Intent To Distribute Verdict Reversed Due To Improper Prosecution Tactics
- January 23, 2014
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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.