NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1127-18T2 STATE OF NEW JERSEY, Plaintiff-Respondent, v. YOAFRY MINALLA, a/k/a YOALFRY ALEXANDER MINAYA, Defendant-Appellant. __________________________ Argued October 27, 2020 – Decided November 17, 2020 Before Judges Haas, Mawla, and Natali. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 16-12-0993. Matthew T. Mierswa, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Meghan M. Dougherty, Designated Counsel, on the brief). Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Marc A. Festa, of counsel and on the brief). PER CURIAM Following a jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance 1 (CDS), namely fentanyl, N.J.S.A. 2C:35- 10(a)(1); second-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). After merger, defendant was sentenced to a seven-year prison term with a forty-two-month period of parole ineligibility for the weapons convictions and concurrent five- and one-year terms, respectively, for the drug and resisting arrest convictions. On appeal, defendant raises the following contentions: POINT I THE TRIAL COURT ISSUED INADEQUATE JURY INSTRUCTIONS ON POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE AND FAILED TO PROPERLY ADDRESS THE JURY'S QUESTION REGARDING EVIDENCE OF AN UNLAWFUL PURPOSE. 1 Defendant was initially indicted for possession of heroin (count one) and crack cocaine (count four). On the verdict sheet, however, the CDS identified in count one is fentanyl, an analog for heroin. Likewise, in the judgment of conviction, count one is listed as possession of "CDS/ANALOG." A-1127-18T2 2 A. The Jury Instructions Were Insufficient Because They Did Not Describe Defendant's Alleged Unlawful Purpose. B. The Trial Court Erred in Failing to Appropriately Address the Jury's Question Pertaining to Evidence of an Unlawful Purpose. POINT II THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL ON POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE. POINT III THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT ASKED DEFENDANT TO CHARACTERIZE TESTIMONY AS LYING AND BERATED THE DEFENSE STRATEGY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1 ¶ 10. POINT IV THE SENTENCE IMPOSED FOR THE SECOND- DEGREE UNLAWFUL POSSESSION OF A WEAPON CONVICTION IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED. For the following reasons, we affirm defendant's convictions and sentences. A-1127-18T2 3 I. To provide necessary background for our opinion we discuss only those portions of the trial and sentencing proceeding relevant to defendant's arguments on appeal. Detectives William Herrmann (Herrmann) and ...
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