No. A-2922-14T1

Dec. 29 2016 (DATE DECIDED)

Judge Leone

FOR APPELLANT: Joseph E. Krakora, Public Defender (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

FOR RESPONDENT: John T. Lenahan, Salem County Prosecutor (Lisa M. Rastelli, Assistant Prosecutor, on the brief).

Defendant appealed his conviction for 3rd-degree possession of a controlled dangerous substance, arguing that the trial court should have instructed the jury on what defendant argued was a lesser-included offense, namely, failure to make lawful disposition of CDS. Defendant further challenged the admission of prior consistent statements as a bolster to the state’s primary witness. The court first ruled that failure to make lawful disposition of CDS was not a lesser-included offense of 3rd-degree possession of CDS. The court noted that, in order for a crime to be a lesser-included offense of another charge, it (1) had to be established by proof of the same or less than all the facts required to establish the greater offense, (2) consist of attempt or conspiracy to commit the greater offense, or (3) differs from the greater offense only with respect to less serious injury or risk of injury to person, property, or public interest, or a lesser kind of culpability sufficed to establish its commission. The court held that failure to make lawful disposition could not be a lesser-included offense of 3rd-degree possession because failure to make lawful disposition included both possession of CDS as well as a second element, failure to deliver CDS to a law enforcement officer, that was not an element of 3rd-degree possession. Moreover, the court found no rational basis why a jury would convict for failure to make lawful disposition while acquitting on the 3rd-degree possession charge. Finally, the court ruled that the trial court properly admitted a testifying police officer’s prior testimony that defendant tossed his hat during arrest to avoid detection of the CDS in his possession, agreeing with the trial court that defense counsel opened the door by implying during cross-examination, and explicitly stating during closing argument, that the officer had recently fabricated testimony regarding defendant’s hat. The court held that the officer’s prior consistent testimony had probative value to rehabilitate the officer and refute the defense’s contention that his trial testimony had been fabricated. The court further clarified that a fabrication could be considered “recent” if it was made after the prior consistent statement. Accordingly, the court affirmed judgment.