NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5276-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMINA LEWIS, a/k/a ANDRE A. LEIS, ANDRE A. LEWIS, ANDREW LEWIS, and JERMINE LEWIS,
Defendant-Appellant. ___________________________
Submitted September 23, 2019 – Decided December 17, 2019
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-12- 1187.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Charles A. Fiore, Gloucester County Prosecutor, attorney for respondent (Alec Joseph Gutierrez and Jonathan E.W. Grekstas, Assistant Prosecutors, on the brief).
PER CURIAM
Defendant, Jermina Lewis, appeals from the partial denial of a motion to
suppress evidence and from his ensuing trial conviction for possession of
cocaine with intent to distribute. Defendant contends that the drug evidence
seized from his car pursuant to a warrant should have been suppressed as the
fruit of the unlawful warrantless discovery of a firearm in the vehicle before it
was towed to a police impound lot. We affirm the denial of defendant's motion
to suppress because the police would have inevitably discovered the drug
evidence in defendant's car in the course of executing a search warrant the police
intended to apply for before the police discovered the firearm.
Defendant also contends for the first time on appeal that the State's expert
on narcotics trafficking improperly testified as to defendant's intent to distribute
the cocaine, violating a new rule of law announced in State v. Cain, 224 N.J.
410 (2016). We affirm the jury's guilty verdict because the erroneously admitted
expert opinion, viewed in context with the State's other proofs and the defense
asserted at trial, was not of such a nature as to have been clearly capable of
producing an unjust result. R. 2:10-2.
A-5276-16T4 2 Although not raised to our attention by either party, we have determined
that defendant's conviction for possession of cocaine should have been merged
into his conviction for possession of that same cocaine with intent to distribute.
We therefore remand to the trial court to merge defendant's convictions on the
drug offenses and enter an amended judgment of conviction.
I.
A grand jury returned an indictment charging defendant with second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree
possession of a weapon during the commission of a drug crime, N.J.S.A. 2C:39 -
4.1(a); third-degree unlawful possession of a controlled dangerous substance
(cocaine), N.J.SA. 2C:35-10(a)(1); and second-degree unlawful possession of a
controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A.
2C:35-5(b)(2).
Defendant moved to suppress the firearm and drugs. After conducting an
evidentiary hearing, the trial court granted defendant's motion to suppress the
firearm but denied defendant's motion to suppress the drug evidence.
At defendant's first trial, the jury was deadlocked, resulting in a mistrial.
A new trial was convened, and the jury convicted defendant of unlawful
possession of cocaine and possession with intent to distribute.
A-5276-16T4 3 The trial judge sentenced defendant to one year in prison for unlawful
possession of cocaine and five years in prison for unlawful possession of cocaine
with intent to distribute. The judge ordered both terms of imprisonment to run
concurrently.
Defendant on appeal contends that:
POINT I
THE COCAINE SEIZED SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.
POINT II
DETECTIVE HENRY'S EXPERT TESTIMONY AS TO DEFENDANT'S STATE OF MIND CONSTITUTED PLAIN ERROR.
II.
We first consider defendant's argument that the drugs seized from his car
pursuant to a search warrant should have been suppressed as a "fruit of the
poisonous tree." The pertinent facts presented at the suppression hearing follow.
At around 10:30 p.m. on August 5, 2013, Officer William Donovan
observed defendant's motor vehicle travelling above the speed limit and
swerving between lanes of traffic. Donovan activated his mobile video recorder
(MVR) and ordered defendant to pull over. Donovan approached defendant's
A-5276-16T4 4 car from the passenger side while using his flashlight to inspect the interior of
the vehicle for weapons. Donovan did not observe any objects resembling a
handgun.
As Donovan approached the vehicle, he smelled the odor of raw marijuana
emanating from the interior through the open front passenger window. During
the course of questioning, Donovan advised defendant that he detected the odor
of raw marijuana. Defendant responded that he had smoked marijuana earlier
that night.
Donovan asked defendant to step out of the vehicle. The officer observed
defendant alternate between touching his right front pants pocket and placing
his hands within his pants pockets. Donovan asked defendant whether he was
carrying any contraband. Defendant admitted that he had marijuana in his
pocket.
