On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-01-0083.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Cuff and Lisa.
Defendant, Beaujames Coughlin, was the subject of a one-count indictment charging him with third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10a(1). Defendant was also charged with non-indictable offenses allegedly occurring at the same time as the indictable offense, namely a motor vehicle violation, possession of a CDS in a motor vehicle, N.J.S.A. 39:4-49.1, and two disorderly persons offenses, namely possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4), and possession of drug paraphernalia (a cigar wrapper used to smoke marijuana), N.J.S.A. 2C:36-2. Because all of the charges arose from the same episode, the charges were tried together, with a jury sitting as the factfinder with respect to the indictable offense and the judge sitting in the capacity of a municipal court judge with respect to the non-indictable offenses. See R. 3:15-3(a).
The jury found defendant guilty of the indictable offense, and the judge found defendant guilty of the non-indictable offenses. The judge sentenced defendant to three years imprisonment on the indictable conviction. He merged the motor vehicle conviction (possession of a CDS in a motor vehicle) with the indictable conviction. He merged the paraphernalia conviction with the conviction of possession of less than 50 grams of marijuana, on which he imposed a fine. The judge also imposed all appropriate monetary assessments and suspension of driving privileges.
On appeal, defendant argues:
SINCE THE EVIDENCE ON THE MUNICIPAL DRUG OFFENSES WAS OTHER CRIMES OR BAD ACTS EVIDENCE WHICH WAS INADMISSIBLE AT THE JURY TRIAL OF THE 3RD DEGREE DRUG POSSESSION OFFENSE, THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BOTH BY ALLOWING THE JURY TO HEAR THAT HIGHLY PREJUDICIAL EVIDENCE AND BY FAILING TO INSTRUCT THE JURORS THAT THEY COULD NOT CONSIDER IT WHEN DELIBERATING ON THE 3RD DEGREE DRUG CHARGE. (Not raised below).
A. BECAUSE THE EVIDENCE BEARING ON THE MUNICIPAL CHARGES WAS OTHER CRIMES OR BAD ACTS EVIDENCE INADMISSIBLE IN THE JURY TRIAL ON THE INDICTABLE DRUG CHARGE, IT SHOULD NOT HAVE BEEN HEARD IN THE PRESENCE OF THE JURORS.
B. EVEN IF IT HAD BEEN APPROPRIATE FOR THE JURY TO HEAR EVIDENCE ON THE MUNICIPAL CHARGES, THE TRIAL COURT FAILED TO GIVE A NECESSARY INSTRUCTION PRECLUDING THE JURORS FROM USING THAT EVIDENCE IN THEIR DELIBERATIONS ON THE 3RD DEGREE POSSESSION OFFENSE.
We reject these arguments and affirm.
On October 7, 2005, at about 10:20 p.m., Howell Township police officer Jesse Moore was on routine patrol. He observed a car parked behind a shopping center in a dark area designated as a fire zone, behind stores that were not open for business. This aroused his suspicion and he approached the car to investigate. He saw three young men sitting in car. Defendant was in the driver's seat, Eric Thompson was in the front passenger seat, and Kevin Boyle was in the back seat.
At Moore's request, defendant lowered the window. Moore immediately recognized a strong odor of burnt marijuana emanating from the car. He called for backup. He directed defendant and Thompson to get out of the car. According to Moore, he pat searched the two individuals and, feeling nothing resembling a weapon, did not remove ...