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

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).

NOT FOR PUBLICATION WITHOUT THE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.

December 3, 2020
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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.
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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 seconddegree 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 seconddegree 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 thirddegree 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.