NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2656-12T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, September 21, 2016

v. APPELLATE DIVISION

BRIAN A. GREEN, a/k/a BRYAN GREEN, BRYAN A. GREEN, ANTHONY GREEN, DANNY GREEN,

Defendant-Appellant. ___________________________________

Submitted September 17, 2015 – Decided September 21, 2016

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-02-00124.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

HIGBEE, J.A.D. Defendant, Brian Green, appeals from his conviction for

possession of less than fifty grams of marijuana in violation of

N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense, and for

possession of more than one ounce but less than five pounds of

marijuana with intent to distribute in violation of N.J.S.A.

2C:35-5(b)(11), a third-degree offense. He further appeals from

his sentence of six years in State prison with three years of

parole ineligibility. Defendant raises the following issues on

appeal:

POINT I

THE STATE PRESENTED HIGHLY IMPERMISSIBLE EXPERT TESTIMONY THAT INFRINGED UPON THE JURY'S FACT-FINDING FUNCTION, AND DENIED THE DEFENDANT A FAIR TRIAL, NECESSITATING REVERSAL. U.S. CONST. AMEND. VI; N.J. CONST. ART. 1, PAR. 9. (PARTIALLY RAISED BELOW).

POINT II

THE STATE PRESENTED EVIDENCE THAT THE DEFENDANT POSSESSED BULLETS, WHICH WAS BOTH IRRELEVANT AND HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. (NOT RAISED BELOW).

POINT III

THE STATE PRESENTED IRRELEVANT AND MISLEADINGLY INCOMPLETE EVIDENCE TO THE GRAND JURY, NECESSITATING DISMISSAL OF THE INDICTMENT. (PARTIALLY RAISED BELOW).

POINT IV

2 A-2656-12T3 THE STATE VIOLATED THE BANKSTON DOCTRINE BY STATING IN ITS OPENING THAT THE POLICE HAD RECEIVED INFORMATION WHICH LED THEM TO BELIEVE THAT DRUGS WERE BEING SOLD AT THE SCENE OF THE SEIZURE, NECESSITATING REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 9.

POINT V

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

A. The Parole Disqualifier Is Disproportional, And Therefore Excessive.

B. The Court Erred In Imposing An Extended Term, Or A Sentence Above The Extended-Term Minimum.

In a supplemental pro se letter brief defendant raises the

following additional arguments: the identity of the confidential

informant who advised police that he had purchased drugs from

the defendant should have been disclosed; the affidavit in

support of the search warrant, which allowed the police to

search the defendant's home and automobile, was defective; and

it was error to merge the disorderly person conviction with the

third-degree conviction.

For the following reasons, we conclude the State's drug

expert's testimony invaded the fact-finding role of the jury.

Its admission at trial was plain error and we reverse and remand

for a new trial.

3 A-2656-12T3 The record discloses the following facts. The police

obtained information from a confidential informant that

defendant was selling drugs from a motor vehicle and his

residence. The confidential informant did not testify at trial,

and the court did not require the informant's identity be

disclosed as requested by defendant.

After obtaining a search warrant for the vehicle and

defendant's residence, the police stopped defendant and a co-

defendant in the vehicle and searched them. The search of the

automobile, defendant and co-defendant yielded no drugs or

contraband, but the police obtained keys to defendant's

residence. Several police officers went to defendant's

residence to perform the authorized search. They entered the

building through a door on the ground-level, which opened onto a

stairway. The officers ascended the stairs to enter the

residence. The layout of the second floor and the occupants of

each bedroom were the subject of substantial testimony at trial

because those facts implicated the critical issue of who

possessed the drugs the police seized from the dwelling.

The landlord, who operated a restaurant on the first floor

and owned the building, testified he rented four separate

bedrooms on the second floor to different individuals. He

4 A-2656-12T3 testified defendant, co-defendant Tristian A. Gooden,1 and Edward

K. Boyce2 rented three separate rooms and were still living in

the residence when the search took place. Each paid rent weekly

every Sunday. At one time, two other men lived together in a

fourth bedroom, but one left several months earlier. The other

stayed and paid the rent for some time, but then stopped. The

landlord was unsure if this man still occupied the room at the

time of the search.

