On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication February 16, 1996.
Before Judges Pressler, Keefe and Wefing. The opinion of the court was delivered by Keefe, J.A.D. Wefing, J.A.D., Concurring.
The opinion of the court was delivered by: Keefe
The opinion of the court was delivered by
The principal issue to be decided on this appeal is whether defendant's state prosecution for third degree possession of cocaine and first degree possession of cocaine with intent to distribute should have been barred under N.J.S.A. 2C:1-11 because of his previous federal conviction in North Carolina for conspiracy to distribute cocaine, and for violating the Travel Act. If defendant's New Jersey prosecution is not barred, we are asked to decide whether the trial Judge erred in denying defendant's motion to suppress evidence and subsequently erred in failing to instruct the jury in accord with State v. Hampton, 61 N.J. 250, 294 A.2d 23 (1972). We conclude herein that the state prosecution was not barred and that probable cause existed to justify the search in question. However, we hold that the Judge's failure to instruct the jury in accordance with State v. Hampton, constituted plain error and requires a new trial. In light of our remand for a new trial the other issues raised by defendant have been rendered moot.
On April 7, 1989, defendant was stopped for speeding on the New Jersey Turnpike. Defendant's vehicle bore North Carolina license plates. As defendant was pulling over, the trooper observed certain activity by defendant which led the trooper to conclude that defendant was attempting to conceal something or attempting to retrieve a weapon. Upon approaching the vehicle the trooper noticed a black, Christian Brothers brandy canister between defendant's legs and the driver's seat. Defendant was unable to produce a driver's license but a registration was eventually located. Because of the driver's prior movements in the car, the trooper was concerned for his safety and ordered defendant to exit the vehicle, whereupon he was patted down for weapons. No weapons were discovered. However, the trooper observed that defendant's eyes were bloodshot, he was nervous, and his eyes were dilated.
Defendant told the trooper that he had driven either from Jersey City or Newark prior to being stopped. *fn1 However, a female passenger in the vehicle said they had been in New York City and produced a New Jersey Turnpike toll ticket indicating that the vehicle entered at Exit 18, the George Washington Bridge.
In light of defendant's actions, his appearance, and the brandy canister observed between his legs before he exited the vehicle, the trooper inquired of defendant whether he had been drinking. Defendant denied the existence and knowledge of the canister, where it came from and its contents. After this response, the trooper opened the canister and found three, clear plastic bags which contained a white substance. The substance later tested positive for cocaine and weighed ten ounces.
Defendant and his passenger were arrested, administered their rights, and taken to the New Brunswick police station where the vehicle was searched. The search revealed a white bag containing narcotics paraphernalia, a sifter, a strainer, a butane fuel lighter, a bowl used for smoking cocaine, and a cutting agent.
At the police station after defendant had been given his Miranda rights, defendant admitted that he knew of the cocaine in the car, and that he was attempting to hide it when they were being stopped by the trooper. He also admitted that the cocaine had been placed in the metal brandy container. Further, defendant stated that he and his passenger had gone to Brooklyn, New York, for the purpose of picking up the narcotics and that "he liked to smoke, the powder [cocaine]."
Defendant's motion to suppress the evidence seized through the warrantless search of his vehicle was denied and the matter proceeded to trial. At trial, an investigator from the Middlesex County Prosecutor's office testified as an expert on the use, packaging, manufacture, and distribution of narcotics. He concluded that the drugs were to be ingested because of the paraphernalia in the car, but, based on the amount of the cocaine found, he opined that it was also to be transported and redistributed. The investigator also opined that defendant and his passenger were "mules," a slang expression for people who are hired to transport drugs and are paid either in cash or in kind when the product is delivered.
A jury found defendant guilty on both counts of the indictment, third degree possession of cocaine (count one), contrary to N.J.S.A. 2C:35-10(1), and first degree possession of cocaine with intent to distribute (count two), contrary to N.J.S.A. 2C:35-5a(1) and b(1). The State's motion for extended term sentencing was granted. Defendant was then sentenced to a five year prison term with a two and one-half year parole disqualifier on count one. On count two, defendant received an extended term of twenty-five years, other fines and penalties, and a $150 SNSF fee which the State now concedes was inappropriately levied against him.
Subsequently, the trial court resentenced defendant and imposed an eight and one-third year parole ineligibility period on count two because the court had neglected to do so at the first sentencing. The parole ineligibility was imposed because the second count was a first degree crime with an extended term.
On December 26, 1989, six months after he was indicted in New Jersey, a federal grand jury in the Middle District of North Carolina indicted defendant and six others for conspiracy to distribute cocaine in violation of 21 U.S.C.A. §§ 846, 841(b)(1)(B) (count one), and for violating the Travel Act, 18 U.S.C.A. § 1952 (count five). He was found guilty on those charges and was sentenced on September 18, 1991, two years before his trial on the state indictment. The sentence imposed was five years imprisonment with a five year supervised release condition to follow.
Defendant asserts that his New Jersey convictions for third degree possession of cocaine and first degree possession of cocaine with intent to distribute are barred by the provisions of N.J.S.A. 2C:1-11 because of his federal court convictions for conspiracy to distribute cocaine and violation of the Travel Act.
N.J.S.A. 2C:1-11 provides in pertinent part:
when conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent ...