On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.
[222 NJSuper Page 585] Defendant appeals from a conviction of possession of cocaine with intent to distribute, N.J.S.A. 24:21-19a(1) and b(2). He was sentenced to a term of six years with a two-year period of parole ineligibility, a $2500 fine and a $25 Violent Crime Compensation Board penalty.
Defendant, who resides in Miami, and codefendant Grant, who resides in New York City, were acquaintances. The facts alleged by defendant came primarily from Grant's testimony since defendant only testified at the suppression hearing and not at trial. These facts stand unimpeached by any proof offered by the State. On June 16, 1985 the men both attended a graduation party which was given by a successful Jamaican businessman for his daughter in Washington, D.C. At the party, Pauline Barnes, a friend of codefendant,*fn1 asked codefendant if he would drive her car back to New York City for her. Codefendant did not possess a driver's license, so defendant agreed to drive the car back to New York.
On June 17, 1985 the two men drove north, stopping at a service area in Camden to eat. A New Jersey State Trooper pulled defendants over because their car, which had New York license plates, had a cracked left tail light. Defendant produced a Florida driver's license, and codefendant reached into the glove compartment and handed the officer the rental agreement. The rental agreement listed Pauline Barnes as the lessee, and it stipulated that the car was not to be removed from New York although written in ink on the agreement was "New Jersey o.k."
The officer then asked codefendant to step outside the car, and the officer conducted a pat-down. When asked where they were coming from, codefendant, who had been asleep in the car and had been awakened by the stop, answered that they were coming from Camden. The officer became suspicious, however, because the toll ticket indicated that the car had entered New Jersey at the Delaware Memorial Bridge. Defendant was then asked to exit the car, and he was also patted down. When asked where they were coming from, defendant answered that they were coming from Washington, D.C.
The officer asked defendant if he could search the car, and defendant responded in the affirmative. The officer filled out a consent to search form, and defendant signed it. Nothing was found in the interior of the car, but when the officer and another trooper, who had arrived to assist, opened the trunk they observed a "Yonkers Raceway" bag which contained a gram scale and a box of baking soda. The officers continued to search and in the spare tire cavity, underneath carpeting, they discovered a cracker box which contained a clear plastic bag filled with a white powder substance, determined by the State Police lab to be 62.96 grams of cocaine, 22.91 grams of which were free base. The officer issued a summons for the cracked tail light and placed the defendants under arrest for possession of cocaine.
At trial the State's expert witness testified that, based upon the quantity and the purity level of the cocaine, his opinion was that the cocaine was possessed with the intent to distribute it for profit. Codefendant testified that he never had access to the keys, that neither he nor defendant ever went into the trunk, and that codefendant had no knowledge that any cocaine was in the trunk. Neither defendant has any previous record.*fn2 The jury found defendant and codefendant guilty of both possession
and possession with intent to distribute. The counts, however, were merged for the conviction noted earlier.
On appeal defendant raises five points:
The search of the automobile was the product of an illegal arrest and therefore was not the result of voluntary consent. Accordingly, the motion to suppress was erroneously denied.
The State did not adduce sufficient evidence of possession to underpin the convictions. Accordingly, the trial court erred in denying appellant's motion for a judgment of acquittal.
The expert testimony admitted by the trial court denied appellant a fair trial.
The court improperly admitted fungible evidence without proper identification or chain of custody.
The sentence imposed herein is unduly punitive and ...