The landlord testified the tenants shared a common hallway,

kitchen, bathroom, and hall closet. The second floor was

described during the trial as a residence, an apartment, and a

rooming house. Each tenant was charged and separately paid

rent.

The police officers who searched the premises testified

they found the doors to all rooms open and unlocked, except, for

what was described as bedroom number four, where they found

Boyce. According to the police, Boyce was the only person

present when they entered the living quarters. No drugs or drug

paraphernalia were found in his bedroom.

1 Gooden was charged with the same drug offenses as defendant and was tried with defendant. He was acquitted of all charges by the jury. He did not testify. 2 Originally, Boyce was charged but the charges were dismissed.

5 A-2656-12T3 In what was identified at trial as bedroom two, the police

found no sheets, pillows, clothing or personal items to suggest

the room was occupied. Under the bed, police found an "Ed

Hardy" bag, which contained "a large quantity of marijuana along

with individually packaged bags of marijuana and new and used

Ziploc bags used to package marijuana." The marijuana in the

"Ed Hardy" bag weighed 15.8 ounces. This was the largest cache

of marijuana found on the premises. Also found were loose,

unused, purple Ziploc bags and two bullets sitting on the

dresser.3

The landlord identified bedroom two as the room rented by

the man who stopped paying rent sometime before the search.

Defendant's witness, who identified herself as defendant's

girlfriend, testified this was defendant's room, although, the

landlord testified defendant had always occupied what was

designated as bedroom one and paid a slightly higher rent for it

because it was the largest.

3 Defendant was charged initially with possession of bullets, but those charges were dismissed. The bullets should not have been mentioned at trial, but Detective O'Brien briefly mentioned during his testimony he found some bullets in room two. Although improperly elicited by the prosecutor, this testimony was not sufficiently prejudicial by itself to warrant a new trial, but should be avoided in any retrial. The error adds to the cumulative effect of the other trial errors.

6 A-2656-12T3 In bedroom one, a wallet was found in the dresser

containing items with defendant's name on them and $377 in cash.

The room also contained a pink notebook, which had names listed

followed by numbers which appeared to be a ledger. The room

contained a refrigerator; the freezer section held seven one

gallon Ziploc freezer bags containing residue of a brownish

green plant. This substance was identified by the State's

chemist as marijuana residue. There was a box of unused clear

sandwich bags on top of the refrigerator. Finally, there was a

knotted plastic bag found containing 28.9 grams of marijuana.

In bedroom three, the search revealed an apparently

occupied room with a made bed, clothing, and other personal

items. There was testimony from the landlord that co-defendant

Gooden was living in room three at the time of the search.

In the dresser were various documents containing co-

defendant Gooden's name and a Ziploc bag containing several

small Ziploc bags. Hidden in the area between the drop ceiling

and the old ceiling was a digital scale, a box of clear sandwich

bags, and a bag holding plastic bags that contained a green

leafy residue. Another officer who created the evidence log

also identified plastic wrap found in room three.

The search did not reveal any items of interest in the

kitchen or bathroom; however, in the common hall closet there

7 A-2656-12T3 were two plastic bags holding 2.2 grams and 6.2 grams4 of

marijuana, respectively, as well as another digital scale.

At trial, the officers who conducted the search described

what they found in each room. The State presented expert

testimony from a chemist who testified all plant product and

residue was marijuana, and there was marijuana residue on one of

the scales. The State also called a narcotics expert to

describe drug distribution practices to the jury. The expert,

Detective Brendan Sullivan, gave his opinion on "intent to

deliver" versus "simple possession" of marijuana. Sullivan is

an employee of the Union County Prosecutor's Office and worked

for five years in the narcotics unit.

Sullivan told the jury he previously testified

approximately twenty-five times in court as an expert on

"whether a person possessed narcotics for distribution rather

than for personal use." Sullivan also stated he testified as an

expert on "narcotics use, packaging, and distribution." He was

asked if he ever declined a request to serve as an expert, and

he testified he had declined to testify previously on more than

one occasion, when asked by assistant prosecutors to render an

opinion in distribution cases. Sullivan stated he declined to

4 The exact quantity of marijuana found in each bag in the closet was described differently at times during the trial but the total amount never exceeded nine grams.

