State v. Binns

• Decision Date: 18 February 1988
• Citation: 222 N.J.Super. 583,537 A.2d 764
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Bruce BINNS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 583

222 N.J.Super. 583

537 A.2d 764

STATE of New Jersey, Plaintiff-Respondent, v. Bruce BINNS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 25, 1988.

Decided Feb. 18, 1988.

Alan Dexter Bowman, for defendant-appellant (Alan Dexter Bowman and Raymond A. Brown, of counsel; Lorane L. Posner, Newark, on the brief)

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Richard H. Morton, Deputy Atty. Gen., Trenton, of counsel and on the brief).

Before Judges DREIER and BAIME.

The opinion of the court was delivered by

DREIER, J.A.D.

Defendant appeals from a conviction of possession of cocaine with intent to distribute, N.J.S.A. 24:21-19a(1) and b(2). He was sentenced to a term of six years with a two-year period of parole ineligibility, a $2500 fine and a $25 Violent Crime Compensation Board penalty.

Defendant, who resides in Miami, and codefendant Grant, who resides in New York City, were acquaintances. The facts alleged by defendant came primarily from Grant's testimony since defendant only testified at the suppression hearing and not at trial. These facts stand unimpeached by any proof offered by the State. On June 16, 1985 the men both attended a graduation party which was given by a successful Jamaican businessman for his daughter inWashington, D.C. At the party, Pauline Barnes, a friend of codefendant, ¹ asked codefendant if he would drive her car back to New York City for her. Codefendant did not possess a driver's license, so defendant agreed to drive the car back to New York.

On June 17, 1985 the two men drove north, stopping at a service area in Camden to eat. A New Jersey State Trooper pulled defendants over because their car, which had New York license plates, had a cracked left tail light. Defendant produced a Florida driver's license, and codefendant reached into the glove compartment and handed the officer the rental agreement. The rental agreement listed Pauline Barnes as the lessee, and it stipulated that the car was not to be removed from New York although written in ink on the agreement was "New Jersey o.k."

The officer then asked codefendant to step outside the car, and the officer conducted a pat-down. When asked where they were coming from, codefendant, who had been asleep in the car and had been awakened by the stop, answered that they were coming from Camden. The officer became suspicious, however, because the toll ticket indicated that the car had entered New Jersey at the Delaware Memorial Bridge. Defendant was then asked to exit the car, and he was also patted down. When asked where they were coming from, defendant answered that they were coming from Washington, D.C.

The officer asked defendant if he could search the car, and defendant responded in the affirmative. The officer filled out a consent to search form, and defendant signed it. Nothing was found in the interior of the car, but when the officer and another trooper, who had arrived to assist, opened the trunk they observed a "Yonkers Raceway" bag which contained a gram scale and a box of baking soda. The officers continued to search and in the spare tire cavity, underneath carpeting, they discovered a cracker box which contained a clear plastic bag filled with a white powder substance, determined by the State Police lab to be 62.96 grams of cocaine, 22.91 grams of which were free base. The officer issued a summons for the cracked tail light and placed the defendants under arrest for possession of cocaine.

At trial the State's expert witness testified that, based upon the quantity and the purity level of the cocaine, his opinion was that the cocaine was possessed with the intent to distribute it for profit. Codefendant testified that he never had access to the keys, that neither he nor defendant ever went into the trunk, and that codefendant had no knowledge that any cocaine was in the trunk. Neither defendant has any previous record. ² The jury found defendant and codefendant guilty of both possession On appeal defendant raises five points:

and possession with intent to distribute. The counts, however, were merged for the conviction noted earlier.

POINT I

The search of the automobile was the product of an illegal arrest and therefore was not the result of voluntary consent. Accordingly, the motion to suppress was erroneously denied.

POINT II

The State did not adduce sufficient evidence of possession to underpin the convictions. Accordingly, the trial court erred in denying appellant's motion for a judgment of acquittal.

POINT III

The expert testimony admitted by the trial court denied appellant a fair trial.

POINT IV

The court improperly admitted fungible evidence without proper identification or chain of custody.

POINT V

The sentence imposed herein is unduly punitive and manifestly excessive.

