Submitted June 3, 2014
Approved for Publication February 18, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1136.
Joseph E. Krakora, Public Defender, attorney for appellant ( Monique Moyse, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent ( Joie Piderit, Special Deputy Attorney General/Acting Assistance Prosecutor, of counsel and on the brief).
Before Judges FISHER, ESPINOSA and KOBLITZ. The opinion of the court was delivered by ESPINOSA, J.A.D. FISHER, P.J.A.D., concurring in part and dissenting in part.
[439 N.J.Super. 314] OPINION
Defendant appeals from his convictions and sentence for various drug offenses. Among the issues raised is his challenge to testimony that was admitted regarding suspected drug transactions that preceded the offenses for which he was charged. We reverse and remand for a new trial.
[439 N.J.Super. 315] I
Defendant was convicted on eleven counts that charged him with third-degree
offenses for possession of controlled dangerous substances (CDS), possession with intent to distribute, distribution, possession with intent to distribute within a school zone, distribution within a school zone for both cocaine and heroin, and conspiracy. The charges were based upon events that occurred on May 22, 2010, after New Brunswick police set up surveillance on Baldwin Street.
Defendant and his co-defendant, Kelvin Fitzpatrick, filed several pretrial motions, including motions to compel the disclosure of the surveillance position of the officers; suppress defendant's statement; and sever the trials of the defendants. Each of these motions was denied following a Rule 104 hearing.
Defendants also filed a motion to bar the State from introducing " other crimes evidence" relating to uncharged drug transactions, which included observations of Fitzpatrick engaging in what was perceived to be six drug transactions in the weeks prior to the date of arrest. The trial judge questioned defense counsel as to the scope of the relief requested. Counsel for the co-defendant clarified that the evidence sought to be excluded was " [a]ny observations that Sergeant Quick made allegedly to my client making sales in this vacant lot to six people prior to May 22nd . . . . Not what happened that day." The trial judge conducted an analysis of the challenged evidence pursuant to State v. Cofield, 127 N.J. 328, 338, 605 A.2d 230 (1992), and concluded that the evidence of observations prior to May 22 would not be admitted in evidence.
Counsel for defendant subsequently asked whether the court's order would also apply to " the six alleged transactions that  Sergeant Quick testified that occurred, that he thought had occurred that day, but he claims he couldn't see?" (emphasis added). [439 N.J.Super. 316] The judge responded, " They're coming in. He's going to be able to testify as to his own personal observations and how he got to and why he arrested and why he didn't arrest." Defense counsel noted his objection, stating the evidence was " substantially more prejudicial than it [was] probative" because the actual transactions, which presumably occurred in the alley out of Sergeant Quick's sight, were not directly observed and the suspected buyers were not going to testify.
We summarize the testimony that was introduced pursuant to this ruling:
Sergeant John Quick was watching the area with binoculars when, for ten minutes beginning at 11:00 a.m., he saw defendant and Fitzpatrick engage in a series of six encounters with persons whom Sergeant Quick " believe[d] to be suspected buyers" of CDS. In each encounter, Sergeant Quick observed Fitzpatrick " meet with a suspected buyer" and have " a very short conversation" that was followed by a transfer of money from the suspected buyer to Fitzpatrick. Sergeant Quick witnessed Fitzpatrick give " the money" to defendant; defendant and " the suspected buyer" then walked down a driveway, out of the sergeant's sight, for " seconds to less than a minute." Sergeant Quick testified that this sequence was repeated with a total of six suspected buyers over the ten-minute period. He explained why he did not identify any of the suspected buyers at this point:
I didn't keep track of that because at this point although I may have suspected there was illegal activity in that alleyway
I didn't know what transpired there, so there were no arrests made.
Sergeant Quick then described transactions he observed:
Q. What did you see happen next?
A. I observed [defendant] give [K.C.] a bag of cocaine.
Q. So you saw Mr. Brockington give [K.C.] cocaine on the sidewalk where the B is?
[439 N.J.Super. 317] A. That's correct.
Q. What did [K.C.] do with the bag of cocaine ?
A. He put that cocaine in his mouth.
. . . .
Q. So [K.C.] walked away off Baldwin Street after he put the cocaine into his mouth?
A. That's correct.
Q. You didn't arrest anyone at that point even though you had seen drugs exchange hands, correct?
A. That's correct.
Q. And explain to the jury why you didn't arrest anybody at that point.
A. Putting cocaine [in the mouth] is a common way for drug buyers to conceal evidence in the event the police get involved. It's hard to retrieve. Puts the officer's life in jeopardy. It puts the buyer's life in jeopardy trying to retrieve the cocaine from their mouth, so we don't generally -- we don't make an arrest in that situation.
. . . .
Q. After you saw [K.C.] walk down that driveway or alleyway off Baldwin Street did you see someone else approach Mr. Brockington and Mr. Fitzpatrick?
. . . .
A. It was an older male, button-down shirt and blue jeans. He walked up to [defendant], very short conversation, brief conversation, money was exchanged, and I saw [defendant] take a bag of heroin from his left pocket and hand it to this unknown suspected buyer. The buyer started to walk away towards Remsen Avenue, open the bag of suspected heroin and snorted the heroin from the bag.
. . . .
Q. And explain to the jury why you didn't make an arrest at that time.
A. At that point the evidence that was in that bag, suspected heroin, would be gone. We had no evidence at that point to substantiate the sale.
Q. After the older male snorted the heroin and walked away did you see someone else approach Mr. Fitzpatrick and Brockington?
A. Yes, I did.
Each of the transactions described above concluded without any arrest or seizure of any drugs. There was no evidence introduced to corroborate Sergeant Quick's characterization of the items he observed as heroin or cocaine.
[439 N.J.Super. 318] Sergeant Quick then described another exchange that occurred minutes later in which defendant gave a suspected buyer, later identified as E.J., two bags of heroin and two bags of cocaine. After this transaction, the officers arrested defendant, Fitzpatrick, and E.J. Detective Rosario Maimone, the arresting officer, testified that defendant ran into a driveway, threw down a newspaper and returned to the officers, who handcuffed defendant and retrieved
the newspaper, which contained fifteen packs of heroin. As Fitzpatrick was being arrested, defendant called out that Fitzpatrick had " nothing to do with it, it's all my shit." When arrested nearby, E.J. was found to be in possession of two bags of heroin and two bags of cocaine.
Sergeant Quick was offered as a fact witness, not an expert witness. Yet, the prosecutor elicited the following testimony to buttress Quick's conclusions:
Q. And I just want to establish this for the jury. In the course of your career and approximately 3,000 investigations you're familiar with what cocaine looks like and the way it's packaged versus the way heroin looks and the way that's packaged?
A. That's correct.
Q. So you were confident at this point you had seen a transaction of cocaine and heroin ...