8 A-2656-12T3 render an expert opinion in those cases, because he determined

in those cases, after reviewing the State's files, the narcotics

possessed were for personal use.

Once qualified, Sullivan opined as follows in response to

the prosecutor's questions:

[PROSECUTOR]: Detective, at this time I'm going to place before you and the jury a hypothetical question and after the hypothetical question I will ask you certain general questions relating to the hypothetical question. Assume that a legal search had been executed on --

[CO-DEFENDANT'S ATTORNEY]: Objection, Your Honor.

[THE COURT]: It's not necessary for the -- for the opinion to -- to delve into whether or not a search was legal. Just go into the facts of the case. I'll sustain the objection. Rephrase the question.

[PROSECUTOR]: Assume that a search had been executed on an apartment. Assume that in one bedroom there was found a clear plastic bag with 28.9 grams of marijuana. In the same bedroom there was a wallet with $377 in it. The currency was in 22 1-dollar bills, 7 5-dollar bills, 10 10-dollar bills, 6 20-dollar bills, and 2 50-dollar bills.

Assume further that seven multi-colored gallon Ziplock bags with marijuana residue are found in the freezer in that room. Assume that a pink ledger with names and numbers and quantities are found in the room. Assume that two cell phones are found.

Now assume in a second bedroom in the same apartment hidden in a drop ceiling is

9 A-2656-12T3 found a Max 5000 scale, white shopping bags with marijuana residue in them, and green shrink wrap. Assume there were also found in this bedroom a package of numerous small Ziplock bags.

Assume that in an adjacent room which is open is found a black Ed Hardy bag with 15.8 ounces of marijuana packaged in a gallon bag similar to the 7 bags found in one of the bedrooms that contained marijuana residue and it also contains numerous small Ziplock bags.

Assume also that in a common closet in the hallway there is found a black bag that contained another Max 5000 scale together with numerous small Ziplock baggies. Assume in the same closet that the -- that 2 clear plastic bags containing 6.2 grams and 2.2 grams of marijuana is found. Also, assume that nothing else relevant to the search warrant is found in the --

[CO-DEFENDANT'S ATTORNEY]: Objection, Your Honor.

[THE COURT]: Sustained.

[PROSECUTOR]: I'm sorry.

[THE COURT]: Strike the last portion.

[PROSECUTOR]: Also assume that nothing else relevant is found in the apartment. Based on the facts I've given you in this hypothetical do you have an opinion as to whether --

[CO-DEFENDANT'S ATTORNEY]: The marijuana --

[PROSECUTOR]: Do you have an opinion as to whether the drugs that were found in the apartment were possessed for personal use or for distribution purposes?

10 A-2656-12T3 [CO-DEFENDANT'S ATTORNEY]: Objection. Intent to distribute.

[PROSECUTOR]: I'm sorry.

[THE COURT]: I'll allow the --

[CO-DEFENDANT'S ATTORNEY]: It's --

[THE COURT]: -- question as phrased.

[CO-DEFENDANT'S ATTORNEY]: Okay.

[PROSECUTOR]: Or intent to distribute.

[SULLIVAN]: Yes. It would be my opinion that possessors of these items -- given the totality of the circumstances the possessor of these items did in fact possess them with the intent to distribute them.

. . . .

[PROSECUTOR]: So based on all these factors you just mentioned, what is your opinion as to whether or not the drugs and paraphernalia found in this hypothetical apartment were for personal use or for possession with intent to distribute?

[SULLIVAN]: I completely am of the opinion that these -- this was possessed with the intent to distribute. And, furthermore, that this was a classic street level marijuana distribution operation.

The jury acquitted co-defendant Gooden and convicted

defendant of possession with intent to distribute marijuana.

N.J.S.A. 2C:35-5(b)(11).

