STATE OF NEW JERSEY VS. ANTHONY ROSS (15-06-0865, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4443-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ROSS, a/k/a

ANTHONY M. BUN,

Defendant-Appellant.

_________________________

Submitted September 13, 2018 – Decided March 14, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 15-06-0865.

Joseph E. Krakora, Public Defender, attorney for

appellant (Elizabeth C. Jarit, Assistant Deputy Public

Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for

respondent (Charles C. Cho, Assistant Prosecutor, on

the brief).

PER CURIAM

Defendant Anthony Ross appeals his convictions for third-degree

possession of heroin, N.J.S.A. 2C:35-10(a)(1), and third-degree possession of

heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3), and the sentence

imposed on the latter conviction following the court's merger of the offenses.

More particularly, he contends the court erred by denying his motion to suppress

evidence, allowing police testimony concerning reports of drug activity made

by concerned citizens, providing improper jury instructions and failing to

properly consider and find aggravating and mitigating factors at sentencing.

Based on our review of the record in light of the applicable legal principles, we

affirm the court's denial of defendant's motion to suppress evidence, reverse

defendant's convictions and remand for further proceedings.

I.

Defendant was charged in an indictment with seven drug-related offenses

and endangering the welfare of a child, N.J.S.A. 2C:24-4(a), as the result of a

police investigation of his alleged distribution of six packets of heroin on

January 31, 2015, in front of a Jersey City apartment building located on Martin

Luther King Drive, and the subsequent seizure of 300 packets of heroin from

apartment 3C in the building pursuant to a search warrant. The charges against

co-defendants Annta I. Walker, Maurice A. Washington, Juan Maldonado, Glen

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Coleman, and Jacinto A. Robles were severed prior to defendant's trial, and

some of the charges against defendant were dismissed at the State's request prior

to his trial.

Defendant's Suppression Motion

Defendant moved to suppress the evidence seized during a January 31,

2015 search of apartment 3C pursuant to a warrant that was issued based on the

affidavit of Jersey City Police Officer Dwayne Dowell. Defendant claimed the

seized evidence should be suppressed because Dowell's affidavit did not assert

facts sufficient to establish probable cause for a search of the apartment.

In the affidavit, Dowell described his experience as a police o fficer

conducting narcotics investigations, and included information the police

received from "a concerned citizen," a "confidential informant," and another

"informant" about defendant's alleged involvement in the possession and

distribution of phenylcyclohexyl piperidine (PCP) and heroin "out of" apartment

3C in an apartment building on Martin Luther King Drive and a nearby

convenience store.

The affidavit states Jersey City Police Sergeant McVicar "received

information from a concerned citizen regarding narcotic and gang activity" in

the area of the apartment building. It further explained the "concerned citizen"

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provided information in the past "that has resulted in more than a dozen arrests

of individuals for narcotics-related offenses and the seizure of narcotics, money,

and other related contraband." It also stated the concerned citizen had "personal

knowledge of the subjects of [the] investigation," including defendant, and had

"observed [defendant] distributing . . . heroin . . . in the early morning hours"

and that defendant "distributes" controlled dangerous substances "out of" the

Martin Luther King Drive apartment building. The informant also personally

observed defendant entering apartment 3C.

In the affidavit, Dowell also stated that on January 22, 2015, a confidential

informant (CI) notified him that, based on the CI's personal knowledge,

defendant engaged in "narcotics distribution activities," and offered the CI

bottles of PCP for distribution. The CI told Dowell he had personal knowledge

defendant "will conduct hand to hand narcotic transaction[s]" and "distributes

[controlled dangerous substances] out of apartment 3C" in the Martin Luther

King Drive apartment building and from a nearby convenience store. Dowell

also stated Jersey City Police Sergeant Wojtowicz was advised by an informant

that defendant "stashes narcotics on a ground level courtyard located inside of

[the apartment building]."

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In the affidavit, Dowell further asserted that he began surveilling the area

of the Martin Luther King Drive apartment building after receiving "numerous

complaints from concerned citizens," and described his observations of

defendant at approximately 8:30 a.m. on January 31, 2015.

Dowell observed defendant exit the apartment building, walk southbound

and return a short time later with Coleman, Robles and a third individual.

Dowell saw defendant extend his hand behind his back and deliver a small white

object to Coleman. Dowell believed he witnessed a narcotics transaction and

requested that other officers stop Coleman and Robles. Dowell observed

defendant enter the apartment building, and also saw Coleman hand the white

object to Robles in exchange for currency. When the other officers arrived,

Robles was found in possession of six glassine bags containing suspected heroin

and bearing the label "Dirty Money." The affidavit stated Jersey City Police

Sergeant McVicar entered the Martin Luther King Drive apartment building,

observed defendant exiting the elevator and arrested him.

