STATE OF NEW JERSEY v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5207-04T15207-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER W. RISKO,

Defendant-Appellant.

 
 

Argued January 9, 2007 - Decided March 13, 2007-

Before Judges Kestin, Weissbard and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 04-03-00352.

David J. Goldstein (Goldstein and Weinstein) of the New York bar, admitted pro hac vice, argued the cause for appellant (Michael J. Nedick, attorney; Mr. Nedick, on the brief).

Maura K. Tully, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General of New Jersey, attorney; Ms. Tully, of counsel and on the brief).

PER CURIAM

Defendant, Peter Risko, appeals from his conviction following a jury trial of fourth-degree possession of a firearm by a person not permitted to have weapons, N.J.S.A. 2C:39-7b. Defendant was sentenced to a seven-year prison term with five years of parole ineligibility. Defendant presents two arguments in support of reversal:

POINT I

THE AFFIDAVIT OF DETECTIVE BODNAR FAILED TO PROVIDE PROBABLE CAUSE TO BELIEVE THAT EITHER DRUGS, OR A WEAPON WOULD BE FOUND AT 594 HYATT STREET, AVENEL, NEW JERSEY, ON JANUARY 6, 2004.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DIRECTED SEPARATE TRIALS IN FRONT OF THE SAME JURY TO DECIDE BOTH THE NARCOTICS AND CERTAIN PERON'S OFFENSES, AND DID NOT REQUIRE THE STATE TO PRESENT ANY EVIDENCE AT THE SECOND TRIAL.

A. The Trial Court Violated Defendant's Due Process And Confrontation Clause Rights, When It Ordered That The Same Jury Which Heard The Drug Possession Charges To Try The Unrelated Weapon Charges, And Permitted The State To Rely Solely Upon The Evidence Introduced At The Prior Drug Trial To Support The Weapons Charge.

B. The Court's Ruling, In Directing The Same Jury To Hear The Gun Case Was Premised On A Misinterpretation Of New Jersey Case Law And Violated All New Jersey Precedent.

C. The Court Improperly Admitted Into Evidence At The Gun Trial, Testimony Of Uncharged Crimes, Prior Bad Acts, And Other Irrelevant And Inflammatory Evidence, Thereby Depriving The Defendant Of A Fair Trial.

D. The Court, After Directing The Jury To Consider Highly Prejudicial And Irrelevant Evidence In Its Deliberations, Refused To Give Any Type Of Limiting Instruction To Minimize The Prejudice To Defendant.

We reject defendant's first argument but agree with his second. As a result, we reverse and remand for a new trial.

I

On January 6, 2004, Detective Shayne Bodnar of the Woodbridge Police Department applied for and received "anticipatory" search warrants for two motor vehicles, a Lincoln Navigator and a BMW model 540, both owned by defendant, as well as for defendant's residence, 594 Hyatt Street, Avenel, New Jersey. The affidavit in support of the application for those warrants was based upon information provided by three different informants, as well as an independent investigation conducted by the Woodbridge Police Department. Rather than summarize the warrant, we set out the pertinent provisions in full.

During the month of June 2003, an investigation into the distribution of Cocaine by a Mr. Peter W. Risko from the address of 594 Hyatt Street, Avenel, New Jersey 07001 was initiated.

During the months of June through July 2003, Detective Lieutenant Robert Hubner received information from a confidential informant, who has proved reliable in the past and who has assisted in an investigation leading to the arrest of suspects for Distribution of Controlled Dangerous Substances and the execution of a search warrant involving the Distribution of Controlled Dangerous Substances. This confidential informant, who had close personal contact with Mr. Peter W. Risko, who in fact resides at 594 Hyatt Street, Avenel, New Jersey 07001, and who has previously purchased Cocaine and has been present while Mr. Peter W. Risko distributed Cocaine in the past. This confidential informant stated that Mr. Risko continues to sell Controlled Dangerous Substances, to wit, Cocaine, and has recently moved his Cocaine from Hyatt Street to an unknown apartment in Perth Amboy to better conceal his drug operation from law enforcement observation.

