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State v. Day

March 13, 2008


On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 93-08-1195-I.

Per curiam.


Argued January 9, 2008

Before Judges Wefing, R. B. Coleman, and Lyons.

Tried to a jury, defendant was convicted of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 5(b)(1); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant was arrested in 1993, and his trial took place in 1995. Defendant did not appear for his trial, and he was tried in absentia. Defendant was not sentenced until 2005. At defendant's sentencing, the trial court granted the State's motion to impose a mandatory extended sentence. It merged defendant's conviction for possession of cocaine into the conviction for possession of cocaine with intent to distribute and sentenced defendant to twenty years in prison, with a sixand-two-third-year period of parole ineligibility. It also imposed a concurrent sentence of eighteen months for resisting arrest. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was arrested on the afternoon of January 21, 1993, in the vicinity of the George Washington Bridge. Officer Michael Buchholz of the Port Authority Police Department was on routine patrol driving westbound on the bridge when he saw a Ford Mustang several car lengths in front of him zigzagging between lanes, including a lane on the far right side that was closed due to construction. Buchholz signaled the driver of the Mustang to pull over in an area off the bridge. Two men were in the car; defendant was the driver and Robert Irving the passenger. Buchholz asked defendant for his license, registration and insurance card. In response, defendant produced only a rental agreement for the car. Buchholz asked defendant to get out of the car, and he did so. Buchholz observed that defendant appeared to be unsteady on his feet and that he was constantly moving and acted in an antagonistic fashion. Defendant's speech was slurred and his eyes watery and bloodshot. Based upon those observations, Buchholz concluded that defendant was under the influence of a controlled dangerous substance. Buchholz told defendant he was under arrest and instructed him to place his hands on the car roof. Buchholz placed his hands on defendant's back in order to frisk him and felt a lump in the back of defendant's jacket. He then told defendant to place his hands behind his back to be cuffed. Defendant turned around, pushed Officer Buchholz, slipped out of the jacket and fled. Officer Buchholz pursued him while another officer remained behind with Irving and the car. Buchholz chased defendant across a number of lanes of traffic, up a flight of stairs and through an intersection until finally apprehending him. Other officers arrived to assist. Defendant was searched after he was finally apprehended. The search turned up a plastic bag and a small foil packet, both of which contained a white powder.

Buchholz returned to the car while defendant was taken to headquarters. Buchholz searched the jacket defendant had discarded and found several other plastic bags containing a white powder. A search of the car turned up one more plastic bag with white powder that had been placed under the front passenger seat. Irving was placed under arrest. A search of his person turned up $582 in cash in his pocket.

At headquarters, Buchholz placed all of the plastic bags and the foil packet into an evidence bag and filled out a request for laboratory analysis of the contents. The cash that had been recovered from Irving was placed in a safe at headquarters.

When Officer Buchholz filled out the lab request, he indicated he was submitting six plastic bags for testing, but he identified them as "2" through "6." He testified this was a labeling error on his part. The lab discovered the mistake when it opened the sealed evidence bag; it renumbered the fifth and sixth bags "6-1" and "6-2."

Defendant and his passenger were both African-Americans and the car defendant was driving had a Virginia license tag. Defendant brought a motion to suppress, based in part on his contention that the stop of his car represented selective enforcement. His efforts to obtain access to the records containing information about the arrests made by Officer Buchholz were unsuccessful, and he served a subpoena on the personnel director of the Port Authority Police Department for Buchholz's overtime records for the years 1992 and 1993. The trial court granted the State's motion to quash the subpoena, noting both that the procedure was incorrect and that any application for such records should have been made well in advance of the hearing on the suppression motion. After hearing the testimony of Officer Buchholz and the argument of counsel, the trial court denied the motion to suppress.

At trial, the State presented the testimony of Officer Buchholz; one of the officers who assisted him in arresting defendant; Investigator Erik Baum, who qualified as an expert in the field of narcotics trafficking; and Ajit Tungare, the technical director of the State Police laboratory where the plastic bags were sent to have their contents tested. Mr. Tungare testified because the chemist who performed the actual testing procedures was unavailable due to illness and her supervisor was on vacation. His testimony was based upon a review of the laboratory report, the notes of the chemist, data generated from the test procedures and conversation with the chemist. Defendant did not present any witnesses.

In addition to the offenses of which defendant was convicted, he was originally charged with possession of cocaine within one thousand feet of school property, N.J.S.A. 2C:35-7; aggravated assault, N.J.S.A. 2C:12-1(b)(5); and an additional count of resisting arrest, N.J.S.A. 2C:29-2. The trial court dismissed the school zone charge and one count of resisting arrest. The jury found defendant not guilty of aggravated assault.

On appeal, defendant raises the ...

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