On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Pressler and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
The Opinion of the court was delivered by
Defendant, William Milton, Jr., was tried to a jury and convicted of possession of cocaine (N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6) and possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(2) and N.J.S.A. 2C:2-6). His conviction for simple possession was merged into his conviction for possession with intent to distribute, and he was sentenced to a term of six years of imprisonment. Appropriate Drug Enforcement and Demand Reduction penalties, lab fees, Violent Crimes Compensation Board penalties, and revocation of driving privileges were imposed.
Defendant appeals his conviction and sentence alleging:
POINT I: THE PROSECUTOR'S REFERENCE TO THE ISSUANCE OF A SEARCH WARRANT FOR THE PERSON OF THE DEFENDANT, AS DISTINCT FROM HIS REFERENCE TO THE ISSUANCE OF A SEARCH WARRANT FOR THE MILTON HOME, IN COMBINATION WITH INVESTIGATOR MARC ROSSI'S TESTIMONY CONCERNING THE FORMER WARRANT'S EXISTENCE, CONSTITUTED INADMISSIBLE HEARSAY AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS. THE TRIAL JUDGE'S LIMITING INSTRUCTION WAS MISLEADING AND INEFFECTIVE, A CONCLUSION ATTESTED TO BY THE QUESTION WHICH THE JURY ASKED THE COURT CONCERNING THE WARRANTS DURING DELIBERATIONS.
POINT II: THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION.
We agree with defendant's contentions as raised in Points I and II, and we, therefore, reverse defendant's convictions and remand the matter to the Law Division for the entry of a judgment of acquittal.
The indictment upon which defendant was tried named him and his brother, Christopher Milton, as codefendants and alleged
in Count One that on February 3, 1989, in Trenton, New Jersey, they "did knowingly or purposely possess, actually or constructively, a controlled dangerous substance, to wit: cocaine, . . . ." Count Two alleged that the codefendants at the same time and place "did knowingly or purposely possess or have under their control with intent to distribute a controlled dangerous substance, to wit: cocaine, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants, . . . ." Christopher Milton apparently ...