tate v Williams DOCKET NO. A-4530-07T4

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4530-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT E. WILLIAMS A/K/A
ROBERT LOVE,
Defendant-Appellant.
________________________________________________
Argued October 6, 2009 - Decided
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment
No. 06-11-1044.
Alyssa Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney; Ms. Aiello, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (Anne
Milgram, Attorney General, attorney; Mr.
Yomtov, of counsel and on the brief).
APPROVED FOR PUBLICATION
November 23, 2009
APPELLATE DIVISION
November 23, 2009
2 A-4530-07T4
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
The primary issue presented by this appeal is whether
flight from an unconstitutional investigatory stop that could
justify an arrest for obstruction automatically justifies the
admission of any evidence revealed during the course of that
flight. We conclude that such evidence is admissible only if
there is a significant attenuation between the unconstitutional
stop and the seizure of evidence and that commission of the
offense of obstruction is insufficient by itself to establish
significant attenuation.
On August 25, 2006, Officer Delaprida of the Elizabeth
Police Department was dispatched together with thirteen to
fifteen other officers to the courtyard of a large housing
complex located in a high-crime area. Delaprida and the other
officers were sent to the housing complex to deter, through a
"police presence," a possible retaliatory shooting for a
homicide committed several days earlier.
Officer Delaprida had no information concerning the basis
for the report of a possible retaliatory shooting. Delaprida
also had no description or other information concerning the
person or persons who might be planning the shooting.
3 A-4530-07T4
When Officer Delaprida arrived at the housing complex with
his partner around 8:30 p.m., they observed a large number of
people in the courtyard, including children and older people,
"just hanging out." One of the persons the officers observed
was defendant, who was riding a bicycle diagonally in front of
them.
When defendant recognized the officers, who were dressed in
plain clothes, as police, he quickly started pedaling away and
also put his right hand in his pants pocket. The officers
ordered defendant to stop, but he kept pedaling "at a steady
pace," and the officers started to run after him. Defendant
then saw other officers entering the courtyard from the
direction he was headed and slowed down. At this point, Officer
Delaprida and his partner caught up with defendant, and grabbed
him while still on his bicycle. As the officers grabbed him,
defendant pulled his hand out of his pocket and threw a box to
the ground. The box was later determined to contain a
substantial amount of cocaine. Officer Delaprida estimated that
only four or five seconds elapsed between when he ordered
defendant to stop and when he grabbed him on his bicycle.
Defendant was indicted for possession of cocaine, in
violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with
the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1)
4 A-4530-07T4
and N.J.S.A. 2C:35-5(b)(2); and possession of cocaine within 500
feet of a public housing facility with the intent to distribute,
in violation of N.J.S.A. 2C:35-7.1. Defendant subsequently
moved to suppress the evidence against him.
Based on the previously described testimony by Officer
Delaprida, the trial court concluded in a written opinion that
the report of a possible retaliatory shooting and the
observations by Officer Delaprida and his partner of defendant
pedaling his bicycle away from them and putting his hand in a
pocket did not provide the reasonable suspicion defendant was
engaged in criminal activity required for a Terry stop.1
Nevertheless, the court denied defendant's motion to suppress on
the ground that defendant's failure to immediately stop his
bicycle in response to Officer Delaprida's original command
established probable cause to arrest him for obstruction, in
violation of N.J.S.A. 2C:29-1(a), even though that command was
unconstitutional, and that defendant's apparent violation of the
obstruction statute provided sufficient grounds to justify the
stop that resulted in him discarding the cocaine hidden in his
pocket.
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
5 A-4530-07T4
Defendant subsequently entered into a plea bargain under
which he pled guilty to the charge of possession of cocaine, and
the State dismissed the possession with intent to distribute
charges. The trial court sentenced defendant to a four-year
term of imprisonment, with two years of parole ineligibility.
Defendant appeals from the denial of his motion to
suppress. See R. 3:5-7(d) (preserving right to appeal denial of
motion to suppress notwithstanding guilty plea).
I.
We first consider the validity under the Fourth Amendment
to the United States Constitution and Article I, paragraph 7 of
the New Jersey Constitution of the stop of defendant while he
was riding his bicycle in the housing complex courtyard.
A police encounter with a person constitutes an
investigatory stop subject to the protections of these
constitutional provisions if the facts objectively indicate that
"the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers'
requests or otherwise terminate the encounter." State v.
Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick,
501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402
(1991)). It is undisputed that defendant was subject to such a
6 A-4530-07T4
stop probably when Officer Delaprida ordered him to stop and
certainly when Officer Delaprida and his partner grabbed him on
his bicycle. See State v. Crawley, 187 N.J. 440, 450, cert.
denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006);
Tucker, supra, 136 N.J. at 165-66; State in Interest of C.B.,
315 N.J. Super. 567, 572-73 (App. Div. 1998).
"[A]n investigatory stop is valid 'if it is based on
specific and articulable facts which, taken together with
rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity.'" State v. Williams, 192 N.J.
1, 9 (2007) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)).
A suspicion of criminal activity will be found to be reasonable
only if it is based on "some objective manifestation that the
person [detained] is, or is about to be engaged in criminal
activity." Pineiro, supra, 181 N.J. at 22 (quoting United
States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66
L. Ed. 2d 621, 629 (1981)). In making this determination, a
court must consider "[t]he totality of the circumstances."
Ibid.
It is firmly established in this State that "flight alone
does not create reasonable suspicion for a stop[.]" State v.
Dangerfield, 171 N.J. 446, 457 (2002); see Pineiro, supra, 181
N.J. at 26; Tucker, supra, 136 N.J. at 168-70. However, flight
7 A-4530-07T4
"in combination with other circumstances . . . may support [the]
reasonable and articulable suspicion" required to justify a
stop. Pineiro, supra, 181 N.J. at 26; see State v. Citarella,
154 N.J. 272, 280-81 (1998); State v. Ruiz, 286 N.J. Super. 155,
163 (App. Div. 1995).
Applying these principles, the trial court correctly
concluded that Officer Delaprida and his partner did not have a
reasonable suspicion that defendant was engaged or about to
engage in criminal activity. These police officers had been
dispatched to the housing complex based on a report of a
possible retaliatory shooting in the area. The State did not
present any evidence regarding the source of the information
upon which the report was based. Consequently, the record does
not indicate whether the information came from a police officer,
a confidential informant, or merely a rumor in the neighborhood.
The report also did not include any specific information
regarding where in the housing complex or when the shooting
might occur, or who the possible perpetrator or perpetrators
might be. In addition, the officers admittedly did not have any
prior contact with defendant and thus had no reason to believe
he might be involved in the possible retaliatory shooting or
other criminal activity.
8 A-4530-07T4
In these circumstances, the police had no reason to focus
upon defendant as a possible perpetrator of the reported
possible retaliatory shooting. Defendant did not, for example,
match a description of a suspect, because the report did not
include such a description, and there is nothing intrinsically
suspicious about a person riding a bicycle in a housing complex
courtyard at 8:30 p.m. Thus, defendant's conduct when the
police first arrived at the scene was no more suspicious than
that of the numerous other persons congregated in the courtyard.
Moreover, defendant's conduct after he saw the officers
enter the courtyard did not provide an objectively reasonable
basis for suspecting that he had engaged in or was about to
engage in criminal activity. Defendant simply started quickly
pedaling away from the officers and put his hand in his pocket.
We question whether this conduct should even be considered
flight because the officers did not initially indicate to
defendant that he should stop. Defendant could have believed
that he should simply get out of the officers' way. In any
event, even if defendant's conduct in pedaling away from the
officers could be viewed as flight once they ordered him to
stop, as previously stated, "flight alone does not create [the]
reasonable suspicion [required] for a stop[.]" Dangerfield,
supra, 171 N.J. at 457.
9 A-4530-07T4
The fact that defendant also put his hand in his pocket did
not provide any additional foundation for an objectively
reasonable suspicion that defendant had engaged or was about to
engage in criminal activity. Putting a hand in a pocket is
fairly common human conduct that does not generally involve the
commission of a crime. Although Officer Delaprida testified
that he had a "concern maybe [defendant] was trying to hide a
weapon of some sort" in his pocket, he did not articulate any
basis for this alleged concern, and since defendant was pedaling
his bicycle in the opposite direction from the officers, the
officers could not have had any reasonable concern for their own
safety.
This case is similar to State v. L.F., 316 N.J. Super. 174
(App. Div. 1998), in which the State argued that defendant's act
of walking away when the police approached and also putting his
hand in his pocket created the reasonable suspicion of criminal
activity required for a Terry stop. In rejecting this argument,
we observed that "the mere act of putting something from one's
hand into one's own pocket while departing alone signifies
nothing additional by way of reasonable suspicion." Id. at 179.
This observation is equally applicable to the present case.
The State argues that the dispatch of police officers to
the housing complex to deter the commission of a retaliatory
10 A-4530-07T4
shooting constituted an exercise of the police department's
community caretaking responsibilities and that the prerequisites
for an investigatory stop should be applied less strictly in
that circumstance. "The 'community caretaker doctrine' . . .
applies when the 'police are engaged in functions, [which are]
totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
[criminal] statute.'" State v. Diloreto, 180 N.J. 264, 275
(2004) (quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004)).
Examples of police community caretaking activities include
"search[ing] for missing persons, . . . mediat[ing] disputes,
and . . . aid[ing] the ill or injured[.]" Id. at 281 (quoting
Debra Livingston, Police, Police Community Caretaking, and the
Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)); see
also State v. Bogan, 200 N.J. 61, 73-81 (2009).
We do not believe that the dispatch of police officers to
an area to deter the commission of a crime constitutes an
exercise of the police's community caretaking responsibilities.
Indeed, the deterrence of criminal conduct is a significant
component of much police work, including routine foot and car
patrols. Thus, such police activity is not "totally divorced"
from the detection, investigation and acquisition of evidence
relating to criminal conduct. Diloreto, supra, 180 N.J. at 275.
11 A-4530-07T4
Therefore, the expansion of the community caretaking doctrine to
apply in circumstances where the police are undertaking to deter
crime would significantly dilute the protections against
unreasonable searches and seizures provided by the United States
