On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-05-1021.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Defendant appeals his conviction for possession and distribution of phencyclidine (PCP), arguing, among other things, that his right to a fair trial was prejudiced by the prosecutor's comment during her opening statement that she did not expect defendant would explain his conduct to the jury. We hold that this circumstance warrants reversal and a new trial.
Evidence adduced at trial revealed that, during the evening of February 18, 2009, two Jersey City police officers observed a vehicle make a left turn without signaling. The officers activated their overhead lights and stopped the vehicle. Officer Shawn Butler exited his vehicle and approached the passenger side, which was occupied by defendant. Officer Butler detected a "smell of PCP emanating from the car" and observed a wet cigarette on the floor. Based on his experience, Officer Butler suspected the cigarette had been dipped in PCP.
Officer Butler removed defendant from the vehicle, advised him of his rights, and placed him under arrest. The vehicle's driver, Izell Glover, was also arrested.
Officer Butler returned to defendant's vehicle for the cigarette on the vehicle's floor and observed "a bottle of PCP in the center console," which he seized. A search of defendant at police headquarters uncovered $384 in cash.
Defendant was indicted and charged with: third-degree possession of a controlled dangerous substance (PCP), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of PCP with the intent to distribute in a quantity of less than ten grams, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(7) (count two); third-degree possession of PCP with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count three); and second-degree possession of PCP with the intent to distribute within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count four). Glover was also charged with these offenses. Defendant alone was charged with three offenses relating to the possession and distribution of marijuana.
Defendant and Glover were tried together. At the trial's conclusion, defendant was found guilty on counts one, two and three, and a lesser-included disorderly persons offense on one of the marijuana charges. Glover was convicted on count one only.
The trial judge merged counts one, two and three, and sentenced defendant on count two to an eight-year prison term subject to a four-year period of parole ineligibility. The judge also imposed a jail term of 345 days on the marijuana conviction.
Defendant appeals, presenting the following arguments:
I. THE DEFENDANT'S RIGHT TO REMAIN SILENT AS [GUARANTEED] BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED WHEN THE PROSECUTOR INFORMED JURORS OF HER EXPECTATIONS OF WHAT THE DEFENDANT WOULD OR WOULD NOT SAY AT TRIAL.
II. THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION WAS ERRONEOUS AND CONTRADICTORY, AND THE PROSECUTOR REINFORCED AND ...