On appeal from the Superior Court, Law Division, Essex County.
Before Judges Dreier and Wefing. The opinion of the court was delivered by Wefing, J.A.D.
The opinion of the court was delivered by WEFING, J.A.D.
Defendant was indicted and convicted of third degree possession of a controlled dangerous substance (N.J.S.A. 2C:35-10 (a)(1)); third degree possession of a controlled dangerous substance with intent to distribute (N.J.S.A. 2C:35-5(b)(3)); third degree possession of a controlled dangerous substance with intent to distribute
within 1,000 feet of school property (N.J.S.A. 2C:35-7); third degree possession of a firearm without a permit (N.J.S.A. 2C:39-5(b)); and second degree possession of a weapon with intent to use it unlawfully (N.J.S.A. 2C:39-4(a)).
At sentencing, his convictions for possession of a controlled dangerous substance and possession with intent to distribute were merged into his conviction for possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property. For that crime, he was sentenced to four years in prison with a three-year parole disqualifier. For possession of a firearm without a permit, he was sentenced to a concurrent four-year term; for possession of a weapon with intent to use it unlawfully, he was sentenced to a concurrent ten-year term, with a three and one-third year parole disqualifier.
Defendant's arrest and convictions sprang from a search of the second floor apartment at 144 Elizabeth Avenue, Newark on March 23, 1990, pursuant to a search warrant issued on March 20, 1990. Police testified that, when they entered the apartment, defendant ran from the living room to a rear room. When seized, he was holding a pistol aimed at the floor. Within the apartment, police found fourteen foil packets containing cocaine, a triple beam scale and aluminum foil together with two other handguns. $624 in cash was confiscated.
Defendant testified to a significantly different version of the events. He maintained that, while he owned the building and operated a deli-candy store on the first floor, he did not live there. His residence, he contended, was in Irvington and the second floor of 144 Elizabeth Avenue was rented to a tenant. During testimony, he produced various items which displayed an Irvington address. He said the police arrived on March 15, 1990, not on March 23, 1990, and did not have a warrant. He said they forced the door to the apartment, since he did not have the key, and stole a quantity of items, including money and jewelry. He insisted
that any narcotics found in the apartment were not his, but rather belonged to the tenant.
On appeal, defendant raises the following arguments:
POINT I THE MISCONDUCT OF THE PROSECUTOR FROM OPENING THROUGH SUMMATIONS DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT II THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED AS TO COUNT FIVE.
POINT III THE TRIAL JUDGE'S INSTRUCTION ON N.J.S.A. 2C:39-4A FAILED TO SPECIFY THE UNLAWFUL PURPOSE WHICH THE STATE ALLEGED DEFENDANT HAD AT THE TIME HE ...