STATE OF NEW JERSEY v. STEVEN McNEIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6502-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN McNEIL,

Defendant-Appellant.

__________________________________

 

Submitted March 15, 2006 - Decided May 16, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Burlington

County, Indictment No. 2000-11-0946.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ruth A. Harrigan,

Designated Counsel, of counsel and on

the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Jennifer B. Paszkiewicz, Assistant

Prosecutor, of counsel and on the brief.)

PER CURIAM

Defendant Steven McNeil was charged under Indictment 2000-11-0946 with several drug-related offenses committed on two separate occasions. Counts one through five describe offenses allegedly committed on January 27, 2000. Specifically: third-degree distribution of cocaine within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 (count one); third-degree possession of cocaine with intent to distribute within 1,000 feet of a school property, in violation of N.J.S.A. 2C:35-7 (count two); distribution of cocaine, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); third-degree possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count four); and third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10a (count five).

Counts six through eight describe offenses allegedly committed on March 14, 2000. Specifically: third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 (count six); possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); and third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10a (count eight).

Defendant successfully moved to sever the counts in the indictment according to the dates the alleged offenses were committed. The three counts describing offenses allegedly committed on March 14, 2000 were tried first. The first trial on these three counts resulted in a mistrial. Upon retrial, a jury convicted defendant as to all three counts. The court sentenced defendant to an extended term of nine years with four and one-half years of parole ineligibility.

The trial covering the five counts describing offenses allegedly committed on January 27, 2000 commenced on October 2, 2003. A jury convicted defendant as to these five counts. The court sentenced defendant to a second extended term of nine years with four and one-half years of parole ineligibility, to run consecutive to the term imposed in the first trial.

Defendant has appealed both convictions. We limit our review here to issues pertaining to the first trial. We address, in a separate opinion, the issues pertaining to the second trial. As to the first trial, defendant raises the following arguments on appeal.

POINT I

THE TRIAL COURT ERRED BY ADMITTING OTHER CRIMES EVIDENCE UNDER RULE 404B OF COUNTS SIX, SEVEN AND EIGHT AT THE TRIAL OF COUNTS ONE THROUGH FIVE AFTER SEVERING THESE COUNTS.

POINT II

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL SHOULD NOT HAVE REQUESTED SEVERANCE OF COUNTS SIX, SEVEN AND EIGHT OF THE INDICTMENT.

B. TRIAL COUNSEL DID NOT PROPERLY INVESTIGATE AND PREPARE THE CASE, WHICH RESULTED IN EXCLUSION OF EXCULPATORY ALIBI TESTIMONY BY A WITNESS AND DEFENDANT.

POINT III

DEFENDANT SUBMITS THAT HIS SENTENCE WAS EXCESSIVE AND ILLEGAL BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.

We agree with defendant's argument as to Point I and reverse. We thus decline to address the remaining arguments raised in the appeal. Before proceeding to discuss the legal issues involved, we will summarize the facts from the evidence presented at the first trial.

On January 27, 2000, Mount Holly Police Officer Richard Spitler and Bordentown Police Officer Brian Pesce were assigned to the Burlington County Prosecutor's Office Narcotics Task Force (the "Task Force"). On that date, the Task Force dispatched Spitler and Pesce, in plain clothes and driving an unmarked pickup truck, to an area between York and Federal Streets. The officers were instructed to purchase illicit drugs.

Spitler was provided with a microphone to be attached to his person. The devise was intended to be used to assist in monitoring the officer's activities and to facilitate a quick response to any need for assistance. The officers were also given a miniature video camera (described as being the "size of a pen") that would be attached to a soda cup. Due to a number of technical problems, the camera never worked.

At approximately 10:00 p.m., the officers began driving around the target area. At about 10:55 p.m., they observed an individual standing on the south side of Federal Street. The officers drove the truck over to where the man was standing, and Spitler asked him if he was "serving up," to which the man answered that he was. Spitler turned the truck onto Federal Street from York Street, and the individual crossed the street.

Spitler described the individual as an African-American man in his 30's, approximately six feet tall, with a medium complexion and a medium built, wearing gray pants, a green camouflage jacket, an open gray hood, and a half-mask on his face. When this individual approached the officers' truck, he pulled the mask up, to the tip of his nose. At this point, Spitler asked the individual for two "dime bags." The individual stated that he only had one twenty-dollar bag. He then retrieved from his glove a blue glassine bag containing a white rocky substance. Based on his training and experience, Spitler immediately concluded that this substance was cocaine.

