On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1279.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Graves and Newman.
In a two-count indictment, defendant Anthony Lore was charged with third-degree possession of cocaine (count one) and third-degree possession of heroin (count two), in violation of N.J.S.A. 2C:35-10(a)(1). Defendant was also charged with the disorderly persons offenses of possession with intent to use a hypodermic needle, in violation of N.J.S.A. 2C:36-6, and possession with intent to use drug paraphernalia, in violation of N.J.S.A. 2C:36-2.
On December 9, 1999, defendant was arrested following a motor vehicle stop in Fort Lee, New Jersey. At approximately 3:18 p.m., Officer John Harper responded to a report of a motor vehicle illegally parked in a fire lane outside a drugstore. When Harper arrived on the scene, he observed defendant's car was illegally parked and saw a second individual enter the passenger's side of the car. Defendant then drove away.
Harper activated his overhead lights and siren and stopped the car because of the parking violation. After Harper asked defendant to produce his license, registration, and insurance card, defendant leaned over to reach into his glove compartment and Harper observed a small "sharp metal object sticking out of the top of [defendant's] left breast T-shirt pocket," which resembled a piece of a metal umbrella frame. Based on his training and experience, Harper believed the metal object was used to clean drug residue from a pipe or glass tube, and he asked defendant to step out of the car. Harper removed the object from defendant's pocket, searched the pocket, and recovered a piece of folded aluminum foil containing a white powdery substance. Harper suspected the white powder was cocaine. He then placed defendant under arrest, read him Miranda*fn1 warnings, and conducted a pat-down search for weapons. During the search, Harper found a small clear plastic Ziploc bag with "a rock substance in it" located in defendant's right front pants pocket, together with three glassine envelopes that contained a brown powdery substance.
Detective Eager of the Fort Lee Police Department arrived on the scene and asked defendant's passenger to step out of the car. As he did so, the detective observed a small black pouch on the floor of the passenger's side of the vehicle, removed it from the car, opened it, and found a small black pipe and a hypodermic needle inside. Officer Harper asked defendant if it was his pouch and he said it was. A subsequent laboratory analysis established that the substance found in defendant's pants pocket was .39 grams of heroin, and the white powder found in his shirt pocket was .32 grams of cocaine.
Prior to trial, defendant moved to suppress the metal object, the controlled dangerous substances, the hypodermic needle, and the drug paraphernalia, arguing the evidence was discovered as a result of an illegal search and seizure.
Following an evidentiary hearing, the trial court denied defendant's motion to suppress. Defendant also objected to the court trying the disorderly persons offenses with the indictable offenses, claiming the disorderly persons charges would prejudice the jury. However, the trial judge overruled the objection, finding that the disorderly persons and indictable offenses were part of the same case under the res gestae doctrine.
Officer Harper was the only witness to testify at defendant's trial. Therefore, as defense counsel noted in her summation, Harper's credibility was critical in the jury's determination of whether defendant committed the offenses charged. On October 25, 2000, the jury returned a guilty verdict on the indictable offenses.
Following the jury's verdict, the court found defendant guilty of the two disorderly persons offenses. Defendant was sentenced to a discretionary seven-year extended prison term for third-degree possession of cocaine, and a concurrent four-year term for third-degree possession of heroin. No term of imprisonment was imposed as a result of the disorderly persons convictions. However, the judgment of conviction required defendant to pay the following sums: $200 to the Victims of Crime Compensation Board (VCCB) ($50 on each count of the indictment and the disorderly persons offenses), $300 to the Safe Neighborhoods Services Fund (SNSF) ($75 on each count of the indictment and the disorderly persons offenses), a $3000 Drug Enforcement and Demand Reduction (DEDR) penalty ($1000 on each count of the indictment and $500 for each disorderly persons offense), $200 in forensic laboratory fees ($50 on each count of the indictment and the disorderly persons offenses), and a $30 Law Enforcement Officers Training and Equipment Fund penalty.
Defendant appealed from his convictions and sentence and this court affirmed in an unpublished opinion. State v. Lore, No. A-062-03T4 (App. Div. Sept. 24, 2004). Defendant petitioned for certification, and the Supreme Court remanded for reconsideration of defendant's motion to suppress in light of State v. Eckel, 185 N.J. 523 (2006). State v. Lore, 186 N.J. 601 (2006).
In State v. Eckel, the Supreme Court considered the applicability of the search incident to arrest exception to the warrant requirement, and held that "a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable." Eckel, supra, 185 N.J. at 540. The Court reasoned that "[o]nce the occupant of a vehicle has been arrested, removed and secured ...