SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3189-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNELL MCCOY, a/k/a 

JOHNELL WILLIAMS, III, 

and JOHNELL MCCOY, JR.,

Defendant-Appellant.

_________________________

Submitted November 5, 2020 – Decided 

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 17-02-

0115.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Daniel V. Gautieri, Assistant Deputy Public 

Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Stephen C. Sayer, 

Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

November 24, 2020
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A-3189-18T4

PER CURIAM

For about a month, police surveilled defendant Johnell McCoy while he 

visited his mother's Vineland home. Then, pursuant to a warrant, they searched 

the home and seized cocaine, drug packaging, a scale, and cash from one room, 

and a handgun from a closet. They also arrested McCoy, alleging that the drugs,

gun and money all belonged to him.

After a trial, a jury found McCoy guilty of possession of a controlled 

dangerous substance (CDS), cocaine, N.J.S.A. 2C:35–10(a)(1), and of doing so 

with the intent to distribute, N.J.S.A. 2C:35–5(b)(3) — both third-degree crimes. 

The jury acquitted McCoy of possession of a weapon while committing a CDS 

offense, N.J.S.A. 2C:39–4.1(a), a second-degree crime. The court then imposed 

an extended term of five years, with a two-and-a-half-year period of parole 

ineligibility.

On appeal, McCoy contends that three errors, singly or cumulatively, 

denied him a fair trial. First, he complains that the jury heard testimony from 

which it could infer that, before arresting McCoy, police obtained drugs from 

the Vineland home three times. The judge promised to instruct the jury to 

disregard that testimony, but he never actually gave the instruction. Second, the 

prosecutor stated in summation — contrary to the record — that people visited 
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McCoy at the home at all hours of the night. This misstatement was especially 

prejudicial because it dovetailed with a State expert's opinion that such visits 

typically occur where drugs are sold. Third, McCoy contends that the court 

should have delivered the "mere presence" section of the model jury instruction 

on possession. 

We agree that the first two errors, together if not singly, were clearly 

capable of producing an unjust result. See R. 2:10–2. When viewed in light of 

the record as a whole, those errors evidently convinced the jury that much more 

drug activity occurred at the Vineland home than the State proved by admissible 

evidence. Therefore, we reverse. 

The State's case was circumstantial. No one testified to seeing McCoy 

selling, or even possessing, drugs. No forensic evidence tied McCoy's DNA or 

fingerprints to any of the items police seized. 

New Jersey State Trooper Michael Cresci, the lead investigator, testified 

that he observed the Vineland home more than twenty times during the roughly 

month-long surveillance period. He did so at various times of day, for up to

forty-five minutes at a time. McCoy was the only person he observed outside 

the home; the trooper never saw anyone else with McCoy. He evidently did not 

see McCoy's mother, who lived there and parked her car there, but who worked 
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long hours. He often saw McCoy playing with two pit bulls, and he once saw

McCoy remove a duffle bag from his car. 

The State did not contend that McCoy lived at his mother's home.

McCoy's mother testified that he often visited to help with the dogs while she 

was at work. She said that he occasionally slept over, probably staying in the 

living room. The mother of one of McCoy's children testified that McCoy lived

with her before his arrest. She also owned the car McCoy drove to and from the 

Vineland home.

McCoy's mother testified that McCoy was not the only family member 

who stayed in her home. Others — including her adult nephew and McCoy's 

adult brother — also visited. Her adult nephew stayed in the living room when 

he visited, and McCoy's adult brother had access to every room in the home. An 

adult granddaughter, who had moved out a few weeks before the search and 

seizure, had also stayed in the living room. 

McCoy's mother testified that she never saw McCoy with a gun nor was 

she aware of any drugs in her home. McCoy's paramour testified that she never 

saw McCoy with drugs or a gun. However, McCoy was the only person present 

in the home when the drugs and gun were seized. Police found the drugs, $1600 

in cash, and small plastic bags in a closed but clear plastic Tupperware container 
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in the living room of the two-bedroom apartment. They also found a scale in 

the apartment, and additional cash in the car McCoy drove.