Donovan placed defendant under arrest and conducted a search of
defendant's person incident to the arrest. That search revealed a large fold of
cash in defendant's back pocket, as well as a large amount of cash in defendant's
wallet. In total, Donovan found $4993 on defendant. Donovan administered
Miranda1 warnings, and defendant expressed his willingness to answer the
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-5276-16T4 5 officer's questions. Defendant explained that the cash was for his college
tuition. Defendant denied that there was additional contraband in his vehicle
and refused to consent to a search of the vehicle.
Donovan requested a K-9 unit be dispatched to the scene of the arrest.
Officer Jeff Leach and two other officers arrived as backup while Donovan was
waiting for the drug detection canine to arrive. Donovan advised Leach that he
had discovered marijuana in defendant's possession and had placed defendant
under arrest.
The drug detection canine inspected the exterior of defendant's vehicle
and alerted to the presence of narcotics. Donovan then requested a tow truck to
transport defendant's vehicle to the police impound lot. Donovan testified that
he intended to apply for a warrant to search defendant's vehicle.
Donovan transported defendant to police headquarters, leaving Leach and
the K-9 officer to watch over defendant's vehicle until the tow truck arrived.
Leach decided to inspect the interior of defendant's vehicle to confirm that
defendant had not taken his keys with him to police headquarters. As he
approached the vehicle from the passenger side, Leach shined his flashlight at
the steering wheel and observed the keys in the ignition. Leach testified that he
then conducted a "random scan" inside defendant's vehicle and observed the grip
A-5276-16T4 6 of a handgun protruding from the rear pocket of the driver's seat. Leach testified
that the grip was protruding approximately two to three inches from the pocket.
Leach contacted Donovan and told him that he had located a firearm in
defendant's vehicle.
Donovan prepared the search warrant affidavit before the end of his duty
shift at 6:00 a.m. He later applied for the search warrant during business hours.
The affidavit in support of the search warrant included information that a firearm
had been located in the vehicle, as well as information pertaining to the
discovery of the marijuana, the positive indication for narcotics by the drug
detection canine, and the large amount of cash. The search warrant application
was granted, and the ensuing search uncovered 96.4 grams of cocaine in a
backpack located on the rear seat of the vehicle. The search also uncovered a
digital scale in the glove box.
The trial judge found Donovan to be a credible witness. In contrast, the
judge questioned the testimony regarding the discovery of the firearm,
prompting the judge to suppress the weapon. 2 The judge nonetheless found that
2 The State did not seek leave to appeal the suppression of the firearm, either on the grounds that it had been lawfully discovered or that, despite its unlawful discovery, it should have been admitted under the inevitable discovery doctrine. See State v. Sugar, 100 N.J. 214 (1985) (Sugar II) (recognizing the inevitable (continued) A-5276-16T4 7 the cocaine and digital scale were admissible, reasoning that if information
about the firearm were redacted from the search warrant application, the
remaining portions of Donovan's affidavit still established probable cause to
believe that controlled substances would be found in the vehicle.
III.
When reviewing a motion to suppress evidence, we accept the factual
findings made by the trial court "provided those factual findings are 'supported
by sufficient credible evidence in the record.'" State v. Smith, 212 N.J. 365, 387
(2012) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "In considering the
legal conclusions to be drawn from those facts, our review is de novo." Ibid.
(citing Handy, 206 N.J. at 45).
The critical issue before us is whether the discovery of the cocaine and
digital scale is the fruit of the unlawful discovery of the firearm. There is no
doubt that the discovery of the firearm preceded the application for the search
warrant and the ensuing discovery of the drugs and scale. However, the "fruit
of the poisonous tree" doctrine recognized in Wong Sun v. United States does
not automatically mandate the suppression of all evidence found subsequent to
discovery doctrine and setting forth its application in New Jersey). Nor has the State filed a cross-appeal. Accordingly, the trial court's decision to suppress the firearm is not before us. A-5276-16T4 8 an unlawful search or seizure. 371 U.S. 471, 487–88 (1963). As the New Jersey
Supreme Court explained in Smith, "[t]he exclusionary rule is not monolithic
and inexorable." 212 N.J. at 389. Rather, "[c]ase law has developed certain
exceptions to the exclusionary rule, in recognition of the fact that if exclusion
in a particular instance will not further purposes of the exclusionary rule, there
is no reason for the courts to apply it." Ibid. (citing Nix v. Williams, 467 U.S.
