Foley, Price and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
Defendant Demetrios Mpetas appeals from a conviction of possession of marihuana. He charges that the evidence used to convict him (three marihuana cigarettes found in his car) was the product of an unlawful search. He also claims that there was insufficient evidence to support the finding of guilt and that the sentence imposed on him amounted to cruel and unusual punishment.
Defendant and one George Spilios were indicted jointly for violation of R.S. 24:18-4 (possession of a narcotic drug, to wit, marihuana) and were tried by jury. A dismissal was granted as to Spilios at the end of the State's case. Defendant, however, was found guilty, sentenced to three to five years in State Prison, and fined $250.
At the trial the State produced evidence substantially as follows. On June 27, 1960 a group of 17- and 18-year-old boys and girls was gathered in and around a "sub-shop" on South Carolina Avenue, Atlantic City. It was around midnight. Defendant and George Spilios parked a Jaguar automobile owned by defendant in front of the shop and soon a group of boys congregated around it. Defendant struck up a conversation with Mitchell Budman, an 18-year-old college student. After some talk as to whether or not it was possible to get a certain drug, defendant asked Budman "if there were any kids that were on dope and if there was a run for it down there." Defendant showed Budman some capsules and said
"he had in his possession marihuana and that he could get more if I could start selling it." Defendant and Budman agreed to meet the following night. After defendant and Spilios drove away Budman went to police headquarters, told what had happened and furnished the police with a description of the men and the license number of the car.
An alarm was sent out for the men, who shortly thereafter, about 1:20 A.M., were found driving on New York Avenue in Atlantic City. While under observation they stopped at the Fort Pitt night club, parked the car and went inside. The police officers who had been following the men radioed for assistance and after reinforcements arrived, went inside, found defendant and Spilios at the bar, and arrested and searched them. The search of Spilios revealed nothing incriminating. A small capsule was found in defendant's pocket. The two men were brought outside. Defendant had the keys to the car and said the car belonged to him. The keys were taken from him and the car was driven to police headquarters by one of the officers. Defendant and Spilios were also taken to headquarters, and while being questioned at police headquarters, at about 2 A.M., a search of the car was made and three marihuana cigarettes were found under the right front seat. A bottle of tablets, and capsules similar to the one found in defendant's possession, were also found in the glove compartment. The tablets were shown to be sleeping pills and the capsules a narcotic called Dolephene, obtained by defendant on the prescription of a doctor. It was undisputed that the police had not obtained a warrant for defendant's arrest or a search warrant.
Defendant admitted being at the "sub-shop" on the night in question but said that he did not have any discussion with Budman about drugs or marihuana. Defendant readily admitted possession of the tablets and capsules, but testified that he had suffered a slipped disc in his back and was constantly taking "pills" for the pain. He denied ownership of the marihuana cigarettes and professed ignorance as to how they happened to be in his car.
We find there was sufficient evidence to support the verdict of guilt. The testimony of State's witness Budman, if believed, connected defendant beyond a reasonable doubt with the three marihuana cigarettes found in his car. Defendant's contention on this score has no merit.
Nor do we agree with defendant's argument that the sentence of three to five years in State Prison and a $250 fine amounted to cruel and unusual punishment. The crime of which defendant was convicted was a high misdemeanor. The sentence was well within the limits fixed by law, N.J.S.A. 24:18-47. Under the circumstances herein presented it was not manifestly excessive. Cf. State v. Johnson , 67 N.J. Super. 414 (App. Div. 1961).
Defendant's principal contention is that the search of his car by the police was unlawful and that the evidence obtained thereby (the marihuana cigarettes) should be suppressed. This contention was not made at trial. (The search antedated Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), and defendant's trial took place two days after Mapp was decided.) However, defendant's right on this appeal to argue under the plain error rule, as to the illegality of the search is clear. Indeed, the State so concedes. R.R. 1:5-1; 2:5; State v. Corby , 28 N.J. 106 (1958). Cf. State v. Smith , 37 N.J. 481 (1962); State v. Evans , 78 N.J. Super. 437 (App. Div. 1963).
The State justifies the search of defendant's car on the ground that it was incidental to, and for practical purposes contemporaneous ...