I

Defendant initially contends that the cocaine and the distribution paraphernalia recovered from the trunk of the rental vehicle were erroneously admitted into evidence because their seizure was the fruit of both an illegal arrest and of an unlawful search. Defendant admits that the vehicle was properly stopped and defendant was lawfully patted down for weapons. Furthermore, detaining defendant while the troopers searched the trunk of the car pursuant to defendant's consent is more analogous to a Terry stop than to a formal arrest, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984); State v. Davis, 104 N.J. 490, 504-505, 517 A.2d 859 (1986). Thus, defendant was not arrested but merely detained pursuant to the appropriate investigation under the circumstances. ³

Defendant also contends that even though he signed the consent form, he did not knowingly consent to the search, rendering the search unlawful. Contrary to his earlier concession that he was formally arrested after the search, defendant argues that "the consent form was signed under duress following his arrest, and with no knowledge of his right to refuse consent." At the suppression hearing, the trial judge found:

There hasn't even been an allegation of threat or coercion. There was nothing in the surrounding circumstances which would have compelled this driver to sign this form against his will and, therefore, I find that it was a voluntarily, knowingly and intelligently written consent to search the motor vehicle.... ⁴

If the State relies on consent as the basis for a search, it must demonstrate "knowledge on the part of the person involved that he had a choice in the matter." State v. Johnson, 68 N.J. 349, 354, 346 A.2d 66 (1975). The trooper testified that he informed defendant of his right to refuse a search of the vehicle. The form also contains this information. Defendant, who testified that he could read and that he attended junior college, signed the form. Defendant's theory on appeal is that "the arrest or appellant's perception of the fact of the arrest rendered nugatory any verbiage uttered by the trooper that he had the right to refuse consent." Defendant was not under arrest, and if defendant's assertion were held valid, then every appellant's subjective perception could render nugatory an otherwise valid consent. Furthermore, defendant also testified on direct examination that by signing the form he intended to give the officer permission to search the car. See also State v. Santana, 215 N.J.Super. 63, 71, 521 A.2d 346 (App.Div.1987) (where this court noted that because defendant had permission from the owner of the car to drive the vehicle, he could also consent to a search of the vehicle). We therefore sustain the trial court's finding, based on substantial credible evidence in the record, that defendant knowingly and voluntarily consented to a search of the vehicle. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).

II

Defendant next contends that there was insufficient proof that he knowingly possessed the cocaine. The State submits that there was substantial circumstantial or inferential proof of a nexus between defendant and the cocaine discovered in the vehicle that he was operating. State v. Brown, 80 N.J. 587, 591, 404 A.2d 1111 (1979); State v. Reyes, 50 N.J. 454, 458-459, 236 A.2d 385 (1967); see also R.3:18-1.

Briefly stated, the State's evidence is that defendant was the sole operator of the vehicle from Washington, D.C. until the car was stopped by the trooper. Defendant alone possessed the keys to the trunk. Defendant possessed a Florida driver's license. The distribution paraphernalia was in plain view in the trunk. And codefendant attempted to mislead the police regarding the origination point of their trip, which was outside of the permissible area of operation of the rental vehicle. Also, the fact that defendant does not own the vehicle is not necessarily relevant to the issue of possession of the cocaine. In State v. Brown, supra, the Court stated:

Ownership in conjuction with possession is not a required element of the possessory crime; one can knowingly control something without owning it and be guilty of unlawful possession. Hence, the ownership of the heroin by another would not become relevant unless totally inconsistent and incompatible with the defendant's possession of it, in the sense that the ownership in another would exclude or displace defendant's capacity to control the drugs. [80 N.J. at 598, 404 A.2d 1111].

This is not the classic constructive possession case usually presented against a passenger. But for the strong link between codefendant Grant and the lessee of the car, the codefendant passenger might possibly have argued that he lacked constructive possession of the cocaine under the line of cases argued by defendant. But see State v. Palacio, 205 N.J.Super. 256, 500 A.2d 749 (App.Div.1985); State v. Shipp, 216 N.J.Super. 662, 666-667, 524 A.2d 864 (App.Div.1987). Defendant, however, through possession of the trunk key and by having control...