                   NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2656-12T3



STATE OF NEW JERSEY,                   APPROVED FOR PUBLICATION

     Plaintiff-Respondent,               September 21, 2016

v.                                       APPELLATE DIVISION


BRIAN A. GREEN, a/k/a BRYAN
GREEN, BRYAN A. GREEN,
ANTHONY GREEN, DANNY GREEN,

     Defendant-Appellant.
___________________________________

         Submitted September 17, 2015 – Decided September 21, 2016

         Before Judges Lihotz, Nugent and Higbee.

         On appeal from Superior Court of New Jersey,
         Law Division, Union County, Indictment No.
         11-02-00124.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Jay L. Wilensky, Assistant
         Deputy Public Defender, of counsel and on
         the briefs).

         Grace   H.   Park,    Acting     Union   County
         Prosecutor,    attorney      for     respondent
         (Nasheena D. Porter, Special Deputy Attorney
         General/Acting   Assistant    Prosecutor,    of
         counsel and on the brief).

         Appellant filed a pro se supplemental brief.

     The opinion of the court was delivered by

HIGBEE, J.A.D.
    Defendant,   Brian   Green,   appeals   from   his   conviction   for

possession of less than fifty grams of marijuana in violation of

N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense, and for

possession of more than one ounce but less than five pounds of

marijuana with intent to distribute in violation of N.J.S.A.

2C:35-5(b)(11), a third-degree offense.      He further appeals from

his sentence of six years in State prison with three years of

parole ineligibility.    Defendant raises the following issues on

appeal:

          POINT I

          THE STATE PRESENTED HIGHLY IMPERMISSIBLE
          EXPERT TESTIMONY THAT INFRINGED UPON THE
          JURY'S FACT-FINDING FUNCTION, AND DENIED THE
          DEFENDANT   A    FAIR  TRIAL,   NECESSITATING
          REVERSAL.     U.S. CONST. AMEND. VI; N.J.
          CONST. ART. 1, PAR. 9.     (PARTIALLY RAISED
          BELOW).

          POINT II

          THE   STATE  PRESENTED   EVIDENCE   THAT   THE
          DEFENDANT POSSESSED BULLETS, WHICH WAS BOTH
          IRRELEVANT     AND     HIGHLY     PREJUDICIAL,
          NECESSITATING REVERSAL. (NOT RAISED BELOW).

          POINT III

          THE    STATE  PRESENTED    IRRELEVANT  AND
          MISLEADINGLY INCOMPLETE EVIDENCE TO THE
          GRAND JURY, NECESSITATING DISMISSAL OF THE
          INDICTMENT. (PARTIALLY RAISED BELOW).

          POINT IV




                                  2                             A-2656-12T3
           THE STATE VIOLATED THE BANKSTON DOCTRINE BY
           STATING IN ITS OPENING THAT THE POLICE HAD
           RECEIVED INFORMATION WHICH LED THEM TO
           BELIEVE THAT DRUGS WERE BEING SOLD AT THE
           SCENE   OF    THE   SEIZURE,   NECESSITATING
           REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J.
           CONST. ART. 1, PAR. 9.

           POINT V

           THE   TRIAL   COURT  IMPOSED   AN              EXCESSIVE
           SENTENCE, NECESSITATING REDUCTION.

                  A.    The   Parole           Disqualifier    Is
                  Disproportional,             And      Therefore
                  Excessive.

                  B.    The Court Erred In Imposing An
                  Extended Term, Or A Sentence Above The
                  Extended-Term Minimum.

      In a supplemental pro se letter brief defendant raises the

following additional arguments: the identity of the confidential

informant who advised police that he had purchased drugs from

the   defendant      should    have   been   disclosed;    the    affidavit     in

support   of   the    search    warrant,     which   allowed     the   police   to

search the defendant's home and automobile, was defective; and

it was error to merge the disorderly person conviction with the

third-degree conviction.

      For the following reasons, we conclude the State's drug

expert's testimony invaded the fact-finding role of the jury.

Its admission at trial was plain error and we reverse and remand

for a new trial.




