                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0659-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPH BARNES, a/k/a
CHRISTOPHER JOSEPH BARNES,
and RADELL JACKSON,

     Defendant-Appellant.
_______________________________

                    Submitted January 29, 2020 – Decided March 20, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 16-09-1178.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Zachary Gilbert Markarian, Assistant
                    Deputy Public Defender, of counsel and on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      Defendant appeals from his July 24, 2018 judgment of conviction after a

jury trial. We reverse.

      Based on our review of the record we discern that on June 8, 2016, Officer

Gregory Wojtowicz of the Jersey City Police Department was in the backseat of

an unmarked police vehicle parked on Bostwick Avenue. He observed a Honda

Civic parked on Bostwick Avenue and, minutes later, a Honda Accord parked

in that same area. Wojtowicz watched the driver of the Civic, later identified as

defendant, exit the car and proceed toward the driver of the Accord, later

identified as co-defendant, Jamar McGeachy.        McGeachy walked towards

defendant and handed him a black bag. Both individuals then returned to their

cars and drove away at a high rate of speed.

      Wojtowicz radioed nearby officers to stop both cars.         Officer Ivan

Rosario, saw the Civic, activated his lights, and drove "at an angle" toward the

front of the Civic, which was stopped at a traffic light. Defendant then crashed

the Civic into the car behind it, an unmarked police SUV.

      A female passenger ran from the Civic but was quickly detained by police.

The officers then looked inside the car, saw defendant in the driver's seat, and

observed a black plastic bag which contained what the officers suspected to be

a controlled dangerous substance (CDS). The contents of the bag later tested


                                                                         A-0659-18T4
                                       2
positive for heroin. Both defendant and the female passenger were arrested and

searched. The officers also stopped the Accord and placed both of its occupants

under arrest after learning that CDS was found in the Civic. No drugs were

found in the Accord.

      Defendant was indicted for third-degree possession of heroin, N.J.S.A.

2C:35-10(a)(1); second-degree possession of heroin, with the intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); third-degree

possession of heroin, with the intent to distribute within 1000 feet of a school

zone, N.J.S.A. 2C:35-7(a); second-degree possession of heroin, with the intent

to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a);

second-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1)/2C:35-5(b)(2); and

fourth-degree attempting to hinder apprehension by flight, N.J.S.A. 2C:29-

2(a)(2).

      At trial, defendant testified that he retrieved the heroin found in the Civic

from a "stash" he kept inside a doghouse in a backyard. Defendant denied

receiving the heroin from McGeachy and testified that he and McGeachy, his

childhood friend, only saw each other in passing as they briefly exchanged

greetings. The State dismissed the distribution charge, as to defendant but

prosecuted it against McGeachy.


                                                                           A-0659-18T4
                                        3
      The judge charged the jury correctly regarding the N.J.S.A. 2C:35-

10(a)(1) possession charge and the second-degree possession with the intent to

distribute under N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). However,

when instructing the jury for third-degree possession of heroin with the intent to

distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7(a), the judge

erroneously used, at least in part, the distribution charge, under N.J.S.A. 2C:35 -

5.

      The jury acquitted defendant of the hindering charge but returned a guilty

verdict on the possession and possession with intent to distribute charges: third-

degree possession, N.J.S.A. 2C:35-10(a)(1); second-degree possession with

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(2); third-degree possession

with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35 -7(a);

and second-degree possession with intent to distribute within 500 feet of public

property. The jury acquitted McGeachy on all counts.

      The judge sentenced defendant to eight years with four years parole

ineligibility to run concurrent with a pending federal parole violation. This

appeal followed.

      Defendant raises the following issues on appeal:

            POINT I: MR. BARNES'S CONVICTIONS MUST BE
            REVERSED BECAUSE THE TRIAL COURT

                                                                           A-0659-18T4
                                        4
            INCORRECTLY CHARGED THE JURY ON
            DISTRIBUTION RATHER THAN POSSESSSION
            WITH INTENT TO DISTRIBUTE FOR THE
            SCHOOL ZONE CHARGE AND FAILED TO
            DEFINE INTENT TO DISTRIBUTE FOR THREE
            COUNTS FOR WHICH IT WAS AN ELEMENT.
            (NOT RAISED BELOW).

            POINT II: THE TRIAL COURT ERRED IN
            SENTENCING MR. BARNES ABOVE THE LEGAL
            RANGE ON HIS THIRD-DEGREE CONVICTIONS
            AND IN PENALIZING MR. BARNES FOR
            EXERCISING HIS RIGHT TO TESTIFY. (NOT
            RAISED BELOW).