The affidavit further detailed facts and evidence showing defendant lived

in apartment 3C with his girlfriend, Annta Walker. The affidavit described prior

investigations during which defendant's address was identified as apartment 3C,

Walker's filing of a domestic violence complaint against defendant listing

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apartment 3C as her and defendant's address, the results of a database search

showing the apartment as defendant's address, and the fact that defendant listed

apartment 3C as his address following prior arrests.

The affidavit also generally described the Martin Luther King Drive

apartment building, and included Dowell's assertion "that there is probable cause

to believe that there may be . . . weapons at" defendant's apartment and

"additional CDS narcotics . . . along with the possibility of narcotic

paraphernalia."

The court determined that the totality of the circumstances described in

the affidavit established probable cause to search apartment 3C. The court

concluded that although the affidavit did not include any evidence establishing

the CI's veracity, Dowell's surveillance of the narcotics transaction provided

corroboration of the CI's statements concerning defendant's alleged drug

dealing. The court also found that based on the officer's observations of the

suspected drug transaction in front of the apartment building, and the evidence

showing defendant lived in apartment 3C in the building, there was probable

cause to believe defendant entered the building following the transaction to enter

the apartment to obtain "a product to sell on the street." The court denied

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defendant's motion to suppress the heroin recovered from the apartment, and

defendant proceeded to trial.

Defendant's Trial

The trial evidence showed that on January 31, 2015, Dowell conducted

plain-clothes surveillance in an unmarked vehicle in the area of the Martin

Luther King Drive apartment building. Dowell testified generally that he

conducts surveillance after he receives information from "concerned citizens"

about drug activity in a particular area. He described what he observed during

the surveillance of defendant in a manner generally consistent with the

representations in his search warrant affidavit.

He explained that at approximately 8:30 a.m. on January 31, 2015, he

observed defendant exit the apartment building, walk out of view, and return a

short while later with Coleman, Robles and the third individual walking behind

him.

As defendant walked toward the apartment building, Dowell observed him

"reach behind his back and hand . . . Coleman small white objects." Officer

Dowell testified that "from what [he] observed, [he] believe[d] it was a narcotics

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transaction," so he notified nearby officers 1 to stop defendant and Coleman.

Defendant entered the apartment building, and Dowell next observed "Coleman

hand those same objects he received from [defendant] to . . . Robles." The other

officers then arrived, and "recovered six bags of heroin from Robles." Each of

the bags of heroin recovered from Robles bore the label "Dirty Money." They

were marked as exhibit S-13 in evidence.

Dowell testified that later that day he submitted an affidavit in support of

a request for a warrant to search apartment 3C. During the subsequent search,

the police recovered "six bricks of heroin," containing "about three hundred bags

of heroin," in "a child's bedroom." Police also recovered mail that was addressed

to defendant and Walker at apartment 3C, various pieces of defendant's

identification and $2452 in cash. The 300 bags of heroin were wrapped in paper

bearing a "Dirty Money" stamp, and were marked in evidence as exhibit S-7.

Police did not recover any items "used to ingest heroin."

McVicar testified the police surveilled the area near the apartment

building because they "received complaints about narcotics activity taking place

in that area." Following Dowell's radio transmission advising the other officers

1

Jersey City Police Officer William Costigan later testified that officers waited

in "perimeter unit[s] . . . on the outskirts" of the surveilled area to avoid alerting

anyone about the presence of the police.

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concerning the alleged drug transaction, McVicar entered the apartment building

and encountered defendant exiting the first-floor elevator. McVicar then placed

defendant under arrest.

Kaitlin Farrell, a senior forensic chemist at the Hudson County

Prosecutor's Office's Forensic Laboratory, tested seven of the 300 bags

recovered from apartment 3C and determined they each contained heroin. She

tested two of the six bags recovered from Robles and determined they contained

heroin.

The trial court qualified Jersey City Detective Anthony Goodman "as an

expert in the area of narcotics." Detective Goodman testified that heroin is

packaged in individual glassine bags for individual sales and groups of ten are

bundled together and wrapped in a rubber band. Several bundles are then

wrapped in magazine or newspaper as "a brick." The individual glassine bags

may also have logos or insignias as "a brand name" to advertise the heroin.

Goodman explained that drug dealers often designate a "stash house" where a

"majority of the drugs and/or money is kept."

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The court submitted three charges to the jury for its determination. 2

Defendant was acquitted of third-degree distribution of a controlled dangerous

substance, heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count

one), but convicted of third-degree possession of a controlled dangerous

substance, heroin, N.J.S.A. 2C:35-10(a)(1) (count four), and third-degree

possession of a controlled dangerous substance, heroin, with intent to distribute,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (count five). 3

The court granted the State's motion for imposition of a mandatory

extended term sentence pursuant to N.J.S.A. 2C:43-6(f). Following merger of

the offenses, the court sentenced defendant to an eight-year custodial term, with

a forty-two-month period of parole ineligibility, on his conviction for third-

degree possession of heroin with intent to distribute. This appeal followed.