                                        3                                A-2656-12T3
      The   record       discloses          the       following     facts.            The    police

obtained      information            from     a        confidential         informant            that

defendant     was       selling       drugs       from    a     motor     vehicle       and       his

residence.       The confidential informant did not testify at trial,

and   the   court       did     not    require         the     informant's        identity         be

disclosed as requested by defendant.

      After      obtaining       a    search          warrant      for    the    vehicle          and

defendant's residence, the police stopped defendant and a co-

defendant in the vehicle and searched them.                               The search of the

automobile,       defendant       and       co-defendant           yielded       no    drugs       or

contraband,       but     the        police       obtained         keys     to    defendant's

residence.          Several          police       officers         went     to    defendant's

residence to perform the authorized search.                               They entered the

building through a door on the ground-level, which opened onto a

stairway.         The    officers       ascended          the      stairs    to       enter       the

residence.       The layout of the second floor and the occupants of

each bedroom were the subject of substantial testimony at trial

because     those       facts     implicated            the    critical      issue          of    who

possessed the drugs the police seized from the dwelling.

      The landlord, who operated a restaurant on the first floor

and   owned      the    building,       testified             he   rented    four       separate

bedrooms    on    the     second       floor      to     different        individuals.             He




                                                  4                                         A-2656-12T3
testified defendant, co-defendant Tristian A. Gooden,1 and Edward

K. Boyce2 rented three separate rooms and were still living in

the residence when the search took place.               Each paid rent weekly

every Sunday.       At one time, two other men lived together in a

fourth bedroom, but one left several months earlier.                     The other

stayed and paid the rent for some time, but then stopped.                           The

landlord was unsure if this man still occupied the room at the

time of the search.

     The landlord testified the tenants shared a common hallway,

kitchen,   bathroom,    and     hall    closet.        The    second    floor       was

described during the trial as a residence, an apartment, and a

rooming house.       Each tenant was charged and separately paid

rent.

     The   police    officers     who   searched   the       premises    testified

they found the doors to all rooms open and unlocked, except, for

what was described as bedroom               number four, where they found

Boyce.     According   to   the    police,     Boyce    was    the     only    person

present when they entered the living quarters.                 No drugs or drug

paraphernalia were found in his bedroom.




1
    Gooden was charged with the same drug offenses as defendant
and was tried with defendant.   He was acquitted of all charges
by the jury. He did not testify.
2
    Originally, Boyce was charged but the charges were dismissed.



                                        5                                     A-2656-12T3
     In what was identified at trial as bedroom two, the police

found no sheets, pillows, clothing or personal items to suggest

the room was occupied.              Under the bed, police found an "Ed

Hardy" bag, which contained "a large quantity of marijuana along

with individually packaged bags of marijuana and new and used

Ziploc bags used to package marijuana."                 The marijuana in the

"Ed Hardy" bag weighed 15.8 ounces.             This was the largest cache

of marijuana found on the premises.                Also found were loose,

unused,     purple   Ziploc    bags    and   two   bullets   sitting    on   the

dresser.3

     The landlord identified bedroom two as the room rented by

the man who stopped paying rent               sometime before the search.

Defendant's     witness,      who    identified    herself   as     defendant's

girlfriend, testified this was defendant's room, although, the

landlord     testified     defendant    had    always    occupied    what    was

designated as bedroom one and paid a slightly higher rent for it

because it was the largest.




3
    Defendant was charged initially with possession of bullets,
but those charges were dismissed.    The bullets should not have
been mentioned at trial, but Detective O'Brien briefly mentioned
during his testimony he found some bullets in room two.
Although improperly elicited by the prosecutor, this testimony
was not sufficiently prejudicial by itself to warrant a new
trial, but should be avoided in any retrial. The error adds to
the cumulative effect of the other trial errors.



                                        6                              A-2656-12T3
    In      bedroom     one,        a    wallet          was    found      in        the    dresser

containing items with defendant's name on them and $377 in cash.

The room also contained a pink notebook, which had names listed

followed by numbers which appeared to be a ledger.                                         The room

contained a refrigerator; the freezer section held seven one

gallon   Ziploc    freezer      bags          containing         residue    of        a    brownish

green    plant.       This    substance            was    identified       by        the    State's

chemist as marijuana residue.                      There was a box of unused clear

sandwich bags on top of the refrigerator.                           Finally, there was a

knotted plastic bag found containing 28.9 grams of marijuana.

