On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Skillman, Gilroy and Simonelli.
A grand jury indicted defendant Kelly Felder and other individuals on several drug-related charges. Defendant and co-defendants Rodney Coleman, defendant's husband, Rodney Harris, defendant's stepson, and Donald Scott, defendant's neighbor, were tried jointly. A jury convicted defendant of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count nine), and acquitted her of second-degree conspiracy to possess a controlled dangerous substance and/or possession of CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5; third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2); and third-degree distributing CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7. The trial judge dismissed the disorderly persons offense of use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2, and imposed a two-year probationary term and the appropriate assessments, penalties, and fees.
We incorporate herein the facts set forth in our unpublished opinion simultaneously filed with this opinion, State v. Coleman, A-5208-06T4, which was calendared back-to-back with this case.
Against these facts, defendant raises the following contentions:
POINT I - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT NINE CHARGING POSSESSION OF COCAINE THAT WAS MADE AT THE END OF THE CASE.
(A) THE STATE FAILED TO PROVE THAT THE DEFENDANT WAS IN CONSTRUCTIVE POSSESSION OF THE COCAINE.
(B) THE TRIAL COURT APPLIED AN IMPROPER LEGAL STANDARD IN DENYING THE DEFENDANT'S MOTION.
POINT II - THE TRIAL COURT'S JURY CHARGE ON COUNT NINE ALLEGING POSSESSION OF COCAINE WAS INADEQUATE AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
(A) THE TRIAL COURT'S FAILURE TO REINSTRUCT THE JURY ON THE MENTAL STATES OF "KNOWINGLY" AND "PURPOSELY" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
(B) THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON "MERE PRESENCE" WAS PLAIN ERROR (NOT RAISED BELOW).
POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN ...