NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5009-10T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAKEEM LESTER, Defendant-Appellant. ____________________________________________________ Submitted March 20, 2012 – Decided Before Judges Fisher and Baxter. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-05-1021. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Assistant Prosecutor, on the brief). PER CURIAM Defendant appeals his conviction for possession and distribution of phencyclidine (PCP), arguing, among other things, that his right to a fair trial was prejudiced by the prosecutor's comment during her opening statement that she did not expect defendant would explain his conduct to the jury. We hold that this circumstance warrants reversal and a new trial. Evidence adduced at trial revealed that, during the evening of February 18, 2009, two Jersey City police officers observed a vehicle make a left turn without signaling. The officers activated their overhead lights and stopped the vehicle. Officer Shawn Butler exited his vehicle and approached the passenger side, which was occupied by defendant. Officer Butler detected a “smell of PCP emanating from the car” and observed a wet cigarette on the floor. Based on his experience, Officer Butler suspected the cigarette had been dipped in PCP. Officer Butler removed defendant from the vehicle, advised him of his rights, and placed him under arrest. The vehicle's driver, Izell Glover, was also arrested. Officer Butler returned to defendant's vehicle for the cigarette on the vehicle's floor and observed “a bottle of PCP in the center console,” which he seized. A search of defendant at police headquarters uncovered $384 in cash. Defendant was indicted and charged with: third-degree possession of a controlled dangerous substance (PCP), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of PCP with the intent to distribute in a quantity of less than ten grams, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(7) (count two); third-degree possession of PCP with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count three); and second-degree possession of PCP with the intent to distribute within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count four). Glover was also charged with these offenses. Defendant alone was charged with three offenses relating to the possession and distribution of marijuana. Defendant and Glover were tried together. At the trial's conclusion, defendant was found guilty on counts one, two and three, and a lesser-included disorderly persons offense on one of the marijuana charges. Glover was convicted on count one only. The trial judge merged counts one, two and three, and sentenced defendant on count two to an eight-year prison term subject to a four-year period of parole ineligibility. The judge also imposed a jail term of 345 days on the marijuana conviction. Defendant appeals, presenting the following arguments: I. THE DEFENDANT'S RIGHT TO REMAIN SILENT AS [GUARANTEED] BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELFINCRIMINATION WAS VIOLATED WHEN THE PROSECUTOR INFORMED JURORS OF HER EXPECTATIONS OF WHAT THE DEFENDANT WOULD OR WOULD NOT SAY AT TRIAL. II. THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION WAS ERRONEOUS AND CONTRADICTORY, AND THE PROSECUTOR REINFORCED AND COMPOUNDED THE ERROR IN HER COMMENTS TO THE JURORS III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMIS-SION OF UNFAIRLY PREJUDICIAL OPINIONS BY THE STATE'S NARCOTICS EXPERT IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE A. The Evidence Was Improperly Admitted. B. The Trial Court Failed To Provide The Jury With A Proper Limiting Instruction As Required By The Law. V. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND [MITIGATING] CIRCUMSTANCES. We need not address defendant's arguments in Points II, III, IV and V because we agree with defendant's argument in Point I that he is entitled to a new trial because the prosecutor improperly commented on his right to remain silent. The Fifth Amendment to the United States Constitution “forbids . . . comment by the prosecution on the accused's silence,” Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965), and forbids the State from placing the accused “in a position where he must testify in order to avoid” the jury's application of “an adverse inference,” State v. Pickles, 46 N.J. 542, 579 (1966). In Pickles, the prosecutor included these comments in his opening statement: [I]n every criminal case, there is only one person that can furnish answers to some questions, and that is the defendant in every criminal case. I wasn't there and neither were you. If we were there probably would be no case, you see. It is the defendant only that was there and the defendant only can give us certain answers. [Ibid.] Although recognizing that Griffin had only recently been decided and the prohibition may not “have been as clear at the time of this trial as it has since become,” the Court concluded that the prosecutor's opening statement “was improper.” Ibid. The same conclusion has been reached in other similar circumstances. In State v. Schumann, 111 N.J. 470, 477 (1988), a prosecutor argued in summation that when an investigator questioned defendant, defendant said he wanted an attorney; the prosecutor acknowledged that defendant has “got that right,” but then, in addressing the jury, the prosecutor posed the following: “[A]sk the question. Did he ever deny it?” The Court found the mention of defendant's failure to deny the charged conduct violated his Fifth Amendment rights. Ibid.; see also State v. Persiano, 91 N.J. Super. 299, 301 (App. Div. 1966). The prosecutor's statement here is not materially different. After referring to the offenses for which defendant and Glover were charged, the prosecutor asserted: Now, those are legal terms. What does that essentially mean for you? What that means, quite simply, is it is clear based on the attendant circumstances and conduct of [defendants] that they had that PCP and that PCP was intended to be distributed. Now, how are we going to [prove] that? Well, we're not going to have any testimony regarding any drug sale. And I think the last thing — expected I don't really expect either [defendant] to say, yes, you got me, you're right, I did actually intend to sell it. So what we — [Emphasis added] At that point, defense counsel objected and the judge heard argument outside the jury's presence. Defense counsel argued — quite correctly — that the prosecutor had asserted that neither defendant was going to explain the presence of the PCP or their intentions and that the comment violated defendant's right not to testify. The prosecutor's response, during the sidebar conference, leaves no doubt that her intention was to comment on the expected silence of defendants: “I think I'm indicating pretty clearly that I don't have a confession from these individuals and that I don't expect them to take the stand and say yes, you got me, you're right” (emphasis added). Despite that acknowledgement, the judge concluded that he did “not think there's been anything improper at this time” in denying defendants' motion for a mistrial. Defense counsel persisted and sought a ruling in front of the jury, arguing: “the jury needs to be told if you're not going to grant a mistrial that that was improper.” The judge rejected this and concluded that he would address the applicable legal principles in his charge to the jury. As a result, the jury never heard from the judge that the prosecutor had improperly commented on defendant's right to remain silent. Knowing that defense counsel had objected, the jury likely assumed that the prosecutor's comment was proper. We need not surmise whether the prejudice caused by the prosecutor's improper comment could have been cured by the judge's sustaining of the defense objection followed by a strong cautionary instruction regarding defendant's right to remain silent and not to testify without consequences of an adverse inference. The judge's failure to do either allowed the prejudice to continue unabated. The prosecutor's comments infringed on defendant's right not to testify, as well as the presumption of innocence, and, as a result, deprived defendant of a fair trial. Reversed and remanded for a new trial.