Distribution Conviction Reversed For Detective's Improper Testimony

Brian Firman was charged with third-degree possession of cocaine (N.J.S.A. 2C:35-10(a)(1)); third-degree possession with intent to distribute (N.J.S.A. 2C:35-5(a)(1)) and 5(b)(3)); third-degree distribution (N.J.S.A. 2C:35-5(a) and 5(b)(3)); and third-degree distribution of cocaine within 1000 feet of a school zone (N.J.S.A. 2C:35-7). The charges stemmed from a detectives observation of the defendant and 2 other men in what he believed to be a hand to hand drug transaction which, when he approached to speak to them, was terminated abruptly and one of the men was observed to throw something on the ground which proved to be crack cocaine. During the pat-down search that followed, there paraphernalia was located on the persons of the other 2 co-defendants but nothing in the report reflected possession on the part of Firman. At trial, Firman was convicted by a jury and sentenced to 6 years in prison. In State v. Firman, the defendant appealed on the basis that the detective, McDonald, a non-expert, offered testimony exceeding the level permitted from a fact witness through his ample opinions. The defendant failed to object at trial, leaving the NJ Appellate Division to review the matter under the plain error standard of State v. Maloney, 216 N.J. 91 (2013). Under the plain error standard, the Appellate Division would reverse in the event that the testimony of McDonald which crossed the line into expert testimony, which he was not qualified to offer, could have led the jury to a different result than it would have reached without the inappropriate testimony. State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008). The N.J. Appellate Division determined that without the impermissible testimony of the detective, the jury could have reached a different result and that the guilty verdict must be reversed with the matter remanded for a new trial. If you are facing charges for drug distribution or possession, there are multiple components which may affect the ultimate outcome. Drug distribution charges are met with harsh penalties due to the public interest in deterrence and it is critical that you obtain experienced criminal defense counsel to protect you against the charges and penalties. For more information regarding drug distribution, possession and possession with intent to distribute visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Denial Of Motion To Suppress Marijuana And Handgun Upheld

Kenneth L. Hawes was indicted for third-degree possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11)); second-degree possession of marijuana with intent to distribute within 500 feet of public property (N.J.S.A. 2C:35-7.1); second-degree possession of a firearm while in the course of committing a crime (N.J.S.A. 2C:35-5 and 2C:39-4.1(a)); second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); and second-degree certain persons not to have weapons (N.J.S.A. 2C:39-7(b)). An anonymous caller informed Franklin Township police that a black male was selling what may be narcotics from an SUV in a parking lot. Upon investigating, officers in plain clothes saw the man, who had been brought to their attention previously, selling hats, CDS, DVDs and other merchandise from a GMC Envoy and, upon approaching, smelled a strong odor of raw marijuana emanating from Hawes and the SUV. Hawes moved away from the officers but was seized by the arm and subjected to a pat-down search by the officers for their personal safety in which a small pouch with marijuana was discovered on Hawes person and he was placed under arrest. Hawes then asked if he could return the merchandise to his vehicle before being removed and upon returning the merchandise to the vehicle for him, the officers discovered a handgun in partial plain view. Officer Hernandez removed the gun then proceeded to search the vehicle for other weapons, discovering an additional 70 bags of marijuana in the vehicle. At the suppression hearing, in State v. Hawes, the defendant testified that he never asked the officers to return anything to the vehicle and that the weapon was not in plain view. The motion judge found the defendant and his 4 witnesses to lack credibility and denied the motion to suppress. Following the denial of his suppression motion, Hawes entered a retraxit plea of guilty to both indictments in exchange for the State's recommendation of a maximum 10 year sentence with a 5 year period of parole ineligibility. The Somerset County Superior Court Judge sentenced Hawes according to the plea agreement but did not separately impose sentences on the charges. Hawes challenged the validity of the scope of the pat-down search, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in which under claim of a protective search officers opened the coin pouch discovered in his pocket. Hawes further challenged the ensuing search of his vehicle, including discovery of the handgun and bags of marijuana, as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417-18, 9 L. Ed. 2d 441, 454-56 (1963). The NJ Appellate Division followed State v. O'Neal, 190 N.J. 601 (2007); State v. Maryland, 167 N.J. 471 (2001); State v. Citarella, 154 N.J. 272 (1998); and State v. Pineiro, 181 N.J. 13 (2004) in properly placing the burden of proof on the State to prove the warrantless search and seizure was soundly within one of the well-delineated exceptions to the warrant requirement. The Appellate Court held that, based on the circumstances at the time of the search under State v. Pena-Flores, 198 N.J. 6 (2009), police had probable cause to arrest Hawes and, therefore, the search and seizure were valid under Chimel v. California, 395 U.S. 752 (1969); State v. Dangerfield, 171 N.J. 446 (2002); State v. McKenna, 228 N.J. Super. 468 (App. Div. 1988); and State v. Burnett, 42 N.J. 377 (1964). Further, the Appellate Division held that defendant's request to return the merchandise to his vehicle gave police opportunity to view the handgun, in plain view, in the defendant's vehicle which, once discovered, made it valid for the police to search the remainder of the vehicle for further weapons without first obtaining a warrant pursuant to U.S. v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1968). Although the denial of the suppression motion was upheld on appeal, the matter was remanded for re-sentencing due to the court's failure to impose individual sentences for each offense as required under State v. Rodriguez, 97 N.J. 263 (1984). The difference between having a search upheld or suppressing evidence obtained from a search rests on small legal distinctions. If the police obtained evidence against you in what you believed to be an illegal search, it is critical that you obtain experienced criminal defense counsel to defend you against the prosecution. For more information about warrantless search, search and seizure, drugs, weapons or other criminal issues in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Intent To Distribute Verdict Reversed Due To Improper Prosecution Tactics

