Unlawful Possession of Drugs in a Motor Vehicle
State of NJ vs Haas (Not Approved for Publication by the New Jersey Appellate Division July 2, 2019)
Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.
How can the police prove I have certain drugs and can they charge me with unlawful possession or NJSA 39:4-49.1 (Drugs in a Motor Vehicle)?
New Jersey’s Net Opinion/hearsay Rule of Evidence comes into play in every court regarding every subject matter. Person’s testifying regarding evidence which is beyond the knowledge of the average juror must be an expert in their respective field and testify about their knowledge, education, skill, specific training,
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Pursuant to N.J.S.A. 39:4-49.1,
No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance . . . or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician . . . .
The elements of this offense must be established beyond a reasonable doubt. State v. Bealor, 187 N.J. 574, 586 (2006) (“We have repeatedly made clear that, in motor vehicle violation cases, the State’s burden of proof unquestionably is beyond a reasonable doubt.”).
Hearsay is a statement “other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Byrd, 198 N.J. 319, 336 n.5 (2009) (citing N.J.R.E. 801(c)). Hearsay is inadmissible at trial “unless specifically exempted by an evidence rule or other law.” Ibid. (citing N.J.R.E. 802). However, “if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial.” State v. Long, 173 N.J.138, 152 (2002).
Officer Mosakowski testified at trial that another officer discovered the pills in a container attached to defendant’s keys. He stated that, thereafter, “[they] took the markings on the pills[,] . . . put [them] into a program called ‘[p]ill [i]dentifier,'” and identified the pills as Vicodin. Upon cross-examination, Mosakowski was unable to describe in detail the particular pill identifier website used, whether it was created and maintained by a pharmaceutical company, or “state-sponsored.”
As noted, defendant’s counsel objected to the pill identifier testimony, asserting it was hearsay. The State argued that the testimony was not offered to prove the truth of the matter asserted, but rather, to demonstrate the effect on Mosakowski’s decision to charge defendant with possession of CDS in a car. The court overruled defendant’s counsel’s objection, admitted the testimony regarding the results of the pill identifier program, and relied upon this testimony, as well as Galaydick’s testimony, to find defendant guilty of possession of Vicodin.
After a thorough review of the record, we conclude Mosakowski’s testimony that he identified defendant’s pills as Vicodin based on a visual comparison of pills depicted on a pill identifier program from an unidentified website is inadmissible hearsay, as it was intended to establish the truth of the matter asserted – that the pills were Vicodin, a CDS. We find no exception to the hearsay rule that would permit Mosakowski to testify regarding the contents of the pill identifier program.
In this regard, we note that Mosakowski was not qualified as an expert witness with particular expertise in recognizing CDS. See State v. Frost, 242 N.J. Super. 601, 615 (App. Div. 1990) (“[A]n expert witness must possess the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion.”). Nor was Mosakowski’s testimony permissible lay opinion testimony under N.J.R.E. 701. See Neno v. Clinton, 167 N.J. 573, 585 (2001) (“A lay witness’s opinion cannot rely on the inadequate support of inadmissible hearsay without the benefit of an exception.”); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 701 (2018) (“[L]ay opinion testimony may not cross into the realm of expert testimony.”). Rather, the court permitted Mosakowski to combine his admissible percipient observations regarding the pills (i.e., that another officer discovered the pills, which were yellow and had markings) with the substantive out of court statements contained in the pill identifier program.
The court also relied on Galaydick’s expert testimony, in which he testified that he identified defendant’s pills by comparing the pills’ “markings” with an unidentified “drug identification bible,” and by relying on Mosakowski’s representation that he identified the pills as Vicodin. “[E]xpert testimony depends on a witness’s ‘specialized knowledge’ to address matters outside a juror’s understanding.” State v. Hyman, 451 N.J. Super. 429, 443 (App. Div. 2017). Accordingly, the admission of expert testimony involves the following requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that such an expert’s testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise to offer the intended testimony.
[Id. at 443-44 (quoting State v. Kelly, 97 N.J. 178, 208 (1984) and discussing N.J.R.E. 702).]
Additionally, N.J.R.E. 703, which “addresses the foundation testimony,” requires that expert opinions be grounded in: facts or data derived from
(1) the expert’s personal observations, or
(2) evidence admitted at the trial, or
(3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject. [Townsend v. Pierre, 221 N.J. 36, 53 (2015).] 31 for expert
N.J.R.E. 703 requires “the hearsay [to] be of the type usually relied on by experts in the field to reach ‘conclusions of the type offered by the witness.'” State v. Torres, 183 N.J. 554, 576 (2005) (quoting State v. Pasterick, 285 N.J. Super. 607, 620-21 (App. Div. 1995)). Further, while N.J.R.E. 703 permits a testifying expert to refer to a hearsay statement “for the purpose of apprising the jury of the basis for his opinion,” Konop v. Rosen, 425 N.J. Super. 391, 406 (App. Div. 2012) (quoting Agha v. Feiner, 198 N.J. 50, 63 (2009)), “[t]he ‘hearsay is not admissible substantively as establishing the truth of the statement.'” Ibid. (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002)).
“The corollary of [Rule 703] is the net opinion rule, which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” Polzo v. Cnty of Essex, 196 N.J. 569, 583 (2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). Essentially, “[a]n expert must ‘”give the why and wherefore” that supports the opinion, “rather than a mere conclusion.”‘” Borough of Saddle River v. 66 East Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Polzo, 196 N.J. at 583). In this regard, expert witnesses must “be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.” Townsend, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)).
Here, unlike his testimony regarding defendant’s impairment, Galaydick’s testimony regarding the identification of defendant’s pills as Vicodin had no proper foundation, as he failed to provide the “why and wherefore” supporting his conclusion.4 Specifically, Galaydick failed to detail which particular drug identification bible he used, explain satisfactorily how he used it to identify the pills, and establish whether it was a reliable source to identify drugs. Accordingly, Galaydick’s testimony regarding his identification of the pills as Vicodin is inadmissible.
Without further confirmatory proof of the pills’ chemical composition, Mosakowski’s and Galaydick’s testimony regarding his use of the pill identifier program and drug identification bible, as the sole evidence that defendant possessed CDS in a car, is insufficient to establish the pills’ classification as CDS beyond a reasonable doubt. Accordingly, we reverse the court’s finding that defendant is guilty of possession of CDS in a motor vehicle.