On appeal, defendant makes the following arguments:

2

As noted, at the State's request the court dismissed certain counts of the

indictment prior to trial. Other counts were dismissed at the State's request

during trial. When the matter was submitted for the jury's deliberations, only

three charges against defendant remained.

3

Due to the dismissal of all but three of the charges prior to the submission of

the case to the jury for its deliberations, in its instructions to the jury the court

referred to count one as "count one," but referred to count four as "count two"

and count five as "count three." In our discussion of the counts, we refer to them

as originally designated in the indictment.

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POINT I

THE AFFIDAVIT IN SUPPORT OF THE SEARCH

WARRANT FAILED TO PROVIDE PROBABLE

CAUSE TO ESTABLISH THAT NARCOTICS

WOULD BE FOUND IN APARTMENT 3C OF 450

MLK.

POINT II

DEFENDANT'S RIGHT TO CONFRONTATION

WAS VIOLATED BY THE ADMISSION OF

TESTIMONY THAT THE POLICE DECIDED TO

CONDUCT SURVEILLANCE AT A PARTICULAR

PLACE AFTER RECEIVING INFORMATION FROM

CONCERNED CITIZENS ABOUT DRUG

ACTIVITY.

POINT III

THE TRIAL COURT'S REPEATED USE OF

"AND/OR" DURING THE JURY INSTRUCTIONS

CREATED THE DANGER OF A PATCHWORK

VERDICT AND NECESSITATES REVERSAL OF

DEFENDANT'S CONVICTIONS.

POINT IV

THE CUMULATIVE IMPACT OF THE ERRORS

DENIED THE DEFENDANT DUE PROCESS AND A

FAIR TRIAL.

POINT V

RESENTENCING IS REQUIRED BECAUSE THE

COURT PENALIZED THE DEFENDANT FOR

EXERCISING HIS RIGHT TO TRIAL,

INCORRECTLY RELIED ON THE DEFENDANT'S

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ADDICTION IN FINDING AN AGGRAVATING

FACTOR, AND IMPROPERLY REJECTED

MITIGATING FACTOR ELEVEN.

A. Imposition of a trial penalty violates both the

Criminal Code and Constitution, requiring

resentencing.

B. Aggravating factor three was improperly based on

Mr. Ross's substance abuse history in violation of State

v. Baylass.

C. The rejection of mitigating factor eleven, when it

was amply supported in the record, requires

resentencing.

II.

We first address defendant's contention the trial court erred by denying

his motion to suppress evidence seized during the January 31, 2015 search of

apartment 3C. A reviewing court "accord[s] substantial deference to the

discretionary determination resulting in the issuance of [a] [search] warrant."

State v. Boone, 232 N.J. 417, 427 (2017) (third alteration in original) (quoting

State v. Jones, 179 N.J. 377, 388 (2004)). Our role "is not to determine anew

whether there was probable cause for issuance of the warrant." State v. Hamlett,

449 N.J. Super. 159, 169 (App. Div. 2017). Rather, we "consider the 'totality of

the circumstances,'" Boone, 232 N.J. at 427 (citation omitted), and determine

"whether there is evidence to support the [probable cause] finding made by the

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warrant-issuing judge," Hamlett, 449 N.J. Super. at 169 (quoting State v.

Chippero, 201 N.J. 14, 20-21 (2009)). Any marginal doubt as to the adequacy

of facts submitted to establish probable cause "should ordinarily be resolved by

sustaining the search." Id. at 170 (quoting State v. Keyes, 184 N.J. 541, 554

(2005)); Simmons v. Loose, 418 N.J. Super. 206, 224 (App. Div. 2011) (citation

omitted).

A warrant application must provide evidence "that there is probable cause

to believe that a crime has been committed, or is being committed, at a specific

location or that evidence of a crime is at the place sought to be searched."

Boone, 232 N.J. at 426 (first emphasis removed) (quoting Jones, 179 N.J. at

388). A probable cause determination must be based on facts contained in the

"four corners of the supporting affidavit, as supplemented by sworn testi mony

before the issuing judge that is recorded contemporaneously." Id. at 427

(quoting State v. Marshall, 199 N.J. 602, 611 (2009)). A court considering a

search warrant application "is required only to make a practical and realistic

evaluation of the information presented on the issue of probable cause."

Chippero, 201 N.J. at 32. A "'search executed pursuant to a warrant is presumed

to be valid' and 'a defendant challenging its validity has the burden to prove that

there was no probable cause supporting the issuance of the warrant or that the

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search was otherwise unreasonable.'" Hamlett, 449 N.J. Super. at 169 (quoting

Jones, 179 N.J. at 388).

Defendant contends Dowell's affidavit did not establish probable cause to

search apartment 3C because "[t]he only information linking apartment 3C and

the alleged narcotics activity came from statements made by an unidentified [CI]

alleging defendant sold drugs from that residence." He also claims the

information from the CI was over a week old, and therefore was stale and could

not support probable cause there were drugs in the apartment on January 31,

2015.

