NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2760-11T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, February 18, 2015

v. APPELLATE DIVISION

WASAN BROCKINGTON,

Defendant-Appellant.

______________________________________________________

Submitted June 3, 2014 – Decided February 18, 2015

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1136.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistance Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant appeals from his convictions and sentence for

various drug offenses. Among the issues raised is his challenge

to testimony that was admitted regarding suspected drug transactions that preceded the offenses for which he was charged.

We reverse and remand for a new trial.

I

Defendant was convicted on eleven counts that charged him

with third-degree offenses for possession of controlled dangerous

substances (CDS), possession with intent to distribute,

distribution, possession with intent to distribute within a school

zone, distribution within a school zone for both cocaine and

heroin, and conspiracy. The charges were based upon events that

occurred on May 22, 2010, after New Brunswick police set up

surveillance on Baldwin Street.

Defendant and his co-defendant, Kelvin Fitzpatrick,1 filed

several pretrial motions, including motions to compel the

disclosure of the surveillance position of the officers; suppress

defendant's statement; and sever the trials of the defendants.

Each of these motions was denied following a Rule 104 hearing.

Defendants also filed a motion to bar the State from

introducing "other crimes evidence" relating to uncharged drug

transactions, which included observations of Fitzpatrick engaging

in what was perceived to be six drug transactions in the weeks

prior to the date of arrest. The trial judge questioned defense

1 Fitzpatrick was jointly charged in counts one through eleven and separately in count twelve. 2 A-2760-11T2 counsel as to the scope of the relief requested. Counsel for the

co-defendant clarified that the evidence sought to be excluded was

"[a]ny observations that Sergeant Quick made allegedly to my client

making sales in this vacant lot to six people prior to May 22nd

. . . . Not what happened that day." The trial judge conducted

an analysis of the challenged evidence pursuant to State v.

Cofield,

(1992), and concluded that the evidence

of observations prior to May 22 would not be admitted in evidence.

Counsel for defendant subsequently asked whether the court's

order would also apply to "the six alleged transactions that []

Sergeant Quick testified that occurred, that he thought had

occurred that day, but he claims he couldn't see?" (emphasis

added). The judge responded, "They're coming in. He's going to

be able to testify as to his own personal observations and how he

got to and why he arrested and why he didn't arrest." Defense

counsel noted his objection, stating the evidence was

"substantially more prejudicial than it [was] probative" because

the actual transactions, which presumably occurred in the alley

out of Sergeant Quick's sight, were not directly observed and the

suspected buyers were not going to testify.

We summarize the testimony that was introduced pursuant to

this ruling:

3 A-2760-11T2 Sergeant John Quick was watching the area with binoculars

when, for ten minutes beginning at 11:00 a.m., he saw defendant

and Fitzpatrick engage in a series of six encounters with persons

whom Sergeant Quick "believe[d] to be suspected buyers" of CDS.

In each encounter, Sergeant Quick observed Fitzpatrick "meet with

a suspected buyer" and have "a very short conversation" that was

followed by a transfer of money from the suspected buyer to

Fitzpatrick. Sergeant Quick witnessed Fitzpatrick give "the

money" to defendant; defendant and "the suspected buyer" then

walked down a driveway, out of the sergeant's sight, for "seconds

to less than a minute." Sergeant Quick testified that this

sequence was repeated with a total of six suspected buyers over

the ten-minute period. He explained why he did not identify any

of the suspected buyers at this point:

I didn't keep track of that because at this point although I may have suspected there was illegal activity in that alleyway I didn't know what transpired there, so there were no arrests made.

[Emphasis added.]

Sergeant Quick then described transactions he observed:

Q. What did you see happen next?

A. I observed [defendant] give [K.C.] a bag of cocaine.

4 A-2760-11T2 Q. So you saw Mr. Brockington give [K.C.] cocaine on the sidewalk where the B2 is?

A. That's correct.

Q. What did [K.C.] do with the bag of cocaine?

A. He put that cocaine in his mouth.

. . . .

Q. So [K.C.] walked away off Baldwin Street after he put the cocaine into his mouth?

A. That's correct.

Q. You didn't arrest anyone at that point even though you had seen drugs exchange hands, correct?

A. That's correct.

Q. And explain to the jury why you didn't arrest anybody at that point.

A. Putting cocaine [in the mouth] is a common way for drug buyers to conceal evidence in the event the police get involved. It's hard to retrieve. Puts the officer's life in jeopardy. It puts the buyer's life in jeopardy trying to retrieve the cocaine from their mouth, so we don't generally -- we don't make an arrest in that situation.

. . . .

Q. After you saw [K.C.] walk down that driveway or alleyway off Baldwin Street did you see someone else

2 "B" represented the location on the map where the witness first saw defendant. 5 A-2760-11T2 approach Mr. Brockington and Mr. Fitzpatrick?

. . . .

A. It was an older male, button-down shirt and blue jeans. He walked up to [defendant], very short conversation, brief conversation, money was exchanged, and I saw [defendant] take a bag of heroin from his left pocket and hand it to this unknown suspected buyer. The buyer started to walk away towards Remsen Avenue, open the bag of suspected heroin and snorted the heroin from the bag.

. . . .

Q. And explain to the jury why you didn't make an arrest at that time.

A. At that point the evidence that was in that bag, suspected heroin, would be gone. We had no evidence at that point to substantiate the sale.

Q. After the older male snorted the heroin and walked away did you see someone else approach Mr. Fitzpatrick and Brockington?

A. Yes, I did.

[Emphasis added.]

Each of the transactions described above concluded without

any arrest or seizure of any drugs. There was no evidence

introduced to corroborate Sergeant Quick's characterization of the

items he observed as heroin or cocaine.

6 A-2760-11T2 Sergeant Quick then described another exchange that occurred

minutes later in which defendant gave a suspected buyer, later

identified as E.J., two bags of heroin and two bags of cocaine.

