On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 00-10-1139.
Before Judges A. A. Rodríguez, Cuff and Weissbard.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2004
In this appeal we hold that in a criminal case, if facts are stipulated, the judge should not tell the jurors that they are"bound" by such stipulated facts, if to do so would result in a directed verdict of any element of an offense charged. Nonetheless, we affirm the conviction because the judge advised the jurors repeatedly that the State had the burden of proving each element of the offenses charged beyond a reasonable doubt. These instructions dissipated any negative impact of the comment about the stipulation.
Following a jury trial, defendant Ronald Wesner was convicted of fourth degree possession of a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-10a(3) (count I); third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11) (count II); third degree possession of marijuana with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7, 2C:35-5a(1) and -5b(11) (count III); and second degree possession of marijuana with intent to distribute while within 500 feet of a public park, N.J.S.A. 2C:35-7.1, 2C:35-5a(1) and -5b(11) (count IV). The judge denied defendant's motion for a new trial. After merging counts I and II with count III, the judge imposed a four-year term with a three-year period of parole ineligibility, and a concurrent five-year term.
On appeal, defendant challenges two jury instructions. We reject these challenges. In addition, defendant contends that his convictions for possession of marijuana with intent to distribute within a school zone (N.J.S.A. 2C:35-7) and near a public park (N.J.S.A. 2C:35-7.1) should have been merged. The State concedes this error.*fn1 Therefore, the judgment of conviction is modified to reflect the merger of counts III and IV. As modified, the judgment is affirmed.
The proofs presented by the State can be summarized as follows. The Mercer County Prosecutor's Office initiated an investigation of defendant, which led to the issuance of a search warrant of defendant's residence in Ewing Township. The home is located directly across from Moody Park. A warrant for defendant's vehicle was also issued. On July 18, 2000, Sergeant William Straniero, Lieutenant Al Paglione, and other detectives from the Prosecutor's Office executed the search warrants. As the police officers approached defendant's residence, defendant was seen departing in his vehicle. The officers followed the vehicle and attempted unsuccessfully to stop it. There was a pursuit. Defendant was stopped approximately two miles away by marked police units.
Defendant was taken to police headquarters. A search of defendant's vehicle revealed a"roach clip," a device used to hold a marijuana cigarette. The officers also searched defendant's residence. There, Sergeant Straniero found a digital scale, a one hundred dollar bill and a black duffel bag containing four plastic bags with a brick of marijuana. Another officer seized a plastic tub containing marijuana prepackaged in different quantities. The State Police laboratory analysis indicates that the bag contained 957 grams of marijuana and the tub 1,012 grams, for a combined total of approximately 4.3 pounds.
After consulting with his attorney, defendant agreed to give a statement to the officers. On the back of the Uniform Mercer County Rights form, defendant wrote the following:
[a] search warrant was executed on my residence, 1728 Prospect Street, Trenton, New Jersey, 7-18-2000, and as a result roughly four pounds of marijuana was found. My wife had absolutely no knowledge of the existence in the house or of any extracurricular activities.
At the beginning of trial, the judge told the jury that the parties had entered into several stipulations. The judge said:
Ladies and gentlemen, you're going to be the judges of the facts as jurors. You're going to be the finders of the facts, you're going to have to determine what the facts are. Having said that, however, there are certain facts, which will not be necessary for you to find. In fact, these facts, as a matter of law, are facts in this case having been stipulated to by Jay Hindman, the Assistant Prosecutor, John S. Furlong, the defense attorney, and the defendant, Ronald Wesner. These are facts, which you will not have to find from the testimony in this case. I'm going to read this stipulation right now.
1. At all relevant times named in the Indictment, the defendant lived at 1728 Prospect Street, Trenton, New Jersey, 08638. The actual address is located in Ewing Township, within 500 feet of Moody Park, ...