During the month of October, this Detective received an anonymous tip from a concerned citizen who reported that they had observed Mr. Peter W. Risko in a Lincoln Navigator, bearing New Jersey registration PPB-16C, being gray in color, SUV 4-door, distributing Cocaine to numerous persons on Woodbine Avenue outside of the Woodbine Apartments, which is considered a high drug area in Woodbridge Township. This concerned citizen stated that Mr. Risko was observed inside of his Lincoln Navigator parked on Woodbine Avenue, and subsequently vehicles would park near the Navigator, exit, approach the Navigator on foot, at which time the concerned citizen would observe hand-to-hand transactions where cash was handed to Mr. Risko and packages were then handed back to customers on the street, who would then return to their vehicles and leave the area. It was noted these transactions took only as long as the transactions themselves, after which Mr. Risko would leave the area.

During the month of December, I obtained an additional confidential informant, who has provided information in the past relating to narcotics activity which was found to be truthful. This confidential informant stated that Mr. Risko is a large scale distributor of Cocaine in the Middlesex County area, specifically Woodbridge. The confidential informant further stated that Mr. Peter W. Risko employs several runners, persons who sell Cocaine for him, and that Mr. Risko only distributes ounce quantities of Cocaine at a time. This confidential informant has purchased ounce quantities of Cocaine from Mr. Risko in the past. This confidential informant further stated that Mr. Risko has in his possession two (2) weapons, an AK-47 and a .45 caliber handgun which he keeps at the residence of 594 Hyatt Street, Avenel, New Jersey 07001. This confidential informant stated that he never keeps Cocaine for long periods of time inside the address of 594 Hyatt Street, Avenel, New Jersey, however, has distributed from his house to the confidential informant in the past. This confidential informant further corroborated information received in the past that Mr. Risko will distribute from his Lincoln Navigator and also from a vehicle described as a 1 999 BMW 540, 4-door, silver, bearing New Jersey registration LTL-42R, showing a leasee [sic] of Peter W. Risko Jr. and an address of 594 Hyatt Street, Avenel, New Jersey 07001. A Division of Motor Vehicles check found that a 2003 Lincoln Navigator, gray in color, SUV, bearing New Jersey registration PPB-16C, is in fact purchased by and belongs to a Mr. Peter W. Risko, Jr., showing an address of 594 Hyatt Street, Avenel, New Jersey 07001. The confidential informant also corroborated that there are several persons employed by Mr. Risko to distribute Cocaine for him. And the confidential informant also stated that he had personally seen and examined the weapons that he described to this Detective at the Avenel address.

During this investigation, contact with Mr. Risko was initiated by this Detective, and Detective John Roesler of the Woodbridge Police Narcotics Unit, briefly in front of Woodbine on Woodbine Avenue while Mr. Risko was unlawfully parked outside of the Woodbine complex on Woodbine Avenue. This contact was brief, however it was observed that Mr. Risko had a large quantity of cash in excess of $3,000.00 in his pocket. We also observed that Mr. Risko was utilizing counter-surveillance insomuch as he had two (2) unidentified black males utilizing walkie talkies, strategically positioned on Woodbine Avenue and on the Woodbine complex who alerted Mr. Risko of the presence of police officers as we approached. An attempt to identify these additional suspects proved negative, as we approached them, they fled on foot.

Arrangements are currently being made for the purchase of five (5) ounces of Cocaine from Mr. Risko utilizing a confidential informant. This affidavit for approval of search warrant is anticipatory on the delivery of this Cocaine by Mr. Risko utilizing post listed vehicles at a to be determined location inside the Township of Woodbridge.

II

On January 6, 2004, at approximately 9:45 p.m., defendant was arrested in a parking lot in Woodbridge by Detective Roesler, who had observed defendant alone in his car. Roesler pulled his unmarked police car in front of defendant's SUV, got out of his vehicle with his service revolver drawn, and demanded to see defendant's hands. Defendant's car door was open and defendant got out of the vehicle. As he did so, a package dropped to the ground. Defendant immediately turned and kicked the package underneath the SUV. Defendant was then placed under arrest. The package he had attempted to conceal was recovered by police and found to contain five ounces of cocaine.