After this transaction, the officers arrested defendant,

Fitzpatrick, and E.J. Detective Rosario Maimone, the arresting

officer, testified that defendant ran into a driveway, threw down

a newspaper and returned to the officers, who handcuffed defendant

and retrieved the newspaper, which contained fifteen packs of

heroin. As Fitzpatrick was being arrested, defendant called out

that Fitzpatrick had "nothing to do with it, it's all my shit."

When arrested nearby, E.J. was found to be in possession of two

bags of heroin and two bags of cocaine.

Sergeant Quick was offered as a fact witness, not an expert

witness. Yet, the prosecutor elicited the following testimony to

buttress Quick's conclusions:

Q. And I just want to establish this for the jury. In the course of your career and approximately 3,000 investigations you're familiar with what cocaine looks like and the way it's packaged versus the way heroin looks and the way that's packaged?

A. That's correct.

Q. So you were confident at this point you had seen a transaction of cocaine and heroin to this suspected buyer?

A. That's correct.

7 A-2760-11T2 No limiting instruction was requested or given as to Sergeant

Quick's testimony regarding the encounters he described as drug

transactions that preceded the transaction for which defendant was

charged. To the contrary, the final instructions to the jury

included the following: "[I]f I gave a limiting instruction as to

how to use certain evidence that evidence must be considered by

you for that purpose only. That also was not a situation that

arose in the trial."

At trial, the State also called Lieutenant Daniel J. Muntone,

who testified as an expert in CDS packaging and distribution. The

hypothetical question posed to Lieutenant Muntone, ostensibly

pursuant to State v. Odom,

(1989), included three of

the uncharged encounters, which Sergeant Quick had acknowledged

could not be substantiated as drug sales:

At approximately 11 a.m. suspect one is approached by a potential buyer on the street. Suspect one speaks with the buyer for several moments, receives cash from the buyer, walks the buyer down the street towards suspect two and hands the cash to suspect two. Suspect two then walks down a driveway with the buyer for less than a minute outside the view of surveillance. Upon exiting the driveway the buyer walks away and the suspects return to their original locations. This conduct is observed six times.

At approximately 11:15 a.m. suspects one and two are approached by a potential buyer. Suspect two hands a suspended [sic] packet of heroin to the buyer and receives cash from the buyer. Suspect one stands nearby. The buyer

8 A-2760-11T2 places the heroin packet in his mouth and walks away.

Within a minute suspects one and two are approached by another potential buyer. Suspect two receives cash from the buyer and hands the buyer a bag of heroin. Suspect one is standing nearby. The buyer snorts the contents of the bag into his nose as he walks away.

The description in the hypothetical of these encounters in

which no drugs were recovered is identical to the following

description included in the hypothetical of the transaction

immediately preceding the arrest in which the drugs were seized,

tested and available as evidence:

Almost immediately thereafter suspects one and two are approached by another potential buyer. Suspect two hands suspected packets of heroin to the buyer in exchange for cash. Suspect one is standing nearby. The buyer places the heroin packets into a pocket. Suspect two is then observed spitting two packets of cocaine into his hand and giving them to the buyer. The buyer places these packets in his pocket and walks away.

In his summation, the prosecutor also presented Sergeant

Quick's uncorroborated opinions regarding the uncharged encounters

as facts:

What else did you hear? You heard Sergeant Quick and I think he testified pretty credibly about what he saw, what he didn't see. Right? He said he saw these six what he thought were transactions. This is a guy who sat here, he's told you he's been a part of 3,000 plus investigations. He told you he knows what he's looking for. He's not like you or I if

9 A-2760-11T2 we were out on Baldwin Street. We might not recognize a drug deal took place. He's out there. He said based upon my experience he thought those first six times when Fitzpatrick took the money, gave it to Brockington, I thought they were drug deals. You know what? I didn't order arrests at that time because I don't think we had evidence and because I didn't have any way to prove to a jury at some point that drug deals took place, so I waited, that's when I saw three additional times that man, Mr. Brockington, take drugs out of his pocket, give it to someone in exchange for money.

The jury convicted defendant of the eleven counts that charged

him with conspiracy and CDS offenses and acquitted him on a count

that charged him with resisting arrest.

The trial judge granted the State's motion for the imposition

of an extended term. After erroneously imposing two extended

sentences, N.J.S.A. 2C:44-5(a)(2), the judge granted defendant's

application for reconsideration and resentenced defendant to an

aggregate term of ten years, subject to a five-year period of

parole ineligibility.

II

Defendant appeals, arguing:

I. THE ADMISSION OF EVIDENCE OF BAD ACTS VIOLATED N.J.R.E. 404(b) AND DEPRIVED MR. BROCKINGTON OF HIS RIGHT TO A FAIR TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION WAS ERROR.

II. PROSECUTORIAL MISCONDUCT WARRANTS A REVERSAL OF MR. BROCKINGTON'S CONVICTIONS (Not Raised Below).

10 A-2760-11T2 III. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MR. BROCKINGTON'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNTS SEVEN, EIGHT, NINE, AND TEN, THE SCHOOL ZONE OFFENSES.

IV. THE TRIAL COURT ERRED BY RULING THAT THE STATE DID NOT HAVE TO DISCLOSE THE POLICE SURVEILLANCE LOCATION.

V. THIS MATTER MUST BE REMANDED FOR RESENTENCING.

In this appeal, defendant broadly challenges the admission

of evidence regarding those transactions as violating N.J.R.E.

404(b). It is not disputed that the trial judge did not conduct

a Cofield analysis as to whether these transactions were admissible

pursuant to N.J.R.E. 404(b). Rather, the State argues that the

trial court properly admitted the evidence of the exchanges on the

day of defendant's arrest under an N.J.R.E. 403 analysis because

it was relevant and intrinsic to the crime itself.

Sergeant Quick's testimony regarding the suspected

transactions prejudicially exceeded the bounds of permissible lay

opinion testimony. That prejudice was amplified by the use of

Sergeant Quick's conclusions in both the hypothetical question

posed to the expert and the prosecutor's summation. We therefore

agree that a reversal is required based upon the errors challenged

in Points I and II, and therefore do not address Points III and

V. After reviewing the arguments and record in light of the

applicable law, we are satisfied that the arguments raised in

11 A-2760-11T2 Point IV lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

III

We first consider whether Sergeant Quick's testimony, which

was replete with opinions that specific drugs were being exchanged,

fell within the permissible scope of lay witness testimony,

N.J.R.E. 701.

