On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. I-07-03-1029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Tried to a jury, defendant was convicted of two counts of possession of a controlled dangerous substance ("CDS") with intent to distribute, one in the first degree, N.J.S.A. 2C:35-5(b)(1), and one in the third degree, N.J.S.A. 2C:35-5(b)(3); two counts of possession of CDS with intent to distribute within five hundred feet of a public facility, N.J.S.A. 2C:35-7.1, a crime of the second degree; two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); two counts of possession of CDS with intent to distribute in a school zone, a crime of the third degree, N.J.S.A. 2C:35-7; and two counts of possession of CDS, a crime of the third degree, N.J.S.A. 2C:35-10(a)(1). He was found not guilty of three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), -5(c)(1), -5(f); possession of dum dum bullets, N.J.S.A. 2C:39-3(f); and committing a drug offense while possessing a firearm, N.J.S.A. 2C:39-4.1. He was sentenced to an aggregate term of sixteen years in prison, with a seven-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's convictions and remand for further proceedings.
At approximately ten o'clock on the morning of September 22, 2006, members of the Orange Police Department executed a search warrant for apartment 609 at 97 Wilson Place. The search warrant had been obtained in conjunction with an investigation into drug-dealing from that address by Sharif and Gary Mayfield. The apartment in question was rented by A.A.; her sister, Asia, was the girlfriend of Sharif Mayfield. By the time the police executed this warrant, both Mayfield brothers had been arrested on other charges and were in custody. Detective Brian Mooney of the Orange Police Department testified that the police continued to receive complaints of drug-dealing from that address after the arrest of the Mayfield brothers.
When the police entered the apartment, defendant was the only occupant. Detective Mooney, who was the first entering officer, said that defendant fled down the hall toward the bathroom. Mooney pursued him into the bathroom and saw defendant with his hands on the windowsill. A quantity of narcotics was recovered from the windowsill, specifically forty-three envelopes of heroin and eight grams of cocaine. Defendant was arrested and placed in handcuffs. Other members of the team searched the apartment and additional quantities of narcotics were found, including eight grams of crack cocaine discovered in a closet. The search of the apartment turned up a locked safe stored under a bed in one of the bedrooms. A patdown search of defendant led to the discovery of a key ring, more than $2,000 in cash and a small quantity of marijuana. The key to the safe was on that keyring. The police opened the safe and found 287 grams of crack cocaine and 200 envelopes of heroin. All of the heroin in the apartment bore the stamp, "Lights Out."
In addition, the search led to the discovery of a number of weapons, including an assault rifle and a shotgun. These were found hidden under the mattress of the bed under which the safe had been secreted.
The State presented three witnesses, all police officers who had been involved in the search of the apartment. It did not present any expert testimony with respect to the narcotics which were recovered, but the parties stipulated to the admission of the laboratory reports which set forth the results of the tests performed upon the three groups of narcotics that were recovered.
Defendant testified and explained to the jury that he had been completely unaware of the presence of the drugs and weapons. He said he lived in Newark with his girlfriend and had an argument with her which led him to leave. He needed a place to stay that night and called A.A., who was a good friend of his; he described her as like a sister to him. She was staying with her mother, who was quite ill, but she told him he could stay in her apartment. He said he took a cab to the home of A.A.'s mother and that she came downstairs and simply gave him the key ring, explaining which keys opened the exterior door to the building and which opened the apartment door. He then took the cab to the apartment in Orange, arriving around three o'clock in the morning. He did not look around the apartment at all, but simply went to sleep on the couch in the living room. He had just gotten up the following morning to go to work when the police arrived. He denied running into the bathroom. He said the police immediately handcuffed him. He said the money the police found in his pocket represented his savings from his job at a U-Haul facility in Jersey City. He said he took that money with him when he left his girlfriend's apartment because he did not want to leave it behind. Defendant was on parole at the time of his arrest. He said he never would have gone to that apartment if he had known that the drugs and weapons were there. As is apparent by the jury's verdict, it found him guilty with respect to the possession of the narcotics but not guilty with respect to possession of the weapons. The reason for the distinction drawn by the jury is not immediately apparent.
Defendant raises the following arguments on appeal:
IMPROPER REMARKS IN THE PROSECUTOR'S OPENING AND SUMMATION, DESIGNED TO URGE THE JURY TO CONVICT TO PROTECT SOCIETY FROM DRUGS AND VIOLENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; ...