On appeal from Superior Court of New Jersey, Law Division, Ocean County, 02-01-0075-I.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Collester and Lisa.
Tried to a jury, defendant Michael R. Martinez was found guilty of the following counts of an indictment: third-degree possession of a controlled dangerous substance (cocaine) contrary to N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of cocaine with the intent to distribute contrary to N.J.S.A. 2C:35-5a(1) (count two); fourth-degree unlawful possession of metal knuckles and a stun gun contrary to N.J.S.A. 2C:39-5d (counts three and four); fourth-degree possession of prohibited weapons (metal knuckles and a stun gun) contrary to N.J.S.A. 2C:39-3e (counts five and six); third-degree possession of weapons for an unlawful purpose (butterfly knife, metal knuckles and a stun gun) contrary to N.J.S.A. 2C:39-4d (counts seven, eight and nine); second-degree possession of a firearms for an unlawful purpose (handgun and a pellet gun) contrary to N.J.S.A. 2C:39-4a (counts ten and eleven); second-degree possession of firearms (handgun and a pellet gun) while engaged in drug activity contrary to N.J.S.A. 2C:39-4.1a (counts twelve and thirteen); second-degree possession of weapons (stun gun, metal knuckles and butterfly knife) while engaged in drug activity contrary to N.J.S.A. 2C:39-4.1c (counts sixteen, seventeen and eighteen) and fourth-degree child neglect of M.M. contrary to N.J.S.A. 9:6-3 (count fourteen).
On April 16, 2003, after merger, the trial judge sentenced defendant to a ten-year term with five years parole ineligibility on count two. He merged the weapons counts into the conviction for possession of weapons while engaged in drug activity and added a consecutive term of ten years with five years of parole ineligibility. After imposing a consecutive term of eighteen months with nine months of parole ineligibility on the count of child neglect, the aggregate sentence was twenty-one and one half years with ten years and nine months of parole ineligibility.
Prior to trial defendant and co-defendant Jauron L. Reeves moved to suppress evidence which was seized pursuant to a search warrant and to prevent introduction of statements under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Following an evidentiary hearing, the court denied both motions. Reeves then entered a retraxit plea to the indictment, and the trial proceeded against defendant alone.
The State's case rested largely on the testimony of detectives Joseph Hankins and Jay Howell regarding the August 2, 2001, execution of a search warrant at 1733 Commonwealth Boulevard in Manchester. When the officers entered, defendant was sitting on the living room couch watching television with two children. Reeves and Michele Goins were in another room. The living area included the room in which defendant was sitting, a kitchen, a child's bedroom and another bedroom used by defendant and Reeves. The detectives testified that the rooms were filthy, and there were cockroaches throughout. Crack cocaine was found in a jacket hanging on the door of the bedroom used by defendant and Reeves as well as under a bed, and in a dresser drawer containing mail addressed to the defendant. The officers also found $3,000 in cash, a scale, plastic bags, a stun gun, a butterfly knife, a BB gun resembling a handgun, a .22 caliber handgun loaded with hollow point bullets, and a set of metal knuckles.
The Division of Youth and Family Services took custody of the two children after defendant, Reeves and Goins were arrested and taken to police headquarters. Detective Howell testified that after he gave defendant his Miranda warnings, he admitted to possession of the stun gun and the metal knuckles but denied knowledge of the other weapons and the cocaine.
Daniel Barrett, a forensic scientist with the Ocean County Sheriff's Department, testified that the specimens seized from the bedroom tested positive for cocaine with a total weight of 22.4 grams. He also explained that the hydrochloric acid found in the room is used to convert crack cocaine into powdered cocaine. Investigator Todd Friedman of the Ocean County Prosecutor's Office testified as an expert in narcotics distribution. He said that the cocaine found had a street value of between $2,000 and $3,000. Based on the amount of cocaine, the scale and the plastic bags, he opined that the cocaine was earmarked for distribution.
Testifying for the defense after pleading guilty to the indictment, Reeves claimed he alone possessed the cocaine, the drug paraphernalia, the weapons and that to his knowledge, defendant was unaware that these items were in the bedroom. On cross-examination he denied telling the police that the cocaine belonged both to him and to the defendant. The State recalled Detective Howell in rebuttal, and he said Reeves told him on the day of his arrest that he and the defendant intended to sell the cocaine.
On appeal, the defendant makes the following arguments:
POINT I -- THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY FAILING TO CHARGE THE JURORS THAT THEY MUST DISREGARD DEFENDANT'S AND HIS CO-DEFENDANT DEFENSE WITNESS'S OUTOF-COURT STATEMENTS IF THEY FIND THE STATEMENTS NOT CREDIBLE AND BY FAILING TO GIVE THE CAUTIONARY INSTRUCTION CONCERNING ORAL STATEMENTS AS REQUIRED BY STATE V. JORDAN AND STATE V. KOCIOLEK. (Not Raised Below.)
POINT II -- DEFENDANT'S CONVICTION OF CHILD NEGLECT MUST BE VACATED BECAUSE THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION; ADDITIONALLY, THE TRIAL COURT'S INSTRUCTION WAS ERRONEOUS.
A. DEFENDANT IS ENTITLED TO JUDGMENT OF ACQUITTAL ON CHILD NEGLECT.
B. THE COURT'S NEGLECT INSTRUCTION WAS ERRONEOUS.
POINT III -- THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE DEFENDANT PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT HE AND THE CO-DEFENDANT WERE NOT IN NEW JERSEY ON THE DATES AND TIME STATED IN THE AFFIDAVIT AND ABSENT ...