On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 05-01-0173.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant Dana Murdock was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(6); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5; and second-degree possession of a CDS with intent to distribute while on or within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1. At sentencing, Judge Kreizman found that the mitigating factors outweighed the aggravating factors and as to the first-degree offense, he reduced it to a second-degree offense, sentencing defendant to a prison term of five years with a twenty-month period of parole ineligibility*fn1. As to the remaining third-degree offenses, the judge sentenced defendant to concurrent three-year terms. As to the second-degree offense, defendant was sentenced to a five-year concurrent term. Defendant appeals. As to the second-degree possession of a CDS with intent to distribute while on or within 500 feet of a public housing facility, a public park, or a public building (Count Five), we reverse, vacate that portion of the judgment and remand for entry of an amended judgment; in all other respects, we affirm.
The facts are not seriously in dispute. In the early morning hours of August 12, 2004, and following a Dead Concert*fn2 that had been held earlier that evening, Hazlet Township Police Officer Adam Cullen, while patrolling on Route 35 South, observed a U-Haul truck with a broken tail light, traveling in the left lane at a speed of 32 mph in a 50 mph zone. Cullen stopped the vehicle within 500 feet of Veterans Park. After the officer approached the truck, co-defendant Travis Pastori, rolled his window down, and Cullen smelled an odor of burnt marijuana coming from the interior of the vehicle. Defendant, who was driving the truck, failed to produce a driver's license and told the officer that she was driving because her friend was "drunk and passed out in the back of the truck." Since the officer could see no other occupants in the cab of the truck, he asked defendant to open the back of the truck so he could check on the other passengers. Cullen discovered two other people, later identified as co-defendants Rachel DiSavoia and Michael Dean, sleeping on a mattress in the back of the truck. After DiSavoia and Dean exited the truck, Officer Kevin Geoghan arrived with his canine partner, a narcotics-trained dog named Memphis. Using his dog, Geoghan conducted a "sniff" in the rear of the vehicle.
The "sniff" yielded a silver pipe commonly used for smoking marijuana, and a sandwich baggie. Geoghan and the dog conducted a "sniff" of the front passenger compartment. By his trained response, Memphis detected the presence of narcotics, and Officer Geoghan proceeded to search the front cab in the areas the dog had alerted him to look for CDS. Geoghan found a wicker basket on the front seat containing $1,260 in cash.
Geoghan next found a brown bookbag containing a social security card belonging to co-defendant Pastori, two clear bags containing greenish brownish leafy vegetation, zigzag rolling papers and a blue glass pipe with residue on it. The ensuing search of the entire truck revealed, among other things and in various places throughout the truck, defendant's California driver's license, clear capsules containing a tan substance, a pink plastic bag containing a white powder substance, blue pills, fresh breath drop containers with liquid contents, an additional $523 in cash, a number of glass pipes, a plastic baggie containing a greenish brown leafy vegetation, two hypodermic syringes with needles, a box of plastic baggies, a scale with fifty-gram weights, more greenish-brown leafy vegetation, a large plastic bag containing twelve smaller bags of mushrooms, a second bag with five smaller bags of mushrooms, defendant's medical paperwork, a niacin container containing eighty empty capsules and a glass jar with unknown contents.
After testing at the New Jersey State Police Laboratory, the mushrooms tested positive for psilocybin*fn3, the liquid in the breath container tested positive for 2.07 grams of lysergic acid diethylamide (LSD), and the clear capsules with tan content tested positive for MDMA (Ecstasy). Defendant and her co-defendants were subsequently charged and tried. At trial, defendant readily admitted to possessing the LSD and psilocybin (mushrooms) for personal use but denied ownership of the ecstasy. Defendant was convicted on all charges while co-defendants DiSavoia, Dean and Pastori were acquitted.
On appeal, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN A STATE'S WITNESS RENDERED EXPERT OPINIONS WITHOUT AN ADEQUATE FOUNDATION IN THE RECORD (PARTIALLY RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN A DEFENSE WITNESS WAS NOT QUALIFIED AS AN EXPERT ...