The transaction was completed when Spitler handed the individual two ten-dollar bills in exchange for the bag. The parties then separated, with the alleged seller walking away from the scene as Spitler and his partner drove off in the truck. According to Spitler, he was approximately one foot away from the seller during the entire transaction, which took approximately thirty seconds. Spitler then radioed a description of the suspect and the location of the suspect to the other members of the Task Force.

David Ekelburg, a fellow Task Force member and backup officer who was familiar with defendant, immediately responded to the location where the transaction took place, and, after receiving Spitler's radio description of the seller, was able to observe defendant standing at this location. Defendant's clothes matched the description given by Spitler.

About fifteen minutes later, Spitler and Pesce met with, Ekelburg, at a prearranged location. Ekelburg showed Spitler a photograph of defendant. Spitler identified the individual depicted in the photograph as the person who had sold him the cocaine minutes earlier. Despite this evidence, the police did not arrest defendant that night.

On March 14, 2000, almost two months after the interaction between Spitler and defendant, Ekelburg observed defendant riding his bicycle. Ekelburg intended to arrest defendant for the offense committed on January 27, 2000. As Ekelburg exited his marked police car, defendant began to run. Ekelburg, along with two other officers that were in the area, chased and finally apprehended defendant. A search of defendant's person, incident to this arrest, revealed twenty-two bags of cocaine and $251 in cash.

At the trial for the events that occurred on January 27, 2000, the State successfully moved to introduce the contraband seized in connection with the March 14, 2000 arrest, as N.J.R.E. 404(b) evidence. The State argued, and the trial court accepted over defendant's objection, that this evidence was relevant to defendant's knowledge and intent when he sold the cocaine to Spitler almost two months earlier. The trial court committed reversible error in admitting this highly prejudicial and irrelevant evidence.

Our review of a trial court's decision admitting N.J.R.E. 404(b) evidence is governed by an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483 (1997). Our Supreme Court has emphasized that "the primary focus of N.J.R.E. 404(b), when examined in conjunction with N.J.R.E. 403, is to view it as a rule of exclusion rather than a rule of inclusion." State v. Darby, 174 N.J. 509, 520 (2002) (quoting Marrero, supra, 148 N.J. at 482-83.) Based on the record before us, we are satisfied that the trial court abused its discretion when it admitted testimony describing illicit drugs recovered from defendant's person, almost two months after the alleged transaction between defendant and an undercover police officer.

To be admissible, other-crime evidence must have the following characteristics:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

Under the first Cofield factor, the other-crime evidence must be relevant to prove a fact genuinely in dispute. N.J.R.E. 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." By sheer force of logic, there is no rational way to establish that drugs seized from defendant in March, are relevant to show defendant's state of mind two months earlier in January.

In State v. Hernandez, 170 N.J. 106, 119 (2001), our Supreme Court reaffirmed what has long been the judicial view in this State:

[O]ther-crime evidence is highly inflammatory, having the "unique tendency to turn a jury against the defendant," [therefore] trial courts are required to make a "careful and pragmatic evaluation" of the evidence based on the specific context in which it is offered.

[Citation omitted.]

Here, the prejudice caused by the admission of this irrelevant evidence is clear. The jury was free to infer that defendant had been under police surveillance for sometime. The State's case depended entirely on the credibility of the undercover officers. Any doubt as to the officers' credibility could have been easily erased or, at the very least significantly weakened, by the jury improperly finding that defendant is a drug dealer, because he had twenty-two bags of cocaine on his person in March.

Furthermore, defendant's state of mind as to the January 27, 2000 transaction was never in dispute. The defense's trial strategy was based on misidentification. As summarized by defense counsel in his opening argument to the jury:

So, what you have to ask yourself as you're viewing this evidence and listening to this testimony is are you going to be firmly convinced based upon that description [of defendant] and that short period of time [o]n a dark night that this is the individual that made that transaction?

Thus, applying the first prong in Cofield, the State's motion should have been denied, because the "state of mind" of the individual who sold the cocaine to the undercover officers was never in dispute. Defendant's conviction under counts one through five of Indictment No. 2000-11-0946 is reversed, and the matter is remanded for a new trial.

Reversed and remanded.

 

According to Spitler, the term "serving up" is a phrase used by illicit drug buyers to mean "are you selling drugs."

This refers to two separate bags of cocaine, each worth ten dollars.

(continued)

(continued)

10

A-6502-03T4

May 16, 2006