Debra Rogers and Lameen Hill were charged with third degree possession of a controlled dangerous substance (CDS) with intent to distribute cocaine (N.J.S.A. 2C:35-10a(1)), second degree possession of a controlled dangerous substance (CDS) with intent to distribute 1/2 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 possessoin of cocaine with intent to distribute in a school zone (N.J.S.A. 2C:35-7). The State dismissed he conspiracy and school zone charges and Rogers was found guilty of second degree possession of a CDS with intent to distribute and third degree possession of a CDS with intent to distribute and sentenced to an extended 10 year term with a 5 year period of parole ineligibility due to a prior conviction in 1999 for distribution of CDS (N.J.S.A. 2C:35-5b(3)). In State v. Rogers the defendant appealed based on inadmissibility of the state expert's opinion as to whether items seized were for narcotics packaging and distribution, failure to charge the jury on assessment of witness credibility, multiple challenges to the warrant, lack of a fair trial and sentencing error in regard to the 5 year parole disqualifier imposed. The NJ Appellate Division affirmed the conviction for simple possession but reversed the conviction for possession with intent to distribute based on the improper opinion testimony presented by one of the investigating officers. In 2009, Perth Amboy detectives were watching defendant's apartment and noted several people coming and going therefrom within a relatively short period of time. The defendant also left the premises and was arrested upon departing from a doctor's appointment outside the residence and was returned to the apartment by police who used her key to enter the apartment and arrest other adults within, including Rogers parents, due to outstanding warrants. Co-defendant, Hill, confessed to having cocaine on his person as he was about to be searched incident to arrest for warrants. The officers proceeded to search the apartment and located 1.2 ounces of cocaine, $13,000 in cash, and three digital scales. The drugs and money were located in Roger's bedroom. Sergeant Muntone of the Midddlesex County Prosecutor's Office testified, without objection by defense counsel, that the items discovered were possessed with intent to distribute. The Appellate Division referenced State v. Timmendequas, 161 N.J. 515, 576-77(1999) which defines plain error as error possessing a "clear capacity to bring about an unjust result" and prejudices the defendant's "fundamental right to have a jury fairly evaluate the merits of the defense." The NJ Appellate Division found Muntone's testimony to be improper on its face and likened it to State v. McLean, 205 N.J. 438 (2011) wherein the prosecution elicited opinion testimony of an officer which was an unqualified expert opinion. Had Muntone been qualified as an expert under the requirements of State v. Odom, 116 N.J. 65 (1989) the testimony would have been admissible. The Appellate Division considered the fact that expert testimony offered by an investigating officer bears an inherent risk of substantial prejudice (State v. Barry, 140 N.J. 280 (1995)). Additionally, the Appellate Division took issue with the manner in which the prosecution presented the opinion testimony to effectively usurp the jury's role in considering how they will utilize "such testimony in their deliberations." Odom. The jury was not guided in the manner they could consider the opinion testimony of Muntone. Lastly, when defense counsel does not object to improper opinion testimony, it is the responsibility of the trial judge to act accordingly and exclude such testimony. State v. Nesbitt, 185 N.J. 504 (2006). Based on the Appellate Division's decision to reverse the conviction for possession of a controlled dangerous substance with intent to distribute they had no further need to address the resultant extended sentence and parole disqualifier. If you have been charged with possession or possession with intent to distribute controlled dangerous substances you must obtain experienced criminal defense counsel immediately in order that all appropriate procedures are followed by the police and the prosecution in the prosecution of your case. There are frequently problems with consent to search, warrants, Miranda, inappropriate denial of suppression motions and improper trial procedure which may make a substantial difference in the outcome of your matter. For more information about CDS, possession, intent to distribute, prescription CDS, distribution and other drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.