To persuade the jury that McCoy possessed the drugs, and that he did so

with intent to distribute, the State called a police drug expert. He testified that, 

in conducting their business, drug dealers often possess guard dogs, guns, scales, 

plastic bags, and substantial amounts of cash — all things police observed or 

seized. 

However, the expert also confirmed that a "high volume of foot traffic . . . 

coming into a specific residence would be indicative of drug sales" — but no 

one testified to seeing a high volume of foot traffic at the Vineland home. The 

expert explained that, if drug sales were occurring at a house, police might see 

a visitor who did not "live at that house or have any reason to even be at that 

house," and that "anything from seconds to minutes later," the visitor would 

leave. He added that "that would happen numerous different times a day with 

different individuals."

The State's laboratory expert, called to establish that the substance seized 

from the home was in fact cocaine, indicated that drugs originated from the 

home on three prior occasions and that there were four "offense date[s]" — not 

just the one for which McCoy was tried. Specifically, on direct examination,
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the expert testified that she had "four separate evidence receipts." She 

explained, "So even though all four of them came into the laboratory at the same 

time, if you look in the center of the evidence receipt, it has an offense date of 

April 4, 2016; April 11, 2016; April 18, 2016; and May 9, 2016." She added 

that each sample had to be tested "per . . . protocol."

The expert's testimony violated a pre-trial ruling. The three prior dates 

apparently related to a confidential informant's "controlled purchases" at the 

home. After the jury was impaneled but before trial began, the trial court had 

confirmed that there would be no testimony "about anything the confidential 

informant did, including surveillance of . . . him or her going to the property,

purchasing anything and leaving the property." The prosecutor agreed. 

The court did allow witnesses to testify that they had seen persons other 

than the informant. But no witness testified to seeing anyone but McCoy.

Although defense counsel did not object when the laboratory expert 

referred to multiple offense dates, the judge called for a side-bar as soon as the 

expert answered the prosecutor's question. However, the transcript reports the 

side-bar exchange as essentially indecipherable (except for the prosecutor's 

statement that only one sample was actually tested).
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Once the witness resumed her testimony, she again referred to multiple 

dates, noting that the scientist who actually did the testing "was assigned to do 

one item from each date." Defense counsel did not object.

After defense counsel briefly cross-examined the expert to confirm that

the cocaine weighed less than a half-ounce, the prosecutor asked for a side-bar. 

Again, the transcript reports the lawyers' comments as largely indecipherable. 

But during the side-bar, the judge clearly stated that he intended to deliver 

a curative instruction. Referring to May 9, when police searched the home and 

arrested McCoy, the judge stated:

As a matter of fact, I'm going to give a limiting

instruction to the jurors with reference to samples. 

. . . . 

I don't want the (indecipherable). I want the 

record to be clear (indecipherable) not consider any 

reference to anything prior to May 9, okay. All right. 

For reasons that I have explained (indecipherable).

The prosecutor consented. However, the judge never delivered the instruction.

In summation, defense counsel argued that McCoy, one of several family 

members who visited the home, was unaware of the cocaine in the living room. 

The prosecutor pointed out that McCoy was the only person present when police 

entered the home; that the drugs were easily discernable in a clear container; and 
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that the drugs, scale, and plastic bags were in the only room that was actively

occupied when the police entered.

But the prosecutor did not stop there. She bolstered the State's case by 

asserting, without evidential support, that police saw multiple people coming 

and going at the Vineland home. According to her account, Trooper Cresci 

testified that he not only saw defendant "consistently enter[ing] and exit[ing] 

this house," but that he also saw "a lot of foot traffic and other people 

continuously enter through" the same door. She embellished:

[H]e explained to you that during the time that these 

observations were met [sic], people would come to this 

particular residence on this side of the door on foot, in 

cars, at all times of night. They would enter and they 

would be greeted by the defendant. The defendant 

would allow them in the house, they would stay there 

for -- and you remember. I want you to recall 

specifically how long he stated that he would -- that

those people would be in there for. Not long. Seconds. 