Following his arrest, the police searched defendant's home pursuant to the search warrant that had been issued that same day based on the Bodnar affidavit. Under defendant's bed, the police found an AK-47 rifle. Also seized were two 30-round magazines containing bullets, a cash box filled with $15,521, and wax packets commonly used to package heroin. No drugs were found in the house.

Later that evening, defendant gave a statement to the police after being advised of and waiving his Miranda rights. Defendant admitted owning the AK-47, stating that he had "bought it off the street." He further admitted that he had purchased it with clips and ammunition and that he had owned the weapon for approximately seven to eight months. Defendant also admitted that in the past he had owned a 9mm handgun and a .357 Magnum.

III

Defendant challenges the validity of the search warrant which resulted in the seizure of drug paraphernalia, money, and weapons. Although we consider the issue to be close, we conclude that the warrant passes constitutional muster insofar as it authorized a search for weapons.

The underlying principles are well established. "Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant from a neutral judicial officer prior to searching a person's home, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. Sullivan, 169 N.J. 204, 210 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "Before issuing a warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is to be found at the place sought to be searched." Sullivan, supra, 169 N.J. at 211.

Probable cause "eludes precise definition." Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000). However, it generally "'means less than legal evidence necessary to convict though more than mere naked suspicion.'" Sullivan, supra, 169 N.J. at 210-11 (quoting State v. Mark, 46 N.J. 262, 271 (1966)). "Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" Sullivan, supra, 169 N.J. at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

The Court has characterized probable cause "as a common-sense, practical standard for determining the validity of a search warrant." Sullivan, supra, 169 N.J. at 211; State v. Novembrino, 105 N.J. 95, 120 (1987). The United States Supreme Court has observed:

Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, non-technical conception." In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

[Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983) (citations omitted).]

Our law mirrors that observation:

Probable cause is a flexible, non-technical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other.

[Sullivan, supra, 169 N.J. at 211 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968).]

A search based on a properly obtained warrant is presumed valid. Sullivan, supra, 169 N.J. at 211. "When a search is conducted pursuant to a warrant, the defendant has the burden of proving the invalidity of that search, namely, 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Ibid. (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). "In considering such a challenge, '[w]e accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Sullivan, supra, 169 N.J. at 211 (quoting State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

Defendant argues that the warrant to search his home was defective because it was based upon information provided by informants whose reliability was unsubstantiated.

Specific guidelines for cases involving police informants were articulated by the Court in Sullivan, supra, 169 N.J. at 212. "Information provided by an informant may constitute a basis for a finding of probable cause, so long as there is a substantial basis for crediting the information." Ibid. "Whether information conveyed by an informant provides a basis for probable cause 'is determined by a standard that calls for consideration and analysis of all relevant circumstances.'" Ibid. (quoting State v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).

In Sullivan, supra, 169 N.J. at 212, the Court explained the relevant law concerning informant tips as follows:

The Supreme Court established the totality-of-circumstances test for analyzing informants' tips under the Fourth Amendment in Illinois v. Gates, supra, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527. The Court explained that the issuing judge must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. The Court also observed that the duty of a reviewing court is "to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Id. at 238-39, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697, 708 (1960)).

The Court reiterated its adoption of the Gates totality-of-circumstances test to evaluate the validity of warrants under Article I, paragraph 7 of the New Jersey Constitution. Ibid. "As noted, under that test, courts consider an informant's veracity and his or her basis of knowledge to be the two most important factors in evaluating the informant's tip." Ibid. "A deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" Id. at 212-13 (quoting State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Gates, supra, 462 U.S. at 233, 103 S. Ct. at 2329, 76 L. Ed. 2d at 545)). Furthermore, the Court held that a factor, "'though insufficient if considered in isolation, may in combination reinforce or augment one another and become sufficient to demonstrate probable cause.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 110-11 (1998)).

Concerning the first factor, an informant's veracity, the Court has stated that past instances of the informant's reliability are "'probative of veracity, although [their] weight in the ultimate determination of probable cause may vary with the circumstances of each case.'" Id. at 213 (quoting Smith, supra, 155 N.J. at 94). "An informant's veracity may be shown by demonstrating that the informant proved to be reliable in previous police investigations." Ibid. "However, under the totality of the circumstances, 'past instances of reliability do not conclusively establish an informant's reliability.'" Ibid. (quoting Smith, supra, 155 N.J. at 94).

With respect to anonymous citizen tips, a different rule applies. "[W]hen information is provided by a citizen-informer, his prior reliability need not be established as a prerequisite for issuance of a search warrant." State v. Kurland, 130 N.J. Super. 110, 115 (App. Div. 1974). This is because a cooperative citizen generally "acts with an intent to aid the police in law enforcement because of his concern for society. He does not expect any gain or concession in exchange for his information." Ibid.

"The second factor, whether the informant had a basis of knowledge for the information provided to the police, 'is relevant to a determination that the information was obtained in a reliable way.'" Sullivan, supra, 169 N.J. at 213 (quoting Smith, supra, 155 N.J. at 94). "An informant's basis of knowledge can be 'disclosed by the informant if the tip itself relates expressly or clearly how the informant knows of the criminal activity.'" Ibid. "In the absence of such explicit disclosure, 'the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source.'" Ibid.

"The Court has reasoned that '[b]y providing sufficient detail in the tip or recounting information that could not otherwise be attributed to circulating rumors or be easily gleaned by a casual observer, an informant can implicitly disclose a reliable basis of knowledge as the foundation of the information related to the police.'" Id. at 213 (quoting Smith, supra, 155 N.J. at 95).

"Because the information contained in a tip is hearsay, police corroboration of that information 'is an essential part of the determination of probable cause.'" Ibid. Thus, "'the informant's veracity, if inadequately documented in the officer's affidavit, could be bolstered by a corroborative investigation.'" Id. at 213-14 (quoting Novembrino, supra, 105 N.J. at 113.) See also Smith, supra, 155 N.J. at 98 (noting that when "the tip lacks sufficient detail to establish a basis of knowledge, independent police investigation and corroboration of the detail in the tip must be considered because it may in some circumstances add to the evidentiary weight of factors as well as the overall circumstances"). Similarly, "if police corroborate information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong as well as the veracity prong." Sullivan, supra, 169 N.J. at 214 (quoting Smith, supra, 155 N.J. at 95-96).

In the present case, the conclusory statements concerning the reliability of the police informants were supplemented by the informants' basis of knowledge, as well as by independent police investigation. Thus, the first confidential informant averred that his information was based upon "close personal contact" with the defendant and stated that he had "purchased cocaine" from the defendant in the past. This informant also gave a specific address (594 Hyatt Street, Avenel) where the drug activity had been conducted. The anonymous citizen tip was also based on eyewitness observations of the defendant dealing drugs in public, and provided a specific description of the vehicle used in the drug transactions, including a license plate number. Finally, the second confidential informant gave specific information concerning the quantities of drugs that the defendant sold as well as the vehicles that he used to distribute drugs. This informant also provided specific information as to the types of guns that were being kept at the defendant's Hyatt Street residence in Avenel. The similarity of the information provided by these informants itself provides an additional basis of corroboration.

The affidavit also makes clear that the police were able to independently verify the accuracy of much of the information contained in the statements by the informants. For example, the police checked with the Department of Motor Vehicles and found that the vehicles described by the informants were in fact registered to defendant at his address in Avenel. Detective Bodnar also personally observed defendant utilizing drug-dealing counter-surveillance techniques at the specific locations described by the informants.

In sum, it appears that the municipal court judge had a "substantial basis" for concluding that, under the totality of the circumstances, the informants were reliable. See Novembrino, supra, 105 N.J. at 118. This conclusion is based upon a "common-sense review" of the information contained in the affidavit which combined elements of veracity and police corroboration. Ibid.