    In      bedroom     three,          the        search       revealed        an     apparently

occupied room with a made bed, clothing, and other personal

items.    There was testimony from the landlord that co-defendant

Gooden was living in room three at the time of the search.

    In      the   dresser      were           various       documents       containing            co-

defendant    Gooden's        name       and    a       Ziploc    bag   containing           several

small Ziploc bags.           Hidden in the area between the drop ceiling

and the old ceiling was a digital scale, a box of clear sandwich

bags, and a bag holding plastic bags that contained a green

leafy residue.         Another officer who created the evidence log

also identified plastic wrap found in room three.

    The search did not reveal any items of interest in the

kitchen or bathroom; however, in the common hall closet there




                                                   7                                        A-2656-12T3
were   two    plastic    bags    holding         2.2    grams       and   6.2    grams4    of

marijuana, respectively, as well as another digital scale.

       At trial, the officers who conducted the search described

what   they   found     in    each    room.         The      State    presented     expert

testimony from a chemist who testified all plant product and

residue was marijuana, and there was marijuana residue on one of

the    scales.    The        State    also       called      a    narcotics     expert    to

describe drug distribution practices to the jury.                              The expert,

Detective     Brendan    Sullivan,       gave       his      opinion      on    "intent   to

deliver" versus "simple possession" of marijuana.                              Sullivan is

an employee of the Union County Prosecutor's Office and worked

for five years in the narcotics unit.

       Sullivan    told         the     jury           he        previously      testified

approximately     twenty-five         times        in       court    as   an    expert    on

"whether a person possessed narcotics for distribution rather

than for personal use."          Sullivan also stated he testified as an

expert on "narcotics use, packaging, and distribution."                             He was

asked if he ever declined a request to serve as an expert, and

he testified he had declined to testify previously on more than

one occasion, when asked by assistant prosecutors to render an

opinion in distribution cases.                   Sullivan stated he declined to

4
    The exact quantity of marijuana found in each bag in the
closet was described differently at times during the trial but
the total amount never exceeded nine grams.



                                             8                                     A-2656-12T3
render an expert opinion in those cases, because he determined

in those cases, after reviewing the State's files, the narcotics

possessed were for personal use.

    Once qualified, Sullivan opined as follows in response to

the prosecutor's questions:

              [PROSECUTOR]: Detective, at this time
         I'm going to place before you and the jury a
         hypothetical   question    and   after   the
         hypothetical question I will ask you certain
         general    questions    relating    to   the
         hypothetical question.   Assume that a legal
         search had been executed on --

              [CO-DEFENDANT'S ATTORNEY]:    Objection,
         Your Honor.

              [THE COURT]:   It's not necessary for
         the -- for the opinion to -- to delve into
         whether or not a search was legal. Just go
         into the facts of the case.    I'll sustain
         the objection. Rephrase the question.

              [PROSECUTOR]: Assume that a search had
         been executed on an apartment.    Assume that
         in one bedroom there was found a clear
         plastic bag with 28.9 grams of marijuana.
         In the same bedroom there was a wallet with
         $377 in it. The currency was in 22 1-dollar
         bills, 7 5-dollar bills, 10 10-dollar bills,
         6 20-dollar bills, and 2 50-dollar bills.

              Assume further that seven multi-colored
         gallon Ziplock bags with marijuana residue
         are found in the freezer in that room.
         Assume that a pink ledger with names and
         numbers and quantities are found in the
         room.    Assume that two cell phones are
         found.

              Now assume in a second bedroom in the
         same apartment hidden in a drop ceiling is



                               9                         A-2656-12T3
found a Max 5000 scale, white shopping bags
with marijuana residue in them, and green
shrink wrap.   Assume there were also found
in this bedroom a package of numerous small
Ziplock bags.

     Assume that in an adjacent room which
is open is found a black Ed Hardy bag with
15.8 ounces of marijuana packaged in a
gallon bag similar to the 7 bags found in
one of the bedrooms that contained marijuana
residue and it also contains numerous small
Ziplock bags.