He described it as what would be seconds. And after 

that, they would leave.

As noted, the trooper said nothing of the kind. He testified that the only person 

he ever saw at the home was defendant.

The jury evidently accepted the prosecutor's false characterization of the 

trooper's testimony. Shortly after the jury began deliberating, it asked, "Can you 

confirm that Mr. McCoy was the only one in the house during the investigation 
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when people were coming in and out of the house for seconds at a time?" The

court responded, "We're not here to tell us [sic] what the facts are. So you have 

to make that determination as to those facts in this case." Defense counsel did 

not object during or after this exchange.

The jury also requested a playback of the trooper's testimony, but before 

the playback, an alternate juror was substituted, and the jury began deliberating 

anew. The reconstituted jury again asked for the playback and the court obliged. 

Less than three hours later, the jury rendered its verdict. 

Defendant presents the following points for our consideration:

POINT I

WHILE THE COURT RECOGNIZED THE 

IMPROPRIETY OF EVIDENCE THAT McCOY HAD 

COMMITTED DRUG CRIMES ON PRIOR 

OCCASIONS THAT WERE NOT CHARGED IN THE 

INDICTMENT, IT COMMITTED REVERSIBLE 

ERROR WHEN IT FAILED TO STRIKE THAT 

TESTIMONY AND PROVIDE THE LIMITING 

INSTRUCTION THAT IT RECOGNIZED WAS 

REQUIRED. 

POINT II

A NEW TRIAL IS REQUIRED BECAUSE THE 

PROSECUTOR TOLD THE JURORS IN HER 

SUMMATION ABOUT EVIDENCE, NEVER 

PRESENTED AT TRIAL, THAT ESTABLISHED 

THAT McCOY WAS A DRUG DEALER. (NOT 

RAISED BELOW).
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POINT III

BECAUSE THE DEFENSE TO THE DRUG 

CHARGES WAS THAT McCOY DID NOT POSSESS 

THE NARCOTICS BUT WAS MERELY PRESENT 

IN THE ROOM WHERE THEY WERE LOCATED, 

THE COURT COMMITTED REVERSIBLE ERROR

WHEN IT OMITTED THE PARAGRAPH OF THE 

MODEL CHARGE ON "POSSESSION" THAT 

ADDRESSES "MERE PRESENCE." (NOT RAISED 

BELOW).

POINT IV

THE COURT SHOULD REVERSE BASED ON 

CUMULATIVE ERROR. (NOT RAISED BELOW).

We are persuaded that the laboratory expert's uncured reference to 

multiple offense dates and drug samples, combined with the prosecutor's 

uncorrected misstatement about people visiting and interacting with defendant 

at all hours of the night, may have "led the jury to a result it otherwise might not 

have reached." See State v. Macon, 57 N.J. 325, 336 (1971). That is plain error. 

Id. at 337. Thus, it warrants reversal, notwithstanding defense counsel's failure 

to object.

The competent and admissible evidence against McCoy was less than 

overwhelming. Notably, the jury did not find that McCoy possessed the gun in 

the course of committing a drug crime — perhaps because police found the gun 
11 A-3189-18T4

outside the room with the drugs, or perhaps because DNA analysis failed to link 

McCoy to the gun. 

Obviously, someone possessed the gun and drugs that police found in the 

home. On one hand, McCoy was the only person present when police seized the 

items. Furthermore, the trooper often saw McCoy at the house. On the other 

hand, McCoy's mother testified that other adult family members, including 

McCoy's brother, visited the home and had access to the room where the drugs 

were found. 

The expert's reference to multiple offense dates and multiple drug samples 

helped link the drugs to McCoy. Her testimony suggested uncharged drug 

crimes, and although she did not mention McCoy in connection with those 

crimes, the jury could easily infer his involvement. McCoy was the only 

constant presence at the home, in the eyes of the surveilling trooper. 

