STATE OF NEW JERSEY v. JENNIFER PEREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0261-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JENNIFER PEREZ,

Defendant-Appellant.

________________________________________________________________

Submitted March6, 2013 DecidedMay14, 2013

Before Judges Grall and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0846.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, and Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jennifer Perez appeals from the November 20, 2009 judgment of conviction of distribution of cocaine within 500 feet of public property, N.J.S.A. 2C:35-5(a) and 7.1, for which she received an extended term1 of eight years with four years of parole ineligibility. Defendant argues that the judge improperly allowed lay opinion testimony and admitted evidence of prior bad acts, which deprived her of a fair trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant and a co-defendant were charged in Middlesex County Indictment No. 08-05-0846 with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one). Defendant was charged alone in that indictment with third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count two), third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and 7 (count three), and second-degree distribution of cocaine within 500 feet of public property (count four). After defendant was convicted of all counts, the judge merged counts one, two and three into count four.

Defendant did not testify nor did she call any witnesses. The State's witnesses provided the following facts. At approximately 4:45 p.m. on April 16, 2008, New Brunswick Police Lieutenant Paul Schuster set up an undercover surveillance team in a downtown high drug area. Lt. Schuster had been in the department for thirty-six years, and in the narcotics squad since 1991. Lt. Schuster, who was using binoculars, observed what he believed to be two drug transactions between defendant and two pedestrians, during which defendant handed them a light-colored object from her mouth in exchange for cash. Defendant then walked to a pay phone across the street from Lt. Schuster's location.

Shortly after 5 p.m., defendant removed a small bag of suspected cocaine from her mouth and laid it under the pay phone. A driver picked up the bag and gave defendant cash and drove away. Back-up police cars lost the car in traffic.

Several minutes later the co-defendant approached defendant, who took another small bag from her mouth and put it under the pay phone. The co-defendant gave defendant cash and put the small bag in his right pants pocket. The back-up team chased the co-defendant who reached into his right pocket, grabbing the small bag, which fell to the street and was retrieved by the officers.

New Brunswick Police Officer Anthony Mark Abode approached defendant to arrest her and saw her swallow, as if swallowing a piece of gum. Defendant had more than $1000 in her possession. The small baggie from the co-defendant's pocket contained cocaine and DNA2 on the baggie matched defendant's DNA. The incident occurred within 1000 feet of two elementary schools and within 500 feet of the New Brunswick Fire Museum (a public building).

Defendant raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN ALLOWING LAY OPINION TESTIMONY WHICH INVADED THE FACT-FINDING PROVINCE OF THE JURY. (NOT RAISED BELOW)

POINT II: THE TRIAL JUDGE'S DECISION TO ADMIT TESTIMONY WHICH BOTH EXPRESSLY AND IMPLIEDLY REFERRED TO ALLEGED PRIOR BAD ACTS BY DEFENDANT, AND THE JUDGE'S FAILURE TO GIVE A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF A FAIR TRIAL.

A. THE TESTIMONY ABOUT DEFENDANT'S PRIOR BAD ACTS WAS NOT RELEVANT TO A MATERIAL ISSUE IN DISPUTE AND THEREFORE INADMISSIBLE UNDER RULE 404(b).

B. THE STATE DID NOT PROVE DEFENDANT'S ALLEGED PRIOR BAD ACTS BY CLEAR AND CONVINCING EVIDENCE.

C. THE PREJUDICIAL EFFECT OF THE ALLEGED PRIOR BAD ACT TESTIMONY SUBSTANTIALLY OUTWEIGHED ITS PROBATIVE VALUE.

D. THE LOWER COURT GAVE A WHOLLY INADEQUATE LIMITING INSTRUCTION AS TO THE PERMISSIBLE AND PROHIBITED USES OF THE RULE 404(b) EVIDENCE. (NOT RAISED BELOW)

I

In Point I defendant argues that certain police testimony should not have been admitted at trial. As defense counsel did not object when the testimony was presented, we review this argument pursuant to the plain error standard. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (alteration in original) (citations and internal quotation marks omitted).

