On appeal from the Superior Court of New Jersey, Law Division, EsseX County, Indictment No. 01-03-1103.
Before Judges Stern, A.A. Rodriguez
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Lorenzo Holden is serving two concurrent eight-year prison terms, with four years of parole ineligibility, for possession with intent to distribute cocaine and possession of a gun while committing a drug offense enumerated in N.J.S.A. 2C:39-4.1. The State appealed, claiming that the trial judge's concurrent sentences violated the mandatory consecutive sentence provision of N.J.S.A. 2C:39-4.1. Defendant cross-appealed, raising three points, arguing that the trial court committed plain error by instructing the jury it could convict defendant of N.J.S.A. 2C:39-4.1 if he possessed a firearm while merely possessing cocaine, which is not one of the offenses enumerated in the statute; the prosecutor's impeachment of a defense witness with pre-trial silence violated defendant's right to a fair trial; and the non-merger and consecutive-sentence provisions of N.J.S.A. 2C:39-4.1 violate the State Constitution.*fn1
We reject defendant's argument regarding the prosecutor's impeachment of a defense witness, but find merit in defendant's argument that his N.J.S.A. 2C:39-4.1 conviction and sentence must be reversed because of the judge's jury instructions. Consequently, defendant's constitutional issue and the related sentencing issue raised by the State in its appeal are moot.
Because the issues pressed on appeal pertain to testimony by one of defendant's witnesses and the judge's charge and sentence, we need not recount in any detail the facts leading to defendant's arrest and prosecution. It is sufficient to summarize that the charges brought against defendant were developed by Newark police officers who did"a walk through" a three-story multi-family apartment building searching for"any ongoing narcotic activity." The officers claimed to have seen defendant in possession of cocaine in sufficient quantities to warrant an inference of distribution. Upon his arrest, defendant was searched and, according to the police, they discovered in his pants $120 and a.38 revolver with five bullets, three of which were hollow points.
According to defendant and his three witnesses, he possessed neither drugs nor a weapon. Defendant testified the officers never told him at the scene why he was being arrested and arrested him for no reason whatsoever. He learned he was being charged with possession of a handgun at police headquarters, when an officer displayed a gun and said it belonged to defendant. Defendant offered no explanation of why the officers might frame him.
At trial, the State asked the following series of questions, without objection, of defendant's seventeen-year-old witness who had corroborated defendant's testimony about the unjustified arrest:
Q: After this happened did you contact anybody?
Q: Did you complain to anybody?
Q: You didn't contact the Newark police department?
Q: Did you contact internal ...