431, 443 (1984)). This case calls upon us to consider one of those exceptions —
the "inevitable discovery doctrine."3
Before we examine the material elements of that exception, and to lay a
foundation for applying those elements to the case before us, we first consider
how to address the taint of the unlawful discovery of the firearm on the search
warrant. We agree with the trial court that the appropriate manner of addressing
the unlawful discovery of the firearm was to suppress that object and disregard
all information concerning it in Officer Donovan's affidavit when determining
whether the affidavit established probable cause for the search of the vehicle.
3 In view of our holding that all of the requirements of the inevitable discovery doctrine have been satisfied, we need not address whether the cocaine and digital scale would also have been admissible under the conceptually related independent source doctrine. See generally State v. Holland, 176 N.J. 344 (2002) (embracing the independent source doctrine applied in Murray v. United States, 487 U.S. 533 (1988)).
A-5276-16T4 9 See State v. Hunt, 91 N.J. 338, 349–50 (1989) (holding that "lawfully obtained
information in . . . affidavits upon which . . . warrants were based justified their
issuance" notwithstanding that the affidavits also contained information from
unlawfully obtained telephone toll records).
We also agree with the trial judge that after excising all information
concerning the firearm, the remaining information in Donovan's affidavit —all
learned prior to the unlawful discovery of the firearm—established the probable
cause needed to issue a warrant to search defendant's vehicle. See State v.
Johnson, 120 N.J. 263, 290 (1990) (holding evidence seized during search
pursuant to invalid consent was admissible under the inevitable discovery
doctrine because police were preparing affidavit in support of the search warrant
based upon pre-existing probable cause that would have inevitably led to the
discovery of the contested evidence).
We turn next to whether the State has satisfied all of the prerequisites of
the inevitable discovery doctrine. The leading cases in New Jersey are Sugar II,
and State v. Sugar, 108 N.J. 151 (1987) (Sugar III). Under this exception to the
exclusionary rule, the State must show by clear and convincing evidence that:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of
A-5276-16T4 10 those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[Sugar II, 100 N.J. at 238.]
As to the first enumerated element, it is clear that Officer Donovan was
pursuing proper, normal, and specific investigatory procedures throughout his
investigation, culminating with his application for a warrant. This was not a
situation such as the one presented in State v. Keaton, where the inevitable
discovery doctrine was deemed inapplicable because there was "no evidence to
suggest that the police intended to impound or inventory [the] defendant's
vehicle." 222 N.J. 438, 451 (2015). Here, the decision to impound the vehicle
was made before the firearm was unlawfully discovered. Indeed, the firearm
was discovered while officers were waiting for a tow truck to arrive to take the
vehicle to a police impound lot. The vehicle was being impounded, moreover,
for the purpose of facilitating a search pursuant to a warrant. 4
4 We note that the search in this case occurred before State v. Witt, 223 N.J. 409 (2015), was decided and at a time when reliance on the automobile exception to the warrant requirement was problematic under the exigency test described in State v. Pena-Flores, 198 N.J. 6 (2009), abrogated by Witt, 223 N.J. at 450. "[O]ne of the unintended consequences of Pena-Flores," the Court noted, "is the exponential increase in police-induced consent automobile searches." Witt, 223 N.J. at 415. A-5276-16T4 11 Although the application for the warrant was not made until the following
day, Donovan testified that he had decided to apply for a search warrant before
the firearm was discovered by Leach. The trial court found Donovan's testimony
to be credible, and we have no reason to question that finding. See Smith, 212
N.J. at 387. Accordingly, the first element of the three-part inevitable discovery
exception has been established, applying the clear and convincing standard
required under the New Jersey Constitution. Sugar II, 100 N.J. at 240.
With respect to the second element enumerated in Sugar II, as we have
already noted, the search warrant would have been issued even without the
information concerning the unlawfully discovered firearm. In this instance, we
need not speculate as to whether the pursuit of the investigative procedures
would have resulted in the discovery of the evidence because the execution of
the search warrant revealed the cocaine in the backpack on the rear seat and the
digital scale in the glovebox.
Finally, we address the third element of the inevitable discovery
exception. We conclude that the discovery of the cocaine and digital scale was
independent of the unlawful discovery of the firearm, as shown conclusively by
Donovan's decision to apply for the warrant before Leach informed him of the
handgun. Furthermore, as we have already noted, the search warrant was
A-5276-16T4 12 lawfully issued based on probable cause learned before—and thus independent
of—the unlawful discovery of the firearm.
