State v. Darryl T. Hester, unpublished opinion, App. Div. Docket No. A-6528-06T4 (March 18, 2010) – Convictions reversed. “In summary, evidence was presented to the jury that the police had conducted a month to a month and one-half long surveillance of the activities at Banks’s apartment that first focused on Banks but later focused on defendant, as well.
During the course of that surveillance, defendant was observed as the seller in a hand-to-hand transfer of drugs, a criminal act, and that act constituted part of the evidence used by the police to establish probable cause for the issuance of warrants to search the apartment and defendant’s person.
Additionally, controlled purchases from defendant had taken place. As the result of the police’s investigation and the evidence thus garnered, court-authorized warrants were issued …, leading to the discovery, not only the cocaine and heroin that formed the basis for the indictments, but also marijuana, providing the basis for another uncharged crime. Defense counsel did not object to the introduction of any of this evidence, and indeed, solicited the majority of it….[D]efense counsel sought, by examining Buckley regarding his surveillance, to elicit testimony that would implicate Banks as possessor of the drugs found in Banks’s apartment and would exculpate defendant. The opposite occurred, since defense counsel’s questions led to the disclosure that Buckley had witnessed defendant as the transferror in a hand-to-hand transfer of drugs…. [E]ven if a proper basis for introduction of other crimes evidence had been identified and accepted, the trial judge must instruct the jury on the limited purpose for which the evidence is admissible and must inform the jury of the uses of the evidence that are prohibited…. This did not occur. Rather, the judge merely gave a contemporaneous instruction to the jury that it must focus on the crimes charged in the indictment….
We are satisfied that, in the circumstances presented, the combination of introduction of other crimes evidence with evidence that probable cause for the issuance of warrants had been established on the basis of evidence that was not presented to the jury was sufficient to create a real possibility of an unjust result, thereby constituting plain error. While much of the evidence was introduced through the efforts of defense counsel, the errors committed were sufficient to ‘cut mortally into [defendant’s] substantive rights,’ [citation omitted], therefore requiring a reversal of defendant’s conviction.” (Frank M. Gennaro, Designated Counsel)