      The State concedes the trial court erroneously instructed the jury that the

fourth count of the indictment charged defendant with distribution of a CDS near

school property, when in fact, the fourth count charged possession with intent

to distribute in a school zone, N.J.S.A. 2C:35-7(a). Nevertheless, the State

contends the jury was properly instructed as the fourth count was "bookended

by two correct charges" which informed the jury that defendant was charged

with possession with the intent to distribute.

      "Proper jury instructions are essential to ensuring a fair trial." State v.

Robinson, 165 N.J. 32, 40 (2000) (citing State v. Green, 86 N.J. 281, 287

(1981)). However, when a defendant fails to object to an error regarding a jury

charge, we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016).

"Under that standard, we disregard any alleged error 'unless it is of such a nature

                                                                           A-0659-18T4
                                        5
as to have been clearly capable of producing an unjust result.'" Ibid. (quoting

R. 2:10-2).

      The trial court has an "'independent duty . . . to ensure that the jurors

receive accurate instructions on the law as it pertains to the facts and issues of

each case, irrespective of the particular language suggested by either party.'"

State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Reddish, 181 N.J. 553,

613 (2004)). "[W]e recognize that the failure to charge the jury on an element

of an offense is presumed to be prejudicial error, even in the absence of a request

by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986) (citations

omitted). The unique role of the jury in criminal cases precludes courts from

"speculat[ing] about how the jury would have determined the matter if it had

been properly charged." Id at 177 (first citing State v. Crisantos, 102 N.J. 265

(1986); and then citing State v. Grunow, 102 N.J. 133, 148-49 (1986)).

      In appropriate situations, the failure to define terms for the jury may be

deemed harmless, State v. Wallace, 158 N.J. 552, 558-60 (1999); however,

because jury instructions are so essential to a fair trial, an "error in a jury

instruction that is 'crucial to the jury's deliberations on the guilt of a criminal

defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory ."

State v. Burns, 192 N.J. 312, 341 (2007) (quoting. State v. Jordan, 147 N.J.


                                                                             A-0659-18T4
                                         6
409,422 (1997)). "Nevertheless, any alleged error also must be evaluated in

light 'of the overall strength of the State's case.'"      Ibid. (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)). Moreover, we must also consider the error

"in light of 'the totality of the entire charge, not in isolation .'" Ibid. (citation

omitted).

      In Frederico, the Supreme Court held a trial court's failure to charge a jury

on an element of an offense is presumed to be prejudicial error. 103 N.J. at 176.

There, the jury convicted the defendant of kidnapping and the judge imposed a

sentence for first-degree kidnapping, however, the judge never supplied the jury

with the charge to determine whether the victim was released unharmed, a factor

which distinguishes first- from second-degree kidnapping.            Id. at 172-76.

Although the jury did not deliberate on this factor, the State urged the Court to

mold the verdict to constitute a conviction for second-degree kidnapping based

on the premise that the jury implicitly found confinement for a substantial period

with purpose to terrorize, the essential elements of second-degree kidnapping.

Id. at 176-77. The Court refused and explained:

             The suggestion, however, would force us to speculate
             about how the jury would have determined the matter if
             it had been properly charged. . . . Our respect for the
             unique role of the jury in criminal cases precludes us
             from trying to salvage the conviction by tampering with
             the jury's deliberations. The only alternative is to

                                                                             A-0659-18T4
                                         7
            reverse the kidnapping conviction and remand the
            matter for a new trial. That conclusion also pertains to
            the convictions that are unrelated to the kidnapping
            count, which was the most serious charge against [the
            defendant].

            [Id. at 177.]

      Here, we also cannot speculate on how the jury would have determined

the matter had it been appropriately charged. We reject the State's suggestion

that the error of the trial court, reading the distribution instruction, is cured by

the fact that the erroneous instruction was "bookended" by charges which

informed the jury that defendant was charged with possession with the intent to

distribute. Adopting this suggestion would require this court to tamper with the

jury's deliberations and ignore the fact that most laypersons are uneducated in

law and therefore require a plain and clear exposition of the issues . See Green,

86 N.J. at 288 (noting that most laypersons are uneducated in the law, do not

understand lawyer's jargon, and therefore the jury's guidance and instruction

requires plain and clear exposition of the issues).

      This error is further compounded by the fact that the trial judge failed to

adequately provide a definition of the element of "intent to distribute" on any of

the counts charging defendant with such an intent.




                                                                            A-0659-18T4
                                         8
      On count four, possession of a CDS with the intent to distribute within

1000 feet of a school zone, the trial court gave the following instruction:

            Count [four] charges . . . [defendant] with distributing
            a controlled dangerous substance near school property
            used for school purposes. The statute upon [which] this
            charge is based reads as follows:

                  "Any person who violates subsection of New
            Jersey Statute 2C:35-5 by distributing a controlled
            dangerous substance within 1,000 feet of any school
            property or school bus is guilty of a crime."