In sum, having established all three elements by clear and convincing
evidence, the State has met its heavy burden under the inevitable discovery
doctrine. Accordingly, we affirm the trial court's denial of defendant's motion
to suppress the drug evidence seized from his motor vehicle.
IV.
A.
We next turn to defendant's contention that he is entitled to a new trial
because the State's expert witness testified improperly as to defendant's state of
mind, that is, his intent to distribute the cocaine. We begin by recounting what
happened at trial in this case.
The State called Detective Deon Henry as a law enforcement expert in the
field of drug trafficking. Henry testified that the street value of cocaine can
vary, but a common street price is $100 for a gram and $1100 for an ounce.
Henry testified that cocaine users typically consume between one to five "dime"
bags per day. A dime bag, Henry explained, weighs approximately .3 grams.
Henry also testified that it is typical for drug distributors to carry a large amount
of cash.
A-5276-16T4 13 The prosecutor then posed the following hypothetical question:
[I]n your opinion, based upon your knowledge, your training and experience in Gloucester County, if a person is traveling in a vehicle with approximately 96 grams or over three ounces of cocaine, they also have a digital scale and a large amount of cash.
Would you believe that the person had that cocaine to use it personally or for distribution purposes?
Henry responded, "I would believe that the individual possessed that cocaine
with the intent to distribute."
To put Henry's expert testimony in context for purposes of this appeal, we
also summarize defendant's trial testimony. Defendant elected to testify and
explained to the jury that his sister had borrowed his car for two days prior to
his arrest. Defendant testified that he took a taxi to his sister's home, located his
vehicle, and drove it away using a spare key that he kept with him. He denied
owning the backpack and testified that he did not see the backpack in the car
before driving off. He denied that he had seen the cocaine in the backpack. He
also denied that he owned the scale in the glove compartment.
Defendant further offered an explanation for the large amount of cash he
was carrying. He testified that after retrieving his vehicle, he went to see his
mother, who had recently traveled from Jamaica with money for defendant's
college costs and back rent that he owed. Afterwards, with the money his mother
A-5276-16T4 14 gave him in his possession, he began his return trip home during which he was
stopped by Officer Donovan.
B.
In Cain, our Supreme Court imposed significant new restrictions on the
use of law enforcement expert testimony in drug prosecutions. The Court
recognized that expert testimony can be valuable to jurors in explaining the
modus operandi of drug traffickers, observing that:
[t]he average juror is not knowledgeable about the arcana of drug-distribution schemes. Law enforcement officers with extensive training, education, and experience of the drug world have specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue. 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. Experts may also provide insight into the roles played by individuals in street-level drug transactions and into the various machinations used by drug dealers to thwart detection.
[Cain, 224 N.J. at 426 (internal citations and quotation marks omitted).]
The Court nonetheless emphasized the need to ensure that expert
testimony does not intrude upon the jury's fact-finding role. Id. at 427. Under
A-5276-16T4 15 prior case law, an expert could "testify to the ultimate issue of fact—whether a
defendant possessed drugs with the intent to distribute." Id. at 413 (citing State
v. Odom, 116 N.J. 65, 80-81 (1989)). This was typically done through the use
of thinly veiled "hypothetical" questions that allowed the prosecutor to
summarize the State's case by incorporating detailed "assumptions" into the
hypothetical question. The Court in Cain expressed concern about the misuse
of such hypothetical questions, including the remarkably detailed hypothetical
question in that case that spanned three pages of trial transcript. Id. at 414.
Based on those concerns, the Court decided to change course, abrogating its
decision in Odom and providing new limitations on the scope and format of law
enforcement expert testimony about drug trafficking. Id. at 429.
Notably, Cain flatly prohibits prosecutors from eliciting an expert's
opinion as to the defendant's state of mind, that is, whether the defendant
possessed the drugs involved in the case with the intent to distribute as distinct
from possessing the drugs for personal use. Ibid. The Court issued a clear and
definitive new rule, holding that "[g]oing forward, in drug cases, an expert
witness may not opine on the defendant's state of mind. Whether a defendant
A-5276-16T4 16 possessed a controlled dangerous substance with the intent to distribute is an
ultimate issue of fact to be decided by the jury." 5 Ibid.