and New Jersey Constitutions.
For all these reasons, the trial court correctly concluded
that Officer Delaprida and his partner did not have the
reasonable suspicion of criminal activity required to stop
defendant.
II.
We now consider the trial court's ruling that even though
the initial stop of defendant was unconstitutional, defendant's
failure to comply with Officer Delaprida's command to stop
constituted obstruction, which provided the probable cause
required to justify defendant's arrest and justified admission
of the evidence of the cocaine defendant discarded when the
police apprehended him. This requires a review of the Supreme
Court's recent decisions in Crawley, supra, 187 N.J. 440, and
Williams, supra, 192 N.J. 1. In Crawley, the Court held that a
person who flees from an investigatory stop may be convicted of
obstruction under N.J.S.A. 2C:29-1 even though the stop is later
found to have been unconstitutional if the police officer making
12 A-4530-07T4
the stop was "acting in objective good faith, under color of law
in the execution of his duties." 187 N.J. at 460-61. In
Williams, the Court held that evidence the police obtained in
apprehending a person who has obstructed an unconstitutional
investigatory stop may be admissible if the evidence is
"sufficiently attenuated from the taint" of the unconstitutional
stop. 192 N.J. at 15.
Defendant argues that his failure to immediately stop his
bicycle in response to Officer Delaprida's command could not be
found to constitute obstruction within the intent of N.J.S.A.
2C:29-1(a) as interpreted in Crawley. We have no need to
address this argument because we conclude that even if
defendant's failure to obey Officer Delaprida's command to stop
would have provided an adequate basis to arrest him for
obstruction, the evidence obtained when Officer Delaprida and
his partner grabbed defendant was not "sufficiently attenuated"
from the taint of the unconstitutional stop to justify its
admission into evidence.
The Court in Williams held that the determination of
whether the police "have obtained the evidence by means that are
sufficiently independent to dissipate the taint of their illegal
conduct" requires consideration of three factors: "(1) the
temporal proximity between the illegal conduct and the
13 A-4530-07T4
challenged evidence; (2) the presence of intervening
circumstances; and (3) the flagrancy and purpose of the police
misconduct." 192 N.J. at 15 (quoting State v. Johnson, 118 N.J.
639, 653 (1990)).
In Williams, the defendant responded to a police command
that he place his hands on his head to enable the officers to
pat him down by pushing one of the officers and fleeing from the
scene. Id. at 5. When the police caught the defendant, he was
found with a handgun in his possession. Ibid. The Court
concluded that the most significant factor in determining the
admissibility of the handgun was "the presence of intervening
circumstances," id. at 16, specifically defendant's pushing of
one of the officers involved in the stop and fleeing from the
scene, thus requiring the officers to engage in a police
pursuit. Id. at 18. Based primarily on this factor, the Court
concluded that the seizure of a handgun from the defendant
following his obstruction of an unconstitutional investigatory
stop was sufficiently attenuated from the stop to support
admission of the evidence. Id. at 15-18.
The State argues that any flight or other conduct by a
person subject to an unconstitutional stop that would provide a
basis to arrest for obstruction also automatically requires
denial of a motion to suppress any evidence obtained as a result
14 A-4530-07T4
of that person's apprehension, unless there is a showing of bad
faith on the part of the police. However, as pointed out in the
leading treatise in the field of search and seizure law, the
question whether a person may be prosecuted for a new crime
committed in response to an unconstitutional stop or other
police misconduct is a different question than "whether an
arrest for the new crime should be deemed so substantially
'purified' by that new crime as to provide a lawful basis for
admitting evidence of some other offense . . . found in a search
incident to that arrest." 6 Wayne R. LaFave, Search & Seizure:
A Treatise on the Fourth Amendment § 11.4(j), at 66 (4th ed.
Supp. 2009).
Consistent with this view, our Supreme Court in Williams
did not say that any conduct that could be found to constitute
obstruction automatically constitutes "an intervening act . . .
that completely purge[s] the taint from the unconstitutional
investigatory stop." 192 N.J. at 18. Instead, the Court
indicated that the determination "whether evidence is
sufficiently attenuated from the taint of a constitutional
violation" must be made on a case-by-case basis in light of the
three-factor test set forth in Johnson, supra, 118 N.J. 639, and
reaffirmed in Williams, 192 N.J. at 15.
15 A-4530-07T4
In concluding that the recovery of the handgun at the end
of the police pursuit in Williams was sufficiently attenuated
from the taint of the unconstitutional stop to justify the
admission of that evidence, the Court pointed to State v.
Seymour, 289 N.J. Super. 80 (App. Div. 1996) and State v.
Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif. denied,
127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118
L. Ed. 2d 577 (1992), as other examples of cases in which the
taint of unlawful police conduct had sufficiently dissipated as
a result of intervening criminal acts to justify admission of
evidence recovered after the defendant's apprehension. Id. at
16. Therefore, it is illuminating to consider the factual
circumstances that this court found to establish a sufficient
attenuation between an unconstitutional stop and subsequent
seizure of evidence to justify admission of that evidence in
those cases.
In Seymour, the defendant disobeyed a police signal to stop
his car, which resulted in a mile and a quarter police pursuit
during which defendant increased his speed from forty to fifty
miles per hour and swerved onto the shoulder of the road several
times. 289 N.J. Super. at 83-85. In the course of this police
pursuit, the defendant discarded cocaine out the window of his
car. Id. at 83. Although the court assumed that the initial
16 A-4530-07T4
police signal to defendant to stop his car was unlawful, id. at
84, it nevertheless concluded that defendant's failure to comply
with that command constituted eluding, in violation of N.J.S.A.
2C:29-2(b), id. at 85, and affirmed the denial of the
defendant's motion to suppress evidence of the cocaine discarded
during the course of the police pursuit. Id. at 86-89. In
reaching this conclusion, the court observed: "Fleeing from the
police in a motor vehicle with the police in vehicular pursuit
could endanger defendant, the officer, other motorist, or
pedestrians." Id. at 87.
In Casimono, the police directed a car to pull over to the
shoulder of the road because the driver had made several lane
changes without signaling. 250 N.J. Super. at 177. As the car
pulled over, the police observed the defendant, who was a
passenger, make a "furtive" movement. Ibid. Based on this
observation, the police subjected both the driver and the
defendant to pat down searches. Id. at 178. The driver
resisted the search, first refusing to take his hand out of his
pocket and then throwing something over the guardrail located
along the shoulder of the roadway, which was subsequently
determined to be a dollar bill containing cocaine residue.
Ibid. At this point, defendant returned to the car where he
retrieved a paper bag, which was subsequently determined to
17 A-4530-07T4
contain a substantial amount of cocaine, and also threw it over
the guardrail. Ibid. The defendant and the driver then had to
be physically subdued. Ibid.
We concluded that even though the stop of the car in which
defendant had been riding was lawful, the pat down searches of
the driver and the defendant had been unlawful. Id. at 178-82.
Applying the three-factor test adopted in Johnson and later
reaffirmed in Williams, we held that evidence of the cocaine in
the dollar bill should have been suppressed because the driver
"threw [the] dollar bill containing cocaine residue over the
guardrail during and in direct response to the illegal pat down
search[.]" Id. at 186. On the other hand, we held that the
trial court had properly denied the motion to suppress the
cocaine contained in the paper bag because the unlawful pat down
search of defendant had been completed before he voluntarily
returned to the car, in violation of the police officer's
directions, and retrieved the paper bag that he threw over the
guardrail. Ibid. We noted that the only unlawful police
conduct was the pat down searches of the defendant and the
driver, that the bag of cocaine was not located on their persons
but rather in the car, and that defendant had gained access to
the bag only by disobeying a lawful police order to remain
outside the car. Id. at 186-87. Under these circumstances, we
18 A-4530-07T4
concluded that "there was a significant break in the chain of
causation between the illegal searches and the discovery of the
cocaine." Id. at 187.
Under the three-factor test for determining significant
attenuation between unlawful police conduct and seizure of
evidence reaffirmed in Williams, we perceive no basis for
concluding that the unconstitutional stop of defendant
constituted "flagran[t] . . . police misconduct." Williams,
supra, 192 N.J. at 15 (quoting Johnson, supra, 118 N.J. at 653).
However, the other Williams factors militate against the
conclusion that there was a significant attenuation between the
stop and the seizure of the cocaine discarded by defendant.
Only four or five seconds elapsed between when Officer Delaprida
directed defendant to stop his bicycle and defendant discarded
the cocaine. Consequently, there was a very close "temporal
proximity between the illegal conduct and the [recovery of] the
challenged evidence[.]" Ibid. (quoting Johnson, supra, 118 N.J.
at 653).
Most importantly, there were no significant "intervening
circumstances" between the unlawful police command to defendant
to stop his bicycle and defendant's discard of the box that
resulted in the seizure of cocaine. Ibid. Defendant did not
push a police officer, as in Williams, flee in a car resulting
19 A-4530-07T4
in a mile and a quarter police pursuit, as in Seymour, or seek
to avoid apprehension by returning to a lawfully stopped car
after the police had removed him from the car, as in Casimono.
In those cases the defendant's intervening criminal acts not
only constituted a break in the chain of causation between the
unlawful police conduct and seizure of evidence but also posed a
risk of physical injury to police officers and, at least in
Seymour, members of the public. In contrast, defendant did not
force the officers to engage in a lengthy and dangerous pursuit
to apprehend him or engage in any act of physical aggression
against Officer Delaprida and his partner. In fact, the
officers physically accosted defendant by grabbing him on his
bicycle. Therefore, there is no basis for concluding that the
police seized the cocaine discarded by defendant "by means that
[were] sufficiently independent to dissipate the taint of their
[prior] illegal conduct." Williams, supra, 192 N.J. at 15
(quoting Johnson, supra, 118 N.J. at 653).
"The purpose of the exclusionary rule is to deter police
misconduct and to preserve the integrity of the courts."
Johnson, supra, 118 N.J. at 651. The attenuation exception
applied in Williams, Seymour and Casimono was established in
recognition of the fact that the seizure of evidence following
police misconduct is in some circumstances so "far removed from
20 A-4530-07T4
the constitutional breach" that suppression "is a cost [that is]
not justified" by the purposes of the exclusionary rule. State
v. Badessa, 185 N.J. 303, 311 (2005). However, it is equally
true that an overly expansive application of the attenuation
exception can undermine the salutary objectives of the
exclusionary rule. In New Jersey, the three-factor test
reaffirmed in Williams delineates the circumstances in which the
attenuation exception may be properly applied. Under those
factors, the State failed to establish a "significant
attenuation" between the unconstitutional stop of defendant and
the seizure of the drugs he discarded following that stop.
Accordingly, the order denying defendant's motion to
suppress is reversed and the judgment of conviction is vacated.