Defendant's argument is founded solely on the inaccurate premise that the

only information in Dowell's affidavit supporting probable cause to search

apartment 3C is the information attributed to the CI. As the motion court

correctly determined, however, even if the information attributed to the CI is

disregarded, the totality of the other circumstances described in the affidavit

established probable cause to search apartment 3C.

In the first instance, defendant ignores that the affidavit includes

information provided by a "concerned citizen" who had previously provided

information resulting in the seizure of narcotics and other contraband and "more

than a dozen arrests of individuals for narcotics-related offenses." The

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concerned citizen reported personally observing defendant entering apartment

3C and "distributing . . . heroin . . . in the early morning hours . . . out of" the

apartment building on Martin Luther King Drive. Courts generally presume a

concerned citizen's veracity in reporting the commission of a crime even absent

the showing of a history of providing reliable information demonstrated here,

State v. Johnson, 171 N.J. 192, 216 (2002), and defendant does not challenge

the information provided by the concerned citizen or the propriety of the court's

reliance on it to support the finding there was probable cause to search apartment

3C.

Moreover, and as the motion court aptly found, the totality of the

circumstances surrounding the police surveillance and investigation detailed in

Dowell's affidavit independently provides probable cause for the search. Dowell

observed defendant exit the Martin Luther King Drive apartment building,

engage in what Dowell believed was a hand-to-hand distribution of heroin to

Coleman, and immediately re-enter the apartment building where he was

arrested a short time later. Dowell further explained that various police records

showed apartment 3C as the long-standing address of defendant and his

girlfriend, Annta Walker, and that three weeks prior to the search warrant

request defendant provided apartment 3C as his address when he was arrested

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on other charges. This information provided ample support for the court 's

determination there was probable cause to search defendant's apartment, even

without regard to any of the information attributed by Dowell to the CI. See

State v. Myers, 357 N.J. Super. 32, 35 (App. Div. 2003) (finding probable cause

to search the defendant's residence where he was observed leaving the

residence, walking to a nearby location where drug transactions took place and

handing a package to another person in what police believed was a drug

transaction).

We are also not persuaded by defendant's reliance on Boone to support his

contention Dowell's affidavit failed to provide any facts that controlled

dangerous substances would be found in apartment 3C. In Boone, police

observed the defendant engage in various hand-to-hand drug transactions in the

Englewood, Hackensack and River Edge areas, and at one point drive to an

apartment complex where police suspected he lived. Boone, 232 N.J. at 422.

Police did not observe defendant enter the building, but filed an application for

a search warrant for apartment 4A in the apartment complex. Ibid. The

application merely described defendant's residence as a "multi-family dwelling"

without noting it was a thirty-unit building. Ibid. The Court held the police's

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search warrant application was deficient because it failed to show how police

knew defendant lived in the apartment they sought to search. Ibid.

The Court further noted that the police's conclusory statement that the

defendant lived in the apartment was insufficient, and "nothing in the warrant

affidavit tie[d] [the apartment] to the criminal activity alleged elsewhere in the

affidavit." Id. at 429. Thus, the Court held that the "[p]olice failed to provide

the issuing judge a basis of knowledge from which to conclude that contraband

would be found in the particular apartment," ibid., because it did not provide

"any evidential basis as to how they knew that specific unit in a thirty-unit

building contained contraband," id. at 430.

Here, unlike in Boone, Dowell provided several bases supporting a finding

that there was reason to believe evidence of narcotics dealing would be found in

apartment 3C, and that defendant lived in that apartment. As noted, police

records showed defendant resided in apartment 3C of the Martin Luther King

Drive apartment building, and defendant was observed leaving the apartment

building immediately before engaging in a hand-to-hand narcotics transaction

and re-entering the apartment building immediately following the transaction.

Those facts provided a sufficient basis for the officers to reasonably conclude

that evidence of narcotics distribution would be found inside defendant 's

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apartment 3C. See Myers, 357 N.J. Super. at 40. The court therefore correctly

denied defendant's motion to suppress the evidence seized from the apartment

pursuant to the search warrant.

III.

"The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution confer on . . . defendant[s] the right

to confront the witnesses against [them]." State v. Williams, 219 N.J. 89, 92

(2014). Defendant contends his right to confrontation was violated when

Dowell and Sergeant McVicar testified that their investigation and surveillance

on January 31, 2014, was the result of citizen complaints about narcotics

transactions in the area of the apartment building. Although we reverse

defendant's convictions based on the errors in the jury instructions we discuss

in Section IV, infra, we address defendant's claims that Dowell's and McVicar's

testimony violated his confrontation rights for purposes of completeness and to

provide guidance to the trial court on remand.

Defendant challenges the admission of the following testimony from

Dowell in response to questions posed by the prosecutor:

[The Prosecutor]: And what are some of the job

responsibilities of a surveillance officer?

