On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 96-08-0654-I.
Before Judges Stern, A. A. Rodr¡guez and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 24, 2000
In this appeal, we consider whether a defendant may raise a claim of selective enforcement based on racial profiling after his conviction and sentence, while his direct appeal is pending. We conclude that a defendant who has raised issues during a pretrial motion to suppress sufficient to establish a colorable basis for a claim of selective enforcement, when considered in the light of the April 1999 Interim Report of the State Police Review Team Regarding Racial Profiling Allegations (hereinafter "Interim Report"), and then been convicted and sentenced, may assert a claim of selective enforcement in violation of the Federal or State Constitutions while his direct appeal is pending. *fn1 See United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 1487, 134 L. Ed. 2d 687, 699 (1996); State v. Moore, 164 N.J. 557 (2000); State v. Ballard, 331 N.J. Super. 529, 539-43 (App. Div. 2000); State v. Smith, 306 N.J. Super. 370, 376-78 (App. Div. 1997); State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991). We also rule that since this case was still subject to direct appeal at the time defendant raised his claim of selective enforcement, the claimed infringements on his constitutional rights, if proven, were clearly capable of producing an unjust result and may be asserted as constituting the equivalent of "plain error." See R. 2:10-2.
Pursuant to leave granted, the State appeals from a discovery order entered in the Law Division on December 21, 1999 on the motion of defendant, Louis W. Williamson, for a new trial made while his direct appeal was still pending, based on a claim of newly-discovered evidence to support his claim of "racial profiling" or selective enforcement. *fn2
Defendant was a passenger in an automobile stopped for speeding on the New Jersey Turnpike on March 28, 1996 by Troopers Layton and Caffrey. All three occupants of the vehicle were African-American. As requested by Trooper Layton, the driver produced his credentials, which were valid. Trooper Layton directed the driver to exit the vehicle and noticed that the driver appeared very fidgety and very nervous. When questioned, the driver advised Trooper Layton they were coming from New York where they were visiting friends. After questioning the driver, Trooper Layton proceeded to the passenger side of the vehicle, where the door was open and another passenger was outside the vehicle being questioned by Trooper Caffrey. Trooper Layton then looked inside the vehicle, where defendant was seated, and questioned defendant. Defendant advised Trooper Layton they were coming from either Delaware or Washington, D.C., visiting the other passenger's sick aunt and were heading back to North Carolina, information that was inconsistent with that provided by the driver.
When questioning defendant, Trooper Layton noticed a very large bulge in the crotch area of defendant's pants. Defendant was removed from the vehicle and a pat-down search of defendant for weapons disclosed a substantial quantity of a controlled dangerous substance. Defendant was arrested, charged, and indicted.
Prior to trial, and after a suppression hearing on March 27, 1997 during which only Trooper Layton testified, defendant's motion to suppress was denied. Following a jury trial, defendant was convicted, on February 10, 1998, of first-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(1), and third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1). On January 15, 1999, the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6f was denied and defendant was sentenced to a fifteen-year term of imprisonment with a five-year period of parole ineligibility.
On January 29, 1999, the State filed a notice of appeal from denial of its motion for imposition of an extended term. On January 26, 2000, defendant's motion to file a notice of appeal nunc pro tunc was granted and defendant cross-appealed from his conviction and the sentence imposed. *fn3
In April 1999, the Interim Report was released. On May 20, 1999, while the direct appeal was pending before us, defendant filed a pro se motion, pursuant to R. 3:20-1, seeking a new trial contending the Interim Report constituted new evidence of selective enforcement based on racial profiling. The Office of Public Defender was appointed to represent defendant. On August 31, 1999, defendant filed a motion in aid of litigant's rights seeking certain internal records of the state police to support his claim for a new trial based on his allegation of selective enforcement. On December 10, 1999, Judge Friedman heard defendant's motion and granted most of the discovery sought. An order memorializing the court's decision was entered on December 21, 1999.
On December 21, 1999, the State moved before the trial court for a stay pending determination of its motion for leave to appeal. On January 3, 2000, the State filed a motion before this court seeking leave to appeal from the December 21, 1999 discovery order. On January 21, 2000, the trial court denied the State's motion for a stay. The State then moved to amend its motion for leave to appeal to include an appeal from the trial court's order denying a stay. On February 3, 2000, we granted the State's motion to amend its motion for leave to appeal, and granted a stay pending disposition of the State's motion for leave to appeal, which we reserved pending disposition of the consolidated appeals in State v. Ballard, 331 N.J. Super. 529 (App. Div. 2000).
On June 6, 2000, we entered an order granting the State's motion for leave to appeal from entry of the December 21, 1999 discovery order to consider the State's argument that defendant waived his right to assert a claim of selective enforcement by his failure to properly and timely raise such a claim in his pre-trial motion to suppress.
At the pre-trial suppression hearing, Trooper Layton testified his actions were the result of a feeling that "something [was] just not . . . right." When Trooper Layton was asked by defense counsel whether race played any ...