On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Before Judges Michels, Kestin and Wefing.
The opinion of the court was delivered by MICHELS, P.J.A.D.
Following a joint jury trial with co-defendants Wayne S. Murdock (Murdock) and Valecia A. Davis (Davis), defendant Albert A. Johnson was convicted of possession of cocaine in a quantity of five ounces or more with intent to distribute, a crime of the first degree, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (First Count); possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1) (Second Count); resisting arrest, a crime of the fourth degree, in violation of N.J.S.A. 2C:29-2 (Fifth Count), and aggravated assault upon a law enforcement officer acting in the performance of his duties while in uniform, a crime of the third degree, in violation of N.J.S.A. 2C:12-1b(5)(a) (Sixth Count). The trial court merged defendant's conviction for possession of cocaine under the Second Count into
his conviction for possession of cocaine with intent to distribute under the First Count and committed defendant to the custody of the Commissioner of the Department of Corrections for fifteen years with a five-year period of parole ineligibility. The trial court also assessed a $3,000 Drug Enforcement Demand Reduction penalty, a $50 forensic laboratory fee, and a $30 Violent Crimes Compensation Board (VCCB) penalty. In addition, the trial court committed defendant to the custody of the Commissioner for a concurrent one-year term and assessed a $30 VCCB penalty for his conviction for resisting arrest under the Fifth Count, and committed defendant to a concurrent four-year term and assessed a $30 VCCB penalty for his conviction for aggravated assault under the Sixth Count. Thus, defendant was committed for concurrent terms totaling fifteen years with a five-year parole ineligibility period. Defendant appeals.
According to the State's proofs, at 1:00 a.m. on Sunday, November 4, 1990, State Troopers Kevin Maguire (Maguire) and Kevin Dunn (Dunn) observed a maroon Pontiac vehicle with Illinois license plates traveling in the left lane of Route 80 at a very high rate of speed. After pacing the vehicle for approximately one-half mile, the troopers determined that the car was traveling seventy-five miles per hour in a fifty-five mile per hour zone. The driver then applied the vehicle's brakes and cut across all lanes of travel into the right lane, as if to exit Route 80 and enter the Garden State Parkway. The troopers then signalled the vehicle to pull to the side of the road. The vehicle pulled over without attempting to evade the troopers. The area was well lit, the traffic was light, and there was no precipitation that night.
Before approaching the vehicle, the troopers radioed the police station to notify them of the stop. The troopers observed three people in the car. As the troopers got out of the patrol car, the driver of the vehicle, defendant, immediately exited the vehicle and approached the troopers. Davis was sitting in the front passenger seat and Murdock was sitting in the rear passenger seat.
Defendant told Trooper Dunn that he was not speeding and that they had the wrong car. Defendant produced a valid Ohio driver's license and a rental agreement for the vehicle. Both troopers testified that defendant appeared to be nervous. Defendant, after being asked to sit on the hood of the vehicle, jumped off the hood several times, walked around, asked to go to the bathroom, constantly looked back at the two passengers in the vehicle and was sweating even though it was a cool fall night. Defendant explained that Davis was his girlfriend, Murdock was his brother, and they were coming from Queens, New York where they had been visiting relatives since Wednesday. The trooper then questioned why the vehicle had just been rented on Friday and why defendant was driving because, according to the rental agreement, only Davis and her spouse were registered as drivers. Defendant became irate with this line of questioning. Defendant then stated that Davis was his wife, but she had a different last name because of a previous marriage. Defendant also told the trooper that he was coming from Brooklyn, not Queens. The rental agreement indicated that Davis' home address was different than defendant's home address. Murdock later stated that defendant was actually married to a woman named Kim Mitchell.
Trooper Dunn then asked Murdock to exit the vehicle so he could speak to him in an effort to confirm defendant's story. Murdock explained that defendant was his brother, Davis was a friend of defendant's and they were coming from the Bronx where they had been on Friday to visit Murdock's mother. Murdock's identification indicated that he lived in the Bronx. Murdock also appeared nervous. He would not look at Trooper Dunn, but only stared at the ground the whole time.
Before Trooper Dunn had a chance to question the inconsistencies between the stories, he observed Davis in the vehicle reaching into her pocketbook with both hands while looking down at the pocketbook. Trooper Dunn ran over to the passenger's side of the vehicle, opened the door and grabbed the pocketbook. He testified that he feared that Davis was reaching for a weapon. Upon
grabbing the pocketbook, the trooper immediately looked inside of it, as the top of the pocketbook was open. Trooper Dunn saw a "clear, cellophane zip-lock, lunch-type baggie containing a large brick of a white crystal substance." This substance was later identified as cocaine. Trooper Dunn then ordered Davis to put her hands on the windshield and arrested her.
At that time, defendant and Murdock jumped off the hood where they had been sitting and Trooper Maguire restrained them. Trooper Dunn placed the bag on the roof of the vehicle, grabbed Murdock and told Trooper Maguire to place handcuffs on the men. Murdock resisted being handcuffed. Defendant grabbed Trooper Maguire and began punching him. The two men had a fistfight which ended when defendant finally was subdued and placed under arrest.
After defendant, Murdock and Davis were handcuffed, placed on the ground and advised of their rights, Trooper Dunn conducted an inventory search of the vehicle. He found no other suspected items, weapons or valuable possessions. Three backup police units arrived at the scene at that time. Trooper Maguire then patted down defendant, Murdock and Davis and found a "lock blade knife" in a zipper pocket in the right leg of Murdock's trousers. The three were taken to Bloomfield Police Headquarters. At the station, the officers further searched the pocketbook that had been retrieved from Davis and found another plastic sandwich bag containing a small amount of white crystal substance. This substance was later identified as cocaine. At the Conclusion of the proofs the jury found defendant guilty on the First, Second, Fifth and Sixth Counts of the Indictment.*fn1
Defendant appeals, seeking a reversal of his convictions, or alternatively, a modification of his sentences on the following grounds set forth in his brief:
I. BY DENYING DEFENSE COUNSEL'S REQUEST TO BE RELIEVED OF HIS DUTIES, THE COURT COMMITTED A REVERSIBLE ERROR BY DENYING MR. JOHNSON HIS RIGHT TO BE ADEQUATELY REPRESENTED BY COUNSEL. (Raised Below).
II. BECAUSE OF THE FAILURE TO SEVER MR. JOHNSON FROM THE TRIAL OF THE TWO CODEFENDANTS, ALBERT JOHNSON WAS DENIED A FAIR TRIAL. (Raised Below).
III. BECAUSE THE TRIAL COURT ALLOWED INTO EVIDENCE THE FRUITS OF AN UNWARRANTED SEARCH OF THE CAR PASSENGER'S POCKETBOOK, ALBERT JOHNSON'S CONVICTION WAS BASED ON ILLEGAL EVIDENCE. (Raised Below).
IV. THE TRIAL COURT ERRED WHEN IT DISMISSED THE CASE AGAINST ONE CODEFENDANT, WAYNE MURDOCK, AND NOT AGAINST THE OTHER CODEFENDANT, ALBERT JOHNSON. (Raised Below).
V. BECAUSE THE TRIAL COURT DISMISSED THE CASE AGAINST ONE CODEFENDANT AND NOT AGAINST MR. JOHNSON, WHEN THE FACTS OF THE STATE'S CASE AGAINST THE TWO CODEFENDANTS WERE THE SAME, MR JOHNSON RECEIVED AN UNFAIR JURY TRIAL. (Raised Below).
VI. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
VII. THE IMPOSITION OF A MANDATORY MINIMUM TERM WAS NOT PROPER.
In a pro se supplemental brief, defendant raises the following issues:
I. THE JURY'S VERDICT ON THE POSSESSION AND POSSESSION WITH INTENT TO DISTRIBUTE COUNTS WAS A MISCARRIAGE OF JUSTICE.
II. IT WAS ERROR FOR THE COURT TO FAIL TO GRANT DEFENDANT'S MOTION FOR SEVERANCE.
III. THE DEFENDANT CONTENDS THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL; HAD IT NOT BEEN FOR COUNSEL'S INEFFECTIVENESS, THE TRIAL WOULD HAVE RESULTED IN A DIFFERENT VERDICT.
IV. DEFENDANT'S RIGHT TO EQUAL PROTECTION WAS VIOLATED WHEN THE COURT IMPOSED DISPARATE SENTENCES UPON HIS CODEFENDANT AND HIM.
V. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE COURT FAILED TO ADEQUATELY CHARGE THE ...