Nevertheless, defendant contends that the failure of the warrant application to provide specific information concerning the dates that certain events occurred or observations were made renders the affidavit "fatally defective." The lack of references as to when certain crimes occurred, defendant submits, made it impossible to provide the neutral judicial officer with a reasonable basis to conclude that a present search of defendant's premises or person would yield evidence of criminal activity.

For example, defendant notes that the second confidential informant stated that he had bought cocaine from defendant's house "in the past." Defendant submits that this statement provided no relevant information to the judicial officer because it was vague and provided no basis to believe that on the date the warrant was applied for there would be any drugs present in defendant's house.

Defendant's argument is essentially one of staleness, centering on the lack of information as to whether defendant was presently involved in the possession or distribution of drugs at the location specified in the warrant or unlawfully possessed weapons at that place. Indeed, much of the information provided by the informants, although arguably reliable, pertained to activities that occurred at an unspecified time in the past, and the first confidential informant even conceded that the defendant had moved his drug operation to an unspecified apartment in Perth Amboy and was no longer dealing drugs from his home in Avenel. Defendant thus submits that the warrant to search his Avenel house was defective and could not have been based upon probable cause.

We have held that an affidavit in support of a warrant may be defective when "it does not contain a single reference as to the time of occurrence of any criminal activity." State v. Altenburg, 223 N.J. Super. 289, 294 (App. Div.), aff'd, 113 N.J. 508 (1988). Similarly, in Novembrino, supra, 105 N.J. at 124, the Court quoted the following excerpt from Rosencranz v. United States, 356 F.2d 310, 316-17 (1st Cir. 1966):

The present tense is suspended in the air; it has no point of reference. It speaks, after all, of the time when an anonymous informant conveyed information to the officer, which could have been a day, a week, or months before the date of the affidavit. To make a double inference, that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time, so long as they reported that whatever information they received was stated to be current at that time. Magistrates would have less opportunity to perform their "neutral and detached" function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them.

Despite these cautionary admonitions, we have recognized that where an affidavit properly recites facts indicating a continuous course of criminal conduct, the passage of time becomes less significant. Altenburg, supra, 223 N.J. Super. at 295 (citing United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)). In State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976) (quoting Johnson, supra, 461 F. 2d at 287), we explained the relationship between time lapse and probable cause as follows:

[I]t should be noted that the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit. Together with the element of time we must consider the nature of the unlawful activity. Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.

Accordingly, the State counters defendant's staleness argument by noting that Detective Bodnar's affidavit, which contained information from a six-month investigation, described an ongoing course of illegal cocaine distribution by defendant. As a result, the State submits, the lack of exact time frames provided by the informants is less significant considering the continuing nature of the illegal activity documented. The State also emphasizes that the second confidential informant provided detailed and specific information in December 2003, (days before the search warrant) that the defendant "has in his possession two weapons, an AK-47 and a .45 caliber handgun which he keeps at the residence of 594 Hyatt Street, Avenel, New Jersey."

Applying these principles to the facts set out in the Bodnar affidavit, and even according the State the benefit of the reasonable, common-sense inferences flowing from those facts, we agree with defendant that the affidavit did not establish probable cause to believe that drugs would be found at 594 Hyatt Street. The first informant stated clearly that as of June-July 2003, defendant had moved his drug dealing from Hyatt Street "to an apartment in Perth Amboy." The third informant could only say that he had purchased cocaine from defendant at the Hyatt Street house "in the past," and did not say where the purchase had taken place. Nor did the citizen informant say anything about Hyatt Street.

However, the warrant also authorized a search for unlawfully possessed weapons, specifically an AK-47 assault rifle and a .45 caliber handgun. Concerning the weapons, the third informant stated that defendant "keeps [those weapons] at the residence of 594 Hyatt Street, Avenel." The informant "had personally seen and examined the weapons that he described to this Detective at the Avenel address." While the affidavit fails to explicitly state when the weapons had been observed, it can be inferred that the informant was speaking of a time frame reasonably close to the date of the affidavit. It is not unreasonable to infer that if defendant had weapons at his home in the recent past, he continued to keep them there to the time of the warrant application. Unlike the situation with the drugs, there was no indication that defendant had moved the weapons elsewhere and common sense does not compel a conclusion that the guns moved with the drugs. As a result, we conclude that the affidavit established probable cause to search for the weapons inasmuch as defendant, as a convicted felon (a fact stated in the affidavit), was barred from possessing these weapons, N.J.S.A. 2C:39-7b. Thus, the search warrant was valid with respect to the weapons.

During the execution of the search warrant on June 6, 2004, the AK-47 weapon was found under defendant's bed. A cash box containing $15,521 and wax packets used in packaging heroin was found "next to the nightstand" in defendant's bedroom. Clearly, the search under the bed was within the scope of the warrant as a place where weapons might be located. On the present record, we cannot say the same about the box. Prior to any retrial, if the State intends to use the contents of the box as evidence, the trial court will be required to conduct a hearing to determine if the box was in a location in which the officers might have reasonably expected a weapon to be found and was itself a container that might hold the described weapons. If not, the contents of the box will be suppressed and inadmissible.

IV

Defendant argues that it was reversible error to try the convicted-felon-in-possession charge before the same jury that had heard, and had been unable to reach a verdict on the drug charges, "incorporating" the testimony from the first proceeding into the second. We agree.

During defendant's trial on the CDS indictment, the jury heard from Detective Bodnar that he searched defendant's house and found an AK-47 rifle under his bed. The jury also heard defendant's audio-taped statement to police admitting that he had owned this rifle for approximately seven to eight months.

As noted, the jury eventually deadlocked on the CDS charges and the court declared a mistrial. Defendant then objected to proceeding on the firearm indictment using the same jury, arguing that he had "tried to avoid dealing with the weapons at all" during the CDS trial because the crime was not in issue. The court overruled defendant's objection, and ruled that the firearm indictment would be presented to the same jury that had heard the CDS indictment.

The court further ruled, again over defendant's objection, that the jury would be told that the evidence from the CDS trial would be incorporated by reference into the trial on the firearms offense. The court instructed the jury that:

You must disregard completely your prior deliberations and verdicts and consider anew, begin ultimately right from the very beginning of your deliberations, all the evidence that has been previously submitted to you in the charge of possession of the firearm by a previously convicted person.

The defendant is entitled to the presumption of innocence. Each and every material fact that makes up the crime, including obviously the element of possession, must be proven beyond a reasonable doubt.

After opening statements, the jurors were instructed that the evidence from the CDS indictment trial was incorporated by reference. Jurors were also instructed that the parties had stipulated that defendant had been convicted of two prior felonies. The State then rested and the defense put on no further evidence. Summations and the charge followed.

Defendant first argues that his Sixth Amendment right to confront the witnesses against him was violated by allowing the testimony of the CDS trial to be wholly incorporated into the unlawful weapons trial. This incorporation, he contends, effectively deprived him of the opportunity to contest the issue in the second trial. Defendant claims that the issue of possession of a weapon was not central in the CDS case and, therefore, he did not have a similar motive to contest evidence concerning the weapons at the CDS trial. Thus, defendant submits that the court erred by incorporating cross-examination from one proceeding into another proceeding, in violation of the Confrontation Clause. See State v. Allan, 283 N.J. Super. 622 (Law. Div. 1995) (holding that cross-examination in a suppression hearing insufficiently equates with meaningful cross-examination at trial). In sum, defendant argues that the fact that he did not strenuously contest the possession of a weapon in the CDS case should not be used as the equivalent of issue preclusion in the subsequent unlawful possession of a weapon case. Instead, he should have had the right to re-litigate ab initio and in front of a new, unbiased jury, the issue of whether he actually possessed the weapon in question.

