On appeal from Superior Court, Law Division, Union County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Antell, P.J.A.D.
On November 23, 1988, defendant was a passenger in the front seat of an automobile driven by codefendant John Watson (hereinafter "the driver"). That evening, the vehicle was stopped by State Troopers Michie and Miller for speeding on the New Jersey Turnpike in Elizabeth at 11:53 p.m. As the troopers approached the car, Michie, who was on the passenger's side of the vehicle, noticed the driver moving his right hand toward his inside jacket pocket. When Michie alerted Miller, who was on the driver's side of the car, of what he had just seen, Miller took the driver out of the car and led him to the rear of the car to perform a protective patdown. As he touched the left breast pocket area of the driver's open jacket Miller felt a large, hard object. The driver then reached into the jacket, presumably to seize the object, but at Miller's order withdrew his hand. Trooper Miller thereupon took a .22 calibre handgun from the inside pocket of the driver's jacket.
After Miller secured the driver's gun, Michie asked defendant to step out of the car. The troopers' ensuing search of the vehicle revealed a bag filled with cocaine in the arm rest compartment located on the driver's side door. Defendant later informed Trooper Miller that his credentials were in his jacket on the back seat of the car. When the officer picked up the jacket he found another .22 calibre handgun in the garment's pocket.
Defendant now appeals from his conviction for possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and 2C:35-5(b)(1), on which he was sentenced to a ten-year custodial term with a parole ineligibility period of three and one-third years. Defendant was also assessed a DEDR penalty of $3000, a laboratory fee of $50, and a VCCB penalty of $30. Additionally, his driver's license
was suspended for two years.*fn1
Defendant's first contention on this appeal is that he was denied his right to a trial by an impartial jury because the prosecution exercised peremptory challenges on constitutionally-impermissible grounds in violation of State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986).
Sixteen blacks were included among the sixty-eight members of defendant's jury panel. During the selection process, the prosecutor peremptorily excused four black women, Felicia Simon, Elmethia Lewis, Rosa Mitchell, and Lois Mason McLeod. When defense counsel objected, the court called upon the prosecutor to articulate his explanation for exercising the peremptory challenges. In so doing, the court followed the mandate of State v. Gilmore, supra, 103 N.J. at 537-38, 511 A.2d 1150. The prosecutor then gave the following explanations:
I knocked her off because she was young, and I ask your Honor to take note that just about every young person on that jury was knocked off by me. She has a brother who is twenty-three years old and has no job. That puts him in the same general age as the defendants. And I have every reason to believe that may become somewhat of an issue.
She was number one. At that point, Judge, I counted nine women on the jury and the significant reason why I knocked her off is because she did not appear to me to be a strong personality, which I consider necessary in my trying the case that she was going to occupy the foreperson's spot. She did not come across as a leader.
A young woman, I believe. That's why I did. I have it written ...