On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-09-00204.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Carchman, Graves and Messano.
The opinion of the court was delivered by GRAVES, J.A.D.
A jury convicted defendant John Ray Wilson of manufacturing marijuana, N.J.S.A. 2C:35-5(a)(1). Defendant, who was diagnosed with Multiple Sclerosis (MS) in 2002, argues on appeal that he was entitled to a "personal use defense" and his sentence is excessive. For the reasons that follow, we affirm.
A State grand jury charged defendant with first-degree maintaining or operating a production facility for manufacturing marijuana, N.J.S.A. 2C:35-4 (count one); second-degree manufacturing of marijuana in an amount greater than ten but less than fifty plants, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(b) (count two); and third-degree possession of psilocybin mushrooms, N.J.S.A. 2C:35-10(a)(1) (count three). The court denied defendant's motion to dismiss counts one and two of the indictment on March 20, 2009, and it subsequently granted the State's motion in limine to bar defendant from asserting a personal use defense and from referencing his medical condition at trial.
On December 17, 2009, a jury acquitted defendant of count one, but found him guilty of counts two and three. The trial court determined the presumption of imprisonment for a second-degree crime had not been overcome, and it imposed a five-year prison term on count two and a three-year concurrent term on count three. The court also granted defendant's application for bail pending appeal.
Defendant presents three arguments for our consideration:
THE TRIAL COURT ERRED BY HOLDING THAT THE MEDICAL/PERSONAL USE OF MARIJUANA WAS NOT AVAILABLE AS A DEFENSE TO A CHARGE OF MANUFACTURING MARIJUANA.
THE TRIAL COURT ERRED BY BARRING THE DEFENSE EXPERT, DR. DENNIS PETRO, FROM TESTIFYING ABOUT THE BENEFICIAL EFFECT OF MARIJUANA ON MULTIPLE SCLEROSIS AND BY PRECLUDING MR. WILSON FROM REFERRING TO HIS MULTIPLE SCLEROSIS.
MR. WILSON'S SENTENCE IS MANIFESTLY EXCESSIVE.
Based on our examination of the record, the briefs, and the applicable law, we conclude that defendant received a fair trial and his sentence is not excessive or unreasonable.
On August 18, 2008, a National Guard helicopter was conducting a "marijuana search mission" over Somerset County. A possible "marijuana grove" was discovered, and GPS coordinates of the target area were relayed to State Police officers on the ground. Officers Matthew Mancil and William Peacock drove to the location, an old farm house on approximately one acre of land.
When Mancil and Peacock arrived, they immediately observed "the tops of several marijuana plants . . . [at] the end of the driveway." The officers exited their vehicle and spoke with defendant, who was standing in the yard. Both officers testified that when asked if he knew why the police were at his house, defendant responded it was because of the marijuana plants. Defendant then signed a "Miranda*fn1 Warning Acknowledgement Card" and a consent form for "a complete search of [the] residence, yard, and out buildings."
Peacock, who was qualified as an expert witness "in the areas of marijuana and cultivation of marijuana," ...