On appeal, defendant first argues the admission of

Sullivan's testimony was "plain error." He asserts the

11 A-2656-12T3 testimony was prejudicial, crossed the boundaries established by

the Supreme Court for testimony by drug experts, and infringed

upon the jury's fact-finding function. Because defendant did

not raise this argument below, this issue is reviewed under the

"plain error" standard, which provides reversal is mandated only

for errors "of such a nature as to have been clearly capable of

producing an unjust result." R. 2:10-2. Accordingly, the test

to apply is whether the possibility of injustice is "sufficient

to raise a reasonable doubt as to whether the error led the jury

to a result it otherwise might not have reached." State v.

Macon,

(1971).

The Supreme Court recently addressed the struggle our

courts encounter governing the use of drug expert testimony. In

State v. Cain,

(2016), the Court explained

the role a drug expert plays in providing information about drug

distribution:

Experts can help jurors understand the indicia of a distribution operation, such as how drug traffickers package and process drugs for distribution. Experts can shed light on the significance of the quantities and concentrations of drugs, the value of drugs, the use of identifiable logos on drug packaging, and the function of drug paraphernalia, e.g., scales, baggies, and cutting agents.

[Id. at 426 (citation omitted).]

12 A-2656-12T3 Cain also underscored the need to assure drug expert

testimony did not intrude upon the jury's fact-finding,

explaining:

In State v. Odom,

(1989), we held that an expert witness in a drug-distribution case could testify to the ultimate issue of fact — whether a defendant possessed drugs with the intent to distribute. We cautioned, however, that the expert's testimony should not amount to a pronouncement of guilt. Allowing an expert to offer an opinion on a defendant's guilty state of mind in a drug case while prohibiting the same expert from offering an opinion on defendant's guilt are not easily reconcilable principles. In a series of cases since Odom, we have attempted to curtail the misuse of expert testimony that has intruded into the jury's exclusive role as finder of fact.

[Id. at 413.]

Previously, the Court suggested in Odom that one way to

prevent the intrusion into the jury's fact-finding role was to

use hypothetical questions, without a defendant's name and

without describing the crime in statutory language.

. In Cain, the Supreme Court, frustrated

by the misuse of these hypothetical questions, went further and

changed their long standing position, declaring:

We now join those jurisdictions that limit the scope of expert testimony in drug cases. Going forward, in drug cases, an expert witness may not opine on the defendant's state of mind. Whether a defendant possessed a controlled dangerous

13 A-2656-12T3 substance with the intent to distribute is an ultimate issue of fact to be decided by the jury.

[Cain, supra,

.]

We must determine whether this change as to what a drug

expert can opine was meant to be applied retroactively to this

case and others tried before Cain, pending on appeal. When

examining the retroactive effect of a new rule of law, the

Supreme Court has instructed:

This Court has four options in any case in which it must determine the retroactive effect of a new rule of criminal procedure. The Court may decide to apply the new rule purely prospectively, applying it only to cases in which the operative facts arise after the new rule has been announced. Alternatively, the Court may apply the new rule in future cases and in the case in which the rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth. A third option is to give the new rule "pipeline retroactivity," rendering it applicable in all future cases, the case in which the rule is announced, and any cases still on direct appeal. Finally, the Court may give the new rule complete retroactive effect, applying it to all cases, including those in which final judgments have been entered and all other avenues of appeal have been exhausted.

[State v. Knight,

(1996) (citations omitted).]

We can ascertain the Court did not intend to give the new

rule complete retroactive effect since the Court used the words

14 A-2656-12T3 "going forward," nor did the Court intend the new rule to be

applied purely prospectively, as the Court sent Cain back for

retrial.

. The question

before us is whether the second or the third option set forth in

Knight applies. We look to the Supreme Court's guidance in

State v. Earls

(2013) to answer this question.

The Court in Earls identified three factors to be evaluated

when considering whether a holding should apply retroactively:

(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.

[Id. at 590 (quoting

).]

We consider each of these factors in turn. As to the first

factor, the purpose of the new rule is to prevent drug experts

from intruding into the jury's exclusive province by expressing

an opinion, implicitly or explicitly, on defendant's guilt.

Applying the new rule to cases still on appeal would serve this

purpose.