Defendant asserts that Lt. Schuster, as well as other State witnesses, testified as to their belief that drug transactions had occurred based on observations of hand-to-hand exchanges between defendant and the co-defendant and at least three other people. Defendant argues that although the State's witnesses were fact witnesses, their testimony exceeded the boundaries of State v. McLean, 205 N.J. 438, 461-62 (2011). She argues that Lt. Schuster impermissibly testified that "in [his] opinion" defendant was selling cocaine, that he "suspected she was selling cocaine" and that she "took from her mouth what [he] believe[d] to be cocaine." Defendant argues that these lay opinions were improper in that they expressed a belief in defendant's guilt, and thereby "invade[d] the purview of the jury."

Experts have been permitted to testify about "the implications of observed behaviors[,]" "the roles played by multiple defendants in a drug distribution scheme" and they "may offer an opinion about the implications of the behavior that was observed by the fact witness." Id. at 460-61 (citations omitted). The police witnesses, however, were not qualified as experts. They were questioned about their length of service at the police department, not about their specific training or education. Therefore, the rules about expert testimony are inapposite.

N.J.R.E. 701 does permit lay opinion evidence under certain circumstances. Examples in which lay opinion has been deemed permissible include testimony about: the speed of a car, State v. Locurto, 157 N.J. 463, 471-72 (1999), the distance of a car from an intersection at the scene of an accident, State v. Haskins, 131 N.J. 643, 649 (1993) and behavior indicative of a person's state of intoxication, State v. Guerrido, 60 N.J. Super. 505, 509-11 (App. Div. 1960).3

Limitations have been placed on testimony offered by lay witnesses. "The Rule does not permit a witness to offer a lay opinion on a matter 'not within [the witness's] direct ken . . . and as to which the jury is as competent as he to form a conclusion[.]'" McLean, supra, 205 N.J. at 459 (alterations in original) (citations omitted).

In McLean, a police officer witnessed a defendant engage in behavior the officer believed to be a narcotics transaction, and the officer subsequently testified about this belief. Id. at 443. The Court found that the officer's opinion did not fulfill the necessary requirements to qualify as lay opinion, it "invaded the fact-finding province of the jury," and reversal of the defendant's conviction and remand was necessary. Ibid. When such testimony was offered, defense counsel objected strenuously. Id. at 446. Similarly, the defense objected when the officer referred to the defendant by name when responding to the prosecutor's hypothetical question. Ibid. Additionally, neither of the purported buyers from the two transactions the officer witnessed was found. Id. at 443-44.

The Court in McLean explained:

In short, the testimony of the police detective, because it was elicited by a question that referred to the officer's training, education and experience, in actuality called for an impermissible expert opinion. To the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury. In the final analysis, the approach taken to this testimony by the trial court and the Appellate Division would effectively authorize an officer both to describe the facts about what he or she observed and to opine in ways that we have precluded previously. We decline to permit the lay opinion rule to be so utilized.

[Id. at 463.]

The officers' testimony here also exceeded the bounds as outlined for lay witnesses in McLean. The officers opined that they observed suspected cocaine transactions even though what had occurred was not beyond the jury's understanding. Defense counsel, however, made no objection, and in fact elicited such testimony, asking, "And it's your testimony that -- that my client took a -- what you saw by way of binoculars a pack of cocaine -- right? -- from her mouth and gave to it [sic] that individual?" to which Lt. Schuster replied, "It was a small light colored object which I believed to be cocaine. Yeah."

According to McLean, if the officers testified to witnessing a hand-to-hand transaction without characterizing it as a narcotics transaction, the testimony would have been permissible. Id. at 460. ("Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag." (citation omitted)).

