On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-03-0466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
Defendant Phillip Webb appeals from his June 15, 2005 conviction, following a trial by jury, on first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count one), and third- degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count two). After merging count two into count one, the judge sentenced defendant on count one to a fifteen-year term of imprisonment subject to a seven and one-half year parole ineligibility term. Appropriate fines and penalties were imposed. On appeal, defendant asserts that the denial of his motion to suppress was error, the judge's charge to the jury was erroneous, and the sentence imposed was excessive. We disagree with his first two claims, but agree with the third. Consequently, we affirm defendant's conviction and remand for resentencing.
On September 7, 2003, Detective Robert Carney of the Bergen County Police Department was on patrol on Route 4 in Fort Lee when he observed a white Honda Accord dart across traffic on Route 4, cut off two vehicles, and drive through the safety zone to enter Route 95 South. After observing such erratic driving, Carney activated his overhead lights and siren and stopped the Honda on Route 95 South. As he pulled the vehicle over, Carney observed that the two occupants of the vehicle "were moving." Defendant, the driver, produced an Ohio driver's license, temporary registration and a temporary insurance card. Carney determined that although defendant's Ohio driver's license was valid, his New Jersey license had been suspended. Consequently, defendant was not permitted to drive in New Jersey.
While speaking with defendant, Carney observed a "very large" bulge in the waistband of the passenger, Demorris Garner. Carney was also standing in the shoulder of a busy eight-lane highway with tractor-trailer trucks passing close to him. Concerned for his safety because of the vehicular traffic and the unknown nature of the bulge in the passenger's waistband, Carney directed defendant to step to the rear of the vehicle, where Carney frisked him. The pat-down produced no contraband. In response to Carney's question about why he was in New Jersey, defendant responded that he and Garner were returning from New York City, where they had purchased some compact discs.
Carney then approached Garner, who was still seated in the front passenger seat, and asked him the same question he had already asked defendant. Garner gave a different answer than defendant had, stating he and defendant had dropped defendant's son off in New York City and were on their way back to Ohio. Because defendant was not licensed to operate a vehicle in New Jersey, Carney asked Garner if he possessed a driver's license, and Garner responded that he did not. With neither occupant of the vehicle authorized to operate it, Carney determined that the vehicle should be towed, and consequently called for a tow truck.
When a backup officer arrived, Carney asked Garner to exit the vehicle. Once Garner was outside, Carney patted him down in the area where he had observed the bulge, which turned out to be a bag hanging over the waistband of Garner's trousers. Feeling the bag, Carney realized that it did not contain a weapon, but instead contained "quite a few pills." Based upon Carney's training and experience, he believed the "small round hard pill[s]" to be CDS, namely "ecstasy." After charging defendant and Garner with possession of CDS with intent to distribute, both were taken into custody. Carney also issued motor vehicle summonses to defendant for careless driving and driving through the safety zone. At police headquarters, the bag removed from Garner's waistband was found to contain 1,300 "ecstasy" pills.
Carney testified at the suppression hearing that he ordered Garner out of the vehicle because he was concerned for his own safety, pointing to both occupants' movement within the vehicle during the stop, their conflicting accounts of why they were in New Jersey and, most important, his fear that the bulge at Garner's waistband was a gun. The judge denied defendant's motion to suppress. The judge concluded that Carney was justified in stopping the vehicle once he observed the motor vehicle violations, and that Carney had authority to order defendant and Garner out of the car for a protective search. The judge also concluded that once Carney determined through his sense of touch that the object at Garner's waistband was contraband, the officer had probable cause to seize the object and arrest defendant and Garner on narcotic charges. The judge therefore denied defendant's motion to suppress.
At trial, Carney's testimony was identical to his testimony at the suppression hearing. The State also called a forensic chemist who testified that the round white tablets in question were methylene dioxide amphetamine, commonly known as "ecstasy." After calling a witness who testified to the chain of custody, the State rested. Defendant did not testify or call any witnesses. Garner took the stand and testified that he was holding the pills only because defendant had forced him to do so. The jury acquitted Garner on the indictable offenses, but found him guilty of the disorderly persons offense of failure to turn over CDS to a law enforcement officer. Defendant was convicted of the two offenses we have described.
During the course of the judge's instruction to the jury on count one, the judge explained that so long as the State proved defendant had the intent to distribute the CDS, it was immaterial whether the ultimate location for such distribution was New Jersey or instead some other State. The judge instructed the jury that "[i]t is not necessary for the State to prove that the defendants intended to distribute the drugs in New Jersey. There is territorial jurisdiction for the whole offense of possession with intent to distribute if possession occurs in this State." The judge explained that the "indictment alleges that the defendants distributed [ecstasy] in regard to the second element of the statute that the defendants had under their control or ...