November 9, 2016
appeal from the Superior Court of New Jersey, Law Division,
Ocean County, Indictment No. 10-11-2077.
Douard, Assistant Deputy Public Defender, argued the cause
for appellant (Joseph E. Krakora, Public Defender, attorney;
Mr. Douard, of counsel and on the brief).
William Kyle Meighan, Assistant Prosecutor, argued the cause
for respondent (Joseph D. Coronato, Ocean County Prosecutor,
attorney; Samuel Marzarella, Supervising Assistant
Prosecutor, of counsel; Mr. Meighan, on the briefs) .
Appellant filed a pro se supplemental brief.
Judges Ostrer, Leone and Vernoia.
found defendant Elex Hyman guilty of possessing cocaine with
intent to distribute and conspiring to do so, both
second-degree offenses. N.J.S.A. 2C:5-2, N.J.S.A.
2C:35-5(a)(1), -5(b)(2). On appeal, defendant principally
argues the court erred in admitting as lay opinion testimony
under N.J.R.E. 701 the lead investigative
detective's interpretation of drug-related slang and code
words that defendant and others used in recorded wiretapped
agree the detective's testimony interpreting the slang
and code words was in the nature of expert opinion. However,
the court's error was harmless in view of the
detective's qualifications to testify as an expert, and
the overwhelming evidence of defendant's guilt. We
therefore affirm the conviction.
of an ongoing investigation of cocaine distribution, the
Ocean County Prosecutor's Office obtained wiretap orders
in January 2010, authorizing the State to intercept
conversations from telephone numbers used by co-defendants
Daniel Rogers and Travell Nickey. Thereafter, the State
overheard conversations on February 5 and 7, 2010, in which
defendant agreed to purchase 200 grams of cocaine from
Rogers, with Nickey serving at times as an intermediary. The
State also intercepted conversations indicating that Rogers
intended to drive to defendant's home to deliver a
100-gram package of cocaine. Officers later observed Rogers
arrive and briefly meet with defendant outside his home.
on the intercepted communications and the surveillance,
officers obtained a warrant to search defendant's home.
In the search that followed on February 20, 2010, police
seized 50.5 grams of cocaine from a laundry room shelf; the
wiretapped cell phone; a money counter; a digital scale; and
over $3000 in cash. In a Mirandized statement,  defendant
admitted that the seized cocaine was his.
was tried separately from eight other defendants, including
Nickey and Rogers, who allegedly participated in the
conspiracy to manufacture, distribute or possess with the
intent to distribute cocaine. After a N.J.R.E. 104 hearing,
and over a defense objection, the court permitted the State
to elicit, as lay opinion, the lead investigating
detective's interpretation of drug-related jargon.
N.J.R.E. 104 hearing, Detective David Fox testified he had
been involved in hundreds of drug-related investigations,
including close to twenty wiretap investigations, and he had
become familiar with certain drug-related jargon. He
testified that some terms were "universal" to the
drug culture, and others unique to a particular drug network.
However, in this case, all the terms used had come up in past
court expressed concern that Fox's testimony came close
to addressing the "ultimate issue" and suggested
the State limit his testimony solely to his understanding of
what the different slang phrases meant:
I will allow Detective Fox to be questioned as originally I
thought, that being that he's going to be ask[ed] to
interpret certain phrases in the transcripts and that are
played for the jury. And that's his purpose and I've
heard enough to be able to indicate, in my opinion, that he
qualifies to give testimony as a lay opinion in that the
detective is using his own senses to acquire knowledge of the
street slang or street language related to drug and illegal
activities, and that he can give the jury some guidance
because it is outside of their knowledge and outside of the
Court's knowledge as to what those terms refer to.
And I am going to, however, limit and I will sustain any
objection if we get into any areas where he's giving an
opinion concerning what the mental state of the individual or
any of the individuals on the recordings or in the
transcripts are, because I don't think that that's,
he's not being qualified as an expert and I don't
think he should be allowed to do that.
with the court's direction, the prosecutor did not ask
Fox to offer an opinion expressly attributing a state of mind
or intent to the overheard speaker. However, after playing
each recording for the jury, which followed along with a
transcript, the prosecutor asked Fox to provide, based on his
"training and experience and knowledge of this
investigation, " his "interpretation of" a
word or a phrase "as . . . used in" or "in the
context of" the recorded conversation.
opined: "that shit is good" referred to the quality
of cocaine; a "buck, " used repeatedly, meant
"100 grams of cocaine"; "two one's"
and "two 100s" referred to "two separate
individual packages of 100 grams of cocaine"; "make
it one and a half" meant "150 grams of cocaine, one
individual pack for 100 grams of cocaine, one for 50 grams of
cocaine"; "up top" referred to the New York
area; "he still want?" meant whether a person was
"[s]till looking to purchase a quantity of
cocaine"; "you good?" inquired "if
somebody still has a current supply of cocaine"; and
"hit you up" (which is transcribed as "hitchu
up") meant calling another when ready to purchase
the accuracy of those interpretations, the conversations
supported the State's contention that defendant agreed to
purchase 100 grams of cocaine on two occasions. On
cross-examination, Fox rejected suggestions that many of the
words used had their common meaning outside the criminal
milieu, and that defendant was discussing a potential loan of
$100 or $200 dollars.
testified briefly in his own defense solely to challenge
whether a particular phone number belonged to Nickey.
