NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-08-675.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Fisher and Grall.
Defendant David L. Carr appeals his conviction. In the first stage of a bifurcated trial, the jury found defendant not guilty of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); not guilty of possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(1); and not guilty of possessing a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1a. In the second stage of the trial, the same jury found defendant guilty of possessing a firearm despite having a prior conviction, N.J.S.A. 2C:39-7. The court sentenced defendant to an eight-year term of imprisonment, five to be served without possibility of parole.
Other charges against defendant included in the same indictment were dismissed prior to trial. Those charges were for distribution of a controlled dangerous substance within 500 feet of public housing or a public park, N.J.S.A. 2C:35-7.1, and possession of a firearm without a purchaser identification card, N.J.S.A. 2C:39-5c(1).
The firearm at issue was an operable rifle that was found during a lawful search of an apartment in Glassboro. The apartment was leased to defendant and he resided there; his name was the only name on the lease. The rifle was found in the closet of the master bedroom, as were bullets. More bullets were found in the bureau in that bedroom. No drugs were located in the bedroom.
Defendant was not home when the apartment was searched. When the police entered, there were three adults in the apartment. They were in the bathroom, where drugs were being flushed down the toilet.
At the outset of the second stage of the trial, the defense stipulated that defendant had a conviction for a predicate offense. The prosecution and defense waived argument, and the judge directed that the jurors were required to "consider anew the evidence previously submitted on possession of a weapon." The judge then instructed the jury on the elements of the crime. With respect to possession, the judge directed:
To possess an item under the law, one must have a knowing, intentional control of that item, accompanied by a knowledge of its character; so, a person who possesses a firearm must know or be aware that he possesses it, and he must know what is ...