On appeal from the Superior Court, Law Division, Union County.
Defendant and others were indicted for unlawful possession of at least 3.5 grams of pure free base cocaine, in violation of N.J.S.A. 24:21-20(a)(2), and possession of the same with intent to distribute, in violation of N.J.S.A. 24:21-19(a)(1) and 24:21-19(b)(2). Tried to a jury with co-defendant Baloca, defendant was convicted on both charges. The trial judge merged the conviction for possession into the conviction for possession with intent to distribute and sentenced the defendant to the custody of the Commissioner of Corrections for 15 years. Defendant appeals.
On this appeal, defendant argues:
POINT I THE COURT'S INSTRUCTIONS TO THE JURY RESPECTING THE LEGAL DEFINITION OF POSSESSION WAS ERRONEOUS AND DENIED APPELLANT A FAIR TRIAL.
POINT II THE STATE DID NOT ADDUCE SUFFICIENT EVIDENCE OF POSSESSION TO UNDERPIN THE CONVICTIONS. ACCORDINGLY, THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT III EXPERT TESTIMONY ADMITTED BY THE COURT DENIED APPELLANT A FAIR TRIAL (Not Raised Below)
POINT IV THE COURT'S INSTRUCTIONS TO THE JURY RESPECTING THE TRACE OF COCAINE FOUND ON THE SCALE VIOLATED APPELLANT'S RIGHT TO INDICTMENT.
POINT V THE TRIAL COURT'S COMMENTS DURING DEFENSE COUNSEL'S OPENING STATEMENT DENIED APPELLANT A FAIR TRIAL.
Our careful review of the record convinces us that these arguments are without merit and do not warrant extended discussion, except to the extent noted herein. R. 2:11-3(e)(2). We agree with defendant that status as a mere guest in an apartment where drugs are located or possessed, without more, is not sufficient evidence to convict and that a mere guest is not guilty of possession of CDS. However, in light of the evidence, summations and jury charge, we conclude that the jury understood the mere guest argument and the fact that defendant had to be found guilty beyond a reasonable doubt of actual or constructive possession. The judge instructed the jury about actual and constructive possession and accomplice liability. He
advised the jury that "mere presence at or near the scene does not make one a participant or accomplice in the crime . . ." and that "mere presence at the scene of the perpetration of a crime does not render a person an accomplice to it. . . ."
The investigation leading to execution of the warrant and discovery of cocaine in the bathroom centered around another man, William Vieco, who had been staying at the Baloca apartment. Defendant had $1,023 in his wallet and had a beeper (similar to one found in the kitchen) attached to his pants at the time of the raid when he was found sleeping in the bedroom where the scale and cocaine residue were found. Defendant was not observed during the investigation which resulted in the warrant. Ms. Baloca testified that the drugs and scale belonged to Vieco who had been staying in her apartment and living in her bedroom for two or three days, that defendant "passed out" while visiting Baloca and was moved to the bedroom where he slept until the next afternoon when the raid occurred. Baloca further testified that she hadn't ...