On appeal from the Superior Court, Law Division, Middlesex County.
Lynch, Bischoff and Kole.
Defendant appeals from her conviction after jury trial of possession of marijuana (N.J.S.A. 24:21-20a(3)) (count I), possession of marijuana with intent to distribute (N.J.S.A. 24:21-19a(1)) (count II), and distribution of marijuana (N.J.S.A. 24:21-19a(1)) (Count III). On count I defendant was sentenced to the Middlesex County Workhouse for a period of 12 months (suspended) and placed on probation for two years. After merging count II and count III the trial judge sentenced defendant on the latter count to 12 months in the workhouse (suspended) and two years probation, concurrent to the sentence on count I.
On appeal defendant contends:
POINT I The trial court's charge on entrapment was erroneous.
A. The trial court incorrectly charged the jury on the defense of entrapment and the effect of predisposition;
B. The entrapment charge negated the appellant's defense that she did not have the intent to commit a crime (not raised below);
POINT II The sentence imposed by the trial court was excessive.
POINT III The trial court's comments on the evidence were incorrect, and the appellant was therefore denied a fair trial.
The charge concerning entrapment
(A) Retroactive application of State v. Talbot, 71 N.J. 160 (1976)
After each side had rested defendant requested the trial judge to charge the jury on the issue of entrapment pursuant to State v. Talbot , 71 N.J. 160 (1976), which had been decided after the events giving rise to defendant's conviction but approximately two months before the trial.
So far as relevant to the issue of entrapment the testimony established the following facts:
On February 18, 1975 Richard Wenskowski, an undercover narcotics officer for the Edison Police Department, was approached by one Anthony Cavezza, an "informant" with whom Wenskowski had had dealings in the past. As a result of his conversation with Cavezza, Wenskowski placed a telephone call to Big Mac's Tavern in Linden and asked for Carol Branam, defendant. A woman shortly came to the phone, identified herself as "Carol" and Wenskowski thereupon engaged her in a conversation concerning the sale of some marijuana. As Wenskowski stated, "She told me that she could sell me four ounces of marijuana this evening, that being later on in the evening." Wenskowski then told "Carol" to meet him in Room 102 of the Holiday Inn in Edison, where the transaction would be consummated.
Thereafter, Wenskowski checked into the Holiday Inn and registered under the name of Richard Wesley. At about 1 A.M. Lorraine Holcomb, defendant and Cavessa arrived at the room. ...