The State on appeal acknowledges that Henry's expert testimony is
prohibited in light of Cain. Although both parties agree that it was error to allow
Henry to opine about defendant's state of mind, 6 the fact remains that defendant
did not object when Henry offered his expert opinion. That is understandable
in that the question the prosecutor posed and Henry's answer were deemed to be
5 In State v. Hyman, 451 N.J. Super. 429 (App. Div. 2017), we rejected the defendant's argument that Cain prohibits an expert from opining on a defendant's state of mind in the sense of what the defendant intended by using particular words or phrases when conversing with others. Id. at 452–53. We held that Cain does not preclude an expert from opining about the meaning of jargon or code words used in the course of drug trafficking activities. Rather, we interpreted Cain to prohibit an expert from opining as to the defendant's state of mind that is an element of a charged offense. Ibid.
In this instance, Henry offered an opinion on defendant's state of mind with respect to his intent to distribute the drugs alleged to be in his possession, a material element of the "possession-with-intent-to-distribute" offense defined in N.J.S.A. 2C:35-5. This opinion testimony is clearly prohibited under Cain. 6 As we have already noted, Cain announced a new rule of law. In State v. Green, we held that this new rule applies retroactively to cases on direct appeal at the time Cain was decided. 447 N.J. Super. 317, 327–28 (App. Div. 2016). The New Jersey Supreme Court has granted certification in State v. Covil, 236 N.J. 241, 242 (2018), to decide whether the Cain rule should be applied retroactively. Given that the State has not challenged the applicability of Green in this case, nor has either party argued the court should hold its decision in abeyance for the Supreme Court's decision in Covil, we choose not to delay issuing our decision in this matter. A-5276-16T4 17 appropriate in Odom. Nonetheless, because defense counsel did not object
during trial, in assessing whether the erroneously admitted expert opinion
warrants reversal of defendant's conviction, we apply the plain error standard of
review under which we must determine if the error "is of such a nature as to
have been clearly capable of producing an unjust result." R. 2:10-2. See State
v. Macon, 57 N.J. 325, 336 (1971) (explaining the plain error test as 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").
In assessing whether the error in this case constitutes plain error
warranting a new trial, we consider both the nature and magnitude of the error
and the weight of the admissible evidence against the defendant. State v.
Weston, 222 N.J. 277, 294 (2015) (describing plain error as one "of sufficient
magnitude to raise a reasonable doubt as to whether it led the jury to a result it
would otherwise not have reached" (quoting Pressler & Verniero, N.J. Court
Rules, cmt. 2.1 on R. 2:10-2 (2015))); State v. Chapland, 187 N.J. 275, 289
(2006) ("[A]ny finding of plain error depends on an evaluation of the overall
strength of the State's case."). Where evidence against a defendant is
overwhelming, the court need not reverse a defendant's conviction on the basis
of improper expert testimony encompassing a defendant's state of mind. State
A-5276-16T4 18 v. Sowell, 213 N.J. 89, 107–08 (2013) (affirming the defendant's conviction on
the basis of overwhelming evidence of guilt).
We begin this analysis by noting that the magnitude of the misuse of the
hypothetical question format in this case pales in comparison to what occurred
in Cain. In Cain, the hypothetical question was essentially a "mid-trial
summation," recounting every detail concerning the search that occurred in that
case. 224 N.J. at 431. It is especially noteworthy that the hypothetical in Cain
"unfairly bolstered the prosecution's case by asking the law enforcement expert
to assume the defendant was a drug dealer." Id. at 431–32. The Court noted
that "[t]he inclusion of the 'assumed' drug sales in the hypothetical had a
potential domino effect." Id. at 432. Those combined circumstances led the
Court to conclude, "[a]ccordingly, the taint of the hypothetical and the answer
it elicited had the capacity to infect all of the charges and were 'clearly capable
of producing an unjust result.'" Id. at 432-33.
The hypothetical and the answer it elicited in this case stand in sharp
contrast to the circumstances in Cain. Here, the hypothetical question posed by
the prosecutor was concise; the hypothetical was framed in two sentences
comprising a total of sixty-one words. The prosecutor did not ask Henry to
assume that defendant was a drug dealer. In short, although improper under the
A-5276-16T4 19 new per se rule, the question and answer in this case comported dutifully with
the practice permitted, indeed encouraged, in Odom.