11-12-09 STATE OF NEW JERSEY v. UCHE ADIM

11-12-09 STATE OF NEW JERSEY v. UCHE ADIM
A-4962-05T4

We consider deviations from the model jury instructions on further deliberations approved in State v. Czachor, 82 N.J. 392, 400 (1980) and adopted in Model Jury Charge (Criminal), Final Charge: Further Jury Deliberations at 24 (2004) and conclude that a judge may not outline the evidence in delivering that supplemental charge. We also address the State's privilege to withhold the identity of a citizen who provides information about the concealment of evidence of a crime and conclude that the State is not required to establish an ongoing arrangement with the informer in order to invoke the privilege provided in N.J.R.E. 516.



Assistant Editor: Umair Hussain

KENNETH VERCAMMEN – resume and community involvement

KENNETH VERCAMMEN – resume and community involvement
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
www.njlaws.com
Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on probate, estate planning, criminal and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

 He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Deputy chair of the ABA Criminal Law committee, GP Division. Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2009 in NJ Monthly in the Criminal - DWI.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. He has successfully handled over One thousand Municipal Court and Superior Court matters in the past 18 years.


Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA. He started his career as a trial attorney for Drazin & Warshaw in Hazlet and Red Bank, NJ, and Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl in North Brunswick.


ADMISSIONS: Admitted In NJ, NY, PA, US Supreme Court and Federal District Court

MANAGING ATTORNEY Kenneth Vercammen & Associates, PC March 1990-Present
Full service Law practice with offices in Edison and Cranbury.

PROSECUTOR Township of Cranbury, Middlesex County, NJ 1991-1999
Municipal Prosecutor for criminal and traffic cases involving Township and State Police
-Acting Assoc. Prosecutor: Carteret Municipal Court, Middlesex County, NJ 2000

EDITOR- NJ MUNICIPAL COURT LAW REVIEW 1993- present

Middlesex County Bar Association 2008 Municipal Court Attorney of the Year

NJ State Bar Association- 2005-2006 Municipal Court Attorney of the Year Award

New Jersey Super Lawyers selection 2009, 2008, 2007, 2006

Who's Who in America 2004

NJ State Bar Association- 2002 General Practitioner of the Year Award

1993 AWARD WINNER "Service to the Bar Award"- New Jersey State Bar Association YLD

RELEVANT LITIGATION SPEAKING ENGAGEMENTS:
-Criminal, DWI and Drug Cases- NJ State Bar Annual Meeting 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 01, 00, 99
-Civil Trial Practice- Middlesex Bar 2004
-Personal Injury Litigation- NJ Institute for Continuing Legal Education/ NJ State Bar
2001, 2000,1999,1998,1997,1996,1995,1994,1993,1991
-Municipal Court Handling Serious Cases ICLE/NJSBA-2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002,2001,2000,1998,1997,1995,1994
-NJ Association of Municipal Court Administrators 2002
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-Cablevision TV- Law on the Line 2003, 2001
-Elder Law and Probate NJSBA/ ICLE 2009, 2008, 2007, 2006, 2005, 2004, 03,02,01,99,98,97,96

PUBLICATIONS:
Published 150 separate Law Review and Legal Periodical articles in legal journals such as New Jersey Law Journal, American Bar Association Barrister, New Jersey Lawyer, ABA Law Practice Management, and New Jersey State Bar Association's Dictum. Listed on www.njlaws.com.

KENNETH VERCAMMEN, ESQ.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
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Middlesex County Police Chiefs 2009- Living Wills
Middlesex County College- Wills & Probate 2007
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- Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
-Elder Law and Estate Planning- American Bar Association New York City 2008, Miami 2007
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-Linden AARP 2002
-Woodbridge Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
-Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
-Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
-AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005
-Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
-East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000
-Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
-North Brunswick Senior Day 2001
-Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
-Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
-Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
-Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
-Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
-Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
-Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
-"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
-Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993

SPECIAL ACTING PROSECUTOR: Woodbridge, East Brunswick, Metuchen, South Brunswick, Perth Amboy, Cranbury, South Plainfield, Clark, South River, Hightstown, Carteret, Jamesburg, Berkeley Heights on conflict matters. Past President- Middlesex Municipal Prosecutor's Association. Previous experience with the Delaware County, Pennsylvania District Attorney Office, Middlesex County Probation Department and Scranton District Magistrate Office.

Metuchen Public Defender 2001- present Edison Public Defender 1990-1991

KENNETH VERCAMMEN- Community Service

NON- PROFIT: -Edison Elks-Presiding Justice 1993- Present
-Y.B. CHOI TAE KWON DO (Korean Karate)- 4th degree Black Belt awarded 2008 3rd degree 2004 ; 2nd degree December 1993, 1st degree Black Belt December 2001
-Raritan Valley Road Runners- Comeback of the Year Award 2002 and ranked Master Distance Runner; state champion 20,000 meter team 2005

New Jersey State Age Group Champion Garden State Games 5,000 meter run 1993
-Bishop Ahr/St. Thomas Aquinas H.S. Alumni Society
Elected Vice-President 1989-1990; Class of 1977- 25 year Reunion Chair
-Edison 14th District Committeeman Elected 1988-1994
-St. Francis Cathedral- Church Lector 1990-1994
-University of Scranton, North Jersey Alumni Chapter Co-Chair, Fall Social 1988
-Knights of Columbus-Fourth Degree Knight, Edison Council
Edison NJ Essay Contest Chair 1992,1993
Metuchen Chamber of Commerce, Past member Edison Chamber of Commerce;
RUNNING:
Raritan Valley Road Runners RVRR Rumson HashHouse Harriers
Central Jersey Road Runners CJRR Jersey Shore Triathlon Club JSTC
Freehold Area Running Club FARC Scranton Area Organization Runners SOAR
Jersey Shore Running Club JSRC USATF- US Athletic Track & Field
Sandy Hook Triathlon Club First Place- Bergen Bar 5k Law Day Run May 2001 South Brunswick Running Group- President First Place- CJRR Summer 5K 2002
First Place: Cocoa Beach 2 mile 2008, 2007; Cranford Run for Lupus 4 mile 2006, JSRC Twilight run 2006. Indian Trials Middletown 3m 2005,2004; Stroudsburg 5k 2005, 2004; Wildwood 5k, Ocean Winter 4 mile, Edison Lannie 5k, 2004; Washington DC Run for Justice 5K 2002
CJRR Age group champ 2005,2004, 2002, 1996, 1995
New York Marathon top 100 NJ Finisher

ACTIVITIES: Married 1989, one son born 1991, daughter born 1994
Weekend Road Running Races, Triathlons, Soccer
Tae Kwon Do Karate

SOUTH BRUNSWICK AREA
Summer Blast/Ireland Brook Neighborhood Sponsor
So. Brunswick Soccer Asst. Coach Travel 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 98
So. Brunswick Athletic Assoc.-Team Sponsor and helper with son's team
So. Brunswick Viking 5k- volunteer
South Brunswick 5K running Race volunteer
So. Brunswick Bicentennial Volunteer
Neighborhood Picnic Sponsor 1998-2009
So. Brunswick 50 Mile Bike Volunteer and 50 mile Finisher
Holt for Congress Volunteer

CHARITABLE: American Cancer Society-Chairman
Annual Summer Fundraiser Picnic- 1987,88,89,90,91,92
Chairman, Annual Christmas Fundraiser- 1987,88,89,90,911,92
Recipient-Young Professionals Award-Sept. 1988, Sept. 1989
Board of Manager's - 1989-1994 Founder and Chair-Young Professionals Group

KENNETH VERCAMMEN, ESQ. Education & Awards

LEGAL EDUCATION: The Widener/ Delaware Law School, J.D., May 1985
Class Rank: Top Ten Percent
Awards: Honor Grades: Federal Income Tax, Business Organization, Criminal Law, Advanced Advocacy, Family Law, New Jersey Practice, Unfair Trade Practices, Professional Liability.
Outstanding Service Award Recipient in Graduation Ceremony
Delaware Merit Scholarship - 1983, 1984
Provincial Winner - Phi Delta Phi Legal Honor Fraternity Graduate of the Year Award
Who's Who in American Law Schools

ACTIVITIES:
Law Review- Senior Staff-Member
Harvard Journal of Law and Public Policy, Senior Editor 1984-1985
Winner - Sixth Annual Trial Advocacy Competition
First Prize - Delaware Law School/ATLA Environmental Law Essay Contest
Delaware Law Forum, Casenote Editor

Working Scholar- Hon. Philip Gruccio, Assignment Judge of Atlantic, Cumberland, Cape May, Salem Counties
Association of Trial Lawyers of America, Delaware Chapter Treasurer
Law School Running Club - President
Research Assistant - Dean Arthur Weeks
Publications- Published in Law Review and wrote more articles than 75% of law faculty members

PRELEGAL EDUCATION: University of Scranton B.S., January 1981
Major: Political Science: Graduated Cum Laude in 3-1/2 years
Honors:
- Cited in Who's Who in American Colleges and Universities;
- Dean's List; Pi Gamma Mu Honor Society; Pi Sigma Alpha Honor Society.
- Varsity Cross- Country - Team Captain and Record Holder of Indoor Half-Mile
- District Magistrate Thomas Hart- Paid Law Clerk/ Executive Assistant
- Pre-Law Society Public Relations Director
- Voter Registration Drive Coordinator
- Internship with Pa. Representative Hon. Fred Belardi
- School Newspaper Staff and Sportswriter
- WYRE radio station sports caster
- 3rd Place Wrestling Tournament
- Campus Bowl Intellectual Competition (Team Captain)
- Trustee Day Volunteer, Red Cross Blood Drive Volunteer
- Senior Class - Hard Rockers Social Committee Chair
-Alumni Society-Estate Planning Council 1997-Present
- Class of 1981 20 year Reunion Executive Committee member 2001 -25 Year Reunion Co-chair


KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
The American Bar Association is the largest voluntary professional organization in the world with more than 400,000 members

AMERICAN BAR ASSOCIATION - National Appointments:

General Practice Solo & Small Firm Division
-Estate Planning, Probate & Trust Committee- Chair 2008-2009, 2006-2007
-Elder Law Committee Chair 2005- present, Vice Chair 1996-1999
- Criminal Law Committee Deputy Chair 2006-present
- Tort, Personal Injury and Insurance Committee Chair 2005- 2006
-Deputy Chair and Newsletter Editor-GP Marketing Legal Services Committee 1993 -1996
- Probate & Estate Planning Committee- Newsletter Editor & Vice Chair 1997-1999, Vice Chair 2005
-Litigation Committee Member 1993 - present

BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
-Elder Law, Estate and Probate ABA Chicago Annual Meeting
-Elder Law and Probate New York City 2008 Annual Meeting
- Improving Your Elder Law & Estate Practice San Francisco, CA 2007
-Elder Law and Estate Planning- ABA Miami 2007
-Elder Law Practice, New Ethical Ideas to Improve Your Practice for Clients ABA Hawaii 2006
-Marketing Success Stories ABA Toronto 1998
-Opening a Business-Sayreville Adult School 1997,1996,1995
-Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996
-Unique Marketing Techniques & Client Relations III ABA Annual Meeting-Chicago 1995
-Starting a Business-Brooklyn Bar Association 1995,1994
-Personal Marketing & Relations - 1995 Miami ABA meeting LPM Personal Marketing Skills IG
co-sponsored by four Major National Bar Sections and committees
-How to Start a Practice-1994 New Orleans ABA Annual Meeting LPM primary sponsor
-1993 New York Annual Meeting "Marketing for Small Firms"

LAW PRACTICE MANAGEMENT SECTION ABA- LPM
-Co-Chair with Jay Foonberg-ABA LPM Personal Marketing Skills Group 1998,1997,1996,1995,1994
-Speaker at many ABA Annual Meetings
-National Liaison and ex-officio member of Law Practice Management Section Council 1993 - 1995
-National Chair - Law Practice Management Committee YLD 1992-1993
-Chair and Newsletter Editor-Marketing Legal Services Committee 1996-1997,1999-2000
ABA Attendance at Leadership Conferences and participation at following Annual and Sectional meetings: Chicago 2009, New York 2008, Philadelphia GP 2007, San Francisco 2007, Washington GP 2007, Miami 2007, Hawaii 2006, Philadelphia LPM 2005; Washington DC 2002; Philadelphia 2002; London 2000, New York 2000, Atlanta 1999, Beverly Hills 1999, Cancun LPM 1998, Naples-LPM 1997; Captiva 1996, Orlando 1996, Coronado LPM 1995, Chicago 1995, Miami 1995, Washington D.C. GP 1995, Vancouver LPM 1995, New Orleans 1995, Napa, CA LPM 1994, Colorado LPM 1993, New York 1993, Boston 1993, San Francisco 1992, Cleveland GP 1992, Scottsdale AZ 1991, Los Angeles 1990, Hawaii 1989, Philadelphia 1988, Toronto 1988, New York City 1986, Washington DC 1985


KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
New Jersey State Bar Association- Municipal Court Section Chair 2003-2004, Vice Chair 1999-2002; Chair of Municipal Court Education Committee 1996-Present
Middlesex County Bar Association Chair Municipal Court Practice Committee 1997-2008
County Bar Board of Trustees 2000- 2006

New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present

ADJUNCT PROFESSOR Middlesex County College
Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991
Instructor of "Criminal Law and Procedure" and Business Law. Taught college students the elements of crime and the criminal procedure system. Explained the incidents before and after trial and analyzed the impact of the Constitution on crimes and criminal procedures.

New Jersey Superior Court - Certified Mediator 1997-

New Jersey Supreme Court Committee on Municipal Courts 2000-2005

Other Speaking
-Update of Municipal Court-NJSBA Annual Meeting Atlantic City 1999,1997, 95, 94
- Cranbury Twp Municipal Alliance Against Substance Abuse 2004, 2002
-ATLA-NJ - New Jersey Courts 1991
-Intoxicated Driver Resource Center/IDRC - DUI Law 1999, 1991
-Preventing the Impaired Driver-Coalition Against Impaired Drivers 1992
-Winning Lawsuit Threshold Cases NJSBA 1992
-WCTC Radio Mid-Day Legal Advisor - Criminal and Traffic Laws 1991 and 1990
-Computers in Litigation-NJSBA Law Office Management 1994
-Self Defense Law in New Jersey - Cranbury Police Dept. 1997,1993,1992

Self Defense and Home Protection - Speaker - New Brunswick Crime Watch - 1989
-Wills and Power of Attorney 1991 Edison Democratic Association
Defending Speeding Cases - New Jersey State Bar Association/NJSBA - 1989
-Family Law & Domestic Violence Trial Practice NJ State Bar Association 1995,1994,1993
-Automobile Insurance - Middlesex County College - 1990
-Criminal & Juvenile Courts Piscataway Vo Tech – 1990
-Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992;

Make a Wish Foundation- Co Chair 19th Annual Summer Blast 1994 in Belmar, NJ
Co Chair Christmas Fundraiser 1993
Jersey Shore Medical Center Chair-18th Annual Summer Blast to Benefit the Jersey Shore Regional
Trauma Center at Bar Anticipation, Belmar 1993
American Red Cross Elected to Board of Directors 1988-1991

HANDLING DRUG, DWI SERIOUS MOTOR VEHICLE CASES SEMINAR

HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR
Featuring a discussion on the newly released court rules!


Saturday, October 17, 2009
9:00 AM to 12:30 PM
The Westin Mount Laurel, Mt. Laurel

Monday, October 26, 2009
6:00 PM to 9:30 PM
Sheraton Edison, Edison (Raritan Center)

Presented in cooperation with the NJSBA Municipal Court Section and
the NJSBA Young Lawyers’ Section

Are you prepared to prosecute or defend your client in new Alcotest cases? Are you familiar with the new & increased penalties for certain offenses?
This informative guide to Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court. An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Gain a thorough understanding of Municipal Court practice, procedure, & recent developments...

• Criminal Case Law and Legislative Update

• The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues

• Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff

• Recent developments in traffic law, merged traffic tickets and more

• DWI and Chun

• A special Q&A session: Ask the Experts

Speakers include:

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Chair, ABA Elder Law Committee
K. Vercammen & Associates
(at Mt. Laurel & Edison)

HON. ROBERT J. ZANE, III, PJMC
(Camden)
(at Mt. Laurel)

WILLIAM G. BRIGIANI, ESQ.
(at Mt. Laurel & Edison)

ROBERT A. GLEANER, ESQ.
Prosecutor in Audubon and Stratford (Camden County)
(at Mt. Laurel)

JOHN MENZEL, ESQ.
(at Mt. Laurel & Edison)

HON. JOHN J. COYLE, JR. JSC
(Belvidere)
(at Edison)

HON. JOAN ROBINSON GROSS, PJMC
(Union County)
Chair, Supreme Court Municipal Practice Committee (Union County)
(at Edison)


NORMA M. MURGADO, ESQ.
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)

(at Edison)

New Jersey Institute for Continuing Legal Education 
The non-profit continuing education service of: 
The New Jersey State Bar Association Rutgers - The State University of New Jerseys Seton Hall University 
One Constitution Square, New Brunswick, New Jersey 08901-1520 
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com • Privacy Policy

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

7-22-09 State v. Robinson (A-62-08)

7-22-09 State v. James Robinson (A-62-08)
Defendant’s conviction and sentence are reinstated because, in
the circumstances of this case, the delay of twenty- to thirtyseconds
between the police officers knocking and announcing
their purpose to execute a search warrant and their forcible
entry into the apartment was reasonable, and defendant’s
challenge concerning the officers’ use of a “flash bang” device
was raised for the first time on appeal and was not appropriate
for consideration.

Richard Sadowski
Assistant Editor

7-21-09 State v. Marshall (A-33-08)

7-21-09 State v. Quinn Marshall (A-33-08)
The search warrant was issued in violation of the constitutional
requirement to describe the place to be searched with
particularity. Because police were authorized to determine if
the conditions in the warrant were satisfied, the role of the
neutral, detached magistrate was delegated to the police. The
failure to comply with the particularity requirement and the
failure to have a neutral and detached magistrate determine
whether the conditions in the warrant were satisfied are
constitutional violations, not technical insufficiencies
justifying overlooking the deficiencies in the warrant.

Richard Sadowski
Assistant Editor

07-02-09 STATE V. O'DONNELL

07-02-09 STATE V. ALICE O'DONNELL
A-0858-06T4
Evidence observed in plain view during a police entry into
a residence to provide emergency aid may be seized without a
warrant even though there is a short delay between the emergency
aid entry and the seizure of evidence by other police officers
responsible for processing the crime scene.

Richard Sadowski
Assistant Editor

6-15-09 State v. Baum and Moore (A-44-07)

6-15-09 State v. Angela Baum and Jermel Moore (A-44-07)

Defendant Jermel Moore’s motion to suppress evidence found
during a warrantless search of the vehicle in which he was
riding should have been denied because he did not have standing
to argue that the driver’s right against self-incrimination was
violated and because the search was not unreasonable.

Richard Sadowski
Assistant Editor

1-22-09 State v. Reeds (A-103-07)

1-22-09 State v. Rahmann Reeds (A-103-07)
Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively
possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury’s singular role in the
determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result in defendant’s trial.

