Appellate Docket No.: A-2565-19
Decided June 10, 2022
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent consolidated unpublished opinion, the Appellate Division of New Jersey reversed defendant’s conviction because the testifying officer improperly promoted his credentials even though he was not there for an expert opinion, only a lay fact witness.
In State v. Green, A jury convicted defendant Imier I. Green of seventeen counts of drug possession and drug distribution offenses, including first-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1). The trial judge sentenced him to a mandatory extended term, N.J.S.A. 2C:43-6(f), of thirty years’ imprisonment subject to fifteen years of parole ineligibility. The jury acquitted defendant of second-degree possession of a firearm, N.J.S.A. 2C:39-4.1(a), and the State subsequently dismissed a charge of second-degree certain persons not to possess, N.J.S.A. 2C:39-7(b)(1). The judge merged related offenses. The trial took several days to complete; both the State and defendant presented witnesses.
The prosecutor extensively explored the witnesses’ prior training and experience over counsel’s objections. Sergeant Joseph Paglione of the Mercer County Prosecutor’s Office Special Victims Unit began by defining “spy bust” operations, and why he chose the surveillance location: “the drug dealer is not going to go out into the middle of the street and make a narcotics sale. He’s going to do it off to the side out of view . . . .”
Paglione also explained that “oftentimes, dealers will work with several individuals, either as lookouts or other dealers that they’re working with for whatever reason.” Paglione said that he and the other person in the police vehicle “heard surveillance . . . that they were observing what they believed to be a hand-to-hand transaction . . . .”
Paglione was extensively questioned about the motor vehicle stops that follow surveillance, including how police stop “buyers,” and “heroin users.” He stressed the importance of detaining the “buyers” at a distance from the “dealers.” Paglione was asked about his use of a bullet-proof vest during these operations. Defense counsel objected to some of his answers, but in the main, the objections were overruled.
Sergeant Joseph Angarone of the Mercer County Prosecutor’s Office Special Investigations Unit, the State’s narcotics expert, described indicators that a given suspect is distributing drugs rather than possessing for personal use over 21 pages of transcript.
During closing, the prosecutor connected Angarone’s extensive testimony regarding the drug trade in general to the surveillance by the officers. She specifically touched upon the testimony that “in the midlevel, they tend to have individuals that work with them, and it includes family members, juveniles.” The prosecutor asserted Robbins—who was only seventeen when the warrant was executed—worked for or with defendant. She described the surveillance officers’ observations of defendant “deal[ing] drugs to . . . Robert Baker who was in the green pickup truck, to . . . Forchetti who was in the white work[-]style van.” Defense counsel objected and moved for a mistrial. The judge denied the application, ruling that the prosecutor’s statements fell “squarely within the realm of fair comment . . . .”
Defendant appealed and the Appellate Division found the testimony was in violation of State v. McLean, overturning a conviction for impermissible expert testimony. The same applied here, especially to the extent the officers testified and the prosecutor linked the testimony to the facts of the case herein. Defendant was afforded a new trial.
This case is important to understand that officer’s testimony is usually required to convict a defendant, as they were the ones that make the observation, arrests, and reports leading to charges and eventually convictions. In order to do so, they must testify about what they saw heard and observed at the time. Officers can be proffered as experts, but they are usually not fact witnesses as well. Building up they’re background, experience, and other history of drug busts fell outside of the fact witness testimony, leading to the conviction being vacated.
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