As to the second factor, weighing the degree of reliance

placed on the old rule by those who administered it, since Odom

was decided in 1989, the Court reiterated a drug expert may not

15 A-2656-12T3 usurp the jury's function or opine on the guilt of defendants.

See

(explaining the Court "slowly

retreated from some of the broader implications of Odom"). The

clarification of that point now provided by Cain cannot be

deemed a surprise, considering the Court's prior discussions

criticizing drug expert opinions offered through the use of

hypothetical questions to uniformly track very specific facts

presented during trial. Although prosecutors have relied upon

their ability to use hypothetical questions, their reliance was

not entirely justified in view of the Court's pronouncements in

prior cases. In State v. Nesbitt,

(2006), the

Court disapproved of a hypothetical question saying, "Odom

should not be misconstrued to signal our willingness to accept,

carte blanche, the use of hypothetical questions asked of law

enforcement experts in all drug charge settings." In State v.

Reed

(2009), the Court cautioned prosecutors

and trial courts that "Odom's continued application is not

without boundaries." The "new rule" was imposed to prevent

circumvention of the existing law, that is to curtail drug

experts from opining on defendant's guilt.

As to the third factor, applying the rule retroactively

there is no evidence presented that it would unduly burden the

justice system. Cain does not impact decisions or actions that

16 A-2656-12T3 were already decided on appeal. It also does not impact

irreversible actions taken by law enforcement officers in

reliance on prior law. Nor does it require new Attorney

Guidelines. There will be no unfair prejudice to the State in

reversing cases pending appeal that involve improper

hypothetical questions. We routinely remand cases for new

trials where error has prevented defendants from receiving a

fair trial.

After analyzing the three factors set forth by the Court in

Earls, we conclude, unless we are instructed to the contrary,

the Court intended pipeline retroactivity to apply to the Cain

decision.

We further conclude that expert testimony in this case had

the clear capacity to cause an unjust result. As Justice Albin

wrote in State v. Simms,

(2016)

In State v. Cain,

(2016) we determined that in drug-distribution cases, an expert's opinion on the defendant's state of mind—whether the defendant possessed drugs with the intent to distribute—encroaches on the exclusive domain of the jury as trier of fact. . . .

Expert testimony that a defendant possessed a controlled dangerous substance with the intent to distribute is nothing less than a pronouncement of guilt by mimicking the statutory elements of the offense. Such testimony is not necessary to assist the jury. . . .

17 A-2656-12T3 We conclude that the admission of the expert testimony constituted plain error because it violated principles set forth in this Court's recent jurisprudence, including principles on which we further elaborated in Cain.

[(Citation omitted) (decided the same day as Cain.]

Here, we find "plain error," and particularly because the

question of whether Green had "intent to distribute" was based

solely on circumstantial evidence and not on any observed sale

of the marijuana, as the State did not call the confidential

informant as a witness.

Compounding the error, the State elicited testimony from

the expert that before the expert gives his opinions in

distribution cases, he reviews "the State's file and the facts"

and would not testify if he determined that the drugs were for

personal use. This improper buttressing informed the jury that

notwithstanding the hypothetical question, the expert had

predetermined the drugs were for distribution, not just

possession for personal use; a factual determination that rests

solely in the province of the jury.

For the reasons set forth above, we conclude defendant is

entitled to a new trial, but we briefly address one other issue

raised by defendant. In the State's opening, the jury was told

"the Plainfield Police Department . . . came upon information

18 A-2656-12T3 that led them to believe that there were drugs being sold"

(emphasis added) at defendant's residence. Defendant argues

this was improper as any such testimony would have been

inadmissible under State v. Bankston,

(1973). Bankston holds it is a violation of both the hearsay

rule and the Sixth Amendment for a police officer to testify

what he was told by some other unidentified person concerning a

crime being committed.

. We find the reference in

the State's opening about information received by the police

that drugs were being distributed from the premises troubling,

as did the trial judge who issued a cautionary instruction

advising the jury that opening statements are not evidence.

However, in light of our reversal, we need not determine whether

this statement constituted error or if any error was adequately

cured by the judge's instruction to the jury. Neither do we

need to address defendant's arguments as to sentencing. We find

the other arguments raised by defendant lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Reversed and remanded.

19 A-2656-12T3