STATE OF NEW JERSEY VS. JONATHAN E. TALIAFERRO (14-04-0645, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0113-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN E. TALIAFERRO,
a/k/a ANTHONY BUTLER,
ERIC BUTLER, ROBERT
JOHNSON, JOHNATHAN
TALIAFERRO, JONATHON
TALIFERRIO, JONATHAN
TALIFERRO, and ERIC
WRIGHT,
Defendant-Appellant.
____________________________
Submitted October 2, 2019 – Decided December 3, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-04-0645.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Watson, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Jaimee M. Chasmer, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant appeals his September 8, 2017 conviction by a jury for
possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1),
and third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-
5(b)(3).1 He was sentenced to five years' imprisonment. Defendant also appeals
from the trial judge's subsequent denial of his motion for a change in custody
pursuant to Rule 3:21-10. On appeal, defendant argues that the officer who
observed the drug transaction gave impermissible opinion testimony that he
believed, based on his experience and training, that an exchange between
defendant and another individual was a drug transaction.
Based on our review of the record and the governing legal principles, we
conclude the testimony was not clearly capable of producing an unjust result and
affirm the conviction. We remand the denial of the change-in-custody
1
Defendant pled guilty to a separate indictment, No. 16-05-0691, for possession
of PCP, and his four-year sentence on that conviction is consecutive to the
sentence on this conviction.
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application for more complete findings pursuant to Rule 1:7-4(a) and State v.
Williams, 139 N.J. Super. 290 (App. Div. 1976).
We discern the following facts from the trial record. At trial, Officers
Chowanec, Lowry, and Scanlon testified. 2 Chowanec testified that on
November 6, 2013, Jersey City police officers assigned to the Narcotics Unit
were conducting surveillance on Wade Street between Rutgers Avenue and
Martin Luther King Drive. Officer Chowanec was in an unmarked police
vehicle near 86 Wade Street and other officers were in "perimeter units" around
the area.
Officer Chowanec observed defendant "walking up and down [Wade
Street] waving to people, saying hello, waving at cars passing by in the area."
The officer then observed James Waldron walking onto Wade Street from
Rutgers Avenue. After defendant engaged Waldron in a brief conversation, he
motioned Waldron to wait up the block, after which Waldron proceeded to 96
Wade Street.
The officer observed defendant enter an alleyway that ran between the
buildings located at 84 and 86 Wade Street, "manipulate[] the siding of 86 Wade
2
A forensic chemist also testified as to her analysis of four samples and
concluded they contained cocaine, heroin, and marijuana.
A-0113-17T1
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Street, and from that siding . . . pull out a clear plastic bag." Defendant removed
several small items from the bag. He then resecured the bag under the siding
and walked out of the alleyway. Chowanec observed defendant approach
Waldron, who had "folded up paper currency in his hand." Waldron handed
defendant the money in exchange for the small items defendant had removed
from the plastic bag.
The following colloquy between Chowanec and the prosecutor then took
place:
Q: Where did they go next?
A: After the, what I believed to observe from my
training and experience, was a drug transaction Mr.
Waldron started walking westbound towards Martin
Luther King Drive at a slow pace. Mr. Taliaferro stayed
behind for under a minute and was kind of looking in
all directions to make sure no one else was in the area.
I noticed Mr. Waldron then make a left and walk
south on Martin Luther King Drive out of my [sight] at
this point. Mr. Taliaferro was also at a slow pace
walking far enough behind Mr. Waldron and then
followed him also a left on MLK Drive southbound out
of my sight. The officer radioed the perimeter units
with descriptions of Waldron and defendant.
Q: What did you do once they left your sight?
A: Based on, like I said before, based on my
observations, my training and experience, I believe to
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be a narcotics transaction. I radioed both individual[']s
descriptions and directions to awaiting perimeter units.
Defense counsel did not object on either of the two occasions that the
officer characterized the exchange as a drug transaction.
In response to Chowanec's radioed description, Officer Lowry stopped
Waldron on Rutgers Avenue As Lowry and his partner approached, Waldron
"threw his hands up in the air . . . and tosse[d] a couple of objects out of his right
hand to the ground." The discarded objects were "clear vials with black tops"
containing suspected cocaine. Waldron was placed under arrest. At around the
same time, Officer Scanlon stopped defendant and found him to be in possession
of thirty dollars comprised of one ten-dollar bill, one five-dollar bill, and fifteen
one- dollar bills. Defendant was also placed under arrest.
Chowanec, meanwhile, never left his original surveillance location
because "where Mr. Taliaferro ducked down the alley, I believed to be a drug
stash there, and I wanted to make sure that no one else went up the alley to try
to take the drugs out of the area." After arresting defendant, Officer Lowry
proceeded to 84 Wade Street, where he recovered, from underneath the siding
of the building, clear vials with black tops containing suspected cocaine;
glassine folds containing suspected heroin; and a bag containing small glassine
envelopes of marijuana.
