On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Pressler, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant was indicted for fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count one), and fourth degree possession of the knife by a convicted felon, N.J.S.A. 2C:39-7 (count two). The counts were severed, and defendant was convicted at trial on the second count. He was given an 18-month custodial sentence without a parole ineligibility term. We reverse and remand for a new trial.
On January 9, 1987 a car defendant was driving was stopped by officers of the Red Bank Police Department. After the stop, Det. Coutu observed a knife protruding from an ashtray of the car. The ashtray was "located in the center of the console, the center of the dashboard."
Defendant testified on his own behalf. He indicated that the knife belonged to the passenger, Rickey Herve. According to defendant, Herve was
. . . sitting next to me as I got out of the car [and he] pulled it out of his pocket and threw it in the ashtray. It was in plain view. When the detective said whose knife was it, I said it wasn't mine.
Defendant further indicated that he was "on the revoked list" and had "no license", which explained his conduct at the time of the stop.
On this appeal defendant argues
POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN INSTRUCTING THE JURY WITH REGARD TO THE SUBJECT OF AN EVIDENTIARY PRESUMPTION AND IN SO DOING SHIFTED THE BURDEN OF PROOF FROM THE STATE TO THE DEFENDANT, IN VIOLATION OF THE DUE PROCESS GUARANTEE OF THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
POINT II THE TRIAL COURT ERRONEOUSLY CHARGED THE JURY THAT IF THE STATE DID NOT PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT THE DEFENDANT WAS "ENTITLED TO" AN ACQUITTAL. (Not Raised Below).
In his instructions to the jury the trial judge stated, among other things
When a weapon is found in a vehicle it is presumed to be in the possession of the occupant if there is but one. If there is more than one occupant in the vehicle it shall be presumed to be in the possession of all of the occupants. Thus briefly the State must prove the following elements beyond a reasonable doubt. One, that the object was a weapon. Two, that the defendant possessed it. Three, that the defendant possessed it actually or constructively. Three, that the defendant knew it was a ...