However, on cross-examination, defendant admitted that State
witnesses had accurately identified him, Nickey, and Rogers
on the recordings. He also answered affirmatively when asked
whether, on February 5, 2010, he "had agreed to purchase
100 grams of cocaine from Mr. Rogers with Mr. Nickey's
assistance and he met you at your house . . . for that
purpose . . . ." He conceded that he did so again two
jury found defendant guilty of the conspiracy and the
substantive offense noted above. The court granted the
State's motion for an extended term, based on a prior
possession-with-intent-to-distribute conviction, and imposed
a fourteen-year term on the substantive charge, with a
six-year period of parole ineligibility. The court imposed a
five-year concurrent term on the conspiracy charge.
raises the following points on appeal:
THE JUDGE FAILED TO QUALIFY FOX AS AN EXPERT WITNESS DESPITE
TESTIMONY THAT WAS BEYOND THE KEN OF THE AVERAGE JUROR, AND
PERMITTED FOX TO TESTIFY IMPROPERLY AS A LAY WITNESS.
MOREOVER, THE JUDGE ERRED IN DEVISING A HYBRID JURY
INSTRUCTION THAT INCORPORATED PART OF THE EXPERT WITNESS JURY
CHARGE, BUT NONETHELESS REFERRED TO FOX AS A LAY WITNESS,
THEREBY CONVEYING THAT LA[Y] OPINION HAD THE AUTHORITY OF
EXPERT OPINION. (U.S. CONST. AMENDS. VI, XIV;
N.J. CONST. ART. 1, PARS. 1, 9, 10). (Partially
A. The Judge Failed To Qualify Fox As An Expert Witness
Despite Testimony That Was Beyond The Ken Of The Average
Juror, And Fox Provided Testimony That Exceeded The Scope Of
Permissible Lay Opinion.
B. The Judge Concocted A Hybrid Jury Instruction To Cover
Only Fox's Testimony, But Still Characterized Him As A
Lay Witness, Despite Incorporating A Few Sentences From the
Expert Witness Model Charge.
THE SENTENCING IMPOSED WAS MANIFESTLY EXCESSIVE AND THE JUDGE
FAILED TO MERGE THE CONSPIRACY TO POSSESS WITH INTENT TO
DISTRIBUTE CONVICTION INTO THE UNDERLYING POSSESSION WITH
INTENT TO DISTRIBUTE CONVICTION.
presents the following additional point in a pro se
DEFENDANT IS ENTITLED TO A REVERSAL OF HIS CONVICTION AND A
NEW TRIAL BASED ON THE FACT THAT DEFENSE COUNSEL WAS
INELIGIBLE TO PRACTICE LAW IN THE STATE OF NEW JERSEY AT THE
TIME OF HIS REPRESENTATION IN THIS MATTER, IN VIOLATION OF
THE DEFENDANT'S RIGHT TO COUNSEL GUARANTEED BY THE U.S.
CONSTITUTION, AMEND. VI, AND NEW JERSEY CONSTITUTION, ART. I,
apply a deferential standard of review to the trial
court's evidentiary rulings. "The necessity for, or
propriety of, the admission of expert testimony, and the
competence of such testimony, are judgments within the
discretion of the trial court." State v. Zola,
112 N.J. 384, 414 (1988), cert, denied, 489 U.S.
1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989); see also
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 383-84 (2010) (stating, "the decision to
admit or exclude evidence is one firmly entrusted to the
trial court's discretion"). However, when the trial
court applies the wrong legal test when analyzing
admissibility, we review the issue de novo. Konop v.
Rosen, 425 N.J.Super. 391, 401 (App. Div. 2012).
first discuss fundamental principles governing lay and expert
opinion testimony, noting that the proponent of opinion
evidence bears the burden to establish its admissibility.
State v. Torres, 183 N.J. 554, 567 (2005).
opinion testimony is governed by N.J.R.E. 7 01, which states:
If a witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences may be
admitted if it (a) is rationally based on the perception of
the witness and (b) will assist in understanding the
witness' testimony or in determining a fact in issue.
witness's perception must "rest on the acquisition
of knowledge through use of one's sense of touch, taste,
sight, smell or hearing." State v. McLean, 205
N.J. 438, 457 (2011) (citations omitted); see also
N.J.R.E. 602 ("Except as otherwise provided by Rule
703 (bases of opinion testimony by experts), a witness may
not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter.").
include opinions about a vehicle's speed, based on seeing
or hearing it go by; and a person's intoxication, based
on seeing, hearing, and smelling the person. Ibid,
(citations omitted). As the McLean Court explained,
police officers may also offer lay opinions on such subjects
as a person's narcotics intoxication, ibid,
(citing State v. Bealor, 187 N.J. 574, 588-89
(2006)); the point of impact between vehicles involved in a
collision, id. at 459 (citing State v.
LaBrutto, 114 N.J. 187, 197-99 (1989)); and
"whether a neighborhood [was] a ...