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State v. Schmidt

Decided: November 17, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT SCHMIDT, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Middlesex County.

Furman, Dreier and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

The principal issue on this appeal relates to the jurisdiction of New Jersey to prosecute a person outside the state for possessory offenses occurring within the state.

Defendant and codefendants Kahn, Athan and Whittaker were indicted for possession of cocaine, contrary to N.J.S.A. 24:21-20(a)(1) (count one); possession of cocaine with intent to distribute, contrary to N.J.S.A. 24:21-19(a)(1) (count two); possession of cocaine in an amount of one ounce or more with at least 3.5 grams of pure free base, contrary to N.J.S.A. 24:21-20(a)(2) (count three); and possession of the pure free base cocaine with intent to distribute, contrary to N.J.S.A. 24:21-19(a) and (b)(2) (count four). These possessory offenses were all alleged to have occurred in Edison, Middlesex County on April 28, 1984. Defendant, the three codefendants indicted in counts one through four and defendant's wife were also charged with conspiracy to distribute and/or possess with intent to distribute cocaine "on or between the 1st day of April and the 28th day of April 1984" in Edison and Woodbridge, Middlesex County, contrary to N.J.S.A. 24:21-19 (a)(1), N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-24 (count five).

Tried by a jury together with codefendant Whittaker, defendant was convicted on all five counts. The court merged counts

one through three and five into count four "for purposes of sentencing" and committed defendant to the custody of the Commissioner of Corrections for 20 years with five years to be served before parole eligibility. See N.J.S.A. 2C:43-1b; 24:21-19(b)(2). A $5,000 fine and $25 penalty were also imposed. Defendant appeals and argues:

POINT I THE INDICTMENT WAS BASED UPON INSUFFICIENT EVIDENCE.

POINT II DEFENDANT WAS DENIED A MEANINGFUL DECISION ON HIS MOTION TO SUPPRESS EVIDENCE.

POINT III THE DEFENDANT DID NOT RECEIVE A FAIR TRIAL.

POINT IV THE POST TRIAL MOTIONS SHOULD HAVE BEEN GRANTED.

POINT V PUBLIC POLICY REQUIRES A RE-EXAMINATION OF STATE V. BEGYN, [sic] 34 N.J. 35 1961. (Not Raised Below).

POINT VI THE SENTENCE WAS EXCESSIVE.

On the evening of April 28, 1984 Trooper Charles Atkinson stopped a 1984 Ford with Florida plates being driven at between 75 and 80 m.p.h. by Athan in which Whittaker was riding as a passenger, on the New Jersey Turnpike.

After stopping the vehicle, Trooper Atkins determined that the vehicle had been rented from the Hertz Company in the name of defendant's wife. The trooper observed two cartons of untaxed cigarettes in the front seat of the vehicle and an open beer can on the passenger side floor. Both occupants were then directed to get out of the car, as the trooper intended to arrest both men for the open container and cigarettes. A pat-down search for weapons revealed a small quantity of marijuana on Athan. After the men were placed in the patrol car, a check of the interior of the vehicle revealed a locked glove compartment. When asked what was in the compartment, both Whittaker and Athan responded that they did not know and that it had been locked since they got the car. Athan then gave the trooper consent to open the glove compartment and Whittaker gave him the key. When it was opened a bag containing cocaine, later determined to be partially pure free

base, was found. Both men were then arrested for possession of the cocaine.

At the police station, Detective Maopica of the State Police questioned Athan. Maopica told Athan that, because one-half pound of cocaine was in the vehicle he was driving, he would be "tied up in jail for a while" unless he cooperated with the police.

Athan agreed to cooperate and told investigators that defendant had hired Whittaker and him to transport cocaine to New York. According to Athan, who testified at the trial, the cocaine was to be transported to codefendant Kahn's house on Long Island. On the night before Whittaker and he left for New York, Athan went to Tampa airport with defendant and his wife where defendant rented the car in her name. Athan stated that after picking up the car, defendant and he went back to defendant's trailer home from which defendant obtained a bag of cocaine which Athan put into the glove compartment.

After being arrested and agreeing to cooperate, Athan, with the assistance of Detective Maopica and some others, telephoned defendant who had flown to New York where he was staying with codefendant Kahn. Athan told defendant (with the police monitoring) that the car had broken down on the Turnpike and was disabled with a transmission problem in a service area. They discussed contacting Hertz, and defendant apparently endeavored to do so unsuccessfully. When defendant called Athan back at the number given, Athan asked if he should call the highway patrol, and defendant said no. Athan reported that he thought the highway patrol was "coming out." According to Detective Maopica, defendant sounded "excited" by the suggestion.

Defendant then stated that he would drive to New Jersey and pick up Athan and Whittaker at the service area on the Turnpike. He arrived about two hours later at the area where Athan and the car had been taken by the police. The police had ...


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