"The likelihood of prejudice is acute when the proffered evidence is proof 

of a defendant's uncharged misconduct." State v. Stevens, 115 N.J. 289, 302 

(1989) (quoting Edward J. Imwinkelried, The Need to Amend Federal Rule of 

Evidence 404(b): The Threat to the Future of the Federal Rules of Evidence, 30 

Vill. L. Rev. 1465, 1487 (1985)). Evidence of previous crimes "risks conviction 

because the jury may conclude defendant is a bad person with a propensity to 
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commit crimes." State v. Herbert, 457 N.J. Super. 490, 509 (App. Div. 2019) 

(citations omitted).

A court must exclude other-crimes evidence unless the proponent offers it

for a permissible purpose, "such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident when 

such matters are relevant to a material issue in dispute." N.J.R.E. 404(b)(2). 

Even then, the evidence of the uncharged crimes must be clear and convincing, 

and its prejudice must not outweigh its probative value. State v. Cofield, 127 

N.J. 328, 338 (1992); and, in some cases, the uncharged conduct "must be 

similar in kind and reasonably close in time" to the charged offense, State v. 

Williams, 190 N.J. 114, 122, 131 (2007) (quoting Cofield, 127 N.J. at 338). 

This rule guards against a jury concluding that, because a defendant likely 

sold drugs before, he must have been dealing drugs when he was arrested. See

United States v. Barnes, 822 F.3d 914, 922 (6th Cir. 2016) (quoting United 

States v. Bell, 516 F.3d 432, 444 (6th Cir. 2008)) (noting "that Rule 404(b) 

prohibits . . . reasoning that amounts to 'once a drug dealer, always a drug 

dealer'").

In this case, the State did not try to use the testimony about other samples 

and "offense date[s]" for a permissible purpose. Nor did the State try to 
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demonstrate that the testimony's probative value outweighed its prejudice. 

Absent a permissible purpose, the court was obliged to instruct the jury to

disregard the testimony, and not to infer from it that McCoy likely possessed the 

final set of drugs. Although the trial judge promised to instruct the jury to 

disregard the testimony regarding the other samples and "offense date[s]," he

never gave that instruction. 

We reject the State's suggestion that the laboratory expert's remark was 

made in passing and likely caused McCoy no harm. We have no reason to 

conclude that the expert's remark went unnoticed. For one thing, the judge

halted the trial and called a sidebar immediately after the remark. In addition,

the expert referred to multiple samples a second time. Compare Herbert, 457 

N.J. Super. at 508–09 (reversing conviction because a detective's brief 

references suggesting defendant's gang involvement were "prejudicial" where 

"[e]ach time the detective referred to gangs, the trial came to an abrupt halt" and 

"[t]he second time . . . the jury gasped"), with Jackowitz v. Lang, 408 N.J. Super. 

495, 505 (App. Div. 2009) (stating that a "fleeting comment[]" about a previous 

crime "may not warrant a new trial, particularly when the verdict is fair").

We need not decide whether the laboratory expert's testimony, taken by 

itself, was sufficiently prejudicial to warrant a new trial. Rather, we consider 
14 A-3189-18T4

the cumulative impact of her testimony and the prosecutor's erroneous

summation. We shall reverse even if "any one of several errors assigned would 

not in itself be sufficient to warrant a reversal . . . if all of them taken together 

justify the conclusion that defendant was not accorded a fair trial." State v. 

Weaver, 219 N.J. 131, 155 (2014) (quoting State v. Orecchio, 16 N.J. 125, 134

(1954)). Cumulatively, the laboratory expert's testimony and the prosecutor's 

misstatement warrant reversal.

The prosecutor asserted — without any evidential support — that McCoy 

welcomed people to the house at all hours of the night. The statement tied in 

neatly with the drug expert's testimony that heavy foot traffic suggested drugdealing. It also refuted defense counsel's theory that one of McCoy's relatives

possessed the drugs. 