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[Dowell]: We take in complaints from concerned

citizens. Also information received from concerned

citizens . . . about drug activity in certain areas. Then I

would - - what a surveillance officer would do is set up

surveillance to surveil those areas to see what exactly

is going to - -

[The Prosecutor]: And on January 31, 2015, were you

conducting surveillance in any particular area?

[Dowell]: Yes, I was conducting surveillance in the

area of Martin Luther King [Drive] and Oak Street.

Defendant also challenges the admission of McVicar's testimony, over

defendant's objection, during the following exchange with the prosecutor:

[The Prosecutor]: Now can you explain to the . . . jury

what the circumstances were under which you came

into contact with [defendant]?

[McVicar]: We had - - myself and other members of the

street crime unit, we received complaints about

narcotics activity taking place in that area of Oak Street

and [Martin Luther King] Drive.

[Defense Counsel]: Judge, I'm going to object about

any complaints that might have been received.

[The Court]: Overruled.

[McVicar]: And for that reason, [p]olice [o]fficer

Dowell established a surveillance in that area.

In State v. Bankston, the Court addressed an accused's right to confront

witnesses in the context of a police officer's testimony concerning the reasons

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certain actions were taken during an investigation. 63 N.J. 263, 265-68 (1973).

During trial, a detective testified that "before defendant was arrested the officers

had been talking to an informer and that based on information received they

went to [a] tavern," with a description of defendant's clothing, and found

defendant in possession of narcotics. Id. at 266.

The Court explained the hearsay rule does not prevent an officer from

testifying that he took an action based "upon information received," but that

"when the officer becomes more specific by repeating what some other person

told him concerning a crime by the accused the testimony violates the hearsay

rule . . . [and] the accused's Sixth Amendment right to be confronted by

witnesses against him." Id. at 268-69. The Court reversed the defendant's

conviction because the "detective's hearsay testimony led to the 'inescapable

inference' that the detective received information from an unknown source

implicating the defendant in the crime," State v. Branch, 182 N.J. 338, 349

(2005) (explaining Bankston), and because "the record presented a debatable

case for the jury," Bankston, 63 N.J. at 272, admission of the testimony "may

well have been the decisive factor which resulted in the guilty verdict," id. at

273.

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In Branch, the primary issue concerning defendant's guilt was his

identification by two victims during their review of photo arrays. 182 N.J. at

347. A detective testified the arrays were assembled "based on information

received." Ibid. The Court found that a police officer may testify that he took

an action "based on information received" to explain an action, "but only if

necessary to rebut a suggestion that [he or she] acted arbitrarily and only if the

use of that phrase does not create an inference that the defendant has been

implicated in a crime by some unknown person." Id. at 352. "The 'common

thread' that renders testimony about information received from non-testifying

third parties inadmissible 'is that a police officer may not imply to the jury that

he possesses superior knowledge, outside the record, that incriminates the

defendant.'" State v. Weaver, 219 N.J. 131, 152 (2014) (quoting Branch, 182

N.J. at 351); see also State v. Lazo, 209 N.J. 9, 12-13 (2012) (finding "an

officer's reasons for placing a particular photo in an array are irrelevant and

prejudicial," and can "improperly bolster[] the victim's account and invade[] the

role of the jury to weigh the victim's credibility").

Based on our review of the record, we are not convinced Dowell's

testimony could have been fairly interpreted by the jury to suggest that Dowell

had information supplied by third parties that incriminated defendant. The

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testimony was provided without reference to defendant and instead more

generally described the reason surveillance is set up in a particular area. Dowell

testified that when he received complaints there might be drug activity in a

particular area, he set up surveillance "to see what exactly is going on," but did

not suggest in any manner that he conducted surveillance on January 31, 2014,

because he had been advised by third parties that defendant was involved in any

drug activity. Dowell's testimony was unnecessary because "[t]here was no

legitimate need or reason [for Dowell] to tell the jury why" the surveillance was

undertaken, Branch, 182 N.J. at 348, but it did not violate defendant's right to

confrontation under the principles in Branch and Bankston.

Defendant also waived his confrontation claim by failing to object to

Dowell's testimony at trial. "[T]he defendant always has the burden of raising

his Confrontation Clause objection." State v. Williams, 219 N.J. 89, 99 (2014)

(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327 (2009)). "The

right of confrontation, like other constitutional rights, may be waived by the

accused." Id. at 98. A defendant is not required to assert a constitutional right,

and a defense attorney may choose as part of a reasonable defense strategy to

refrain from objecting to testimony that may be otherwise inadmissible because

it violates a defendant's right to confrontation. Id. at 99. Here, in defendant's

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brief on appeal he concedes his trial counsel made a strategic decision not to

challenge Dowell's testimony, preferring not to raise the issue of the reason for

the surveillance "so as not to draw attention to it" before the jury.

