Before Judges Pressler, Kimmelman and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Defendant Rudy Bellamy and co-defendant William Green were indicted on charges of possessing more than five ounces of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(1) (count one), as well as simple possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two). The day before their joint trial was to begin Green entered a guilty plea, without benefit of a plea agreement, and subsequently testified against defendant in the two-day trial that immediately followed. The jury found defendant guilty on both counts. For purposes of sentencing count two was merged into count one. Defendant was sentenced to thirteen years imprisonment with a four and one-half-year parole disqualifier. Appropriate fines, fees and penalties were imposed, as well as a suspension of driving privileges.
On appeal defendant raises the following issues:
POINT 1 THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO INVESTIGATE THE EXISTENCE AND POSSIBLE TESTIMONY OF AN ALLEGED UNINDICTED INDIVIDUAL WHOM THE DEFENDANT WAS CHARGED AS AN ACCOMPLICE
POINT 2 STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM
POINT 3 DEFENDANT WAS DENIED A FAIR TRIAL DUE TO IMPROPER JURY INSTRUCTIONS
A. THE JUDGE COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY THAT THEY COULD FIND THE DEFENDANT GUILTY AS AN ACCOMPLICE TO EDDIE WILLIAMS
B. THE COURT FAILED TO ADEQUATELY INSTRUCT THE JURORS THAT THE DEFENDANT MUST BE FOUND NOT GUILTY IF THEY FIND REASONABLE DOUBT AS TO HIS MENTAL STATE
C. THE COURT FAILED TO ADEQUATELY RESPOND TO THE JURY QUESTION REGARDING THE DEFENDANT'S PRIOR RECORD AND IN DOING SO DEPRIVED THE JURY WITH ADEQUATE INSTRUCTIONS, AND PREVENTED THE DEFENDANT FROM RECEIVING A FAIR TRIAL
POINT 4 SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
We find merit in defendant's contention that in light of Green's version of the facts revealed for the first time immediately prior to trial, the trial judge should have ...