     Assume also that in a common closet in
the hallway there is found a black bag that
contained another Max 5000 scale together
with numerous small Ziplock baggies. Assume
in the same closet that the -- that 2 clear
plastic bags containing 6.2 grams and 2.2
grams of marijuana is found.    Also, assume
that nothing else relevant to the search
warrant is found in the --

     [CO-DEFENDANT'S ATTORNEY]:           Objection,
Your Honor.

    [THE COURT]:    Sustained.

    [PROSECUTOR]:      I'm sorry.

    [THE COURT]:    Strike the last portion.

     [PROSECUTOR]: Also assume that nothing
else relevant is found in the apartment.
Based on the facts I've given you in this
hypothetical do you have an opinion as to
whether --

     [CO-DEFENDANT'S         ATTORNEY]:          The
marijuana --

     [PROSECUTOR]:   Do you have an opinion
as to whether the drugs that were found in
the apartment were possessed for personal
use or for distribution purposes?



                        10                             A-2656-12T3
                 [CO-DEFENDANT'S ATTORNEY]:                Objection.
            Intent to distribute.

                    [PROSECUTOR]:     I'm sorry.

                    [THE COURT]:     I'll allow the --

                    [CO-DEFENDANT'S ATTORNEY]:          It's     --

                    [THE COURT]:     -- question as phrased.

                    [CO-DEFENDANT'S ATTORNEY]:          Okay.

                    [PROSECUTOR]:     Or intent to distribute.

                 [SULLIVAN]:    Yes.    It would be my
            opinion that possessors of these items --
            given the totality of the circumstances the
            possessor of these items did in fact possess
            them with the intent to distribute them.

                    . . . .

                 [PROSECUTOR]:   So based on all these
            factors you just mentioned, what is your
            opinion as to whether or not the drugs and
            paraphernalia found in this hypothetical
            apartment were for personal use or for
            possession with intent to distribute?

                 [SULLIVAN]:    I completely am of the
            opinion that these -- this was possessed
            with the intent to distribute.          And,
            furthermore, that this was a classic street
            level marijuana distribution operation.

    The      jury     acquitted     co-defendant        Gooden        and    convicted

defendant    of     possession    with    intent   to   distribute          marijuana.

N.J.S.A. 2C:35-5(b)(11).

    On      appeal,     defendant        first   argues     the       admission      of

Sullivan's    testimony       was   "plain       error."         He     asserts     the



                                          11                                  A-2656-12T3
testimony was prejudicial, crossed the boundaries established by

the Supreme Court for testimony by drug experts, and infringed

upon the jury's fact-finding function.        Because defendant did

not raise this argument below, this issue is reviewed under the

"plain error" standard, which provides reversal is mandated only

for errors "of such a nature as to have been clearly capable of

producing an unjust result."     R. 2:10-2.   Accordingly, the test

to apply is whether the possibility of injustice is "sufficient

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

to a result it otherwise might not have reached."            State v.

Macon, 57 N.J. 325, 336 (1971).

    The   Supreme   Court   recently   addressed   the   struggle   our

courts encounter governing the use of drug expert testimony.         In

State v. Cain, 224 N.J. 410, 426-27 (2016), the Court explained

the role a drug expert plays in providing information about drug

distribution:

          Experts can help jurors understand the
          indicia of a distribution operation, such as
          how drug traffickers package and process
          drugs for distribution.    Experts can shed
          light on the significance of the quantities
          and concentrations of drugs, the value of
          drugs, the use of identifiable logos on drug
          packaging,   and   the  function   of   drug
          paraphernalia, e.g., scales, baggies, and
          cutting agents.

          [Id. at 426 (citation omitted).]




                                  12                          A-2656-12T3
      Cain also underscored the need to assure drug expert

testimony did not intrude upon the jury's fact-finding,

explaining:

                In State v. Odom, 116 N.J. 65, 80-81
           (1989), we held that an expert witness in a
           drug-distribution case could testify to the
           ultimate issue of fact — whether a defendant
           possessed   drugs    with  the   intent    to
           distribute. We cautioned, however, that the
           expert's testimony should not amount to a
           pronouncement of guilt.   Allowing an expert
           to offer an opinion on a defendant's guilty
           state   of  mind   in   a drug   case   while
           prohibiting the same expert from offering an
           opinion on defendant's guilt are not easily
           reconcilable principles.    In a series of
           cases since Odom, we have attempted to
           curtail the misuse of expert testimony that
           has intruded into the jury's exclusive role
           as finder of fact.