In State v. McLean,

(2011), a police officer who

conducted surveillance in a drug investigation testified about his

observations of what he characterized as "suspected hand-to-hand

drug transactions," referring as well to "suspected buyer[s],"

"suspected drugs," and a "suspected drug stash."

.

In reversing defendant's conviction, the Supreme Court clarified

the permissible scope of lay opinion testimony, specifically

addressing "whether a police officer, who observed [a defendant]

engage in behavior that the officer believed was a narcotics

transaction, should have been permitted to testify about that

belief pursuant to the lay opinion rule."

. Although

McLean was decided after the trial here was concluded, its

reasoning rests upon well-established principles that govern lay

opinion testimony and which are properly applied here.

As the Court observed, lay opinion testimony is governed by

N.J.R.E. 701, which permits a lay witness's "testimony in the form

12 A-2760-11T2 of opinions or inferences . . . if it (a) is rationally based on

the perception of the witness and (b) will assist in understanding

the witness' testimony or in determining a fact in issue." Fed.

R. Evid. 701 is similar to N.J.R.E. 701 in requiring that lay

opinion be rationally based upon the perception of the witness and

helpful to the trier of fact.3 Addressing the first requirement

that the opinion be rationally based upon perception, the Second

Circuit stated, "a lay opinion must be the product of reasoning

processes familiar to the average person in everyday life." United

States v. Garcia,

(2d Cir. 2005), cert. denied,

,

,

(2008).

It is evident the testimony here does not satisfy this

criteria. The average person cannot discern whether a package

contained heroin or cocaine based on no more than the observations

Sergeant Quick described. This is highlighted by the direct

examination, which established that Sergeant Quick was "confident

. . . [he] had seen a transaction of cocaine and heroin" based on

his three thousand prior investigations and familiarity with the

appearance and packaging of both heroin and cocaine.

3 In 2000, the federal rule was amended to provide that testimony cannot be received as lay opinion if it is based on "scientific, technical, or other specialized knowledge." See Fed. R. Evid. 701(c). 13 A-2760-11T2 In

the Court described "the boundary line that

separates factual testimony by police officers from permissible

expert opinion testimony" as follows:

On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. 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. Testimony of that type includes no opinion, lay or expert, and does not convey information about what the officer "believed," "thought" or "suspected," but instead is an ordinary fact- based recitation by a witness with first-hand knowledge.

[

(emphasis added) (citations omitted).]

The Court explicitly rejected the argument "that there is a

category of opinion that lies between [expert and lay opinions]

that authorizes a police officer, after giving a factual

recitation, to testify about a belief that the transaction he or

she saw was a narcotics sale."

. The Court reasoned

that such an approach would "transform[] testimony about an

individual's observation of a series of events . . . into an

opportunity for police officers to offer opinions on defendants'

guilt."

14 A-2760-11T2 The Court's explanation of why the testimony in McLean was

impermissible has resonance here:

[T]he police officer in this matter was not qualified to testify as an expert. As a result, the reference in the question to his training and experience, coupled with the request that he testify about his belief as to what had happened, impermissibly asked for an expert opinion from a witness who had not been qualified to give one. . . . [A]s we made clear in [State v. Nesbitt,

, 514- 16 (2006)], the implications of what he said he saw were not outside the common understanding of the jurors.

[Id. at 461-62.]

The testimony here exceeded the bounds of permissible lay

opinion testimony even more egregiously. Like the testimony in

McLean, the officer here was asked about his training and

experience in an apparent effort to proffer expert testimony from

a lay witness. But here, the officer not only described what he

suspected, he stated his conclusions of the specific drugs being

transferred, crossing the line from suspicion to fact, supported

only by his interpretation of what he had observed.4

Moreover, the prejudice created by this testimony did not end

with its admission. Rather, the prejudice was exacerbated by the

4 See State v. Sowell,

(2013) (finding improper an expert opinion that was not limited to the facts in a hypothetical but included the opinion that "an exchange of narcotics took place").

15 A-2760-11T2 inclusion of these inadmissible opinions as facts in both the

hypothetical to the expert and in the prosecutor's summation.

Expert opinion in cases like this is not objectionable "as

long as the expert does not express his opinion of defendant's

guilt but simply characterizes defendant's conduct based on the

facts in evidence in light of his specialized knowledge."

(emphasis added). The Court observed that,

"in proffering the opinion of an expert in this kind of case, the

hypothetical question should be carefully phrased to refer only

to the testimony and evidence adduced."

(emphasis

added). By including Sergeant Quick's unsupported conclusions and

placing them on a par with the drug transaction that led to the

arrest and seizure of drugs, the hypothetical blurred the

distinction between fact and opinion, and tainted the expert

opinion.

The prosecutor's treatment of this testimony in his summation

added further to the prejudice. After improperly vouching for

Sergeant Quick's credibility, see State v. Bradshaw,

(2008); State v. Frost,

(1999), the prosecutor

urged the jury to accept his opinions as fact, saying, "[h]e's not

like you or I," because after more than three thousand

investigations, Sergeant Quick "knows what he's looking for" and

he "thought they were drug deals." The prosecutor even elevated

16 A-2760-11T2 the lack of corroborating evidence to a virtue, stating Sergeant

Quick refrained from arresting defendant when he "didn't have any

way to prove . . . that drug deals took place" until he observed

three additional transactions.

We therefore conclude that the introduction of Sergeant

Quick's inadmissible opinion testimony was prejudicial to

defendant and that additional prejudice was caused by the State's

use of this evidence in the hypothetical to the expert and in

summation. We are convinced that the resulting prejudice deprived

defendant of a fair trial and that his convictions must be

reversed.

