Third Degree School Zone

Pursuant to State v. Caliguiri, 158 N.J. 28 (1999), although N.J.S.A. 2C:35-7 offenders are not categorically ineligible for PTI, there is a presumption against diversion. The PTI Guidelines allow a prosecutor to reject an application solely based on the nature of the offense in “appropriate circumstances.” Baynes, supra, 148 N.J. at 445, 690 A.2d 594; Leonardis II, supra, 73 N.J. at 382, 375 A.2d 607. See Pressler, supra. Guidelines 3(i) (providing PTI applications “should generally be rejected” when underlying offense involves continuing criminal enterprise, organized criminal activity, breach of public trust, violence or threat of violence, or first- or second-degree offense). The enumerated circumstances represent a legislative decision to prevent serious offenders from avoiding prosecution in ordinary circumstances.

The policy underlying the CDRA demonstrates that violating N.J.S.A. 2C:35-7 is a serious offense. Baynes, supra, 148 N.J. at 449, 690 A.2d 594. The defendant in Baynes was charged with simple possession within 1000 feet of a school. Id. at 439, 690 A.2d 594. The PTI program director recommended Baynes for admission to the program. Ibid. The prosecutor rejected the application, because his policy prohibited consent to PTI applications from school zone offenders. Id. at 440, 690 A.2d 594. We held that the prosecutor’s per se rule could not be justified by the “appropriate circumstances” clause of Guideline 3(i), because “appropriate circumstances” existed only in cases “of a more serious nature than possession of CDS for personal use.” Id. at 445, 690 A.2d 594. We specifically distinguished possession for personal use from possession with the intent to distribute. Id. at 449, 690 A.2d 594. We observed that to enforce the policies underlying the CDRA, 920*920 “the Legislature created a new crime, N.J.S.A. 2C:35…. The penalty structure for this type of offense is similar to that for second-degree offenses for which admission to PTI is presumptively unavailable.” Ibid.

Thus, the Court indicated that, although the Legislature established N.J.S.A. 2C:35-7 as a third-degree crime, its especially stern punishments indicate that the Legislature considered it a serious crime. In light of the general tenor of the CDRA and the goals of the PTI Guidelines, we hold that prosecutors may treat N.J.S.A. 2C:35-7 as equivalent to a second-degree offense and consider PTI presumptively unavailable.

However, when a defendant is charged with a third-degree offense and the prosecutor has the discretion to waive incarceration, the weight of the evidence to rebut the presumption against PTI need not be as great as if the defendant had been charged with a second-degree offense.

Second Degree Crimes

In order to get into PTI for a second degree crime, the defendant must show compelling reasons.  Thus, with the application for PTI, the defense lawyer should submit a “compelling reasons brief”.  According to State v. Nwobu, 139 N.J. 236 (1995), the New Jersey Supreme Court stated that it is true that one need not “be Jean Valjean,” State v. Mickens, 236 N.J. Super. 272, 279, 565 A.2d 720 (App.Div. 1989), to establish compelling reasons for admission into PTI, but there must be a showing greater than that the accused is a first-time offender and has admitted or accepted responsibility for the crime. To forestall imprisonment a defendant must demonstrate something extraordinary or unusual, something “idiosyncratic,” in his or her background. State v. Jabbour, 118 N.J. 1, 7, 570 A.2d 391 (1990). In the case of first- and second-degree crimes, something 253*253 of this nature must be presented to establish compelling reasons for admission into PTI.

 Repeatedly, this Court has cautioned against the admission of expert testimony that tracks the “precise terminology,” and particularly the legalese, of an applicable criminal statute. Odom, supra, 116 N.J. at 82, 560 A.2d 1198. “Constructive 1097*1097 possession,” the phrase used by Detective Swan, is a legal term referenced in the statutes under which defendant was charged. See N.J.S.A. 2C:35-10(a)(1) (“It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance. . . .”). Possession also is an element of both crimes for which defendant was charged, third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1). Plainly, such possession can be constructive, meaning that “`although [a defendant] lacks physical or manual control, the circumstances permit a reasonable inference that [the defendant] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.’” State v. Lewis, 185 N.J. 363, 371, 886 A.2d 643 (2005) (quoting State v. Spivey, 179 N.J. 229, 236-37, 844 A.2d 512 (2004) (internal citation and quotation marks omitted)). However, we rely on juries to determine whether a defendant constructively possessed an object, which is why the expert’s testimony opining on who constructively possessed the drugs was not probative evidence.

Although expert testimony may be employed when a defendant’s drug charge involves possession that may be constructive, courts have used care in defining the parameters of permissible expert testimony to ensure that the expert does not answer for the jury the actual question of whether the drugs or other items in issue were constructively possessed. For example, in Spivey, supra, the determination about constructive possession of a firearm was left to the jury, although the State’s drug expert was allowed to give limited testimony that informed the jurors about the practice by drug dealers of arming themselves with guns for protection. 179 N.J. at 240, 844 A.2d 512; see also State v. Hurdle, 311 N.J.Super. 89, 94-98, 709 A.2d 298 (App.Div.1998) (affirming jury determination of constructive possession of drugs where form of expert testimony in response to hypothetical question complied with Odom and expert’s testimony focused on his opinion that drugs were possessed with intent or purpose to resell or distribute).

Here, by mimicking the language of the statute, and positing on the pivotal legal element, the expert’s testimony on constructive possession of drugs found in the vehicle did not constitute probative, helpful testimony for the jury. See Nesbitt, supra, 185 N.J. at 517, 888 A.2d 472 (“Expert testimony that recites the legal conclusion sought in a verdict is not helpful to the jury.”). Rather, the expert’s constructive possession opinion was tantamount to a legal conclusion, resulting in a veritable pronouncement of guilt on the two possession crimes for which defendant was charged, which clearly was unduly prejudicial. Although Detective Swan’s testimony, otherwise, offered legitimate assistance to the jury by providing insight into technical areas involving the distribution and transport of bulk narcotics, the constructive-possession portions of his trial testimony exceeded Odom’s parameters, and presented undue prejudice that substantially outweighed any probative value from that evidence.

 Our analysis begins with the Rules of Evidence, specifically Rule 702, which governs the admissibility of expert testimony and provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” It is incumbent on the proffering party to show that (1) the intended testimony concerns a subject matter beyond the ken of an average juror; (2) the field is at a state of the art such that an expert’s testimony would be reliable; and (3) the witness has expertise sufficient to offer the intended testimony. See State v. Jenewicz, 193 N.J. 440, 454, 940 A.2d 269 (2008).

The use of expert testimony about the methods employed by drug traffickers to package and to distribute illegal drugs for sale has been long recognized as permissible under Rule 702 standards because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror. See Odom, supra, 116 N.J. at 76, 560 A.2d 1198 (permitting drug expert’s testimony, including opinion testimony on possessor’s likely intent and purpose to distribute based on particular characteristics of drug possession set forth through assumed facts). Such testimony, when provided through an expert, aids a jury’s understanding of the evidence adduced in a drug prosecution and often may be necessary to “explain the significance of the properties, packaging and value of illegal drugs.” Ibid. Without such testimony about drug-trade practices, lay jurors would not “`know what a person who possessed [a certain quantity of drugs in certain circumstances] was going to do with it.’” Id. at 76, 560 A.2d 1198 (quoting State v. Perez, 218 N.J.Super. 478, 485, 528 A.2d 56 (App.Div.1987)); see also Summers, supra, 176 N.J. at 312-17, 823 A.2d 15 (recognizing same).

Odom, supra, involved a drug possession case in which the prosecutor asked the State’s expert to assume a number of facts, and then stated a set of facts consistent with those adduced at trial. 116 N.J. at 67-69, 560 A.2d 1198. Based on the facts so presented, the prosecutor asked the expert to opine whether the defendant would have possessed the drugs for his own use or with the intent to distribute 1094*1094 them. Id. at 69, 560 A.2d 1198. In affirming on appeal the admission of that testimony, this Court explained that it was

satisfied in this case that the detective’s opinion was based exclusively on the surrounding facts relating to the quantity and packaging of the drugs and their addictive quality, as well as the absence of drug-use paraphernalia; his explanation of these facts was clearly founded on his expertise and specialized knowledge as an expert. The conclusion he drew — that possession of these drugs was for the purpose of distribution — was similarly derived from his experience. We therefore conclude that as long as the expert does not express his opinion of defendant’s guilt but simply characterizes defendant’s conduct based on the facts and evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide.