The State argues that defendant's rights under the Confrontation Clause were sufficiently protected during trial, pointing out that defendant was given the opportunity to cross-examine both Investigator Morton and Detective Bodnar at his first trial, and was given the right to recall Bodnar to the stand during the weapons trial. Thus, the State submits that defendant's failure to fully cross-examine, despite being advised before the CDS trial that the two indictments would be tried by the same jury, should not be grounds for reversal. The State cites United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842, 98 L. Ed. 2d 951, 957 (1988), for the proposition that the Confrontation Clause "guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." The State submits that such a general opportunity to cross-examine all the relevant witnesses was provided in the instant case.

The discrepancy in the motivation to cross-examine between the two trials is indeed troublesome. Possession of the weapon was not central in the CDS trial, and the defendant is correct to note that the incorporation of the evidence from his CDS trial effectively foreclosed him from contesting the issue of possession at his weapons trial. However, the State is correct in its assertion that, at a minimum, the defendant had the opportunity to cross-examine any relevant witnesses. For reasons which follow, we have no need to resolve this aspect of defendant's argument.

Defendant readily admits that bifurcated trials are not uncommon in New Jersey, and are appropriate if utilized correctly. In the seminal case of State v. Ragland, 105 N.J. 189, 193 (1986), the Court held that when a defendant is charged at the same time with unlawful possession of a weapon and possession of a weapon by a convicted felon, the two charges must be tried separately. The Court explained that "proof that the defendant [is] a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former." Ibid. The State relies on Ragland for approval of the use of the same jury to try all of the indicted offense in two separate, consecutive trials. However, defendant counters that Ragland dealt with the "unique problem" of a defendant being charged with both unlawful possession of a weapon and possession of a weapon by a convicted felon. Ragland, supra, 105 N.J. at 193. Here, there was no conviction in the first proceeding on the unlawful possession count and defendant was only tried on the "convicted felon offense," making the present case factually distinguishable from Ragland.

Defendant argues that the court, over his objection, improperly allowed the same jury to hear both cases. First, defendant points out that he did not receive a separate trial concerning possession of the weapon before it was determined whether or not he was a convicted felon, as mandated by Ragland. He also notes that the jury determining whether or not he possessed the weapon did so in the same proceeding as where evidence was presented concerning his prior criminal convictions. Defendant asserts that "no case has ever permitted both of these issues to be decided at the same trial." However, defendant is wrong. In State v. Brown, 180 N.J. 572 (2004), the Court held that a sole count of possession of a weapon by a convicted felon may be tried without bifurcation of the elements of that offense.

Of greater concern is not whether Ragland was followed in this case, but rather whether Ragland was applicable at all under these facts. The State's reliance on Ragland for the proposition that the same jury should have been allowed to hear both cases is flawed since Ragland dealt with a specific scenario involving a defendant charged with both a "regular" weapons offense and "certain person's offense." Ragland, supra, 105 N.J. at 193.

Furthermore, the central concern of Ragland was to avoid the admission of prejudicial evidence against a defendant. Ragland, supra, 105 N.J. at 193. Defendant here claims that the jury in his CDS case was exposed to evidence concerning his alleged possession of drugs, possession of drug paraphernalia, possession of $15,000 in illegal proceeds, and alleged drug dealing. Indeed, the jury at defendant's second trial was directed to incorporate all of this seemingly irrelevant evidence into their consideration on the "new" weapons charge.

As defendant correctly notes, N.J.R.E. 403 and 404 generally prohibit the introduction of evidence of "other crimes" and prior criminal behavior by a defendant. It is widely recognized that the introduction of such irrelevant evidence "'can easily tip the balance against the defendant.'" State v. Hernandez, 170 N.J. 106, 123 (2001) (quoting Edward J. Imwinkelried, Uncharged Misconduct Evidence, 1 SUM Crim. Just. 6, 8 (1986)). This potential for undue prejudice is the reason why bad acts evidence is only admissible to show relevant facts at issue. See e.g., State v. Oliver, 133 N.J. 141, 151 (1993).