McVicar's testimony stands on a different footing. He was asked to

describe the circumstances under which he "came into contact with" defendant

and, in response, referred to complaints from third parties about "narcotics

activity taking place in that area" of the apartment building that he "and other

members of the street crime unit . . . received." The context presented by the

question and McVicar's response permitted the reasonable inference that he and

other members of the street crime unit came into contact with defendant based

on reports from third parties defendant was involved in drug activity. The

testimony violated defendant's constitutional right to confrontation because it

implied McVicar and others possessed information outside of the record

incriminating defendant. See Weaver, 219 N.J. at 152.

We further find that McVicar's testimony, although improperly admitted,

does not require reversal of defendant's conviction. "When evidence is admitted

that contravenes not only the hearsay rule but also a constitutional right, an

appellate court must determine whether the error impacted the verdict." Id. at

154. Where, as here, there was an objection to the testimony, we must determine

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whether the error in admitting the testimony is harmless; that is, whether the

error was clearly capable of producing an unjust result. R. 2:10-2; State v. Scott,

229 N.J. 469, 483-84 (2017). "The harmless error standard . . . requires that

there be 'some degree of possibility that [the error] led to an unjust [verdict].

The possibility must be real, one sufficient to raise a reasonable doubt as to

whether [it] led the jury to a verdict it otherwise might not have reached.'" State

v. R.B., 183 N.J. 308, 330 (2005) (second and fourth alterations in original)

(quoting Bankston, 63 N.J. at 273).

Having carefully reviewed the record, we are convinced McVicar's

testimony was not clearly capable of producing a verdict that the jury otherwise

might not have reached. See R. 2:10-2. Defendant claims the testimony was

prejudicial because it suggested defendant's participation in drug activity on the

street near his apartment building. However, even though McVicar's testimony

was accompanied by Dowell's proper testimony that he observed defendant

participate in a hand-to-hand drug transaction, the jury found defendant not

guilty of distribution of heroin. Moreover, defendant's convictions for

possession of heroin and possession with intent to distribute heroin were

separately supported by evidence wholly unrelated to any reports McVicar

received concerning narcotics transactions on Martin Luther King Drive: the

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police found six "bricks" of heroin, each containing fifty bags, packaged in a

manner consistent with distribution.

Given the jury's finding that defendant did not commit the crime of

distribution of heroin and the substantial other evidence supporting defendant's

convictions, we find no possibility of an unjust result "sufficient to raise a

reasonable doubt as to whether the error led the jury to a result it otherwise might

not have reached." State v. G.V., 162 N.J. 252, 280 (2000) (quoting State v.

G.S., 145 N.J. 460, 473 (1996)). On remand, however, McVicar shall not be

permitted to testify concerning any complaints or reports concerning alleged

drug activities on Martin Luther King Drive that resulted in the surveillance and

law enforcement's interactions with defendant.

IV.

Defendant also claims he is entitled to reversal of his convictions because

the court erred by instructing the jury that it could convict defendant of

possession of heroin as charged in count four and possession with intent to

distribute heroin as charged in count five if it found beyond a reasonable doubt

that he possessed the heroin recovered from Robles, admitted in evidence as

exhibit S-13, "and/or" the heroin recovered from his apartment, admitted in

evidence as exhibit S-7. Defendant argues the court's use of the term "and/or"

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in the jury instructions on those two counts injected ambiguity into the jury

charge and permitted the jury to improperly reach a verdict lacking the requisite

unanimity to sustain his convictions. See State v. Frisby, 174 N.J. 583, 596

(2002) ("The notion of unanimity requires jurors to be in substantial agreement

as to just what a defendant did before determining his or her guilt or innocence."

(citation omitted)).

More particularly, defendant challenges the following portion of the

court's instruction on third-degree possession of heroin, N.J.S.A. 2C:35-

10(a)(1), that was charged in count four:

In order for you to find defendant guilty of the charge,

the state must prove the following elements beyond a

reasonable doubt. That S-7 and/or S-13 in evidence is

a controlled dangerous substance. That the defendant

possessed or obtained S-7 and/or S-13 in evidence.

That the defendant acted knowingly or purposely in

possessing or obtaining S-7 and/or S-13.

The first element the state must prove beyond a

reasonable doubt is that S-7 and/or S-13 is [a controlled

dangerous substance]. Here the state alleges the

defendant possessed heroin.

The second element the state must prove beyond a

reasonable doubt is that defendant possessed or

obtained S-7 or S-13. To obtain means to acquire, to

get, to procure. To possess an item under the law, one

must have a knowing, intentional control of that item

accompanied by knowledge of its character. So a

person who possesses an item such as S-7 and/or S-13

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must know or be aware that he possesses it and he must

know what it is that he possesses or has control of, that

it's heroin.

....

The third element the state must prove beyond a

reasonable doubt is the defendant acted knowingly or

purposely in obtaining or possessing S-7 and/or S-13.

