On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 00-2-214-I.
Before Judges King, Lisa and Fuentes
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2003
A Middlesex County grand jury returned an indictment against defendants Ramon Garcia and Elba Lopez charging them under count one with third degree possession of cocaine, N.J.S.A. 2C:35- 10a(1), under count two with third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1); N.J.S.A. 2C:35- 5b(3), under count three with third degree possession of cocaine with intent to distribute within one thousand feet of a school N.J.S.A. 2C:35-5a, N.J.S.A. 2C:35-7, under count four with fourth degree possession with intent to distribute marijuana N.J.S.A. 2C:35-5a(1); N.J.S.A. 2C:35-5b(12), under count five with third degree possession of marijuana with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35- 5a, N.J.S.A. 2C:35-7, under count six with operating a narcotics resort, N.J.S.A. 24:21a(6) *fn2 , under count seven with fourth degree illegal use of a paging device, N.J.S.A. 2C:33-20, and under count eight with possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3.
At the start of trial, the State dismissed counts seven and eight. The jury found defendants guilty on counts one through six. At sentencing, the court merged counts one and two with count three, and sentenced each defendant to a term of imprisonment of five years with three years to be served without parole eligibility. The court also merged counts four and six with count five, and sentenced each defendant to a concurrent term of three years imprisonment with one year of parole ineligibility. The mandatory fines and penalties were also imposed.
Defendant Garcia raises the following arguments on appeal:
POINT I: THE STATE FAILED TO ESTABLISH A FOUNDATION FOR THE ADMISSION AT TRIAL OF THE TRASH FILLED BAG AND SEVERED SANDWICH BAG TOP IDENTIFIED BY DETECTIVE TIEDGEN (Not Raised Below)
POINT II: [T]HE STATE FAILED TO ABIDE BY THE RULES OF DISCOVERY CONCERNING THE TRASH FILLED BAG AND SEVERED BAGGIE TOP IDENTIFIED BY DETECTIVE TIEDGEN (Not Raised  Below)
POINT III: SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (Partially Raised Below)
POINT IV: THE STATE TWICE ADDUCED EXPERT TESTIMONY
FROM WITNESSES WHO WERE NOT QUALIFIED AS EXPERTS (Not Raised Below)
POINT V: DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below)
POINT IV: DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE
Defendant Lopez incorporates by reference all of Garcia's arguments and raises two additional points.
THE DEFENDANT IS ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE
A. THE CO-DEFENDANT'S STATEMENT (MADE AFTER LOPEZ'S TRIAL)IS AN ADMISSIBLE DECLARATION AGAINST INTEREST THAT EXONERATES THE CO-DEFENDANT AND IMPLICATES THE DEFENDANT (Not Raised Below)
B. THE CO-DEFENDANT MAY BE COMPELLED TO TESTIFY AT A SEVERED TRIAL
A. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT ERRONEOUSLY PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE SOLELY ON THE BASIS OF JOINT POSSESSION (Not Raised Below)
B. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT JOINT POSSESSION IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE (Not Raised Below)
We conclude that, as a matter of law, the sharing of drugs by individuals in joint possession of the drugs, does not constitute "intent to distribute" within the meaning of N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7. The prosecutor's assertion to the jury that a finding of "intent to distribute" could be based on evidence of drug sharing between the two defendants in joint possession of the drugs was a material misstatement of law. In the context of the evidence presented here, the trial court's failure ...