NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-03-0241.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Christopher Dickerson appeals from a judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree possession of a controlled dangerous substance (CDS), cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); and second-degree possession of CDS, a half ounce, with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2) (count two). Defendant was sentenced to four years imprisonment on count one and eight years imprisonment on count two to be served concurrently.
Defendant raises the following points for our consideration:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED: THE SEARCH WARRANT IS INVALID BECAUSE IT FAILED TO DESCRIBE THE THINGS TO BE SEIZED.
II. THE PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH INTENT TO DISTRIBUTE SOLELY ON THE BASIS OF SHARING CDS. (Not raised below).
A. The Prosecutor Erroneously Proceeded on the Theory that Sharing is Tantamount to an Intent to Distribute and Distribution.
B. The Trial Court Erred in its Instruction to the Jury on the Law of Intent to Distribute CDS by Failing to Make it Clear that Sharing is Not Distributing.
III. THE DEFENDANT'S RIGHTS 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 CONFUSING, AMBIGUOUS, INCOMPLETE AND PREJUDICIAL ...