Bischoff, Morgan and Rizzi. The opinion of the court was delivered by Bischoff, J.A.D.
Defendants Richard Allen Hauser and Nestor Palacio were indicted along with Mark Barondess in a three-count indictment charging them with breaking and entry or entering without breaking with intent to steal narcotics,*fn1 in violation of N.J.S.A. 2A:119-8.1(a) [count 1]; larceny of narcotics, in violation of N.J.S.A. 2A:119-8.1(c)(Count 2), and possession of controlled dangerous substances, in violation of N.J.S.A. 24:21-20(a), (1)(Count 3). At the conclusion of a trial by jury, defendants were convicted on all three counts. They moved for and obtained a judgment of acquittal notwithstanding the verdict as to counts 1 and 2. As to count 3, there was a finding of guilt without judgments of conviction for both defendants, and a conditional discharge was entered under N.J.S.A. 24:21-27.
The State appeals, seeking reinstatement of the judgments of conviction of both defendants on counts 1 and 2, or, in the alternative, the entry of a judgment of conviction of a lesser included offense.
The case of the State against these defendants was based primarily on the testimony of Barondess, who had previously entered guilty pleas to charges of entering without breaking and possession of drugs.
Barondess testified that he saw defendant Palacio on the morning of the offense and was asked by him if he (Barondess) "could get him some ups." Barondess replied that he could get them from his father's drug store in Westfield. On numerous prior occasions Barondess had given Valiums to Palacio, and the three had previously exchanged drugs.
Pursuant to arrangements with Palacio, Barondess telephoned at 4 p.m. and arranged to meet him at the Running
Brook Inn in Long Branch at 7 p.m. At the meeting at the Inn Palacio was accompanied by defendant Hauser. Nothing was discussed except that Barondess told Palacio that he would pick him up at his apartment at 9 p.m. that evening. Barondess went to Palacio's apartment at the appointed time and both defendants got into the car. Barondess then proceeded to drive north toward Westfield. During the 45-minute drive they discussed a planned signal with the car lights to let Barondess, who would be in the drugstore, know when it would be all clear for him to come out. They drove to the street on which the drugstore was located. It was now approximately 10:30. Barondess, alone, got out of the car and, using a key which he had previously, and without permission, duplicated from his father's, entered the front door. Once inside, Barondess went to the prescription department, took various pills, put them in a paper bag and placed the bag in a window in the rear of the store. He went out the front door and got into the passenger side of the car alongside Palacio. Barondess estimated that he was in the store for approximately 20 minutes. Hauser, who had taken over behind the wheel, drove the car around to the rear of the building where they saw a police car. They then drove to a nearby tavern where they discussed what to do next. They decided to go back to the store to retrieve the bag from the window.
Unknown to Barondess and defendants, however, the police had responded to a burglar alarm at Baron's Drug Store. Officer McKenna had observed defendants' vehicle and ran a license check on it. He found the bag of drugs and turned it over to Detective Lieberman, who removed the contents of all the bottles except one labeled Benzedrine and replaced the bag, which now contained one bottle labeled Benzedrine and a number of empty vials. Lieberman then directed that a stakeout be set up.
At about midnight Barondess and defendants returned to the rear of the drug store. Barondess retrieved the bag from the window and got back into the car. Officer Coles ran
toward the car on foot as police cars blocked the exit routes. The bag and a set of keys were thrown from the car and landed at Coles' feet. Barondess and defendants were thereupon arrested.
A chemist produced by the State testified concerning his analysis of the drugs seized. While the jury was not informed as to the significance of the names of the drugs, two were narcotics and ...