On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Pressler, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.
[236 NJSuper Page 6] This appeal requires us to decide whether the State must prove defendant's knowledge of the quantity of the drugs he possessed in order to sustain a conviction for first degree possession with intent to distribute a controlled dangerous
substance (C.D.S.) under N.J.S.A. 2C:35-5a. While we hold that the defendant's knowledge of the quantity of the drugs he possesses is not an element of the offense and, therefore, that the State need not prove defendant's knowledge of the quantity of the drugs so long as it proves beyond a reasonable doubt that defendant knowingly possessed the controlled dangerous substance, we nevertheless reverse this conviction on other grounds.
Defendant was indicted as a first degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count one); first degree possession with intent to distribute cocaine in a quantity of 5 ounces or more with at least 3.5 grams of pure free base, N.J.S.A. 2C:35-5a(1), 35-5b(1) (count two); first degree distribution of cocaine in a quantity of 5 ounces or more with at least 3.5 grams of pure free base, N.J.S.A. 2C:35-5a(1), 35-5b(1) (count three); second degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count four); second degree conspiracy to distribute and/or to possess with intent to distribute cocaine, N.J.S.A. 2C:5-2, 35-5a(1), 35-5b(1) (count five), and third degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count six).
The third count was dismissed before trial, and following trial by jury defendant was acquitted on the first count but convicted on the remaining charges. Counts five and six were merged into count two for sentencing, and on that count (first degree possession with intent to distribute cocaine in excess of 5 ounces with at least 3.5 grams of pure free base), defendant was sentenced to the custody of the Commissioner of the Department of Corrections for fifteen years with seven years to be served before parole eligibility. On count four (second degree employing a juvenile in a drug distribution scheme), he was sentenced to a seven year term with five years before parole eligibility to be served consecutively to the term imposed on count two.*fn1 In addition to the aggregate twenty-two year sentence, with twelve years to be served before parole eligibility, mandatory Violent Crime Compensation Board, Drug Enforcement and Demand Reduction, and Laboratory Forensic Examination Penalties were imposed, and defendant's driver's license was suspended for twenty-four months.
Defendant does not contest either the sufficiency of the evidence or any evidentiary ruling during trial. We, therefore, need not detail the evidence introduced against him at trial. Suffice it to say that as a result of cooperation by another person previously arrested, an undercover police officer made a controlled drug purchase from defendant. As the drugs and money were about to be exchanged defendant and his girlfriend were arrested. Her handbag contained a package of cocaine. Test results performed at the New Jersey State Police Laboratory revealed that the package contained 998.2 grams of cocaine and that the cocaine contained 77.7% free base, totalling 775.2 grams of pure free base cocaine. No issue is addressed to the testimony respecting the laboratory results.
[At the court's request this point is not included in the published opinion. It includes a lengthy factual recitation of the unique facts leading to the conclusion that the jury was coerced into returning a verdict on the night of May 5, 1988.
In Point II, the court noted that in response to a question from the jury on May 3, 1988, the judge told the jury:
[l]et the record reflect I have received another note from the jury, concerning charge number two, which is a charge of possession of cocaine with intent to distribute, did the defendant have to know that he had at least five ounces with at least 3.5 grams of the pure free base drug prior (as opposed to after) the arrest to be found guilty of this charge and the answer is absolutely yes. The knowledge must exist at the time of the possession. At the time of his arrest, he was dispossessed of the drugs they were taken from him. So in order to be convicted of possession, possession with intent to distribute, it must be shown that at the time he possessed, namely prior ...