[(emphasis added).]

Defendant also challenges the court's repeated use of "and/or" during its

instruction of the elements of possession of heroin with intent to distribute,

N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), charged in count five. In pertinent part, the

court instructed:

In the statute that [the charge is] based on says except

as authorized by statute, it shall be unlawful for any

person knowingly or purposely to possess or have under

his control with intent to distribute a controlled

dangerous substance.

The various kinds of substances are defined in another

part of our statute. Heroin is a dangerous substance

prohibited by statute. The statute read together with the

indictment, identifies the elements which the State must

prove beyond a reasonable doubt to establish the guilty

of the defendant on this count of the indictment.

They are as follows. S-7 and/or S-13 in evidence is

heroin. The defendant possessed or had under his

control S-7 and/or S-13 in evidence. The defendant

when he possessed or had under his control S-7 and/or

S-13 in evidence had the intent to distribute S-7 and/or

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S-13. That the defendant acted knowingly or purposely

in possessing or having under his control with intent to

distribute S-7 and/or S-13.

The first element the State must prove beyond a

reasonable doubt is S-7 and/or S-13 is a controlled

dangerous substance. The state alleges it's heroin.

With regard to the second element, the defendant has

under his control or possessed S-7 and/or S-13 in

evidence. I previously defined possessed for you.

In regard to the third element, the state has the - - that

defendant had the intent to distribute S-7 and/or S-13 in

evidence. Distribute means to transfer, actual,

constructive or attempted from one person to another of

a controlled dangerous substance. The intent must refer

to a defendant's purpose to distribute S-7 and S-13 in

evidence, not merely to possess the item.

....

The intention must be gathered from a person's acts,

conduct, from all the person said and did at a particular

time and place and from all of the surrounding

circumstances. You may consider any evidence as to

the quantity, purity and packaging of S-7 and/or S-13

together with all other evidence in this case to aid you

in your determination of the element of intent to

distribute.

In regard to the fourth element the State must prove, as

I stated, the defendant acted knowingly or purposely in

having under his control or possessing S-7 and S-13

with an intent to distribute. I previously defined

purposely and knowingly for you.

....

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To reiterate, the four elements of this offense are S-7

and/or S-13 in evidence is heroin. The defendant

possessed or had under his control S-7 and/or S-13 in

evidence. The defendant when he possessed or had

under his control S-7 and/or S-13 in evidence, had the

intent to distribute S-7 and/or S-13 in evidence. The

defendant acted knowingly or purposely in possessing

or having under his control with intent to distribute S-7

and/or S-13 in evidence.

[(emphasis added).]

"[A]ppropriate and proper charges [to a jury] are essential for a fair trial."

State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553,

613 (2004)). A trial court has an "independent duty . . . to ensure that the jurors

receive accurate instructions on the law as it pertains to the facts and issues of each

case, irrespective of the particular language suggested by either party." Ibid.

(alteration in original) (quoting Reddish, 181 N.J. at 613). "Because proper jury

instructions are essential to a fair trial, 'erroneous instructions on material points are

presumed to' possess the capacity to unfairly prejudice the defendant." Ibid. (quoting

State v. Bunch, 180 N.J. 534, 541-42 (2004)).

A defendant must object to a jury instruction to preserve an objection to

the instruction on appeal. State v. Noble, 398 N.J. Super. 574, 593 (App. Div.

2008). Where, as here, a "defendant did not object to the jury instructions at

trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341

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(2007); see also R. 2:10-2. In the context of a jury charge, plain error demands

demonstration of "[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result." Burns, 192 N.J. at 341 (quoting

State v. Jordan, 147 N.J. 409, 422 (1997)).

An "error in a jury instruction that is 'crucial to the jury's deliberations on

the guilt of a criminal defendant' is a 'poor candidate[ ] for rehabilitation' under

the plain error theory." Ibid. (quoting Jordan, 147 N.J. at 422). In any event,

any such error is to be considered "in light of 'the totality of the entire charge,

not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

Moreover, "any alleged error also must be evaluated in light 'of the overall

strength of the State's case.'" Ibid. (quoting Chapland, 187 N.J. at 289).

The State must prove each element of any offenses charged beyond a

reasonable doubt. State v. Medina, 147 N.J. 43, 49 (1996). "[T]he possibility

that defendant may have been sentenced based on a less-than-unanimous verdict

. . . seriously implicates defendant's substantive rights." State v. Shomo, 129

N.J. 248, 260 (1992). The unanimity rule mandates unanimous agreement on

each element of the offense. State v. Gentry, 183 N.J. 30, 33 (2005). The jury

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must unanimously agree "on which acts were committed against which victim."

Ibid.