                   In order for you to find the defendant guilty of
            this charge, the State must prove beyond a reasonable
            doubt that the defendant knowingly or purposefully
            distributed a [CDS]. As previously instructed, the
            elements are that S-13 in evidence is heroin, that the
            defendant distributed S-13 on the date alleged in the
            indictment. . . . That the defendant acted knowingly or
            purposefully in distributing S-13.

                   In addition to proving possession with intent to
            distribute, the State must also prove beyond a
            reasonable doubt that this act occurred within 1,000
            feet of any school property.

                  ....

                  If you find the state has proven all of these
            elements beyond a reasonable doubt, then you must
            return a verdict of guilty. On the other hand, if you find
            the State has failed to prove any of these elements
            beyond a reasonable doubt, you must find the defendant
            not guilty.



                                                                          A-0659-18T4
                                        9
      While instructing the jury with regard to the charges of possession of a

CDS with the intent to distribute, the judge stated:

                   Count [three] of the indictment charges . . .
            [defendant] as follows: the pertinent part of the statute
            on which this indictment is based reads, except as
            authorized by the statute, it shall be unlawful for any
            purpose - - person, rather - - knowingly or purposely,
            to possess or have under his control with intent to
            distribute a controlled dangerous substance. . . . Heroin
            is a dangerous substance prohibited by the statute.

                   [T]he elements which the State must prove
            beyond a reasonable doubt to establish guilt of the
            defendants on this count of the indictment. They are as
            follows: S-13 in evidence is heroin. The defendant[]
            possessed or had under their control S-13 in evidence.
            The defendant[], when [he] possessed or had under
            their control S-13 in evidence, had the intent to
            distribute S-13, and that the defendants acted
            knowingly or purposely in possessing or having under
            their control with the intent to distribute S-13 in
            evidence.

      Instructing the jury on second-degree possession of a CDS with intent to

distribute within 500 feet of certain public property, the judge stated:

                   In order for you to find the defendants guilty on
            this count of the indictment, the State must first prove
            beyond a reasonable doubt that the defendants
            knowingly or purposely possessed with intent to
            distribute a controlled dangerous substance. The
            elements of possession with intent to distribute of [sic]
            a controlled dangerous substance are:

            (1) That S-13 in evidence is heroin;

                                                                           A-0659-18T4
                                       10
            (2) That defendants possessed or had S-13 under their
            control;
            (3) That defendants had the purpose to distribute S-13
            when the possessed it or had it in their control . . . .;
            (4) That when the defendants possessed S-13 with the
            purpose to distribute it, they were within 500 feet of a
            public housing facility, park, or building.

      The error in these instructions resides within the important distinction

between distribution and possession with the intent to distribute. The Controlled

Dangerous Substances Act, N.J.S.A. 2C:35-2, defines "distribute" to mean "to

deliver other than by administering or dispensing." The Act further defines

"deliver" as "the actual, constructive, or attempted transfer from one person to

another . . . ." N.J.S.A. 2C:35-2. Criminal possession has also been defined as

the exercise of dominion and control over a thing. See State v. Brown, 80 N.J.

587, 596 (1979) (noting that criminal possession signifies control and dominion

over an item).

      Possession with intent to distribute CDS, however, requires proof of an

additional element, that defendant possessed or had the CDS under his control

and acted knowingly and purposefully in possessing or having CDS under his

control with intent to distribute. Therefore, failure to adequately define "intent

to distribute" could have the effect of depriving the jury of the guidance needed

during their deliberations. We do recognize the words "intent" and "distribute"


                                                                          A-0659-18T4
                                       11
are readily known to lay persons and the trial court's omission may not have

been fatal to the jury's deliberation. Indeed, defendant was found in possession

of twenty seven and one half grams of heroin and testified that his plan was to

sell the drugs at a loss so that he could pay for an apartment. However, because

the jury was also mischarged as to the crime of distribution, we cannot conclude

under the totality of the circumstances the charge had no capacity produce an

unjust result. Thus, we reverse and remand for a new trial.

      Although we are not required to reach defendant's argument that his

sentence was illegal, we note the State concedes the trial court sentenced

defendant above the legal range for the possession count. "[A]n illegal sentence

is one that 'exceeds the maximum penalty provided in the Code for a particular

offence' or a sentence 'not imposed in accordance with the law.'"       State v.

Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247

(2000)).

      Here, the trial court sentenced defendant to eight years, with four years

parole ineligibility.   The trial court did not sentence defendant for each

individual count. The result was imposition of an eight year sentence on two

third degree counts, counts two and four, which is outside the permissible range

pursuant to N.J.S.A. 2C:43-6(a)(3).


                                                                        A-0659-18T4
                                      12
Reversed. We do not retain jurisdiction.




                                           A-0659-18T4
                               13
