On appeal from Superior Court, Law Division, Monmouth County.
Petrella and Kestin. The opinion of the court was delivered by Petrella, P.J.A.D.
The opinion of the court was delivered by
A jury found defendant Joanna Edwards guilty of possession of a controlled dangerous substance (CDS) (cocaine). N.J.S.A. 2C:35-10(a)(1). After Edwards' motion for a new trial was denied, she was sentenced to four years in prison.*fn1 The usual Drug Enforcement and Demand Reduction penalties were imposed and a Violent Crimes Compensation Board penalty was assessed.
On her appeal, Edwards raises the following arguments:
I. It was reversible error for the trial court to fail to instruct the jurors that if the defendant reasonably but mistakenly believed that the substance she possessed was hashish they should, despite the fact that they determined that the substance possessed by her was cocaine, find her guilty of a disorderly persons offense (not raised below).
II. Considering the minute amount of cocaine possessed by the defendant, and considering too her reasonable belief that the substance she possessed was hashish, the sentence imposed upon her constituted an abuse of discretion.
Edwards was arrested on September 30, 1989 at about 12:30 p.m. when a police officer in Neptune Township observed two women, one of them Edwards, fighting on the lawn in front of the police station. The other woman, identified subsequently as Ruby Bass, began to run off as the officer approached. Edwards pointed at Bass and told the officer that "she has hashish." Bass was apprehended and found to have had a piece of crumpled aluminum foil in her mouth which was partially covered by a black substance. Bass was arrested.
Edwards was also arrested for assaulting Bass. A search of Edwards at the police station disclosed that she had an aluminum foil packet in her rear pants pocket. The aluminum foil packet contained a black substance. Tests confirmed that the substance from Edwards' pocket was cocaine. The substance taken from Bass was not a controlled dangerous substance.
Essentially, Edwards now claims on appeal that despite the fact that the substance she possessed turned out to be cocaine, she should only be found guilty of the disorderly persons offense of possession of hashish because of her alleged belief that the substance was hashish. Edwards argues that the language in N.J.S.A. 2C:2-4b,*fn2 which deals with defenses of ignorance and mistake, supports her position. Thus, notwithstanding that the issue was not raised in the trial court, Edwards ...