In State v. Gonzalez, 444 N.J. Super. 62 (App. Div. 2016), we reversed

the defendant's conviction as a co-conspirator and accomplice on robbery and

aggravated assault charges. We found that the trial court's use of the term

"and/or" during the jury instructions impermissibly "left open the possibility that

some jurors could have found defendant conspired in or was an accomplice in

the robbery but not the assault, while other jurors could have found he conspired

in or was an accomplice in the assault but not the robbery." Id. at 76.

Here, we are convinced the court's repeated use of "and/or," its occasional

use of "and" and its use on one occasion of "or" while referring to exhibits S-7

and S-13 during the instructions on the charges in the fourth and fifth counts

created the same ambiguity we found required reversal of the defendant's

conviction in Gonzalez. The evidence at trial showed the heroin admitted as S-

13 was seized from Robles's hand after it was allegedly given to him by Coleman

on the street in front of the apartment building. Defendant's connection to the

heroin seized from Robles's hand is founded solely on Dowell's testimony that

defendant engaged in a hand-to-hand transaction with Coleman, who then

engaged in a hand-to-hand transaction with Robles. In contrast, the heroin

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31

admitted in evidence as S-7 was recovered from defendant's apartment pursuant

to a search warrant following defendant's arrest.

The separate quantities of heroin admitted in evidence as exhibits S-7 and

S-13 were allegedly possessed by defendant at two different times, in different

locations and under two wholly divergent circumstances. Those differences

required separate determinations of defendant's guilt on the possessory offenses

for which he was convicted under counts four and five, but the court's use of

"and/or" throughout the jury instructions on those charges impermissibly

allowed the jury to base its determination of defendant's guilt on the offenses

based in part on S-7 and in part on S-13. For example, the instruction defendant

could be convicted of the offenses if he possessed S-7 "and/or" S-13 permitted

the jury to convict defendant if some of the jurors found defendant possessed S-

7 and others found he possessed S-13. Similarly, the instructions allowed the

jury to convict defendant of possession with intent to distribute if some of the

jurors found he possessed the heroin found in his apartment, S-7, with intent to

distribute and others disagreed but found he possessed the heroin recovered from

Robles, S-13, with intent to distribute.

The potential for such results under the circumstances cannot be

overstated here. Defendant was not found in actual possession of any heroin.

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The State's case against him for the possessory offenses charged in counts four

and five was wholly circumstantial and the instructions confusingly and

ambiguously allowed the jury to find defendant guilty based on the multitude of

permeations permitted by the layers of "and/or" options incorporated into the

instructions of the various elements of the offenses charged. We are therefore

convinced the court's instructions constituted error possessing "a clear capacity

to bring about an unjust result," Burns, 192 N.J. at 341 (citation omitted), and

reverse defendant's convictions.

We are not persuaded by the State's contention that the use of "and/or"

during the instructions was not capable of producing an unjust result because

the heroin recovered from Robles was in identical packaging and bore the same

label as the heroin recovered in defendant's apartment. If the matter was that

simple, we expect defendant would have been convicted of distribution of the

heroin that was found in Robles's hand after defendant allegedly handed it to

Coleman. The jury's determination that, despite the similarity in packaging,

defendant was not guilty of distribution simply underscores that the offenses

allegedly committed on the street in front of the apartment building are different

from those allegedly committed in defendant's apartment, thus requiring

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separate and clear unanimous verdicts on defendant's alleged commission of the

possessory offenses related to S-7 and S-13.

We are also not convinced defendant's acquittal on the distribution charge

requires the conclusion that the jury unanimously determined defendant did not

possess S-13, the heroin recovered from Robles. The similarity in the packaging

of and label on the heroin recovered from Robles and the heroin found in the

apartment might support a finding it was at one point possessed by defendant,

including with an intent to distribute, but the jury may have acquitted defendant

for reasons unrelated to whether it otherwise determined that he possessed it.

For example, the jury may have found defendant not guilty of distribution

because it rejected Dowell's testimony that he saw defendant actually distribute

S-13 to Coleman as charged in the indictment. Moreover, possession is not an

element of the crime of distribution under N.J.S.A. 2C:35-5(a)(1), State v. Ortiz,

253 N.J. Super. 239, 245-46 (App. Div. 1992), and the court otherwise correctly

instructed the jury on the crime's elements, which do not include possession, see

Model Jury Charges (Criminal), "Distribution Of A Controlled Dangerous

Substance (N.J.S.A. 2C:35-5 (a)(1))" (rev. Jan. 14, 2008).

In sum, we reverse defendant's convictions because the jury instructions

on the possessory offenses charged in counts four and five were clearly capable

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of producing an unjust result. R. 2:10-2. On remand, the court shall require the

jury to make separate findings of guilt as to S-7 and S-13 on the possessory

offenses charged in counts four and five.

V.

Because we reverse defendant's conviction and remand for a new trial, it

is unnecessary to address his argument that the court erred in its imposition of

sentence.

We affirm the court's order denying defendant's motion to suppress

evidence, reverse his convictions and remand for a new trial. We do not retain

jurisdiction.

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