STATE OF NEW JERSEY VS. WASAN BROCKINGTON
A-2760-11T2
After police officers observed defendant give a suspected buyer two bags of heroin and two bags of cocaine, they arrested defendant and the suspected buyer and recovered the heroin and cocaine. We reverse his convictions because a police officer testifying as a fact witness was permitted to give his opinion that he observed defendant give heroin and cocaine to suspected buyers in prior transactions in which no drugs were seized.
Because the matter must be retried, we consider whether evidence of the officer's observations of encounters between defendant and persons who approached him prior to the transaction that resulted in his arrest may be admitted into evidence without the improper lay opinion testimony. We conclude that such evidence is admissible pursuant to Rule 403 as intrinsic evidence because it is relevant to the essential elements of the offenses charged.
In a separate opinion, Judge Fisher agrees that defendant's convictions must be reversed but disagrees with the conclusion that the officer's observations of defendant's earlier encounters would be admissible at the next trial because that testimony does not qualify either as "other crime" or intrinsic evidence and, even if it did, its prejudicial impact far outweighs any probative value.