In the present case, the prior acts of the defendant in dealing drugs were in no way relevant to whether defendant possessed a weapon or had been convicted of a felony in the past. That evidence could only have been used to demonstrate defendant's propensity to commit crime, an impermissible purpose. See State v. Fortin, 178 N.J. 540, 616 (2004). These proofs had no probative value on the weapons charge. See State v. Younger, 305 N.J. Super. 250, 259 (App. Div. 1997).

"New Jersey adheres to the widespread view that other-crime evidence is highly inflammatory, having the 'unique tendency to turn a jury against the defendant. . . .'" State v. Hernandez, supra, 170 N.J. at 119 (quoting State v. Stevens, 115 N.J. 289, 302 (1989)). Here, defendant's attorney immediately recognized the prejudicial aspects of the incorporation of all the evidence from the CDS case and repeatedly objected:

Counsel: Judge, I think it would be totally inappropriate to use the same jury -

Court: Why?

Counsel: -to try these issues because this charge is obviously not a charge that was submitted to them in connection with this case, and only certain evidence can be admitted. The evidence concerning the drugs, the envelopes in my client's home, if there were separate trials, would have absolutely no relevance to the trial and would not be admitted.

Court: What does it have to do with this jury's ability to listen to the - to incorporate by reference the testimony about the weapon under the -?

Counsel: Because they already heard all of these other things.

Court: You think they would be unfairly prejudiced?

Counsel: Absolutely.

Compounding the prejudice in this matter is the fact that the defendant was not acquitted of the CDS charges by the first jury. Since a mistrial was declared, it is apparent that at least one juror was convinced beyond a reasonable doubt that the defendant was guilty of the drug charges. This fact highlights the danger of using the same jury and the same evidence to try two unrelated cases.

The State seeks to counter defendant's compelling arguments by relying primarily on Ragland and other factually inapposite cases that deal with multiple weapons charges. The State asserts that the specific dictates of Ragland concerning jury instructions were followed precisely by the trial court. Ragland, supra, 105 N.J. at 193. The State notes that the jury was specifically instructed to disregard their prior deliberations and consider the evidence anew. The court further instructed the jurors that evidence of defendant's prior crimes could only be considered by them "for the specific, narrow purpose" of determining whether the defendant was guilty of the certain persons offense. Finally, the State notes that the court instructed the jury that, "You may not use this evidence to decide the defendant has a tendency to commit crimes or that he is a bad person." But the reference in these instructions to defendant's prior crimes was clearly directed to his prior convictions, as reflected in his record, which was an element of the offense on trial. It did not deal with his alleged CDS related activity.

Ragland differs from the present case, and the use of the same jury here, along with the incorporation of all the evidence from the CDS trial, unfairly prejudiced the defendant. The trial judge did not give a limiting instruction regarding the jury's consideration of the evidence previously presented at trial on the CDS indictment. While defense counsel never requested such a charge, we believe that defendant's objection to the procedure employed sufficiently placed the court on notice of the need for a limiting instruction, thereby obviating a plain error analysis. In any event, the lack of the required "clear limiting instruction" regarding the prior bad acts of defendant was fatal to defendant's ability to have a fair trial. Thus, the failure of the trial judge to give such an instruction can be deemed to have been plain error since it was "clearly capable of producing an unjust result." R. 2:10-2.

Reversed and remanded for a new trial.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

It appears that the State voluntarily dismissed the weapon possession count of the CDS indictment (count four) because the weapon did not qualify as an assault weapon under the statute. The count charging unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f (count five) was also dismissed.

See State v. Robinson, 165 N.J. 32, 36-37 (2000) (in addition to evidence regarding firearm possession, jury heard evidence relating to four robbery charges); State v. Hooks, 350 N.J. Super. 59, 63 (App. Div. 2002) (in addition to evidence regarding firearm possession, jury heard evidence relating to defendant's kidnapping, sexual assault and robbery of eight victims).

(continued)

(continued)

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A-5207-04T1

March 13, 2007