In State v. Farrell, 61 N.J. 99, 102 (1972), our Supreme Court held that 

"[i]t is error for a trial judge to permit a prosecutor in summing up to comment 

on facts not shown or reasonably inferable from the evidence in the case." The 

Farrell court reversed the defendant's conviction where the prosecutor 

improperly implied and referred to prejudicial information not in evidence. Id.

at 102–03, 106–07. 
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Unlike in this case, however, defense counsel in Farrell objected and 

unsuccessfully sought a mistrial. Id. at 106. A defense counsel's silence is often 

powerful evidence that a misstatement should not be deemed prejudicial. See

State v. Frost, 158 N.J. 76, 83–84 (1999); State v. Johnson, 31 N.J. 489, 511 

(1960). And defense counsel's failure to object also deprives the court of the 

opportunity to correct the misstatement. See Johnson, 31 N.J. at 511. 

Nonetheless, as Justice Brennan observed many years ago, "an appellate 

court is at liberty to upset the verdict if the prejudice done the defendant is 

apparent . . . even when the improper remarks have not been objected to by 

defense counsel." State v. Bogen, 13 N.J. 137, 142 (1953). Our Court has also 

noted that "[w]e have not hesitated to reverse convictions where we have found 

that the prosecutor in his [or her] summation overstepped the bounds of 

propriety and created a real danger of prejudice to the accused." Johnson, 31 

N.J. at 511.

In light of the jury's question, the prejudicial nature of the prosecutor's 

remarks seems undeniable. Notwithstanding the judge's instruction that the 

prosecutor's statements were not facts, her statements evidently convinced the 

jury that "people were coming in and out of the house for seconds at a time." 
16 A-3189-18T4

The jury solely sought to confirm "that Mr. McCoy was the only one in the 

house" when other people came and went.

Although defense counsel did not object and thus prompt the court to cure 

the misstatement, the jury's question gave the court another chance to set the 

record straight. However, the court said only that the jury had to determine the 

facts. Where a prosecutor states "facts" lacking any support in the record, such 

an instruction effectively tolerates misstatements and fails to prevent an unjust 

result. See Farrell, 61 N.J. at 102.

Perhaps, after hearing the trooper's testimony read back, the jury was 

dissuaded from believing that people were coming and going at the Vineland 

home. But "perhaps" is not enough. Our Court has recognized that "because 

the prosecutor represents the government and people of the State, it is reasonable 

to say that jurors have confidence that he [or she] will fairly fulfill his [or her] 

duty to see that justice is done whether by conviction of the guilty or acquittal 

of the innocent." Farrell, 61 N.J. at 105. Furthermore, "[i]t is unlikely a juror 

will believe a prosecutor would intentionally mislead him [or her]." Ibid. As 

noted, the jury's own question indicated that it wanted to review the trooper's 

testimony merely to confirm that McCoy was the only person receiving the 
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visitors. The jury was apparently already convinced that other people visited 

the home.

In sum, the prosecutor's misstatement — particularly when coupled with 

the laboratory expert's reference to multiple offense dates and samples — was 

"sufficient to raise a reasonable doubt as to whether the error led the jury to a 

result it otherwise might not have reached." See Macon, 57 N.J. at 336; see also

State v. G.E.P., 243 N.J. 362, 389–90 (2020) (applying this plain error standard).

Given our conclusion, we need not address at length defendant's argument 

that the court should have, sua sponte, delivered the "mere presence" jury 

instruction.

1

 Although we prefer courts to give the instruction, we are 

unpersuaded that its omission constitutes plain error. The Court reached the 

same conclusion when faced with a similar argument in State v. Randolph, 228 

N.J. 566, 592 (2017).

1 The "Mere Presence" section of the model jury instruction on possession, 

Model Jury Charges (Criminal), "Possession (N.J.S.A. 2C:2–1)" (rev. June 11, 

2018), specifically instructs a jury that a "[d]efendant's mere presence" where 

drugs are found does not prove, beyond a reasonable doubt, constructive 

possession. Mere presence is "a circumstance to be considered" along with other 

evidence of guilt. Ibid.
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Reversed and remanded. We do not retain jurisdiction.