IV

We next turn to the question of whether, stripped of

impermissible opinion, testimony of the conduct observed by the

officer before the transaction that prompted defendant's arrest

would be admissible at his retrial. Our dissenting colleague

opines that, without proof the earlier encounters resulted in the

transfer of drugs, a principled analysis requires the exclusion

of such "other-crimes" evidence under N.J.R.E. 404(b). He further

concludes such testimony fails to meet the bar set in State v.

Rose,

(2011), for the admission of "intrinsic

evidence" under N.J.R.E. 403 and, in any case, its undue prejudice

substantially outweighs any probative value.

17 A-2760-11T2 Because the issue here concerns the admissibility of

uncharged bad conduct, we note the Court's instruction in Rose:

The threshold determination under Rule 404(b) is whether the evidence relates to "other crimes," and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403.

[Rose, supra,

(emphasis added).]

See also State v. Sheppard,

(App. Div.

2014) ("If it is intrinsic evidence, then N.J.R.E. 404(b) does not

apply because the evidence does not involve some other crime, but

instead pertains to the charged crime.").

Guided by the parameters of "intrinsic evidence" adopted in

Rose, we are satisfied that the observations of the officers prior

to the arrests constitute "intrinsic evidence" of the conspiracy

and possession with intent charges against defendant. Since the

evidence is properly subject to an analysis under N.J.R.E. 403 and

meets the criteria for admissibility under that rule, it is

unnecessary to consider its admissibility under N.J.R.E. 404(b).5

5 Both in the trial court and here, the State argued this evidence was admissible under N.J.R.E. 403, a position apparently accepted by the trial court. We do not construe the State's argument that the evidence is admissible under N.J.R.E. 403 to be a concession that the evidence would fail to meet the more rigorous standard for admissibility under N.J.R.E. 404(b). 18 A-2760-11T2 Our analysis begins with a review of the Court's decision in

Rose, which our colleague has described as jettisoning the concept

of res gestae and compelling the exclusion of the testimony at

issue. At the heart of the mischief caused by the res gestae

doctrine was the fact that it originated at a time when the law

on hearsay and its exceptions was undeveloped and uncodified, yet

continued to be relied upon as an independent basis for the

admission of evidence after these rules were adopted.

The codification of the Rules of Evidence channeled

admissibility questions into more precise analyses. In contrast,

res gestae was ambiguous, casting a wide net that included hearsay

statements "connected to an act because they were necessary in

order to understand the events and had an inherent guarantee of

trustworthiness."

. The doctrine

lent itself to misuse as "a convenient vehicle" for sidestepping

the hearsay rule to justify the admission of evidence that was not

otherwise admissible under the rules.

at 168 (quoting 2

McCormick on Evidence § 268, at 245 (Broun ed., 6th ed. 2006)),

172-74. In Rose, the Court was unequivocal in its rejection of

res gestae as a basis for admitting hearsay evidence:

[R]es gestae appears unnecessary as an independent doctrine for the admission of hearsay evidence. Certainly our prior case law has suggested that the codified rules were drafted to reflect the permitted uses of common law res gestae evidence.

19 A-2760-11T2 . . . Simply put, the hearsay exceptions provide a comprehensive and cohesive scheme for the permissible introduction of hearsay in our courts. . . . [H]earsay statements that do not conform to the exceptions specifically enumerated in the Rules of Evidence are not admissible.

[Id. at 174-75 (citations omitted).]

Historically, res gestae was also used as a means of admitting

"evidence of other acts." Id. at 172. In contrast to the death

knell Rose rung for the use of res gestae to admit hearsay evidence

not admissible under the rules, the Court drew a distinction

between evidence improperly admitted pursuant to an "enlarged"

version of the res gestae doctrine and "intrinsic evidence," a

concept which, the Court recognized, was difficult to identify but

should survive. Id. at 176-77.

Significantly, the Rose Court did not limit the admissibility

of uncharged bad acts to evidence that meets the Cofield test for

admissibility under N.J.R.E. 404(b). Instead,

[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." See 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239, at 445 (1978) ("One of the key words in determining the scope of Rule 404(b) is 'other'; only crimes, wrongs, or acts 'other' than those at issue under the pleadings are made inadmissible under the general rule.").

20 A-2760-11T2 Thus, evidence that is intrinsic to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the Rule 403 balancing test.

[Id. at 177-78 (emphasis added).]

The Court recognized the implications of subjecting such

evidence to the less rigorous standard of N.J.R.E. 403:

[C]haracterization of evidence as "intrinsic" significantly affects the calculus because the principle animating Rule 403 is that relevant evidence is admissible unless its probative value is substantially outweighed by a negative feature of the evidence, whereas Rule 404(b) operates from the premise that evidence of other bad acts is inadmissible unless proffered for a proper purpose.[6] It is therefore more likely that evidence of uncharged misconduct will be admitted into evidence if it is considered intrinsic to the charged crime and subject only to Rule 403 than if it is not considered intrinsic evidence and subject to both Rule 404(b) and Rule 403.

[Id. at 177-78.]

Moreover, the Court predicted that its holding would have

little impact upon evidentiary rulings:

"'As a practical matter, it is unlikely that our holding [adopting the doctrine of

6 Although the Rose Court noted that N.J.R.E. 404(b) "is often described as one of exclusion,"

, it instructed that N.J.R.E. 404(b) should not be regarded as "containing an exhaustive list of the non-propensity purposes permitted of other crime evidence," and further stated "there is no reason that our courts cannot allow, under our Rule 404(b), evidence to be admitted for a similar 'necessary background' or, as otherwise stated, 'the need to avoid confusing the jury,' non-propensity purpose,"

(emphasis added). 21 A-2760-11T2 intrinsic evidence in place of both res gestae and the inextricably intertwined doctrine] will exclude much, if any, evidence that is currently admissible as background or "completes the story" evidence under the inextricably intertwined test.'"

[Id. at 180 (quoting United States v. Green,

(3d Cir.), cert. denied, __ U.S. __,

,

(2010)).]

