On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-0340.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010 - Decided Before Judges Wefing, Payne and Koblitz.
Tried to a jury, defendant was convicted of attempted possession with intent to distribute a controlled dangerous substance, five pounds or more of marijuana, a crime of the second degree, N.J.S.A. 2C:5-1, 35-5b(10), and attempted possession with intent to distribute that marijuana within five hundred feet of a public facility, a crime of the second degree, N.J.S.A. 2C:5-1, 35-7.1. The same jury found defendant not guilty of possession of one ounce or more of marijuana with the intent to distribute it and not guilty of one ounce or more of marijuana with the intent to distribute it within five hundred feet of a public facility. The trial court sentenced defendant to two concurrent five-year terms. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand this matter to amend the judgment of conviction.
On November 16, 2006, a package was delivered to the Sears Auto Center on Route 22 in Union. The package smelled strongly of ammonia and was addressed to someone who did not work at the store. Ralph Horowitz, the employee in charge of the store on that day, took the package into the office, opened it and found three tightly wrapped bags. He opened one of the bags and found marijuana and he immediately called the police.
Detective Kevin Kalendek of the Union Police Department, driving an unmarked vehicle and dressed in civilian clothes, responded to the store. He was accompanied by Detective Sickinger. By the time the officers arrived, at approximately 6:30 p.m., Horowitz had realized that the package was addressed to an individual who had worked at the store but no longer did so. The officers examined the package and determined it contained more than twenty pounds of marijuana. Kalendek alerted his lieutenant as well as the Union County Narcotics Strike Force of his discovery.
He removed the three bags of marijuana and replaced them with rolls of packing tape, seeking to approximate the original weight of the box. He then closed the package and placed it in the warehouse with the remainder of the packages that had been delivered that day. Kalendek selected a surveillance point in the store and Sickinger selected one outside the store. They had, by that time, been joined by a number of other officers who took up surveillance locations.
The store closed for business at 8:00 p.m., and all employees other than Horowitz departed. At approximately 8:30 p.m., a black Honda Accord pulled into the store's parking lot and drove through it. An individual, talking on a cell phone, got out of the car and peered into the front windows of the Sears store. Horowitz came out and asked if he needed anything but the man motioned him away. Horowitz then went to his car, opened the bay doors to the shop and pulled his car into the warehouse. The man approached and handed Horowitz the cell phone; the person on the other end of the line was a part-time employee of the Sears store, Alfredo Rodriguez. After speaking to Rodriguez, Horowitz let the man take the package which had earlier been delivered.*fn1 The man placed the package into the back seat of his car; before he could drive off, he was surrounded by the police who had been on the scene. He was placed in handcuffs and advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At trial, defendant was identified as the person who came to pick up this package.
When the police removed the package from the rear seat of the car, they detected a strong odor of marijuana coming from within the car. The marijuana that had previously been removed from the box had been wrapped and pressure-taped to conceal the odor. Detective Kalendek believed that the odor in the car was not caused by the marijuana that had been shipped in the box but had a different source, and the police began to search the car. On opening the trunk, the odor became even more pronounced.
Kalendek was speaking to defendant while the search was in progress, and defendant told him that he had been scheduled to meet another individual in a nearby parking lot who was to give him $300 for handing over the package. Hearing that another individual was involved, Kalendek directed that the search of the vehicle at the scene be suspended, and he ordered it towed to police headquarters, where the search resumed. Ultimately, a smaller quantity of marijuana was found concealed in the vehicle's trunk by its rear left tail light.
The vehicle itself was registered in the name of defendant's wife. She testified at trial that she regularly drove the car, as did the couple's son and daughter.
Kalendek continued to speak to defendant at police headquarters, telling him he faced serious charges since the box contained drugs worth $100,000. Initially, defendant told Kalendek that he did not know what was in the box. Later, he said that the box did not contain $100,000 worth of marijuana because it had been too light. Kalendak had not previously mentioned marijuana to defendant; he had only used the non-specific term "drugs." Kalendek said that defendant continued and told him that he had in the past had marijuana worth $100,000 delivered to the same store and had been arrested. He told Kalendek that he had been found not guilty at trial when he said he hadn't known what was in the box. He assured Kalendek that he would "beat this one," just as he had the earlier charge. Defendant's prediction proved only partially correct; he was found guilty with respect to the marijuana delivered to the store but not guilty with respect to the marijuana secreted in the car.
On appeal, defendant raises the following contentions:
POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND CONFUSING INSTRUCTION ON THE LAW OF ATTEMPT TO POSSESS MARIJUANA WITH THE INTENT TO DISTRIBUTE (Partially Raised Below)
A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON SUBSECTION (1) ATTEMPT, PRECLUDING THE JURY FROM CONSIDERING THE DEFENSE OF IMPOSSIBILITY, WAS ERRONEOUS AND PREJUDICIAL
B. THE TRIAL COURT'S INSTRUCTIONS ON THE LAW OF ATTEMPT TO POSSESS MARIJUANA WITH THE INTENT TO ATTEMPT DISTRIBUTION WERE ...