[Id. at 78-79, 560 A.2d 1198.]

We also approved the use of a hypothetical question as an appropriate vehicle through which an expert could testify in respect of inferring intent or purpose when drugs are possessed under certain circumstances. See id. at 76-81, 560 A.2d 1198. And, we reaffirmed the use of such hypothetical questions when that practice was called into question in Summers, supra, 176 N.J. at 311, 317, 823 A.2d 15.

Indeed, in Summers, supra, this Court relied again on Odom’s guidelines for the appropriate use of a hypothetical question:

The question must be limited to the facts adduced at trial. The prosecutor may ask the expert to express an opinion, based on those facts, whether the drugs were possessed for distribution or for personal consumption. The expert should inform jurors of the information on which the opinion is based, and must avoid parroting statutory terminology whenever possible. Obviously, the expert must walk a fine line. His or her opinion can be “expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute,” but it cannot contain an explicit statement that “the defendant is guilty of the crime charged under the statute.” Finally, trial courts should instruct the jury in respect of the proper weight to be given to the expert’s opinion, reminding jurors that the ultimate decision concerning a defendant’s guilt or innocence rests solely with them.

[Id. at 314-15, 823 A.2d 15 (quoting Odom, supra, 116 N.J. at 80-82, 560 A.2d 1198) (internal citations omitted).]

Thus, we carefully permit an expert to express an opinion in response to a hypothetical even when such testimony “embraces an ultimate issue to be decided by the trier of fact,” N.J.R.E. 704, so long as the probative value of the circumscribed testimony is not substantially outweighed by the risk of causing undue prejudice, N.J.R.E. 403. See State v. Berry, 140 N.J. 280, 298, 658 A.2d 702 (1995) (explaining necessity for Rule 403 balancing, stating that “[i]n drug prosecutions, the risk of prejudice has prompted courts to exercise caution in determining whether expert testimony touching on ultimate issues properly was admitted at trial.”).

Because it is the exclusive responsibility of the jury to determine guilt, State v. Simon, 79 N.J. 191, 199, 398 A.2d 861 (1979), there is always the concern about the potential for an expert’s opinion on a hypothetical question to slip dangerously close to usurpation of the jury’s role by essentially telling the jurors how to resolve a case. See State v. Nesbitt, 185 N.J. 504, 514, 888 A.2d 472 (2006) (discussing court’s duty to perform gatekeeper role in determining whether testimony is reasonably needed and is not unduly prejudicial); see also Odom, supra, 116 N.J. at 1095*1095 81-82, 560 A.2d 1198. To guard against that concern, Odom emphasized that, when using a hypothetical question in cases involving possession and distribution of narcotics, the question must be limited to the evidence adduced at trial and must focus on

the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution].

[Odom, supra, 116 N.J. at 81-82, 560 A.2d 1198 (quoting State v. Odom, 225 N.J.Super. 564, 573, 543 A.2d 88 (App. Div.1988)).]

Once that foundation is established, the prosecutor may ask the expert to express an opinion on whether, based on those facts, the drugs were possessed for distribution purposes or personal use. Id. at 82, 560 A.2d 1198.

Odom continues to govern the use of expert testimony in narcotics prosecutions, permitting the incorporation of responses to hypothetical questions to help jurors understand the likely intent or purpose of a defendant in respect of drugs possessed. That said, Odom’s continued application is not without boundaries. In Nesbitt, supra, we cautioned that “Odom does not license the use of a narcotics expert to tell a jury that which is obvious.” 185 N.J. at 514, 888 A.2d 472. Because Odom should not result in the automatic use of expert testimony in all drug cases, we explained in Nesbitt that

[t]rial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert’s testimony, and what the parameters of that testimony may be. . . . The failure of a defendant to object to expert testimony does not relieve the trial court of its gatekeeper responsibilities.. . .

[Id. at 514-15, 888 A.2d 472.]