As the Court acknowledged, the term "intrinsic" is not easy

to define with precision. Id. at 178. To address this difficulty,

the Court adopted the test articulated in

, limiting "intrinsic evidence" to "two narrow categories

of evidence."

(quoting

). The first category applies to evidence that

"directly proves" the charged offense.

The operative factor

is whether the evidence has probative value as to the charged

offense. The Court explained,

This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime.

[Ibid. (quoting

- 49).]

The Court adopted Green's definition of the second category of

intrinsic evidence, stating "uncharged acts performed

contemporaneously with the charged crime may be termed intrinsic

22 A-2760-11T2 if they facilitate the commission of the charged crime."

(quoting

).

In our view, the observations of the surveillance officers

here fall within the first category of intrinsic evidence because

they "directly prove" the charged offenses. Such evidence, even

though inconclusive as to all the elements of the charged offenses,

is admissible because it has probative value as to one or more of

the statutory elements the State must establish beyond a reasonable

doubt.7 This principle is illustrated in the caselaw that has

drawn and refined the distinction between areas when expert

testimony is permitted and not allowed in drug cases.

"Courts widely agree that expert testimony about drug-trade

practices is admissible," State v. Summers,

(2003), because we expect jurors to lack the familiarity with such

practices that would allow them to intelligently assess the

7 Relevancy consists of probative value and materiality. Probative value "is the tendency of the evidence to establish the proposition that it is offered to prove." . . . Evidence need not be dispositive or even strongly probative in order to clear the relevancy bar. It "need only have some tendency to prove a material fact." The inquiry is "whether the thing sought to be established is more logical with the evidence than without it."

[State v. Buckley,

(2013) (citations omitted).]

23 A-2760-11T2 significance of facts in evidence. See

. Therefore, expert testimony is permissible "to inform

[the jury] about the nuanced techniques utilized by drug peddlers

who seek to shield themselves from liability by concealing or

obfuscating their drug possession and distribution activities."

.

In Sowell, the Court reviewed some of the topics considered

to be beyond the ken of laymen and thus an appropriate area for

expert testimony, such as: "how a person's actions fit into a drug

distribution scheme when the defendant had no personal contact

with the drugs or money exchanged,"

; "the roles that participants play in street-level drug

transactions, such as 'why drug dealers use juveniles as "mules"

to carry drugs,'"

(quoting State v. Berry,

(1995)); and "the difference between drugs possessed for

distribution as opposed to personal use, or how drug traffickers

package and distribute illegal drugs,"

See also

; State v. Walker,

(App. Div.) (expert permitted to testify regarding customs and

behaviors of drug dealers, including opining that defendant had

intent to distribute CDS based in part on fact doors were

barricaded), certif. denied,

(2006).

24 A-2760-11T2 However, consistent with the line of authority that includes

both Nesbitt and McLean, the Court observed, "the case law makes

clear that it is not proper to present expert testimony about

straightforward but disputed facts."

. In Nesbitt, the Court concluded there was no need for an

expert "to explain the straightforward manner" of transactions in

which a defendant was "observed directly handing something to the

alleged purchaser and receiving what appeared to be payment in

return."

; see also State v. Reeds,

(2009).

An example of this distinction is found in State v.

Baskerville,

(App. Div. 1999), certif.

denied,

(2000), which is cited with approval in

;

; and

Nesbitt, supra,

. The defendant in Baskerville was

charged with two offenses arising from a single transaction:

distribution of CDS and distribution in a school zone. Id. at

246-47. The State's proofs included both evidence of the

distribution that was the subject of the indictment and a

surveillance officer's observations of a similar prior, but

uncharged, transaction in which no drugs were recovered.

Baskerville and two other males were observed hanging about

a vacant lot when a female approached. After the female walked

25 A-2760-11T2 up to them and engaged in conversation, Baskerville walked away

to an automobile parked in the vacant lot. He bent down, reached

under the body of the vehicle and pulled out a brown paper bag.

Baskerville removed something from the bag, replaced the bag

underneath the car, and returned to the female. The officer

testified, "the female handed [Baskerville] what I believe was

paper money in exchange for whatever it was that he took from

under the car." Id. at 248. No arrests were effected at this

time; no drugs were recovered from any of the participants and

Baskerville was not charged with this suspected distribution.

Shortly thereafter, the officer observed a male approach

Baskerville and the two other males. Again, after a conversation,

Baskerville walked to the vehicle, reached up under the car to get

the bag, removed something from the bag and walked back to the

male who had approached him. The officer testified that "a similar

exchange took place where Baskerville received what I believed was

money from [the male], paper money in exchange for the item or

items that he had taken from within the bag." Ibid. After this

transaction, the police arrested Baskerville and the male. Nine

vials of cocaine were recovered from the male. Id. at 249.

Baskerville had $897 in cash but no drugs were found either on him

or near the car. Id. at 250.

26 A-2760-11T2 The State presented hypothetical questions to an expert

witness that incorporated the observations of Baskerville's

actions with the female as well as the transaction that immediately

preceded the arrests. Id. at 254-56. The expert witness opined

that both were sales of narcotics. Id. at 255-56. We concluded

that expert testimony regarding these transactions was "fatally

beyond the pale of the permissible." Id. at 257.

We observed that the fact testimony provided "factual details

and perceptions from which the jury could validly have inferred

that one or two incidents of drug distribution had occurred." Id.

at 262 (emphasis added). Although ambiguous, permitting

inferences of both guilt and innocence, the facts were

straightforward.

There was nothing arcane about the question before this jury: Did defendant distribute drugs or not? Apart from furnishing expert assistance in understanding the incidents of drug trafficking, the State was not entitled to give the jury a non-factual basis for reaching a verdict on this entirely factual question. The fact-witness testimony should have spoken for itself. In the State's attempt to fill the unmistakable gaps in that testimony, and to strengthen the obvious weaknesses of its case, the prosecution could not validly suggest, through its expert witness, stronger inferences regarding the ultimate question than the fact testimony itself would support. In doing so, the State added an irredeemable element of undue prejudice to the trial.

