed a motion to suppress the evidence. On July 22, 2010, the motion judge held an evidentiary hearing and denied Goldsmith's motion. In January 2011, a different judge heard and denied Goldsmith's motion for discovery concerning Turzani's personnel file.
Goldsmith's first jury trial took place later in January. The trial judge held a Sands/Brunson hearing and barred use of Goldsmith's 1997 conviction for resisting arrest as too remote for impeachment purposes. However, the judge found that his 1999 conviction for possession of CDS with the intent to distribute within 1000 feet of a school could be used for impeachment purposes, provided it was "sanitized."
On January 25, the jury found Goldsmith not guilty of counts one (second-degree conspiracy to possess), four (third-degree possession of CDS with intent to distribute in a school zone), five (second-degree possession of CDS with intent to distribute near public housing), and nine (fourth-degree unlawful possession of hollow point bullets). The jury was unable to reach a verdict on the remaining charges. On the State's motion, the judge dismissed count seven (third-degree receiving stolen property) and ten (fourth-degree possession of a large capacity ammunition magazine).
Goldsmith was retried on counts two, three, six, and eight, during August and September of 2011. Both detectives testified at trial that they had witnessed an illegal hand-to-hand transaction. Turzani also testified that thirty-one dollars was confiscated from Goldsmith. The detectives explained that the denominations of money found on Goldsmith were commonly used during drug transactions. Turzani opined that bags of cocaine usually sold from two to five dollars each. Suarez opined that the cocaine bags were sold from seven to ten dollars each.
Goldsmith testified on his own behalf. He explained that he was on his first date with Paige on the night of the arrest. He and Paige went to see a movie at approximately 9:15 p.m., but left early to spend time at his home. According to Goldsmith, they left his home before midnight to take Paige home.
Goldsmith testified that they were ordered to pull over by detectives in a gray car at 11th Street and Avon. Suarez initially asked for his driving credentials, after which Turzani told him and Paige to exit the car. Once they were out of the Audi, Turzani began searching it.
When Goldsmith asked why he had been stopped, he was advised not to worry about it and to comply with the officers' requests. Goldsmith testified that, after Turzani stopped searching the car, he sat on the hood of Goldsmith's car and made a telephone call. Turzani then asked Goldsmith and Paige to wait across the street with Suarez. Approximately fifteen minutes later, a white vehicle stopped and four police officers got out. One of the officers placed him in handcuffs.
Goldsmith testified that he was taken to police headquarters, where he was told that he had been arrested on an existing arrest warrant. According to Goldsmith, he was not told he had been arrested for possession of a gun or drugs. Goldsmith testified that other police officers came to talk to him approximately thirty minutes after he arrived at police headquarters.
Goldsmith explained that the money confiscated during the arrest was from his job as a messenger. He acknowledged a prior conviction based on a guilty plea, but asserted that he was not guilty of the charges in this case.
On cross-examination, when asked the degree of his prior conviction, Goldsmith responded that it was possession of CDS. When the prosecutor asked him whether it was just a possession, he responded in the affirmative. Following a sidebar conference, the prosecutor asked Goldsmith whether he was convicted of possessing CDS. Goldsmith responded that he could no longer remember the actual charge.
Detective Douglas Marshall of the major crimes unit testified on rebuttal that he and other detectives went to police headquarters to "debrief" Goldsmith on information relating to the weapon. According to Marshall, the major crimes unit is called whenever someone is arrested with an illegal handgun.
The jury returned guilty verdicts on count two (third-degree possession of CDS) and three (third-degree possession of CDS with the intent to distribute). The jury found Goldsmith not guilty on count six (second-degree unlawful possession of a handgun without a permit) and count eight (second-degree possession of a weapon while committing a narcotics offense).
At sentencing in October, the trial judge merged count two into count three and granted the State's motion for sentencing to a mandatory extended-term sentence pursuant to N.J.S.A. 2C:43-6(f). He imposed a seven-year term with three-and-a-half years without parole eligibility. This appeal followed.
Goldsmith raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION FOR THE COURT TO CONDUCT AN IN CAMERA REVIEW OF DETECTIVE TURZANI'S PERSONNEL FILE IN ORDER TO PERMIT THE DEFENDANT TO PROPERLY IMPEACH HIS CREDIBILITY AS A WITNESS.
POINT III: THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE THE STATE INTRODUCED IMPERMISSIBLE EXPERT OPINION TESTIMONY AND IMPROPER LAY OPINION TESTIMONY WHICH INVADED THE FACT-FINDING PROVINCE OF THE JURY. THE COURT FAILED ITS GATEKEEPER ROLE IN PRECLUDING ADMISSION OF THIS IMPERMISSIBLE TESTIMONY SUA SPONTE. [Not raised below.]
POINT IV: THE STATE DEPRIVED THE DEFENDANT THE RIGHT TO A FAIR TRIAL BY COMMENTING UPON AND INTRODUCING EVIDENCE IN VIOLATION OF HIS FIFTH AMENDMET RIGHT TO REMAIN SILENT AND STATE LAW PRIVILEGE AGAINST SELF-INCRIMINATION. [Not raised below.]
POINT V: THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE PROSECUTOR WAS ALLOWED TO CROSS-EXAMINE THE DEFENDANT ABOUT THE DETAILS OF HIS PRIOR CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE CDS WHICH WAS THE SAME CRIME FOR WHICH HE WAS ON TRIAL IN VIOLATION OF SUPREME COURT JURISPRUDENCE ON SANITIZATION.
POINT VI: THE JURY'S GUILTY VERDICTS ON THE DRUG OFFENSES ARE BASED ON THE IMPROPERLY ADMITTED UNSANITIZED EVIDENCE. THE JURY'S ACQUITTAL ON THE WEAPONS OFFENSE WAS NOT AN EXERCISE OF LENITY. THE GUILTY VERDICTS BASED ON SUCH IMPROPERLY ADMITTED EVIDENCE CANNOT STAND. [Partially raised below.]
POINT VII: THE PROSECUTOR'S REMARKS AND ACTIONS DURING THE COURSE OF THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL. [Not raised below.]
POINT VIII: THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.
We begin our analysis with Goldsmith's arguments concerning pretrial rulings: (1) the denial of his motions to suppress and (2) for discovery concerning Turzani's personnel file.
Goldsmith argues that the motion judge erred in denying his motion to suppress the evidence. He contends that the detectives did not have a lawful basis for the traffic stop and that the judge should not have found Suarez to be a credible witness.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J.Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J.Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra , 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
Our review of the trial judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005); State v. Goodman, 415 N.J.Super. 210, ...