State v. Nesbitt

888 A.2d 472, 185 N.J. 504, 2006 N.J. LEXIS 7
CourtSupreme Court of New Jersey
DecidedJanuary 12, 2006
StatusPublished
Cited by51 cases

This text of 888 A.2d 472 (State v. Nesbitt) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nesbitt, 888 A.2d 472, 185 N.J. 504, 2006 N.J. LEXIS 7 (N.J. 2006).

Opinions

Justice LaVECCHIA

delivered the opinion of the Court.

Charged as an accomplice, defendant was convicted by a jury of multiple drug charges including third-degree distribution of a controlled dangerous substance (CDS) on or near school property. During trial the State presented an expert witness who testified [507]*507about methods of operation utilized in street-level drug sales. His testimony culminated in a hypothetical question that assumed detailed facts corresponding to the facts adduced at trial. The expert was asked whether the individual described in the hypothetical was “complieit in distributing drugs” and to explain the facts on which he based his opinion. Although defendant did not object to the testimony at the time, he argued on appeal that the testimony impermissibly invaded the province of the jury. Moreover, even if the expert’s testimony about drug distribution methods was admissible, defendant contended that the hypothetical presented by the State too closely tracked specialized language from the statute under which he was charged and invited the expert to express a view on the ultimate issue of defendant’s guilt. That, defendant argued, was contrary to the standards established for such testimony in State v. Odom, 116 N.J. 65, 560 A.2d 1198 (1989), and reaffirmed in State v. Summers, 176 N.J. 306, 823 A.2d 15 (2003). Defendant also challenged his sentence.

The Appellate Division upheld defendant’s conviction, finding that neither the admission of the narcotics expert’s testimony, nor the wording of the hypothetical, rose to the level of “error, much less plain error.” The Appellate Division remanded the matter to correct a sentencing error. Defendant filed a petition for certification, which we granted. 183 N.J. 256, 872 A.2d 798 (2005).

Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson. Odom, supra, 116 N.J. at 81, 560 A.2d 1198. Odom also permits the State to ask a narcotics expert a hypothetical question mirroring the facts of the case, even though the hypothetical may be “expressed in terms of ultimate issues of fact.” Ibid. Although an expert is not needed to state that which is obvious, the circumstances underlying defendant’s drug charges may not have been obvious to the laypersons of the jury. We conclude that there was no error in allowing the expert to testify about methods used by confederates in street-level drug sales or [508]*508in allowing the expert to testify about a hypothetical situation that involved numerous detailed facts similar to the facts put forward by the State at trial. Finally, although the wording of the expert’s answer elicited by the hypothetical question did not adhere to our admonition in Odom and Summers to avoid use of precise terminology found in the statute under which defendant is charged, we conclude, as did the Appellate Division, that no plain error occurred.

I.

The facts, summarized below, are derived from the testimony and evidence adduced at trial. On July 20, 2000, Trenton Police Officer David Neiderman was patrolling in an unmarked police vehicle as part of an undercover operation targeting prostitution. As he drove down a street, he noticed a male and a female standing on a corner; the female appeared to wave at him. At the time, Neiderman suspected prostitution and so alerted his arrest team. He then drove back to the corner where the individuals had been standing and pulled over next to them. Both individuals approached the car. The man asked Neiderman “what do you need?” Realizing then that this was a potential narcotics transaction, Neiderman replied “ten,” meaning that he wanted ten dollars worth of crack cocaine. The man then looked at the woman and said to her, “give him ten.” In response, the woman removed a yellowish rock-like substance from a brown paper wrapping she had been holding. The substance appeared to be crack cocaine. Showing the rock-like object to the man, she asked him “this much?” The man replied “yes.” The woman then handed Neid-erman the object and received ten dollars from him. As Neider-man drove away, he notified his arrest team. They quickly moved in and arrested the two individuals, who were identified as defendant Anthony Nesbitt and Lenora McCoy.

Defendant was charged with third-degree possession of a CDS (cocaine), contrary to N.J.S.A 2C:35-10a(l) and 2C:2-6 (Count 1); third-degree possession of a CDS with intent to distribute, con[509]*509trary to N.J.S.A 2C:35-5a(l); 2C:35-5b(3) and 2C:2-6 (Count 2); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A 2C:35-7; 2C:35-5a(l); 2C:35-5b(3); and 2C:2-6 (Count 3); third-degree distribution of a CDS, contrary to N.J.S.A. 2C:35-5a(l); 2C:35-5b(3); and 2C:2-6 (Count 4); and third-degree distribution of a CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7; 2C:35-5a(l); 2C:35-5b(3); and 2C:2-6 (Count 5).

At trial, the State introduced testimony from Officer Neiderman and from Detective Veldon Harris of the Mercer County Prosecutor’s Office, who was qualified as an expert in narcotics. Harris provided general information about street-level drug sales and then the following exchange occurred.

Q: Detective Harris, for the purposes of the next question, it is a hypothetical, I want you to assume the following facts:
I want you to assume it is 1:46 a.m., and that the location is Locust and Chambers Street in the City of Trenton. I want you to assume further there are two individuals in that location. I’ll refer to them as individual A and individual B. I want you to assume further that individual A flags down a vehicle. Assume further that when that vehicle pulls over, that both individual A and individual B approach the vehicle, and that the following conversation takes place:
That individual B says to the person in the vehicle, what do you need? Assume further that the person in the vehicle says ten. Assume then that individual B directs individual A to give the person in the vehicle $10 worth of crack. Assume then that individual A then shows a quantity of CDS, crack cocaine, to individual B and asks, this much? Assume then that individual B answers, yes. And that then that person, individual A, serves the crack cocaine in exchange for money to the person in the vehicle.
Would you be able to form an opinion about whether or not person B was complicit (sic) in the distribution of those drugs to the person in the vehicle?
A: Yes, I would.
Q: And what would your opinion be?
A: That person was complicit in distributing drugs.
Q: And on what facts do you base that opinion?

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Bluebook (online)
888 A.2d 472, 185 N.J. 504, 2006 N.J. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nesbitt-nj-2006.