27 A-2760-11T2 In sum, on the simple--up or down--factual issue in this case, the jury needed no assistance from an expert witness. The testimony of the State's fact witnesses . . . was either adequate to lead to a guilty verdict or it was not.

[Id. at 263 (emphasis added).]

See also State v. Thompson,

(App. Div.),

certif. denied,

(2009).

Both the fact-witness testimony in Baskerville and the

observations of defendant's conduct at issue here were

inconclusive, containing "unmistakable gaps" in the proof that

drug transactions were consummated. Yet, those gaps did not render

the evidence inadmissible. Implicit in the conclusion that the

State was not entitled to introduce expert testimony to bolster

such evidence is the unchallenged premise that the State is

entitled to present evidence that permits inferences relevant to

the charged conduct though it falls short of conclusively proving

all the elements of a criminal offense. As we said, the fact-

witness testimony must speak for itself. The jury is not only

permitted, but entirely capable, to draw what inferences it deems

appropriate based upon the facts it finds have been proven. See

.8

8 We further disagree with our dissenting colleague that if this evidence is admitted, it should be subject to a limiting instruction that the jurors are not to draw any inference of guilt. 28 A-2760-11T2 Guided by these principles, we turn to the evidence here.

Sergeant Quick observed defendant and Fitzpatrick engage in a

pattern of behavior that was repeated several times within a

relatively short period on the day of their arrest. In each

encounter, Sergeant Quick observed Fitzpatrick have "a very short

conversation" with a third party that was followed by a transfer

of money from that person to Fitzpatrick, who gave the money to

defendant. Defendant then walked down a driveway with the third

party, reappearing less than a minute later. The officer also

observed three incidents in which a third party walked up to

defendant, engaged in a short conversation and handed defendant

money. Defendant then handed the third party an item. The last

of these incidents precipitated defendant's arrest and the

recovery of drugs from both defendant and the purchaser.

Defendant was charged with counts alleging that he conspired

with Fitzpatrick to possess the CDS and to possess CDS with intent

to distribute. He was also charged with substantive offenses of

possession with intent to distribute. Evidence that he and

Fitzpatrick were present at that location, meeting with a string

of individuals and apparently engaging in coordinated

transactions, was probative of his intent, an element that had to

The standard charge regarding jurors' role as finders of the facts is sufficient. 29 A-2760-11T2 be proven for the four counts that charged him with possession

with intent to distribute and possession with intent to distribute

in a school zone, as well as the conspiracy count.

Because the evidence serves to "directly prove" elements of

the charged offenses, it falls within the first category of

intrinsic evidence defined in

,

and adopted in

. See also United

States v. Gibbs,

(3d Cir. 1999), cert. denied,

,

,

(2000).

Accordingly, the evidence is subject only to a N.J.R.E. 403

analysis, and not an N.J.R.E. 404(b) analysis. See

; see also State v. Skinner,

, 517

n.5 (2014) (citing Rose, the Court observed that evidence "such

as an admission or details that . . . dovetail with the facts of

the case" constitutes direct proof of the charged offense, which

"should be analyzed for relevance under N.J.R.E. 401 and evaluated

under N.J.R.E. 403's standard for prejudice, and not the standard

for prejudice under a Cofield analysis").

The evidence here is clearly relevant to material facts at

issue in the determination of defendant's guilt on the charged

offenses. Therefore, the question is whether the evidence should

be excluded because "its probative value is substantially

outweighed by the risk of . . . undue prejudice," N.J.R.E. 403.

30 A-2760-11T2 Our colleague opines that the evidence must be excluded under this

test. We reach a contrary conclusion.

"'The mere possibility that evidence could be prejudicial

does not justify its exclusion.'" State v. Long,

(2002) (quoting State v. Morton,

(1998)).

Even when evidence is "highly damaging" to a defendant's case,

"this cannot by itself be a reason to exclude otherwise admissible

and probative evidence." State v. Frost,

(App. Div.), certif. denied,

(1990).

"'Evidence claimed to be unduly prejudicial is excluded only when

its "probative value is so significantly outweighed by [its]

inherently inflammatory potential as to have a probable capacity

to divert the minds of the jurors from a reasonable and fair

evaluation" of the issues in the case.'"

-64 (quoting State v. Koskovich,

(2001)).

Here, the testimony regarding defendant's earlier actions had

no "inherently inflammatory potential." The actions merely

mirrored the conduct that was the basis of the charges. The jury

could accept the testimony as proof of defendant's intent and

participation in a conspiracy or reject it as inadequate. The

evidence had no capacity to divert them from a "reasonable and

fair evaluation" of the issues. We therefore conclude that the

probative value of the evidence is not outweighed, let alone

31 A-2760-11T2 "significantly outweighed," by undue prejudice, and may be

admissible at the trial that follows.

Reversed and remanded. We do not retain jurisdiction.

32 A-2760-11T2 _____________________________________________________________

FISHER, P.J.A.D., concurring in part and dissenting in part.

I agree we must reverse and remand for a new trial because

Sergeant Quick was erroneously permitted to speculate that

defendant and co-defendant Kelvin Fitzpatrick engaged in unlawful

drug transactions within ten or so minutes before their arrest.

Our central disagreement, and the reason for my dissent, is that

my colleagues would, at the next trial, permit testimony about the

earlier events and only prevent the officer's expression of his

belief that drugs were then transferred. In other words, the

majority would permit a sanitized version at the next trial,

preventing the officer from saying, for example, he saw defendant

give one man "a bag of cocaine" and another "a bag of heroin." I

agree that State v. McLean,

(2011), compels that

result. But I disagree that any testimony about the earlier events

should be permitted or, at least, not without a cautionary

instruction that the jury not infer these earlier events

constituted unlawful drug transactions. By allowing a sanitized

version without cautionary instructions, the majority has

authorized the State to do indirectly what we are unanimous in

concluding it may not do directly. In short, the sanitized version

has little or no probative value and packs the same significant

prejudicial wallop that compels today's unanimous holding. To amplify, it is helpful to examine the application of the

Rules of Evidence to the testimony in question in both its

sanitized and un-sanitized form. Consideration must, of course,

start with the Supreme Court's jettisoning of the res gestae

doctrine in State v. Rose,

(2011). In "end[ing]

the practice of invoking 'res gestae' as an explanation for the

admission of evidence, in circumvention of the application of the

formal Rules of Evidence," ibid., the Court left no doubt that

testimony regarding a defendant's bad conduct may be admitted only

through application of N.J.R.E. 404(b) – if the bad act is "other"

than the charged offense – or through application of N.J.R.E. 401,

402 and 403 – if the proponent claims the testimony is "intrinsic"

to the charged offense,

.