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

SUPREME COURT OF THE UNITED STATES
certiorari to the court of appeals of arizona

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009
In Terry v. Ohio, 392 U. S. 1 , this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment ’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249 .

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment ’s prohibition on unreasonable searches and seizures. Pp. 5–9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392U. S.,at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U. S. 93 . A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.

217 Ariz. 58, 170 P. 3d 667, reversed and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.

State v. Reeds (A-103-07) The issue in this appeal is whether expert testimony about constructive possession of drugs.

1
SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Rahmann Reeds (A-103-07)

Argued November 3, 2008 -- Decided January 22, 2009

LaVECCHIA, J., writing for a majority of the Court.

The issue in this appeal is whether expert testimony about constructive possession of drugs found in a
vehicle exceeded the parameters of acceptable expert testimony in a drug prosecution trial.

On August 14, 2002, two Bergen County police officers stopped a vehicle traveling on Route 95 from the
George Washington Bridge. Defendant Rahmann Reeds allegedly had been driving excessively fast and erratically.
Mark Whitley and Isaac Outen were passengers in the vehicle. The officers detected the smell of burnt marijuana,
noticed a burnt marijuana joint in the center console, and observed several packages of heroin on the front seat
passenger floor. Upon searching the vehicle, the officers uncovered fifteen unopened bricks of heroin and one
opened brick. All totaled, the bricks contained 798 small packages of heroin. In addition, the officers found six
bags of marijuana in the interior front passenger area.

At trial, the State presented several witnesses, including Detective David Swan, an expert in narcotics
distribution and possession. In responding to a hypothetical question, Detective Swan opined, over co-defendant
Whitley’s attorney’s objection, that all defendants were in constructive possession of the narcotics. During the
charge conference, counsel for all three defendants asked the court to provide a limiting instruction informing the
jurors to consider Detective Swan’s opinion only to determine whether the defendants possessed the drugs for
personal use or for distribution; and not to consider his opinion in determining whether the drugs were
constructively possessed because that was an issue of fact for the jury. The trial court issued a limiting instruction
addressing the hypothetical question and the weight of the expert’s opinion based on whether or not the facts
assumed in the hypothetical were proven.

The jury convicted Reeds of third-degree possession of heroin and second-degree possession of heroin with
the intent to distribute. Reeds moved for a new trial based on the State’s purported failure to prove various
elements of the charged offenses. That motion was denied. The court sentenced Reeds to fifteen years’
incarceration with a six-year period of parole ineligibility pursuant to the No Early Release Act (NERA).

Reeds raised several issues on appeal. The Appellate Division, applying the “plain error” standard,
determined that the hypothetical line of questioning by Detective Swan was permissible. The appellate panel further
determined that the court’s limiting instruction during its charge to the jury quelled any potential prejudice that may
have resulted from Detective Swan’s testimony about defendant’s constructive possession of the drugs found in the
car.

The Supreme Court granted limited certification to address the issue of whether Detective Swan’s
testimony exceeded the bounds of acceptable hypothetical testimony.

HELD: Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect,
that he constructively possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony
usurped the jury’s singular role in the determination of defendant’s guilt and irredeemably tainted the remaining trial
proofs, producing an unjust result in defendant’s trial.

1. The Court’s 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
2
professing 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. 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. The Court has 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, 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. Because it is the exclusive responsibility of the jury to
determine guilt, 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. (Pp. 11-
17)

2. In this matter, the trial court did not err by allowing an expert to testify that a drug possessor’s likely intent and
purpose in possessing heroin in the amount and circumstances present here was to engage in distribution. Such
testimony reasonably was determined to be helpful to jurors in understanding a specialized area that was beyond
their ken. There was another portion to the expert’s testimony, however, that must be separately analyzed because it
carries a substantial potential for prejudice. Specifically, the Court must assess the admissibility of the further
testimony by the expert about whether all or any persons traveling in the car in which these drugs were found
constructively possessed the drugs. In response to the hypothetical, the expert reached to address the factual issue
about who in the car could be found to be in possession of the drugs. That should not have been permitted.
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. In this case, 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. Moreover, the resulting jury instruction did not cure the prejudice,
but instead confounded the jury. (Pp. 18-23)

3. Defendant asserts that this case should be decided based on the harmless-error standard of review because co-
defendant Whitley’s attorney objected to the constructive-possession question and answer and because defendant’s
counsel requested that the trial court instruct the jury to disregard the constructive-possession testimony.
Defendant’s counsel never objected to the testimony and even acceded to the jury instruction issued by the court.
Ordinarily, when counsel fails to object to offensive testimony, the Court would apply the plain error standard of
review. The Court need not perseverate over which standard of review ought to control in this setting, however,
because under either standard the Court would reverse this conviction. Allowance of the constructive possession
testimony was plainly erroneous and the resulting prejudice was not harmless. The testimony in respect of
constructive possession usurped the jury‘s role as the ultimate fact-finder and irredeemably tainted all of the
evidence presented. Further, the court’s limiting instruction during the jury charge was not only ineffective in
curing the problem, but was also confounding for the jury because it allowed the testimony to be considered when
the jury assessed defendant’s guilt. This ultimate-issue testimony usurped the jury’s singular role in the
determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result.
(Pp. 23-28)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.

JUSTICE ALBIN filed a separate, CONCURRING opinion, in which JUSTICE LONG joins, stating
that although he is heartened by the majority’s opinion, the Court’s well-articulated reasons for rejecting Detective
Swan’s expert testimony cannot be squared with previous Supreme Court holdings.

JUSTICE RIVERA-SOTO filed a separate, DISSENTING opinion, concluding that the prosecution
properly elicited the opinion of a police detective qualified as an expert concerning a matter outside the ken of an
ordinary person: the idiosyncrasies of a clandestine drug transaction.

3
CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in JUSTICE
LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LONG
joins. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

1

SUPREME COURT OF NEW JERSEY
A-103 September Term 2007


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.


Argued November 3, 2008 – Decided January 22, 2009

On certification to the Superior Court,
Appellate Division.

Alison S. Perrone, Designated Counsel,
argued the cause for appellant (Yvonne Smith
Segars, Public Defender, attorney; Ms.
Perrone and Roger L. Camacho, Designated
Counsel, on the brief).

Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney).

Robyn B. Mitchell, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Anne Milgram,
Attorney General, attorney).


JUSTICE LaVECCHIA delivered the opinion of the Court.
A jury convicted defendant, Rahmann Reeds, of third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1), and second-degree
possession of heroin with intent to distribute, N.J.S.A. 2C:35-
2
5(a)(1) and (b)(2) (possessing quantity of one-half ounce or
more, but less than five ounces). In this appeal, defendant
contends that the State’s expert’s testimony on drug possession
and distribution methods exceeded permissible limits.
Specifically, defendant points to a portion of the expert’s
testimony that responded to a hypothetical question. The
hypothetical reflected the facts of defendant’s arrest. In
response, the expert opined that defendant had been in
“constructive possession” of the drugs recovered by the police
from the car in which he was driving. Defendant claims that the
testimony violated State v. Odom, 116 N.J. 65 (1989), and
subsequent cases, because (1) the subject matter of the expert’s
testimony, addressing who was in possession of the drugs found
in the car, was not beyond the ken of average jurors; and (2)
the expert’s opinion impermissibly invaded the jury’s province
by addressing the ultimate issue of defendant’s guilt.
We agree that the expert’s testimony in this matter went
too far and exceeded permissible limits. That this Court has
recognized a beneficial and appropriate role for a drug expert’s
testimony that explains unfamiliar drug trafficking methods to
jurors was not meant to signal that there are no appreciable
limits to such expert testimony. The expert may not usurp the
province of the jury to decide the ultimate issue of defendant’s
guilt. Here, the expert’s assessment that defendant
3
constructively possessed the drugs found in the car remained
part of the record to be considered by the jury. The question
of constructive possession of the drugs found in the car was one
that the jury was capable of and required to assess itself, by
drawing inferences and applying common logic and knowledge.
Because the expert should not have been permitted to opine on
the ultimate issue of whether defendant possessed the drugs
found, plain error occurred. Accordingly, we are compelled to
reverse defendant’s convictions and to remand for a new trial.
I.
To understand the import of the expert’s testimony in
defendant’s trial, we summarize the facts that were adduced at
trial.
On August 14, 2002, two Bergen County police officers
stopped a vehicle travelling on Route 95 from the George
Washington Bridge. The driver, defendant, allegedly had been
driving excessively fast and erratically. Mark Whitley and
Isaac Outen were passengers in the vehicle. When asked by one
of the officers for his driving credentials, defendant provided
a false name and explained that he did not have a license or an
insurance card. During that colloquy with defendant, the
officer smelled the odor of burnt marijuana and observed an open
beer bottle in the rear portion of the interior cabin of the
vehicle, near where Outen was seated. The officer made
4
defendant exit the vehicle and, in response to further
questioning, defendant admitted that his license was suspended
and explained that the car was borrowed.
Returning to question the two passengers still in the car,
the officer began with Whitley, the front seat passenger, when
he noticed a burnt marijuana joint in the center console. After
the officer had Whitley exit the vehicle, the officer saw
several packages of heroin on the floor where Whitley’s feet had
been. The officer searched the area under the front passenger
seat and found fifteen unopened bricks of heroin, each
containing five bundles of ten heroin packages. He also found
an additional opened brick of heroin. All totaled, the bricks
contained 798 small packages of heroin. In addition, the
officer found six bags of marijuana in the interior front
passenger area.
A grand jury returned indictments against defendant,
Whitley, and Outen for third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one);
against defendant, Whitley, and Outen for second-degree
possession of heroin with the intent to distribute, N.J.S.A.
2C:35-5(a)(1) and (b)(2) (count two); and against defendant and
5
Outen for third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(4) (count three).1
The defendants were tried together. During the four-day
trial, the State presented several witnesses, including
Detective David Swan, an expert in narcotics distribution and
possession.2 During direct examination of Detective Swan by the
prosecutor, the following exchange occurred:
Q [Prosecutor] [A]ssume hypothetically that
three individuals are driving in a borrowed
vehicle. Let’s call the driver S-l, suspect
one. Front passenger, suspect two. And
assume there is a rear passenger behind the
front passenger which we’ll call suspect
three, S-3.