           [Id. at 413.]

      Previously, the Court suggested in Odom that one way to

prevent the intrusion into the jury's fact-finding role was to

use   hypothetical     questions,     without   a   defendant's   name    and

without   describing    the   crime    in   statutory   language.      Odom,

supra, 116 N.J. at 82.        In Cain, the Supreme Court, frustrated

by the misuse of these hypothetical questions, went further and

changed their long standing position, declaring:

                We now join those jurisdictions that
           limit the scope of expert testimony in drug
           cases.    Going forward, in drug cases, an
           expert   witness  may   not opine   on  the
           defendant's state of mind.       Whether a
           defendant possessed a controlled dangerous



                                      13                            A-2656-12T3
            substance with the intent to distribute is
            an ultimate issue of fact to be decided by
            the jury.

            [Cain, supra, 224 N.J. at 429.]

    We must determine whether this change as to what a drug

expert can opine was meant to be applied retroactively to this

case and others tried before Cain, pending on appeal.                      When

examining   the   retroactive   effect   of   a   new   rule   of   law,   the

Supreme Court has instructed:

                 This Court has four options in any case
            in which it must determine the retroactive
            effect of a new rule of criminal procedure.
            The Court may decide to apply the new rule
            purely prospectively, applying it only to
            cases in which the operative facts arise
            after the new rule has been announced.
            Alternatively, the Court may apply the new
            rule in future cases and in the case in
            which the rule is announced, but not in any
            other litigation that is pending or has
            reached final judgment at the time the new
            rule is set forth.     A third option is to
            give the new rule "pipeline retroactivity,"
            rendering it applicable in all future cases,
            the case in which the rule is announced, and
            any cases still on direct appeal.    Finally,
            the Court may give the new rule complete
            retroactive effect, applying it to all
            cases,   including  those   in  which   final
            judgments have been entered and all other
            avenues of appeal have been exhausted.

            [State v. Knight, 145 N.J. 233, 249 (1996)
            (citations omitted).]

    We can ascertain the Court did not intend to give the new

rule complete retroactive effect since the Court used the words




                                   14                                A-2656-12T3
"going forward," nor did the Court intend the new rule to be

applied purely prospectively, as the Court sent Cain back for

retrial.    Cain, supra, 224 N.J. at 429, 436.             The question

before us is whether the second or the third option set forth in

Knight applies.      We look to the Supreme Court's guidance in

State v. Earls 214 N.J. 564 (2013) to answer this question.

      The Court in Earls identified three factors to be evaluated

when considering whether a holding should apply retroactively:

           (1) the purpose of the rule and whether it
           would   be   furthered   by a   retroactive
           application, (2) the degree of reliance
           placed on the old rule by those who
           administered it, and (3) the effect a
           retroactive application would have on the
           administration of justice.

           [Id. at 590 (quoting Knight, supra, 145 N.J.
           at 251).]

      We consider each of these factors in turn.        As to the first

factor, the purpose of the new rule is to prevent drug experts

from intruding into the jury's exclusive province by expressing

an   opinion,   implicitly   or   explicitly,   on   defendant's    guilt.

Applying the new rule to cases still on appeal would serve this

purpose.

      As to the second factor, weighing the degree of reliance

placed on the old rule by those who administered it, since Odom

was decided in 1989, the Court reiterated a drug expert may not




                                    15                             A-2656-12T3
usurp the jury's function or opine on the guilt of defendants.

See Cain, supra, 224 N.J. at 423 (explaining the Court "slowly

retreated from some of the broader implications of Odom").                                The

clarification     of    that     point    now     provided      by    Cain    cannot       be

deemed   a    surprise,    considering          the   Court's     prior      discussions

criticizing     drug    expert       opinions     offered    through         the    use   of

hypothetical questions to uniformly track very specific facts

presented during trial.              Although prosecutors have relied upon

their ability to use hypothetical questions, their reliance was

not entirely justified in view of the Court's pronouncements in

prior cases.     In State v. Nesbitt, 185 N.J. 504, 514 (2006), the

Court    disapproved      of     a    hypothetical      question          saying,     "Odom

should not be misconstrued to signal our willingness to accept,

carte blanche, the use of hypothetical questions asked of law

enforcement experts in all drug charge settings."                           In State v.