The State does not argue in this appeal that Sergeant Quick's

testimony about the prior events constituted evidence of "other

crimes, wrongs or acts" admissible pursuant to N.J.R.E. 404(b).

Through this silence, we must assume the State concedes this

testimony could not be properly admitted pursuant to N.J.R.E.

404(b) and, indeed, the judge did not conduct a Cofield analysis

of this testimony.1 Accordingly, testimony regarding the earlier

suspected transactions, whether sanitized or not, is admissible

1 State v. Cofield,

(1992). 2 A-2760-11T2 only if it falls within the "intrinsic evidence" concept defined

in

.

As the Court recognized in Rose, what constitutes intrinsic

evidence was once thought to be that which was "inextricably

intertwined" with the charged offenses.

. Finding that

phrase unworkable, the Rose Court adopted a clearer definition by

following United States v. Green,

(3d Cir.),

cert. denied, __ U.S. __,

,

(2010),

in which the court "reserve[d] the 'intrinsic' label for two narrow

categories of evidence." The first category permits evidence that

"'directly proves' the charged offense," and the second consists

of "'uncharged acts performed contemporaneously with'" the charged

crime and which "facilitate the commission of the charged crime."

Id. at 248-49 (quoting United States v. Bowie,

(D.C. Cir. 2000)). Our Supreme Court obviously intended that

these categories be constrictively applied by describing "Green's

tight description of intrinsic evidence" as that which "narrows

the field of uncharged misconduct" excluded "from 404(b)'s

channeled analysis."

(emphasis

added).

In considering how these definitions have been applied in the

past, I would initially observe that Rose did not involve evidence

that was arguably intrinsic. There, the defendant was charged

3 A-2760-11T2 with a murder he arranged while in jail and "about to go to trial

on earlier charges that he had attempted to murder the victim."

. The Court considered "whether evidence of defendant's

previous indictment and incarceration on the pending attempted

murder charges was admissible in defendant's trial for murder,"

and concluded that N.J.R.E. 404(b) permitted its admission.

. The Supreme Court's disposition of the

appeal, therefore, did not require consideration of whether the

disputed evidence was intrinsic and, consequently, what is said

about intrinsic evidence may be fairly labeled dictum – but it is

dictum to which we must consider ourselves bound. See Lehigh

Valley R.R. Co. v. Chapman,

, cert. denied,

,

,

(1961); State v.

Breitweiser,

(App. Div. 2004), certif.

denied,

(2005).

Bowie and Green – the cases that informed our Supreme Court's

definition of intrinsic evidence – provide examples of how the two

slender categories are to be applied. In neither case was the

testimony in question found intrinsic.

In Bowie, the defendant was charged with possession of

counterfeit bills on May 16; at trial, the government was permitted

to show the defendant was in possession of counterfeit bills on

April 17.

. The court of appeals recognized the

4 A-2760-11T2 counterfeit bills the defendant possessed on April 17 could not

have been those he possessed on May 16 because the former were

seized by agents prior to May 16.

. And, because the

indictment only charged defendant with possession of counterfeit

bills on May 16, the evidence of possession of other counterfeit

bills on an earlier occasion was not intrinsic and was found to

be admissible only, if at all, as 404(b) "other crimes" evidence.

Green also provides a rather clear-cut example of the limits

of intrinsic evidence. There, in the course of committing a crime

for which the defendant was charged – attempted CDS possession

with the intent to distribute – the defendant also engaged in

communications regarding an attempt, for which he was not indicted,

to acquire dynamite to kill an undercover officer.

. The government sought admission of evidence

regarding the defendant's pursuit of dynamite on the ground that

it was "'intrinsic evidence' concerning the charged cocaine

offense."

. The district judge agreed and, therefore,

did not conduct a 404(b) analysis.

Recognizing this

evidence gave every appearance of being "inextricably intertwined"

with the evidence that was admissible to prove the charged offense

– because the conversations about both occurred at the same time

– the court of appeals came to the realization that the

5 A-2760-11T2 "inextricably intertwined" standard was "elusive and unhelpful."

. The court ultimately determined that its definition

of the two categories of intrinsic evidence, which our Supreme

Court adopted in Rose, led to the "straightforward" result that

"[e]vidence of Green's threat to kill [the undercover officer]

with dynamite was not intrinsic evidence" of the drug charge.

. That is, evidence of the attempt to procure dynamite "did

not directly prove that Green attempted to possess cocaine with

intent to distribute," and "it did not in any meaningful way

facilitate his attempt to procure cocaine . . . — the only crime

with which he was charged."

(emphasis added).

Here, the evidence in question – testimony that Sergeant

Quick observed what he only suspected were a half-dozen CDS

transactions within minutes before the acts charged in the

indictment – comes closer but, in my view, eludes Rose's

constricted definition of intrinsic evidence. Even on the ground

asserted by my colleagues – the earlier events were relevant in

proving defendant's intent, ante at __ (slip op. at 29-30) – it

is difficult to understand how, without proof CDS was exchanged,

the earlier events materially contribute to this element of the

offense; as already observed, Sergeant Quick conceded he had "no

evidence at that point to substantiate the sale[s]" he believed

he had witnessed were actually unlawful drug transactions.

6 A-2760-11T2 The second intrinsic evidence category permits the admission

of "'uncharged acts performed contemporaneously with the charged

crime [that] facilitate the commission of the charged crime.'"

