On certification to the Superior Court, Appellate Division, whose opinion is reported at 345 N.J. Super. 498 (2001).
This appeal requires the Court to consider the interplay between the crimes of possession of a controlled dangerous substance (CDS) and tampering with evidence, and whether the State can charge an accused with possessing and tampering with the same unit of CDS.
On May 8, 1998, two State troopers were driving together in a marked police vehicle in Alloway Township. They had been assigned to conduct surveillance of a specific residence suspected of being the site of illegal drug activity. County authorities had informed the troopers that Timothy Mendez was the subject of outstanding warrants and had frequented the residence.
The trooper driving the vehicle testified that he noticed headlights coming toward him with the vehicle straddling the centerline. Mendez's brother was driving the vehicle with Mendez in the passenger seat. To avoid a collision, the trooper drove the police car to the side of the road. After passing the vehicle, the troopers made a U- turn and began pursuing the vehicle.
The trooper activated the police car's overhead lights, but the vehicle did not pull over. After Mendez's brother drove through a stop sign and onto the grass, the trooper activated the police car's siren and spotlight. He also called and reported the incident to a dispatcher. The dispatcher informed the troopers that the plates had expired and that they were registered to Mendez's mother.
A second police car soon joined the chase. During the pursuit, the troopers witnessed Mendez throw various articles out the window of the vehicle. They also saw Mendez turn around toward them and drink what appeared to be a can of beer, and then throw the beer can out the window. It was at this juncture that the trooper recognized him. Mendez eventually leaned both hands outside the car and held a clear plastic bag approximately the size of a fist that looked like it contained white powder. Mendez ripped open the bag and made a shaking motion out of the window. The trooper saw a white puff of smoke or powder being emitted into the air. The trooper testified that Mendez's hand motions made it clear he was trying to get rid of whatever substance was in the bag.
The chase finally ended when Mendez's brother pulled the car into a private driveway. After a brief struggle, Mendez and his brother were arrested. The trooper conducted a search of the vehicle. He found a number of items, including a police radio scanner and two small glassine bags, one of which contained a white powder that later tested positive for cocaine. The troopers retraced the route of the chase in an effort to recover the items Mendez had thrown from the vehicle. They found some items, but were unable to locate any traces of the white powder or the fist-sized bag.
A grand jury indicted Mendez for third-degree possession of a controlled dangerous substance, fourth- degree tampering with physical evidence, fourth-degree possession of a police scanner during the commission of a crime, and fourth-degree resisting arrest. At trial, the parties disputed whether the Criminal Code permitted the State simultaneously to charge Mendez with possession and tampering with evidence when the object of both offenses was the same unit of CDS. The trial court expressed its view that the State had not charged Mendez for crimes related to the same substance because there were two different packages of cocaine at issue. One package, the size of a fist, was the one from which Mendez had released the powder. The other, much smaller package, was found in the car and was marked and entered into evidence as "S-4."
Consistent with its view, the trial court proposed the following interrogatory for the jury: "If you find [defendant] guilty of tampering with physical evidence, was the white powder substance contained in S-4 in evidence." The trial court explained that the question would determine whether the white powder substance that the trooper witnessed Mendez releasing from the vehicle was from the same bag of cocaine as the bag entered into evidence as S-4. The court further stated that if the jury answered the question in the affirmative, it would dismiss the evidence-tampering charge. Defense counsel did not object to the interrogatory.
The jury interrupted its deliberations to ask the court for clarification of the special interrogatory. The court responded by stating that the question was whether the white powder substance that was testified to by the trooper was contained in or packaged in S-4. Again, defense counsel did not object to the special interrogatory or the trial court's charge.
The jury found Mendez not guilty of cocaine possession and guilty of tampering with physical evidence, possession of a police radio during commission of a crime, and resisting arrest. In respect of the special interrogatory, the jury answered "No," which the trial court took to mean that the white powder Mendez had released from the car window did not come from S-4, which the police retrieved from inside the car. Based on that finding, the trial court concluded that the possession charge and the evidence-tampering charge related to different bags of cocaine.
Mendez moved for a new trial, reasserting the argument that the Code precluded the evidence-tampering charge on the facts presented. The trial court denied the motion and sentenced Mendez to an aggregate term of eighteen months in prison. The Appellate Division affirmed. State v. Mendez,
The opinion of the court was delivered by: Verniero, J.
In this criminal appeal, we are called on to review defendant's conviction for tampering with physical evidence under N.J.S.A. 2C:28-6. A related issue is whether the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:104-9 (Code), permits the State simultaneously to charge an accused with possessing and tampering with the same unit of controlled dangerous substance (CDS), in this case cocaine. We affirm the judgment of the Appellate Division upholding defendant's conviction. We also hold that when a defendant allegedly possesses and then destroys all or part of the same specimen of CDS, the Code permits the State to charge that defendant with both drug possession and tampering with physical evidence.
We summarize the facts adduced at trial. On May 8, 1998, State Trooper Brian Mulholland and his partner, Jay Miller, were driving in Alloway Township in a marked police vehicle. Trooper Mulholland drove the vehicle while his partner sat in the front passenger seat. Trooper Mulholland had been assigned to Alloway Township that evening to conduct surveillance of a specific residence suspected of being the site of illegal drug activity. The Salem County prosecutor had informed the trooper that defendant Timothy Mendez was the subject of outstanding warrants and that he had frequented the residence under surveillance.
Trooper Mulholland testified that he noticed headlights coming toward him and that when he looked further, he saw an approaching vehicle that straddled the center line as it traveled down the road. Defendant's brother drove the approaching vehicle with defendant in the passenger seat. To avoid a collision, the trooper drove the police car to the side of the road. After defendant's car passed the officers, Trooper Mulholland made a U-turn and began pursuing the vehicle.
Defendant's vehicle did not pull over notwithstanding that the trooper had activated the police car's overhead lights. After defendant and his brother drove through a stop sign and onto the grass, Trooper Mulholland activated the police car's siren, "takedown lights," and spotlight. Trooper Miller called a dispatcher and reported the incident as well as the license plate number of defendant's vehicle. The dispatcher informed the troopers that the plates had expired and that they were registered to Ruth Mendez (later determined to be defendant's mother).
A second police car soon joined the chase. During the pursuit, the troopers saw defendant throw small pieces of white paper out the window of his vehicle. The troopers also testified that they saw defendant turn around toward them, guzzle what appeared to be a can of Budweiser beer, and then throw the beer can out the car window. At that juncture Trooper Mulholland recognized defendant. Later, ...