The Nesbitt Court instructed trial courts to be sensitive to whether there is true need for the hypothetical and expert testimony, id. at 517-19, 888 A.2d 472, and underscored the importance of preventing the expert testimony from tracking too closely the language of the pertinent criminal statute. Id. at 517, 888 A.2d 472. Further, Nesbitt discouraged the use of legal terminology with specialized meanings and emphasized Odom’s requirement that the governing statutory language be paraphrased where possible. Id. at 518-19, 888 A.2d 472. By adhering to such cautionary instructions, trial courts can ensure that a drug expert’s testimony plays a legitimate and valuable role in drug possession and distribution cases by helping the jury in realms unknown and unfamiliar to them when assessing the likely intent of a putative drug trafficker.

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If you are charged with first degree charges for growing marijuana, call the team of criminal defense lawyers at the Law Offices of Jef Henninger, Esq. today to begin the defense against your charges.

In New Jersey, a number of items can result in a paraphernalia possession charge.  These items include, but are not limited to, a pipe, bowl, bong, rolling paper, blunts, grinders, baggies, scales and other items.  When these items contain marijuana residue, the State’s case is easier.  Even if there is no residue, the facts of the case may still give rise to a marijuana paraphernalia complaint. If you have been charged with drug paraphernalia under 2C:36-2, in any court in New Jersey, call the team of tough, smart criminal defense attorneys at 732-773-2768.  

The New Jersey Paraphernalia Statute – N.J.S.A. 2C:36-2

The New Jersey paraphernalia statute is at N.J.S.A. 2C:36-2 and makes it unlawful for a person to “use, or possess with the intent to use” any items to grow, process, store or ingest marijuana. Violation of this crime is a disorderly persons offense. In order to determine whether an item is “paraphernalia”, the law sets forth several factors: (1) statements of those in actual possession or constructive control of the alleged paraphernalia; (2) existence of any residue in the item; (3) direct or circumstantial evidence concerning use of the object; (4) instructions for use of the item; and (5) the legitimate uses for the item.  In order to be found guilty, the State must provde an intent to use the item as marijuana paraphernalia to be found guilty.

If you are charged with possession of marijuana, more than 50 grams in any court in New Jersey, call the team of tough, smart attorneys at 732-773-2768.

The team of tough, smart New Jersey possession of marijuana lawyers can help you avoid a conviction and the penalties that go with it.  Call us right now at 732-773-2768 to discuss.

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Morris County Possession of Marijuana Lawyers

The New Jersey Senate voted earlier this month to give state health officials 30 days to come up with a new plan for implementing the state’s medical-marijuana program.  Senators, in effect, rejected a compromise offered earlier this month by Gov. Christie, who continues to support rules more strict than the Legislature wanted.  Sen. Nick Scutari (D., Union), a sponsor of the resolution, said he hoped to meet with Christie’s senior advisers to “get to the point where we can allow a functional marketplace so people that want to be in this business and people that desperately need this medicine can get together in a way that’s legal and viable.”

Patient advocates and sponsors of the original legislation legalizing medical marijuana, signed in January by Christie’s predecessor, Gov. Jon S. Corzine, have said that rules proposed by the Department of Health and Senior Services in October would make the program unworkable.  The resolution, which passed the Senate, 22-16, highlights four areas of concern involving the potency and access to the drug.  The governor agreed to raise the number of marijuana distribution centers statewide from four to six and to remove a requirement that terminally ill patients prove that they have exhausted other treatment options before qualifying for the program.

Patient advocates say the two issues not addressed by the proposal are critical. One is a cap on the strength of the legal marijuana at a level that advocates say will fail to address patient needs and gives bureaucrats jurisdiction over an issue that should be left to doctors.  Advocates are also concerned that the list of qualifying medical conditions cannot be expanded for at least two years, according to the rules.

If lawmakers are unsatisfied, the Legislature could vote to invalidate part of the original legislation or start over completely, further delaying the program.

Read more: http://www.philly.com/inquirer/local/nj/20101214_New_Jersey_Senate_votes_deadline_for_medical-marijuana_plan.html#ixzz19F3YFOkh
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Hudson County Possession of Marijuana Lawyers

If you are charged with possession of marijuana in Keansburg, call our team of tough, smart attorneys today at 732-773-2768.

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