Had there been an objection, the judge undoubtedly would have stricken this opinion testimony of the officers and directed the jurors to disregard it. The State had not established a foundation -- personal knowledge -- essential to allow the detectives to give this testimony as fact witnesses. N.J.R.E. 602. The detectives were merely stating the conclusions they drew, lay opinions, based on what they had observed. The question of whether the events the detectives observed established a drug transaction was not a proper subject for lay opinion testimony. N.J.R.E. 701. Where the significance of a series of events "does not fall outside the ken of the jury," police officers may not state their opinion on what they observed. McLean, supra, 205 N.J. 461. Without court approval to testify as experts, police officers, like other lay witnesses, should be instructed to limit their testimony to matters about which they have personal knowledge.

Although the testimony was improper, its admission does not warrant reversal of defendant's conviction. In McLean, the Supreme Court focused on the impropriety of having an officer "opine on guilt[.]" Ibid. Here, defendant was not charged with any crime based on the observed behavior with the other individuals who were not arrested. The charges were based only on defendant's transaction with her co-defendant. The officers clearly delineated what they had actually seen and what they surmised. Thus, the inadmissible lay opinion testimony was incapable of suggesting either that the officers' opinions about defendant's actions were based on something the detectives knew but did not disclose to the jurors, or that the opinions were based on something inconsistent with the evidence presented. See, e.g., State v. Frisby, 174 N.J. 583, 593 (2002) (where inadmissible police opinion testimony as to the credibility of a witness was based on inadmissible hearsay that suggested facts inconsistent with what the officers knew to be true). Given the persuasiveness of the evidence of guilt, we are confident that this testimony was not capable of leading the jury to reach a result it would not have reached without this testimony. State v. Marshall, 123 N.J. 1, 125 (1991). The improper testimony was brief and given in passing. In contrast, the properly admitted testimony tending to establish possession and intent was strong. Moreover, because there was no objection from defense counsel, we can assume the attorneys for both defendants determined that any prejudice was insignificant. Id. at 104. Accordingly, reversal on this ground is not warranted. R. 2:10-2

Given the compelling evidence that defendant's DNA was found on the bag of cocaine discarded by the co-defendant, as well as the large amount of cash found on defendant when she was arrested, a new trial is not warranted under the plain error standard.

II

Although immediately prior to opening statements defendant sought to exclude mention in the State's opening argument of the other transactions that occurred prior to the exchange resulting in defendant's arrest, the judge allowed the State to discuss those transactions. Defense counsel, however, made no objection when Lt. Schuster testified to these prior transactions. In Point II of his brief, defendant argues that this evidence of "prior bad acts" should have been excluded and also argues that the judge did not give a proper limiting charge.

"[E]vidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not evidence of other crimes, wrongs, or acts." State v. Rose, 206 N.J. 141, 177 (2011) (citation and internal quotation marks omitted). Therefore, intrinsic evidence "to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the Rule 403 balancing test." Id. at 177-78. Pursuant to N.J.R.E. 403, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of [] undue prejudice . . . . Accordingly, "the trial judge must [] engage in a careful and pragmatic evaluation focusing on the specific context in which the evidence is offered by weighing its probative value against its apparent or undue prejudice." State v. Castagna, 400 N.J. Super. 164, 175 (App. Div. 2008) (citations and internal quotation marks omitted).

As defense counsel did not object when this testimony was offered, the trial judge did not have the opportunity to weigh the testimony of the earlier transactions. Most significantly, the trial judge gave a limiting instruction, telling the jury:

Now, you heard during the course of trial that there allegedly was some other transactions that may or may not have taken place. Miss Perez is not charged with any other allegation other than the one that I just read to you as it is contained in this indictment, so please do not take any other charges or any other information that refer to other transactions that may have taken place. Do not consider them during your deliberations.

Defendant's argument that this charge, to which defendant raised no objection, was inadequate is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).

A

1 Although granting the State's motion to sentence defendant to an extended term, the judge imposed a sentence within the ordinary range as is permitted. State v. Pierce, 188 N.J. 155, 169 (2006).

2 Deoxyribonucleic acid.

3 These examples, and additional cases are listed in McLean, supra, 205 N.J. at 457-58.