A [Detective Swan] Okay.

Q And they’re traveling from New York
City on Route 95 so that you know that
they’re coming out of New York. And the
individuals are traveling in the vehicle at
night, approximately a little before 9:00 PM
on a week night. They’re driving in an
erratic fashion, pulled over. The front
passenger and the rear passenger, back
passenger at some point are asked their
names and they give false names.


1
Count three was dismissed prior to jury selection.

2
Detective Swan’s qualifications as an expert in this drug
possession case were not challenged. At the time, Detective
Swan had been a member of the Bergen County Prosecutor’s Office
Narcotics Task Force for more than eleven years. He had
investigated fifty-five to sixty heroin cases, had provided an
expert opinion, without testifying, approximately 300 times, and
had thrice testified as an expert in heroin possession
prosecutions.
6
An officer who asks the front passenger for
their paperwork smells marijuana in the
vehicle and notices in the vehicle an open
container of beer.

After that[,] later found in the vehicle, in
the front passenger section, right between -
- on the floor in front of the seat but
where their feet would be are found loose
folds of what’s determined to be heroin and
also scattered on the floor are -- by the
feet of the front passenger are six bags of
marijuana and underneath the seat are found
fifteen bricks of heroin, determined to be
heroin, as well as found additionally is a
sixteenth brick. That sixteenth brick had
been opened so that there were forty bags
and seven or eight various loose folds.

On the back passenger assume is found cigars
or brown cigarettes, Phillies. And on the
persons of the individuals are found a
totality of currency of nine hundred
fourteen dollars.

A Okay.

Q Assuming all those hypothetical facts,
do you have an opinion as to why the drugs,
specifically the heroin, totaling several
hundred bags or folds, would be possessed?

A My opinion they would be possessed with
the intent to distribute.

Q And would that opinion be as to
suspects one, two and three?

A All constructive possession with the
intent to distribute.

. . . .

Q And in your training and experience,
have you ever had an experience where three
individuals would have been located in a
7
vehicle under these hypothetical facts where
it would not have been possessed by them?

[Defense counsel for Whitley]: Objection,
judge. That’s a conclusion the jury has to
make.

Court: She’s saying hypothetically in his
training and experience has he ever found
that.

[Defense counsel for Whitley]: I don’t
think she said hypothetically. I think she
said has he ever been involved in a case
where this happened. She wasn’t phrasing it
in hypothetical terms.

[Prosecutor rephrases the question]

Q Hypothetically considering these facts
or in your experience would it be your
opinion these drugs could be possessed not
with the intent to be distributed?

A I believe they would be possessed with
the intent to be distributed.

Q Why else do you have that opinion
besides the amount?

A The amount, the fact that there’s three
individuals in the vehicle. It’s been my
experience doing road stops, pulling people
over during interdictions that generally
when people go to purchase drugs they don’t
go alone because there’s a danger involved
where not only do they have to worry about
the police, being detected by the police,
but other drug dealers or potential robbers,
stickup men. So one may act as a lookout.
One may act as a money guy. One may act as
security.

[(Emphasis added).]

8
After Detective Swan’s direct-examination testimony, the
term “constructive possession” came up again during co-defendant
Whitley’s counsel’s cross-examination. Whitley’s counsel asked
Detective Swan if his opinion would differ had two people been
in the car instead of three. Detective Swan replied, “No, it’s
the same. It’s still constructive possession, yes.” Counsel
for Whitley retorted, “That’s an answer the jury is going to
have to decide, a question the jury is going to have to answer.
You’re being asked to testify whether or not those drugs were
possessed with the intent to distribute period.”
After cross-examination of Detective Swan, the concept of
constructive possession was raised again by the prosecutor on
re-direct examination:
Q And you’ve testified you believe
in the hypothetical the defendants would
have possessed the heroin constructively for
distribution?

[Defense counsel for Whitley]:
Objection. I don’t think that was testimony.
I believe that’s legal conclusion.

The Court: It’s leading. Sustained.

. . .

Q What was your position as to why
approximately eight hundred decks of heroin
in the scenario I gave you would be
possessed for?

A I believe I said they were
constructively possessed with the intent to
distribute.
9
During the charge conference, counsel for all three
defendants asked the court to provide a limiting instruction
informing the jurors to consider Detective Swan’s opinion only
to determine whether the defendants possessed the drugs for
personal use or for distribution; and not to consider his
opinion in determining whether the drugs were constructively
possessed because that was an issue of fact for the jurors to
decide themselves. The trial court responded by issuing the
following limiting instruction:
In examining an expert witness counsel
may propound to her or him a type of
question known in the law has [sic] a
hypothetical question. You heard the
Prosecutor say assuming this and assuming
that. That was the form of the hypothetical
question.

By such question the witness is asked
to assume to be true a hypothetical state of
facts and to give an opinion based on that
assumption.

In permitting such a question the Court
does not rule and does not necessarily find
that all the assumed facts have been proved.
It only determines that those assumed facts
are within the possible range of the
evidence.

It is for you, the jury, to determine
and to find from all the evidence whether or
not the facts assumed in a hypothetical
question have been proved. And if you
should find that any assumption in such a
question has not been proved, you are to
determine the effect of the failure of proof
on the value and weight of the expert
opinion based on that assumption.
10
The testimony of Detective David Swan
was limited to the issue of whether the
drugs possessed were for personal use or for
distribution. The issue of possession
and/or constructive possession is for you to
decide based on the actual facts presented.

The jury convicted defendant of third-degree possession of
heroin and second-degree possession of heroin with the intent to
distribute. Defendant’s motion for a new trial, based on the
State’s purported failure to prove various elements of the
charged offenses, was denied. The court merged counts one and
two and sentenced defendant to fifteen years’ incarceration with
a six-year period of parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed, raising several issues before the
Appellate Division, but in light of our limited grant of
certification in this matter, we note only one: that Detective
Swan’s testimony exceeded the bounds of acceptable hypothetical
question testimony. In respect of that argument, the Appellate
Division held that the hypothetical line of questioning of
Detective Swan complied with the parameters set forth in Odom,
supra, 116 N.J. 65, and State v. Summers, 176 N.J. 306 (2003).
In reaching its conclusion, the panel applied the plain error
standard of review because it found that defendant’s counsel did
not object to Detective Swan’s use of the phrase “constructive
possession” during his testimony. Further, the Appellate
11
Division determined that the trial court’s limiting instruction
during its charge to the jury quelled any potential prejudice
that may have resulted from Detective Swan’s testimony about
defendant’s constructive possession of the drugs found in the
car.3
We entered a limited grant of defendant’s petition for
certification, State v. Reeds, 195 N.J. 523 (2008), to review
whether the expert testimony about constructive possession of
the drugs found exceeded the parameters of acceptable expert
testimony in a drug prosecution trial.
II.
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

3
The Appellate Division dismissed defendant’s other claims of
error on the merits and affirmed defendant’s convictions and
sentence, remanding only for a calculation of defendant’s gap
time credits.

12
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 (2007).
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 (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 (quoting State v. Perez,
218 N.J. Super. 478, 485 (App. Div. 1987)); see also Summers,
supra, 176 N.J. at 312-17 (recognizing same).
13
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. 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 them. Id. at 69. 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.]

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. And, we
reaffirmed the use of such hypothetical questions when that
14
practice was called into question in Summers, supra, 176 N.J.
311, 317.
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 (quoting Odom, supra, 116
N.J. at 80-82) (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
15
undue prejudice, N.J.R.E. 403. See State v. Berry, 140 N.J.
280, 298 (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 (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
(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 81-82.
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
16
be secreted or otherwise possessed for
personal use or [distribution].

[Odom, supra, 116 N.J. at 81-82 (quoting
State v. Odom, 225 N.J. Super. 564, 573
(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.
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. 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.]
17
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, and underscored the importance of
preventing the expert testimony from tracking too closely the
language of the pertinent criminal statute. Id. at 517.
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. 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.4

4
The criticism that has been leveled at Odom and its progeny
contends that the probative value of expert testimony concerning
a defendant’s intent or purpose in possessing drugs is exceeded
by the resulting prejudice from that testimony. See Nesbitt,
supra, 185 N.J. at 520-22 (Albin & Long, JJ., dissenting);
Summers, supra, 176 N.J. at 318-24 (Albin & Long, JJ.,
dissenting). Our dissenting colleagues have argued that
“[a]fter an expert explains the significance of the methods and
means of drug dealing -- matters outside common knowledge --”
jurors are then capable of drawing an inference as to a
defendant’s state of mind. Nesbitt, supra, 185 N.J. at 521
(Albin & Long, JJ., dissenting); Summers, supra, 176 N.J. at 323
(Albin & Long, JJ., dissenting). Obviously, the Court’s
holdings reflect its recognition that the jury benefits from
hearing the expert’s opinion in respect of the underlying intent
or purpose of a drug possession. By consolidating the set of
facts relied on by the expert, the jury hears the entire basis
for the opinion reached about the likely intent or purpose
18
III.
A.
In the present case, police stopped a car transporting a
large quantity of heroin -- sixteen bricks -- into the state
allegedly for purposes of distribution, not just for personal
possession and use. The trial and appellate courts reasonably
determined that jurors might not be familiar with the common
practices used by those in the drug distribution trade when
acquiring and transporting drugs for distribution, such as the
practice of travelling with multiple persons in a borrowed car
to secure drugs at less expensive rates from a marketplace like
New York City. Just as jurors are unfamiliar with the variety
of methods used in the hand-to-hand sale of drugs on the street,
see Nesbitt, supra, 185 N.J. at 515, a similar lack of knowledge
and unfamiliarity can extend to the many ways in which drugs
make their way to ultimate purchasers for use.
In this matter, the trial court did not err by allowing an
expert to testify that a drug possessor’s likely intent and
purpose in possessing heroin in the amount and circumstances
present here was to engage in distribution. Such testimony
reasonably was determined to be helpful to jurors in
understanding a specialized area that was beyond their ken.

underlying particular possessory circumstances. That said, it
is entirely different for a drug expert to undertake to opine on
whether drugs were possessed by a defendant.
19
That said, our analysis cannot end there. Although the
aforesaid portion of the expert’s testimony was helpful and
probative evidence, there was another portion to the expert’s
testimony that must be separately analyzed because it carries a
substantial potential for prejudice. Specifically, we must
assess the admissibility of the further testimony by the expert
about whether all or any persons travelling in the car in which
these drugs were found constructively possessed the drugs. If
the probative value of that portion is substantially outweighed
by the danger of undue prejudice to defendant, then it should
not have been admitted. See N.J.R.E. 403; Nesbitt, supra, 185
N.J. at 515.
Here, after introducing a hypothetical that tracked Odom’s
foundational requirements for reflecting the facts as presented
by the State, the following exchange occurred between the
prosecutor and the expert:
Q [Prosecutor] Assuming all those
hypothetical facts, do you have an opinion
as to why the drugs, specifically the
heroin, totaling several hundred bags or
folds, would be possessed?

A [Expert] My opinion they would be
possessed with the intent to distribute.

Q And would that opinion be as to
suspects one, two and three?

A All constructive possession with the
intent to distribute.

20
[(Emphasis added).]

Although the prosecutor appeared to ask for an opinion about the
intent of the participants, the last response by the expert
inappropriately addressed the point of constructive possession.
Thus, the expert reached to address the factual issue about who
in the car could be found to be in possession of the drugs.
That should not have been permitted.
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. “Constructive 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
21
control or dominion over it during a span of time.’” State v.
Lewis, 185 N.J. 363, 371 (2005) (quoting State v. Spivey, 179
N.J. 229, 236-37 (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; see also
State v. Hurdle, 311 N.J. Super. 89, 94-98 (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).
22
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 (“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.
Moreover, the resulting jury instruction did not cure the
prejudice. See Odom, supra, 116 N.J. at 82. When explaining to
the jury the proper weight to be accorded to the expert
testimony presented, the trial court added that
[t]he testimony of Detective David Swan was
limited to the issue of whether the drugs
possessed were for personal use or for
distribution. The issue of possession
23
and/or constructive possession is for you to
decide based on the actual facts presented.

That confounding instruction only exacerbated the original
error. Rather than striking the offensive portion of the
expert’s testimony, the court essentially instructed the jury
that, in deciding the issue of constructive possession,
Detective Swan’s opinion remained viable -- an opinion that
answered the very question with which the jury was charged.
B.
Defendant asserts that this case should be decided based on
the harmless-error standard of review. Defendant claims
entitlement to that standard because co-defendant Whitley’s
attorney objected to the constructive-possession question and
answer that occurred during the direct examination of Detective
Swan and because defendant’s counsel requested that the trial
court instruct the jury to disregard the constructive-possession
testimony. While that objection by co-counsel did have the
effect of placing the court on notice of the problem caused by
Swan’s testimony, defendant’s own counsel never objected to
Detective Swan’s constructive-possession testimony. Further,
defendant’s counsel acceded to the jury instruction issued by
the court.
Ordinarily, when counsel fails to object to offensive
testimony, we would apply the plain error standard of review,
24
meaning that the error must “have been clearly capable of
producing an unjust result.” R. 2:10-2. We need not
perseverate over which standard of review ought to control in
this setting, however, because under either standard we would
reverse this conviction. Allowance of the constructive
possession testimony was plainly erroneous and the resulting
prejudice was not harmless. The court did not strike the
constructive-possession testimony or otherwise act immediately
to curtail its impact on the jury. In this case involving
expert testimony that reached and addressed the ultimate issue
of defendant’s possession of the drugs found in the car, we
conclude that any “failure of . . . defendant to object to [the]
expert testimony d[id] not relieve the trial court of its
gatekeeper responsibilities” in relation to Odom’s requirements.
Nesbitt, supra, 185 N.J. at 515. Further, as noted, we perceive
the court’s limiting instruction during the jury charge to be
not only ineffective in curing the problem, but also confounding
for the jury because it allowed the testimony to be considered
when the jury assessed defendant’s guilt.
Many cases have found plain error when a trial court
erroneously admitted expert testimony in a drug distribution
trial that involved a straightforward drug transaction, in which
police officers observed the defendant hand an object to an
alleged purchaser in exchange for money. See, e.g., State v.
25
Boston, 380 N.J. Super. 487, 489 (App. Div. 2005), certif.
denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super.
351 (App. Div. 1999); State v. Baskerville, 324 N.J. Super. 245,
247-54 (App. Div. 1999). In those instances, reviewing courts
held that the introduction of ultimate-issue testimony in areas
well within a juror’s knowledge amounted to plain error because
“an essential aspect of the proofs became irredeemably tainted
by a risk of prejudice far outweighing its probative value.”
Baskerville, supra, 324 N.J. Super. at 263-64 (holding that
factual evidence, including undercover detective’s observation
of defendant engaging in hand-to-hand currency exchanges and
finding $897 in currency on defendant’s person, irredeemably
tainted by expert opinion that defendant in hypothetical was
“selling drugs”); see also Singleton, supra, 326 N.J. Super. at
353-54 (explaining that evidence, indicating defendant exchanged
currency and possessed heroin and $200, became contaminated
“with prejudicial qualities not easily cured” by introduction of
expert opinion that hypothetical defendant “was engaging in a
street level distribution scheme . . . selling drugs to
different individuals”).
Similarly, the present case involved a straightforward
vehicle stop and search, during which police recovered sixteen
bricks of heroin and six bags of marijuana in defendant’s
vehicle. The evidence at trial included the testimony of the
26
arresting officer who observed the drugs in the vehicle that
defendant drove, and a forensics expert who verified that the
recovered materials contained illegal narcotics. Although we
had no difficulty agreeing with the courts below that Detective
Swan’s testimony regarding general practices and customs of drug
procurement for distribution purposes was admissible, the
further testimony in respect of constructive possession usurped
the jury’s role as the ultimate fact-finder and irredeemably
tainted all of the evidence presented. Therefore, by admitting
Detective Swan’s testimony opining on defendant’s constructive
possession of the drugs found in the car, and by failing to cure
that prejudicial portion of Swan’s testimony when instructing
the jury, plain error was allowed to occur.
Contrary to the State’s argument, we find this matter to be
distinguishable from Nesbitt, supra, where we did not find plain
error. 185 N.J. at 518-19. Nesbitt, supra, involved an
atypical drug transaction during which defendant held neither
the drugs nor the money involved in the transaction. Id. at
508. The prosecutor, after using a hypothetical that mirrored
the facts adduced, asked the expert “[w]ould 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?”
Id. at 509 (emphasis added). The expert replied that the
individual who corresponded to defendant in the hypothetical was
27
“complicit in distributing drugs.” Id. at 509. Although the
language of the hypothetical did include some terminology of the
applicable criminal statutes, because of the atypical nature of
the drug transaction involved and because Odom’s requirements
otherwise were followed, this Court did not find plain error
from that confluence of events. Id. at 519. On balance, the
jury was found to have benefitted from the expert’s testimony.
Ibid.
In the present case, the expert testimony simply went too
far. Unlike Nesbitt, there was nothing unusual about the
vehicle stop that the police conducted. Detective Swan’s
testimony simply and impermissibly reached an ultimate issue
that the jury was well-equipped to decide and, thus, encroached
on the jury’s role as the ultimate fact-finder. That, coupled
with the fact that the testimony closely tracked the legalistic
construct of “constructive possession” by incorporating the
pertinent statutory language, leads to the conclusion that this
case presents precisely the type of situation that cannot be
countenanced.
In sum, defendant suffered undue prejudice from the
evidence in the form of expert testimony opining, in effect,
that he constructively possessed the drugs found in the vehicle
he was driving. This ultimate-issue testimony usurped the
jury’s singular role in the determination of defendant’s guilt
28
and irredeemably tainted the remaining trial proofs. We
therefore conclude that the admission of the constructive-
possession testimony, and the confounding effect from the
instruction provided to the jury, caused trial error that was
clearly capable of producing an unjust result in defendant’s
trial.
IV.
The judgment of the Appellate Division, which affirmed
defendant’s convictions, is reversed and the matter is remanded
for a new trial.
CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in
JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate
concurring opinion in which JUSTICE LONG joins. JUSTICE RIVERA-
SOTO filed a separate dissenting opinion.
1

SUPREME COURT OF NEW JERSEY
A-103 September Term 2007


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.


JUSTICE ALBIN, concurring.
I concur with the majority that Detective Swan gave
impermissible expert testimony when he opined that defendant and
his two passengers were in “constructive possession with intent
to distribute” the cache of drugs found in the car. I agree
with the majority that a drug expert should not “undertake to
opine on whether drugs were possessed by a defendant,” that
Detective Swan’s testimony “closely tracked the legalistic
construct of ‘constructive possession,’” and that Detective Swan
“reached an ultimate issue that the jury was well-equipped to
decide, and, thus, encroached on the jury’s role as the ultimate
fact-finder.” See ante at ___ (slip op. at 17-18 n.4, 27).
Those well-articulated reasons for rejecting Detective
Swan’s expert testimony, however, cannot be squared with this
Court’s holdings in State v. Odom, 116 N.J. 65 (1989), State v.
2
Summers, 176 N.J. 306 (2003), and State v. Nesbitt, 185 N.J. 504
(2006). In each of those cases, this Court upheld convictions
even though police experts testified in response to hypothetical
questions that the defendants possessed with intent to
distribute the drugs in question. I cannot find any sound
jurisprudential distinction between a police expert’s opinion --
whether given hypothetically or directly -- that a defendant
constructively possessed with intent to distribute drugs or that
a defendant simply possessed with intent to distribute those
drugs.
However much experience police officers may have or well-
trained they may be in the ways of drug possession and
distribution, police officers are not mind readers and should
never be allowed, under the guise of opinion testimony, to tell
a jury that a defendant possessed the state of mind necessary
for a conviction. Detective Swan, as the majority states, “went
too far” because, by opining that defendant constructively
possessed the drugs, he in effect was telling the jury that
defendant knowingly possessed with intent to distribute the
drugs found in the car. See ante at ___ (slip op. at 2). The
same overstepping of bounds occurs when the expert, tracking the
statutory language, tells the jury that the defendant -- absent
the word “constructively” -- possessed with intent to distribute
drugs. In that example, too, the police expert conveys to the
3
jury his opinion that the defendant knowingly possessed the
drugs, and therefore intrudes on the jury’s exclusive role as
finder of fact. I therefore stand by my dissents in Summers and
Nesbitt in which the majority permitted virtually the same type
of expert testimony that it condemns today. See Nesbitt, supra,
185 N.J. at 519 (finding that court did not commit plain error
by allowing police detective to opine that defendant was
accomplice to crime of possession with intent to distribute
controlled dangerous substance); Summers, supra, 176 N.J. at 316
(finding that court did not commit plain error by allowing
police detective to opine that defendant possessed drugs with
intent to distribute).
I am sensitive to the needs of law enforcement to explain,
through expert testimony, the arcane language, culture, and
methods surrounding the crimes of drug possession and
distribution for the purpose of enlightening the jury on a
subject on which it will have little or no knowledge. As I
stated in my dissent in Nesbitt,
[a]n average juror will not know the meaning
of code language used by drug distributors
or the importance to be attached to the
packaging, quantity, and quality of drugs.
An expert could edify jurors concerning the
customary use of scales and other drug
paraphernalia by drug traffickers, as well
as the methods used by drug dealers to ply
their trade. In those instances, the
specialized knowledge and training of the
4
expert is of assistance to the jury in
understanding the evidence before it.

