NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 11, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0758.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Grall.
The grand jurors for Middlesex County charged defendant Deberal Rogers and Lameen A. Hill with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1); second-degree possession of a controlled dangerous substance with intent to distribute one-half ounce or more of cocaine, N.J.S.A. 2C:35-5a(1), b(2); conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35—5; and possession of cocaine with intent to distribute it in a school zone, N.J.S.A. 2C:35-7. Prior to defendant's trial, the State dismissed the conspiracy and school zone charges and Hill pled guilty to third-degree possession of cocaine pursuant to a plea bargain that called for the State to dismiss all other charges against him. Consequently, Hill testified for the State at defendant's trial, which was held before Hill was sentenced.
The jury found defendant guilty of third-degree possession and second-degree possession of a controlled dangerous substance with intent to distribute. Following the verdict, the judge denied defendant's motion for a new trial, granted the State's motion for an extended sentence subject to a period of parole ineligibility, merged defendant's convictions, and sentenced her to a ten-year term of imprisonment, five to be served without possibility of parole for the second-degree crime. The extended term sought by the State was mandatory because of defendant's 1999 conviction for distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3). See N.J.S.A. 2C:43-6f. Defendant appeals and raises these issues:
I. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE STATE'S WITNESSES REPEATEDLY OFFERED INADMISSIBLE EXPERT OPINION TESTIMONY AS TO WHETHER ITEMS SEIZED WERE USED FOR NARCOTICS PACKAGING AND DISTRIBUTION AND TESTIFIED AS TO THE ULTIMATE ISSUE OF GUILT, THEREBY DEPRIVING DEFENDANT OF HER RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1 AND 10). (Not Raised Below).
II. THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON HOW TO PROPERLY ASSESS BOTH THE CREDIBILITY OF A WITNESS WITH PRIOR CONVICTIONS AND A CO-DEFENDANT WHO IS COOPERATING WITH THE STATE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS 1 AND 10). (Not Raised Below).
III.REPEATED REFERENCES TO THE SEARCH WARRANT WERE IRRELEVANT, UNNECESSARY, AND RESULTED IN PREJUDICE TO DEFENDANT, CREATING THE INFERENCE THAT ANOTHER COURT, WHICH HAD ISSUED THE WARRANT, HAD FOUND EVIDENCE OF CRIMINAL ACTIVITY AT THE RESIDENCE. (Not Raised Below).
IV. THE CUMMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL.
V. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO THE MAXIMUM PAROLE DISQUALIFIER WHEN IT IMPOSED THE MINIMUM BASE TERM.
We have determined that the arguments advanced in support of Points II, III and IV have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). But for the reasons that follow, we conclude that the State's wholly improper presentation of opinion testimony from an investigating officer amounts to plain error warranting reversal of defendant's conviction for possession with intent to distribute.
The State's evidence consisted of testimony from Hill and the officers who executed a warrant authorizing the search of an apartment in Perth Amboy. On an afternoon in March 2009, Detective Mohamed Mohamed, of the Perth Amboy Police Department, parked in the lot of an apartment complex where he could see the door leading to one of the apartments. He saw several people — three to five different individuals — go to the door of the apartment and leave within a minute. The officer did not see who opened the door, and neither he nor any of the officers assigned to assist him detained or followed any of the visitors.
The detective had been outside in his unmarked police car for about two hours when defendant left the apartment complex in a Lexus with "a couple of children" and another woman. Other officers followed them to a doctor's office, and the officers arrested defendant as she left the office and took her back to the apartment. While defendant was gone, Detective Mohamed, who had stayed behind to watch the apartment, had seen other people come to the apartment and leave.
When the officers returned with defendant, Detective Mohamed used defendant's key to open the door to the apartment. The officers found four children and five adults inside.
One of the adults was Hill. By Hill's account, he went to the apartment to use the computer — something he did about four times a week. He was a friend of defendant's brother and had grown up with defendant and her brother. In fact, Hill allowed defendant to use the Lexus, which belonged to his cousin, to go to the doctor's office that afternoon. Two of the adults were defendant's parents, and another was her sister-in-law. There ...