Reed 197 N.J. 280, 293 (2009), the Court cautioned prosecutors

and   trial    courts     that       "Odom's    continued    application            is    not

without boundaries."             The "new rule" was imposed to prevent

circumvention     of    the    existing        law,   that   is      to    curtail       drug

experts from opining on defendant's guilt.

      As to the third factor, applying the rule retroactively

there is no evidence presented that it would unduly burden the

justice system.        Cain does not impact decisions or actions that




                                           16                                      A-2656-12T3
were   already     decided   on     appeal.           It   also    does     not    impact

irreversible      actions    taken       by     law    enforcement        officers       in

reliance    on    prior   law.       Nor      does    it   require     new    Attorney

Guidelines.       There will be no unfair prejudice to the State in

reversing        cases    pending        appeal        that       involve     improper

hypothetical      questions.        We     routinely       remand    cases        for   new

trials where error has prevented defendants from receiving a

fair trial.

       After analyzing the three factors set forth by the Court in

Earls, we conclude, unless we are instructed to the contrary,

the Court intended pipeline retroactivity to apply to the Cain

decision.

       We further conclude that expert testimony in this case had

the clear capacity to cause an unjust result.                     As Justice Albin

wrote in State v. Simms, 224 N.J. 393, 396 (2016)

                 In State v. Cain, 224 N.J. 410 (2016)
            we determined that in drug-distribution
            cases,   an    expert's    opinion    on   the
            defendant's   state   of    mind—whether   the
            defendant possessed drugs with the intent to
            distribute—encroaches    on    the   exclusive
            domain of the jury as trier of fact. . . .

                 Expert   testimony that  a   defendant
            possessed a controlled dangerous substance
            with the intent to distribute is nothing
            less than a pronouncement of guilt by
            mimicking the statutory elements of the
            offense. Such testimony is not necessary to
            assist the jury. . . .




                                           17                                     A-2656-12T3
               We conclude that the admission of the
          expert testimony constituted plain error
          because it violated principles set forth in
          this Court's recent jurisprudence, including
          principles on which we further elaborated in
          Cain.

          [(Citation omitted) (decided the same day as
          Cain.]

      Here, we find "plain error," and particularly because the

question of whether Green had "intent to distribute" was based

solely on circumstantial evidence and not on any observed sale

of the marijuana, as the State did not call the confidential

informant as a witness.

      Compounding the error, the State elicited testimony from

the   expert    that    before       the    expert    gives   his   opinions    in

distribution cases, he reviews "the State's file and the facts"

and would not testify if he determined that the drugs were for

personal use.     This improper buttressing informed the jury that

notwithstanding        the    hypothetical        question,   the     expert    had

predetermined     the        drugs   were       for   distribution,    not     just

possession for personal use; a factual determination that rests

solely in the province of the jury.

      For the reasons set forth above, we conclude defendant is

entitled to a new trial, but we briefly address one other issue

raised by defendant.          In the State's opening, the jury was told

"the Plainfield Police Department . . . came upon information




                                           18                            A-2656-12T3
that   led    them    to     believe        that    there       were   drugs    being       sold"

(emphasis     added)        at    defendant's         residence.        Defendant          argues

this    was    improper          as   any      such    testimony        would       have    been

inadmissible        under        State    v.    Bankston,         63   N.J.     263,       268-69

(1973).       Bankston holds it is a violation of both the hearsay

rule and the Sixth Amendment for a police officer to testify

what he was told by some other unidentified person concerning a

crime being committed.                Id. at 268.           We find the reference in

the State's opening about information received by the police

that drugs were being distributed from the premises troubling,

as   did   the      trial    judge       who    issued      a    cautionary     instruction

advising      the    jury    that     opening         statements       are    not    evidence.

However, in light of our reversal, we need not determine whether

this statement constituted error or if any error was adequately

cured by the judge's instruction to the jury.                                 Neither do we

need to address defendant's arguments as to sentencing.                                We find

the other arguments raised by defendant lack sufficient merit to

warrant discussion in a written opinion.                         R. 2:11-3(e)(2).

       Reversed and remanded.




                                               19                                      A-2656-12T3