(quoting

). The testimony in question does not fit this category. The

prior unsubstantiated transactions were not exactly

"contemporaneous," because they preceded the transaction that led

to defendant's arrest, although they were certainly close in time.

And, because nothing definite could be said about those events,

it cannot be said they "facilitate[d]" the crimes charged.

Green, upon which Rose relied, held the link between the challenged

evidence and the crime charged must be "meaningful."

. Because the officer conceded an absence of proof

as to what previously transpired, there is no meaningful link

between the testimony in question and the crimes charged.

Again, the State has not argued the testimony in question

qualifies as prior bad conduct admissible pursuant to N.J.R.E.

404(b), and I reject the argument that the testimony, whether or

not sanitized, qualifies as intrinsic evidence as defined by Rose

or the federal authorities upon which Rose relies. I do not think,

however, we need stray very far into these murky waters because,

even if the testimony is intrinsic, its prejudicial effect far

outweighs any probative value it may arguably possess.

7 A-2760-11T2 As observed earlier, even if the testimony were to invoke

consideration of N.J.R.E. 404(b), the trial judge did not perform

a Cofield analysis. If she had, a principled analysis would have

led to the exclusion of this testimony on that ground. Even

assuming the first two Cofield factors2 favored admission, the

third – "[t]he evidence of the other crime must be clear and

convincing,"

(internal quotation

and citation omitted) – cannot seriously be offered as support for

admission; Sergeant Quick acknowledged an arrest could not then

be made because, in his own words, he had "no evidence at that

point to substantiate th[os]e sale[s]." The position that these

earlier events were prior crimes – a position never urged by the

State in this appeal – is even less convincing when sanitized

because then the testimony will not convey – or at least should

not be permitted to convey – a venal connotation.

And, even if this testimony was either evidence of prior bad

conduct or intrinsic to the offenses charged, a factor common to

both analyses would preclude the testimony. That is, the fourth

Cofield factor – "[t]he probative value of the evidence must not

be outweighed by its apparent prejudice,"

(internal

2 The first and second factors require that "[t]he evidence of the other crime must be admissible as relevant to a material issue" and "similar in kind and reasonably close in time to the offense charged."

(internal quotation and citation omitted). 8 A-2760-11T2 quotation and citation omitted); see also State v. Skinner,

(2014) – is similar3 to the N.J.R.E. 403 balancing

test, and the application of the latter is, in the Rose Court's

words, a "most important[]" part of the intrinsic evidence

analysis. See

(recognizing that

whether evidence is intrinsic "lies in the cross hairs of the

intersection" of N.J.R.E. 401 and N.J.R.E. 402, and "most

importantly" invokes the balancing test set forth in N.J.R.E.

403). The probative value – if any – of the prior suspected drug

sales was far outweighed by the prejudice caused in allowing

Sergeant Quick to speculate about what he believed he witnessed

prior to the transaction that triggered the arrests. Accordingly,

the jury should not have been permitted to hear about these earlier

episodes. By precluding from the next trial Sergeant Quick's

speculation as to what he thought defendant and Fitzpatrick were

doing prior to the drug transaction that led to their arrest, any

probative value in that testimony is completely eliminated or, at

best, cognizable only through a most strained application of the

Rules of Evidence. To the extent any probative weight may be

3 See

(recognizing that the fourth prong of the Cofield test, which declares that the probative value of N.J.R.E. 404(b) evidence "must not be outweighed by its apparent prejudice," is "more exacting" than N.J.R.E. 403, "which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice"). See also State v. Sheppard,

(App. Div. 2014). 9 A-2760-11T2 assigned to the sanitized version, it is substantially outweighed

by the prejudice defendant will suffer by its admission.

In short, I am in agreement with the majority that the

admission of the un-sanitized version of Sergeant Quick's earlier

observations severely prejudiced defendant and warrants the

ordering of a new trial. I disagree that a sanitized version

changes anything. Indeed, the sanitized version is every bit as

pernicious because, in barring the officer's opinion about what

he believed he saw, it allows the jury to draw that same

conclusion; indeed, absent instructions, it is difficult to

imagine a jury would not assume exactly what Sergeant Quick

expressed during the first trial. Because the majority is not

mandating that the next jury be instructed not to draw an inference

that these earlier events constituted unlawful drug transactions,

then, frankly, we may as well affirm because the prejudicial error

we have identified will likely be repeated, only in a different

way, the next time.4

4 In a footnote, my colleagues mention that evidence which provides "'necessary background'" is admissible pursuant to N.J.R.E. 404(b), see ante at __ n.6 (slip op. at 21 n.6) (quoting

), but they do not hold – and, indeed, the State has not argued – that, when viewed as intrinsic, the testimony in question is admissible to provide context for other relevant evidence, to avoid confusing the jury, or to "complete the story." Were it otherwise, I would suggest the demise of res gestae, in Twain's words, was "greatly exaggerated."

10 A-2760-11T2 To summarize, I agree with my colleagues that the judgment

under review must be reversed and the matter remanded for a new

trial, but I disagree with and dissent from the majority's express

holding that a sanitized version of the earlier events may be

admitted at the next trial. And I disagree with and dissent from

the majority's holding that the judge need not instruct the jury

the next time that it must not infer defendant and Fitzpatrick

were previously engaged in unlawful drug transactions.5

5 Whether this separate opinion is properly labeled may be arguable. As stated, all panel members agree the judgment must be reversed and the matter remanded for a new trial. That might suggest I am merely concurring in the court's judgment. But we disagree on the content of our mandate because we disagree about what evidence may be admitted at that new trial or, if the evidence is admitted, what jury instructions are required as a result. In any event, what is or is not a dissent is ultimately a question for the Supreme Court, not us. Triffin v. Mellon PSFS,

(App. Div. 2004) (citing Stone v. Old Bridge Twp.,

, 115-16 n.2 (1988)). An Appellate Division judge is incapable of creating or preventing an appeal as of right to our Supreme Court, pursuant to Rule 2:2-1(a)(1), simply by the label affixed to a separate opinion. 11 A-2760-11T2