[Nesbitt, supra, 185 N.J. at 521 (Albin, J.,
dissenting) (citing Summers, supra, 176 N.J.
at 322-23 (Albin, J., dissenting)).]

When there is expert testimony “explain[ing] the
significance of the methods and means of drug dealing -- matters
outside common knowledge -- jurors are well equipped to answer
questions such as whether the defendant possessed drugs with
intent to distribute, or whether the defendant was an accomplice
in a drug transaction, without further expert guidance.” Ibid.
As the majority has observed, a jury does not need expert
testimony to explain the obvious.
There is little difference if police officers, tracking the
statutory language, give an opinion that a defendant possessed
with intent to distribute drugs or if they give an opinion that
defendant is guilty of the offense. In both cases, police
officers invade the jury’s exclusive domain by presuming to know
the defendant’s state of mind -- answering the ultimate factual
issue in dispute. Constructive possession is just one manner of
possessing an object. The distinction the majority creates
between constructive and simple possession with intent to
distribute may be sufficient to decide this case -- but provides
no satisfying or coherent approach to the proper bounds of
expert testimony.
5
Although I am heartened by the majority’s opinion today,
because I believe it is a step in the right direction, the
majority’s dutiful but mistaken adherence to the decisions in
Odom, Summers, and Nesbitt, denies the present case a solid
jurisprudential foundation or a consistent rationale that can be
applied to future cases.
JUSTICE LONG joins in this opinion.

- 1 -


SUPREME COURT OF NEW JERSEY
A-103 September Term 2007


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.


JUSTICE RIVERA-SOTO, dissenting.
In this case, the prosecution properly elicited the opinion
of a police detective qualified as an expert concerning a matter
outside the ken of an ordinary person: the idiosyncrasies of a
clandestine drug transaction. See ante at ____ (slip op. at 12-
17). As the Appellate Division succinctly observed, that
opinion was elicited based on the following hypothetical facts:
three persons in a borrowed car, traveling
from New York on Route 95 at night are
stopped for a motor vehicle infraction and
give false names; the smell of burnt
marijuana emanates from the car, on the
front passenger floor there are loose folds
of heroin, six bags of marijuana and fifteen
bricks of heroin found under the front seat;
and over $900 in cash is found on the three
individuals.

The panel noted that, based on those facts,
[t]he detective opined that all three
individuals would be in constructive
- 2 -
possession of the drugs with the intent to
distribute them because there was a large
amount of drugs even for three persons, that
all three were likely involved in the
distribution enterprise, with one possibly
acting as the “lookout," the other as the
“money man" and the third as “security;"
that the use of false names showed an intent
to avoid apprehension and the use of a
borrowed car was typical for drug dealers to
avoid seizure of their own vehicle; and the
fact that at least one person was smoking
marijuana and that the bags of marijuana
were found near the heroin showed that those
in the car knew the heroin was there.

Tellingly, defendant did not interpose a contemporaneous
objection to that expert testimony, thereby denying the trial
court the opportunity to correct that to which defendant now
tardily objects.1 See, e.g., State v. Ingram, 196 N.J. 23, 42
(2008) (defendant’s failure to contemporaneously object to
summation “render[s] it fair to infer from the failure to object
below that in the context of the trial the error was actually of
no moment” (quoting State v. Nelson, 173 N.J. 417, 471 (2002)
(internal quotation marks omitted))); State v. Nero, 195 N.J.
397, 407 (2008) (defendant’s failure to object contemporaneously

1
Significantly, a co-defendant, Mark Whitley, did object to
the scope of the expert’s testimony, both during direct
examination and during re-direct examination; in addition, co-
defendant Whitley addressed the scope of the expert’s opinion
during the cross-examination of the expert. In contrast,
defendant did not interpose his own objection, did not join in
his co-defendant’s objections, and did not address the question
in his cross-examination of the expert witness.
- 3 -
to jury charge requires application of plain error standard
(citing R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004))).
In fact, defendant did not raise the issue of the scope of
the expert’s testimony until the charge conference when, as the
Appellate Division noted, he “requested a jury instruction that
the expert's opinion on constructive possession should be
disregarded and that such issue is a jury determination.” The
panel’s summary of the resolution of defendant’s request,
standing alone, disposes of the question on appeal in its
entirety:
With the approval of all counsel, the judge
instructed that it was for the jury to
decide first, whether all the facts assumed
in the hypothetical question had been
proven, and if the jury found that some
facts were not proven, then that could
impact on the value and weight of the
expert’s testimony and opinion; next, that
the testimony of Detective Swan was admitted
solely on the issue of whether the drugs
were possessed for personal use or for
distribution; and also, that the issue of
possession and constructive possession was
for the jury to decide based upon the
evidence adduced at trial.

[(Emphasis supplied).]2

2
To the extent the majority describes that jury charge as a
“confounding instruction [that] only exacerbated the original
error[,]” ante at ___ (slip op. at 23), any such error would
have been invited and, hence, not a ground for reversal. See
State v. Lykes, 192 N.J. 519, 539 n.7 (2007) (“‘a defendant
cannot beseech and request the trial court to take a certain
course of action, and upon adoption by the court, take his
chance on the outcome of the trial, and if unfavorable, then
condemn the very procedure he sought and urged, claiming it to
- 4 -

Moreover, defendant never raised the question of the scope of
the expert’s testimony in either his motion for judgment of
acquittal, pursuant to R. 3:18-2, or his motion for a new trial,
pursuant to R. 3:20-1.
Although defendant never objected to the expert testimony
as given; although defendant consented to the jury instruction
provided by the court on the issue; and although defendant never
questioned the propriety of either of those two events in his
post-trial motions, the majority nevertheless concludes that,
“[b]ecause the expert should not have been permitted to opine on
the ultimate issue of whether defendant possessed the drugs
found, plain error occurred[,]” ante at ___ (slip op. at 3), and
thus reverses defendant’s convictions and remands the cause for
a new trial. I cannot join in that logic or conclusion.
Because defendant did not contemporaneously object to the
now-challenged expert testimony, because defendant consented to
the jury instruction given on the subject -- which evidenced
defendant’s consent that whatever ill that testimony suffered
from, it had been cured by the court’s instruction to the jury -
- and because defendant failed to raise the question in his

be error and prejudicial. Thus, when a defendant asks the court
to take his proffered approach and the court does so, we have
held that relief will not be forthcoming on a claim of error by
that defendant.’” (quoting State v. Jenkins, 178 N.J. 347, 358
(2004))).
- 5 -
post-trial motions, the better reasoning was expressed by the
Appellate Division, and I adopt it here in full:
The hypothetical question posed to
Detective Swan was framed and responded to
in accordance with the State v. Summers, 176
N.J. 306 (2003), and State v. Odom, 116 N.J.
65 (1989), guidelines. The judge gave the
appropriate standard jury instruction about
independently assessing both the facts
contained in the hypothetical and the
expert's opinion. Moreover, any potential
prejudice caused by the detective’s use of
the term “constructive possession,” which
was not objected to by any counsel during
his testimony, was dispelled by [the trial
court]’s instruction, which was consented to
by all counsel, that the jury itself must
resolve the question of whether the drugs
were constructively possessed. We must
presume the jurors followed this specific
admonition and convicted defendant based
solely upon the evidence presented in this
case. State v. Feaster, 156 N.J. 1, 65
(1998), cert. denied sub nom. Kenney v. New
Jersey, 532 U.S. 932 (2001); State v.
Manley, 54 N.J. 259, 270 (1969).

When viewed in its totality, I cannot conclude, as the
majority does, that “defendant suffered undue prejudice from the
evidence in the form of expert testimony opining, in effect,
that he constructively possessed the drugs found in the vehicle
he was driving” and that “[t]his ultimate-issue testimony
usurped the jury’s singular role in the determination of
defendant’s guilt and irredeemably tainted the remaining trial
proofs.” Ante at ___ (slip op. at 27-28). Therefore, because I
- 6 -
would affirm the judgment of the Appellate Division that, in
turn, affirmed defendant’s convictions, I respectfully dissent.

- 1 -
SUPREME COURT OF NEW JERSEY

NO. A-103 SEPTEMBER TERM 2007

ON CERTIFICATION TO Appellate Division, Superior Court




STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.






DECIDED January 22, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY Justice Albin
DISSENTING OPINION BY Justice Rivera-Soto

CHECKLIST REVERSE AND
REMAND CONCUR AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LONG (X) X
JUSTICE LaVECCHIA X
JUSTICE ALBIN (X) X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 6 1