On appeal from Superior Court, Law Division, Hudson County.
Petrella, Long and Keefe. The opinion of the court was delivered by Petrella, P.J.A.D.
A jury convicted defendant Marshall Brian Gosa of possession of a controlled dangerous substance (CDS), i.e. cocaine; possession of more than one-half ounce of CDS (cocaine), but less than five ounces thereof with intent to distribute; possession thereof with intent to distribute within 1,000 feet of school property; and knowingly receiving stolen property of the value of more than $500. The jury acquitted Gosa of possession of a handgun. For sentencing purposes the Judge merged the simple possession conviction into the conviction of possession with intent to distribute and sentenced Gosa to seven years in prison. He also imposed a concurrent sentence on the conviction for distribution of a CDS within 1,000 feet of school property of four years in prison, three years without parole eligibility. In addition, the Judge imposed a consecutive four year prison sentence for the theft.
On appeal, Gosa raises the following arguments:
I. The trial court erred in denying defense counsel's motion for a judgment of acquittal as to count II charging second degree possession with the intent to distribute a controlled dangerous substance since the State failed to present a prima facie case establishing a requisite element of the charge, denying to the defendant due process.
II. The trial court erred in denying defense counsel's motion for a judgment of acquittal as to count V since the State failed to present a prima facie case regarding certain necessary elements of receiving stolen property.
III. The trial court failed to adequately instruct the jury regarding the issue of value with respect to receiving stolen property. (Not raised below.)
IV. The trial court erred by failing to charge the jury regarding the affirmative defenses to N.J.S.A. 2C:35-7. (Not raised below.)
V. The trial court erred in denying defense counsel's motion for a mistrial as a result of the highly inflammatory and prejudicial testimony constituting other crime evidence.
VI. The trial court erred in failing to merge count III charging possession with intent to distribute a controlled dangerous substance within 1,000 feet of
school property into count II charging possession with the intent to distribute the same controlled dangerous substance. (Not raised below.)
VII. The sentence imposed was manifestly excessive.
The offense leading to the charges against Gosa occurred at about 10:45 a.m. on August 19, 1989, when two Jersey City police officers were driving in an unmarked car and observed a group of black males standing in front of 12 Park Street. One of the males, later identified as codefendant Erroll Johnson*fn1 was seen standing in the middle of the group holding a clip of vials, which an officer recognized as a common method for packaging cocaine.
The officers stopped their car. As they exited and approached the crowd Johnson saw them and ran into the building known as 12 Park Street. An officer identified himself as a police officer and pursued Johnson, yelling for him to stop. Johnson ran up the stairs into a room followed by the officer who testified he saw Gosa holding a handgun pointed out the window in a downward position, as well as another male who was Gosa's cousin. Gosa dropped the gun when the officer yelled at him to do so. Johnson tried to exit through another door and made a motion with his hands. At that time the officer heard a noise like something falling behind a dresser in the room.
The officer arrested Gosa and read him his Miranda*fn2 rights. He also searched Gosa and recovered a clip of vials containing a white rocky powder which subsequently proved to be cocaine. The weapon Gosa had been holding contained a clip of six bullets, one in the chamber.
After securing the scene outside the building, the other officer went to the room where Gosa had been apprehended and
was told that Johnson had discarded something behind the dresser. When the item was recovered it turned out to be a ...