The magnitude of the error must be measured against the strength of the
State's proofs concerning defendant's intent to distribute the drugs. 7 The
comparatively large quantity of cocaine involved—96.4 grams or roughly 3.4
ounces—must be considered in light of Henry's permissible and uncontroverted
testimony that cocaine users typically consume between .3 and 1.5 grams a day.
That testimony strongly suggests that the cocaine in the backpack was meant to
be distributed to others and was not just for the personal use of whoever owned
that backpack. Furthermore, the $4993 in defendant's possession and the
7 We are not prepared to hold that the State's overall case against defendant was overwhelming, see Sowell, 213 N.J. at 107, especially considering that the first trial ended with a deadlocked jury on all counts. In view of defendant's testimony that he had loaned the car to his sister and took repossession of it without providing notice to her, the State's case was by no means overwhelming with respect to the "possession" element in N.J.S.A. 2C:35-10 and N.J.S.A. 2C:35-5. As to the possession element, the State presented no direct proof such as an admission or forensic evidence linking defendant to the cocaine. Rather, the State essentially relied on the inference of knowing possession that arises from the fact that the drugs were found in a vehicle defendant owned and was operating at the time the drugs were being transported. Cf. N.J.S.A. 2C:39-2(a) (creating permissive inferences as to possession of weapons in a vehicle). However, in assessing whether Henry's improper "state of mind" testimony constitutes plain error, we deem it appropriate to focus on the strength of the State's proofs concerning the intent-to-distribute element of N.J.S.A. 2C:35- 5(a), since that is the element to which Henry's erroneously admitted opinion testimony relates. A-5276-16T4 20 presence of a digital scale found in the glove box of defendant's vehicle, when
combined with the large quantity of cocaine, present a very strong if not
overwhelming argument that the cocaine was possessed with intent to distribute.
Finally, the impact of the improper expert testimony on the trial outcome
should be viewed in light of the defense that was presented to the jury.
Defendant took the stand and testified that he had loaned his car to his sister for
two days before his arrest. He claimed he did not own and was not aware of the
backpack on the rear seat in which the cocaine was secreted. Although
defendant's testimony in no way relieved the State of its burden to prove intent
to distribute, the gravamen of the defense was not that the seized amount of
cocaine was not meant to be distributed to others. Rather, defendant's testimony
sought to convince the jury that he did not constructively possess the cocaine
that was left behind by someone else during the two-day period when defendant
allowed the car to be used by his sister.
Viewed in that context, and considering all of the relevant circumstances,
we do not believe that the error in allowing the jury to hear the improper expert
opinion testimony in this case was of such a nature as to have been clearly
capable of producing an unjust result. R. 2:10-2.
A-5276-16T4 21 V.
Normally, our determination on the arguments raised by defendant would
end our review of this case. However, even when not challenged by either party,
we may not overlook an illegal sentence imposed by a trial court. State v.
Moore, 377 N.J. Super. 445, 450 (App. Div. 1988) ("[A] reviewing court is not
free to ignore an illegal sentence." (citing State v. Flores, 228 N.J. Super. 586,
594 (App. Div. 1988)). We conclude based on our assessment of the record that
the trial court imposed an unlawful sentence on defendant's conviction for
possession of cocaine because the trial court was required to merge that
conviction into defendant's conviction for possession of cocaine with intent to
distribute. State v. Selvaggio, 206 N.J. Super. 328, 330 (App. Div. 1985)
("[C]onvictions for possession merge into . . . convictions for the simultaneous
possession with intent to distribute the same substance."). 8 In this instance, both
convictions were based on the cocaine concealed in the backpack found on the
rear seat of defendant's vehicle. We therefore hold defendant's conviction for
8 We also note that the sentencing court was not authorized to impose a one- year prison term for a third-degree offense. See N.J.S.A. 2C:43-6(a)(3) (requiring that a court sentencing a defendant to a period of imprisonment impose a term of between three and five years); N.J.S.A. 2C:44-1(f)(2) (permitting a court to sentence a defendant convicted of a crime of the first or second degree, not a crime of the third degree, "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted"). A-5276-16T4 22 possession of cocaine must be merged with his conviction for possession of
cocaine with intent to distribute.
In sum, we reject defendant's arguments and affirm his conviction. We
remand for the trial court to enter an amended judgment of conviction in
accordance with this opinion. We do not retain jurisdiction.
Affirmed in part and remanded.
A-5276-16T4 23