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After trial, defendant was convicted of third-degree possession of a CDS
and third-degree possession of a CDS with intent to distribute. The jury
acquitted him of the remaining charges. 3
Defendant appeals his conviction, presenting the following points for our
review:
3
Defendant was originally charged in Hudson County Indictment No. 14-04-
0645 with fourteen counts. With respect to the cocaine, defendant was charged
with second-degree possession with intent to distribute within 500 feet of public
housing, N.J.S.A. 2C:35-7.1(a), and third-degree possession, possession with
intent to distribute, and possession with intent to distribute within 1000 feet of
school property, N.J.S.A. 2C:35-10(a)(1), -5(a)(1), -5(b)(3), and -7(a) (counts
one to four). With respect to the heroin, defendant was charged with second-
degree possession with intent to distribute within 500 feet of public housing,
N.J.S.A. 2C:35-7.1(a), and third-degree possession, possession with intent to
distribute, and possession with intent to distribute within 1000 feet of school
property, N.J.S.A. 2C:35-10(a)(1), -5(a)(1), -5(b)(3), and -7(a) (counts five to
eight). With respect to the marijuana, defendant was charged with second -
degree possession with intent to distribute within 500 feet of public housing,
N.J.S.A. 2C:35-7.1(a), and third-degree possession with intent to distribute, and
possession with intent to distribute within 1000 feet of school property, N.J.S.A.
2C:355(a)(1), -5(b)(3), and -7(a) (counts nine to eleven). With respect to the
cocaine sold to Waldron, defendant was also charged with second and third-
degree possession with intent to distribute, and possession with intent to
distribute within 500 feet of public housing, N.J.S.A. 2C:35-5(a)(1), -5(b)(3)
and -7.1(a) (counts twelve to fourteen). Following the close of the State's case,
the trial court dismissed counts three, four, seven, eight, ten, eleven, thirteen and
fourteen as there was no testimony regarding the school zone or public property
charges.
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POINT I
THE INVESTIGATING OFFICER'S INADMISSIBLE
OPINION TESTIMONY THAT THE CONDUCT HE
OBSERVED WAS A DRUG TRANSACTION
INVADED THE JURY'S FACT-FINDING
PROVINCE AND CONSEQUENTLY DEPRIVED
DEFENDANT OF A FAIR. (NOT RAISED BELOW)
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A CHANGE OF CUSTODY.
First, we agree with defendant that Chowanec's testimony about observing
what he believed based on his experience and training to be a drug transaction
directly contravened the principles set forth in State v. McLean, 205 N.J. 438,
461–63 (2011), and State v. Brockington, 439 N.J. Super. 311, 321-24 (App. Div.
2015). As we observed in Brockington, the officer's testimony should have been
confined to the facts as to what he observed, not his opinions, conclusions, or
beliefs about what he saw. 439 N.J. Super. at 321–24.
We reject, however, defendant's assertion that Chowanec's admittedly
improper testimony requires reversal. First, defense counsel's failure to object
to the testimony means that we will not reverse absent plain error, i.e., a finding
that the unobjected-to errors had a clear capacity to produce an unjust result. R.
2:10–2; State v. Macon, 57 N.J. 325, 337 (1971). See also State v. Echols, 199
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N.J. 344, 360 (2009) ("Generally, if no objection was made to the improper
remarks, the remarks will not be deemed prejudicial. Failure to make a timely
objection indicates that defense counsel did not believe the remarks were
prejudicial at the time they were made." (quoting State v. Timmendequas, 161
N.J. 515, 576 (1999))). Second, unlike the facts in McClean, 205 N.J. at 445-
47, the officer's statement was not adduced by the prosecutor in a question that
referenced the officer's experience and training.
Moreover, looking at the record stripped of the objectionable testimony,
we conclude that the officer's unsolicited comments were not clearly capable of
producing an unjust result. Chowanec continuously observed defendant and
Waldron from the initiation of their contact, defendant pulling a plastic bag from
underneath the siding, removing small items from the bag, and exchanging the
items for the cash Waldron was holding in his hand. Thereafter, Waldron was
almost immediately apprehended and found to be in possession of small vials
with black tops containing cocaine. Defendant was also quickly apprehended
with thirty dollars in small bills in his possession. Chowanec continued to
observe the house where defendant removed the bag from the siding until Lowry
arrived and retrieved from the siding clear vials with black tops containing
suspected cocaine; glassine folds containing suspected heroin; and a bag
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containing small glassine envelopes of marijuana. Because the lay testimony of
the officers overwhelmingly supported the charges of which defendant was
convicted, the interests of justice do not require reversal.4
Defendant next argues the trial judge erred in denying his motion for a
change in custody pursuant to Rule 3:21-10. Unfortunately, we are hampered
in our review of this issue because the judge did not adequately set forth his
reasoning on the record or in his written decision. See R. 1:7-4(a). Accordingly,
we are constrained to remand to allow the judge to expound on his reasons for
denying the application, making specific reference to the factors set forth in
Williams, 139 N.J. Super. at 299-300.
Affirmed in part and remanded in part. We do not retain jurisdiction.
4
Indeed, that defendant received a fair trial is underscored by the jury's
acquittal on all charges concerning possession and distribution of the drugs other
than cocaine that were retrieved from the house.
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