Officer Unqualified To Give Opinion Allows Reversal Of Drug Convictions
- April 28, 2015
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Wasan Brockington was convicted of possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, distribution of a controlled dangerous substance, possession with intent to distribute a controlled dangerous substance in a school zone and conspiracy. The drugs in question were cocaine and heroin. New Brunswick Police were conducting surveillance in a specific location. Sergeant Quick claimed to have witnessed several transactions wherein money was handed by third-parties to the co-defendant, Fitzpatrick, then the defendant would walk down a driveway with the third-party and they would both return within a minute and the third-party would walk off. Quick suspected these were drug transactions and even characterized each transaction as a heroin transaction or a cocaine transaction. However, he made no arrests, had no evidence to test and claimed to be at a substantial distance viewing the transactions through binoculars. At some point, officers closed in and saw Brockington throw down a newspaper with bags of suspected heroin inside and found 2 bags each of heroin and cocaine on the third-party suspected drug buyer leaving the scene. After police seized Brockington and the evidence, he advised that all of the drugs were his and that the co-defendant was innocent. In State v. Brockington, the defendant filed a motion to suppress his statement, to compel the disclosure of the officers’ surveillance point and other pre-trial motions but all were denied by trial judge in the Superior Court of New Jersey, Law Division, Middlesex County. The defendant also objected to the inclusion of Sergeant Quick’s testimony regarding drug transactions he allegedly witnessed as his testimony was elicited by the prosecutor in a manner making him appear to be an expert on the subject of drugs and drug transactions when he offered that he could discern cocaine from heroin at a great distance but the court allowed it. At the conclusion of trial, no limiting instruction to the jury was requested. Brockington was sentenced to 10 years with a 5 year parole ineligibility period. Defendant appealed and the N.J. Appellate Division looked to N.J.R.E. 701as interpreted in the similar matters of State v. McLean, 205 N.J. 438 (2011) and United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005), cert. denied, 552 U.S. 1154, 128 S. Ct. 1100, 169 L. Ed.2d 831 (2008) wherein it was held that “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” The Appellate Division found the opinion of Sergeant Quick to far exceed the established boundary of lay opinion testimony. The prosecutor also bolstered Quick’s testimony as credible and accurate which further prejudiced the defendant in violation of the strictures set forth in State v. Bradshaw, 195 N.J 493 (2008) and State v. Frost, 158 N.J. 76 (1999). The Appellate Division then reviewed and compared a litany of cases to determine whether testimony about the other alleged transactions in which no arrests were made and from which no evidence was retrieved violated N.J.R.E. 404 (b) and determined it may be used as the probative value was not likely substantially outweighed by prejudice to the defendant. The matter was ultimately reversed and remanded for a new trial based on the likelihood of unfair prejudice toward Brockington. Penalties for drug distribution in NJ are severe and lasting, often including lengthy prison terms with significant parole ineligibility periods. If you have been charged with a drug offense an experienced criminal defense attorney can protect your rights. For more information about drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.