State v. Cargill

Decision Date13 May 1998
Citation312 N.J.Super. 13,711 A.2d 318
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Frederick A. CARGILL, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division
Ivelisse Torres, Public Defender, for defendant-appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief)

Peter Verniero, Attorney General, for plaintiff-respondent (Bennett A. Barlyn, Deputy Attorney General, of counsel and on the brief).

Before Judges LANDAU and NEWMAN.

The opinion of the Court was delivered by

LANDAU, J.A.D.

Defendant Frederick A. Cargill was found guilty as charged following jury trial on counts of third degree possession of cocaine ( N.J.S.A. 2C:35-10a(1)) and first degree possession of cocaine with intent to distribute ( N.J.S.A. 2C:35-5a(1), b(1)). Following merger of the possession count into the latter count, he was sentenced to a custodial term of twelve years, to be served concurrently with a twenty-seven year federal sentence he is serving for conspiracy to distribute cocaine. Appropriate fees, penalties and license suspension were imposed.

On appeal defendant contends:

POINT I

DEFENDANT'S PROSECUTION IN NEW JERSEY FOR POSSESSION OF COCAINE AND POSSESSION WITH THE INTENT TO DISTRIBUTE WAS BARRED BY HIS PREVIOUS CONVICTION IN FEDERAL DISTRICT COURT FOR THE SAME CONDUCT.

POINT II

THE COCAINE SEIZED FROM DEFENDANT AFTER THE TROOPER (1) IMPROPERLY ORDERED HIM TO EXIT THE CAR AND (2) UNLAWFULLY SEIZED A PACKAGE THAT THE TROOPER HAD ALREADY ASCERTAINED DID NOT CONTAIN A WEAPON, WAS INADMISSIBLE.

A. The Trooper, Who Had No Objective Basis for a Heightened Awareness of Danger, Unlawfully Ordered Defendant to Exit the Car.

B. Since the Contents of the Package of Cocaine Concealed in Defendant's Pants Was Not Immediately Identifiable by Touch, Seizure of the Package Was Not Justified Under the "Plain Touch" Doctrine.

POINT III

THE COURT ERRED IN INTRODUCING DEFENDANT'S INCULPATORY LETTER, ALONG WITH DOCUMENTS PURPORTING TO AUTHENTICATE HIS SIGNATURE, WITHOUT AN INSTRUCTION AS TO THE JURY'S ROLE IN EVALUATING THE EVIDENCE. (Not Raised Below).

POINT IV

A CORRECT BALANCING OF AGGRAVATING AND MITIGATING FACTORS SHOULD HAVE RESULTED IN THE IMPOSITION OF A MINIMUM TERM.

We have considered each of these arguments and find them to be without merit. R. 2:11-3(e)(2).

The initial search and seizure emanated from a traffic violation vehicle stop during which the driver admitted to driving without a valid license. The record is sufficient to provide support for the trooper's safety concerns when his routine questions were totally ignored by defendant, who was in the passenger seat of the vehicle. Those reasonable concerns warranted ordering defendant out of the car and a weapons pat-down, upon observation of a large bulge in defendant's pants. This resulted in discovery of the hard package of crack cocaine by plain touch. We find no constitutional violation, see State v. Smith, 134 N.J. 599, 615-18, 637 A.2d 158 (1994)(requiring some fact or facts which would impel an objectively reasonable officer to a heightened awareness of possible danger); Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Unlike State v. Jackson, 276 N.J.Super. 626, 648 A.2d 738 (App.Div.1994), and Dickerson, supra, the judge who heard the testimony in the suppression hearing believed the trooper's testimony respecting immediate recognition, by touch and experience, of the probable nature of the hard object detected during pat-down of the bulge.

Defendant contends that as the federal conspiracy indictment and conviction involved his crack distribution activities in "North Carolina and elsewhere" between 1988 and January 30, 1995, and the New Jersey charges arose in 1994, the New Jersey prosecution should have been barred under N.J.S.A. 2C:1-11 and under our State constitutional guarantee of fundamental fairness. We reject the contention for the reasons enumerated below, any one of which would suffice.

1. The tardily raised defense was waived under R. 3:10-2(c) because not asserted prior to trial.

2. Subject to N.J.S.A. 2C:1-11, conviction of a federal offense does not bar State prosecution even if the proscribed conduct arises out of the same episode. Heath v. Alabama, 474 U.S. 82, 88-89, 106 S.Ct. 433, 437, 88 L.Ed.2d 387, 394-95 (1985); State v. Goodman, 92 N.J. 43, 51, 60, 455 A.2d 475 (1983)(Schreiber, J. concurring); State v. Cooper, 54 N.J. 330, 336-39, 255 A.2d 232 (1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); State v. Ellis, 280 N.J.Super. 533, 550, 656 A.2d 25 (App.Div.1995). However, under N.J.S.A. 2C:1-11, the bar to subsequent prosecution applies only where the two prosecutions are based on the "same conduct" and only where the proofs necessary to the two prosecutions meet the statutory test for congruence. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:1-11 (1997-98). The phrase "same conduct" has been uniformly held to mean identical conduct; that is, conduct involving one discrete set of actions occurring on only the one occasion. State v. Jones, 287 N.J.Super. 478, 487, 671 A.2d 586 (App.Div.1996); State v. Walters, 279 N.J.Super. 626, 632, 653 A.2d 1176 (App.Div.), certif. denied, 141 N.J. 96, 660 A.2d 1195 (1995); State v. Buhl, 269 N.J.Super. 344, 368, 635 A.2d 562 (App.Div.), certif. denied, 135 N.J. 468, 640 A.2d 850 (1994); State v. Di Ventura, 187 N.J.Super. 165, 172-73, 453 A.2d 1354 (App.Div.1982), certif. denied, 93 N.J. 261, 460 A.2d 666 (1983); State v. Ashrue, 253 N.J.Super. 181, 184, 601 A.2d 265 (Law Div.1991). Overlapping conduct is not identical conduct for purposes of N.J.S.A. 2C:1-11. Jones, supra, 287 N.J.Super. at 487, 671 A.2d 586; Di Ventura, supra, 187 N.J.Super. at 173, 453 A.2d 1354; Ashrue, supra, 253 N.J.Super. at 184, 601 A.2d 265.

As a commentator has observed respecting N.J.S.A. 2C:1-11a:

The bar to subsequent prosecution applies only where the two prosecutions are based on the "same conduct," State v. Di Ventura, 187 N.J.Super. 165, 172-173, 453 A.2d 1354 (App.Div.1982). Cases have generally defined "same conduct" so strictly that prosecutions have not been barred. See State v. Buhl, 269 N.J.Super. 344, 367-70, 635 A.2d 562 (App.Div.), certif. den. 135 N.J. 468, 640 A.2d 850 (1994), where the court held that a state kidnapping charge was not barred by a federal kidnapping charge for the same incident on the ground that the elements of the offenses were not identical so that each required proof of a fact not required by the other. Given that the detail of definition of crimes varies from jurisdiction to jurisdiction and that many federal crimes are justified by an...

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3 cases
  • State v. Evans
    • United States
    • New Jersey Supreme Court
    • June 28, 2018
  • State v. Jules
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 14, 2019
    ...applied it to cases such as Jackson, 276 N.J. Super. 626, State v. Toth, 321 N.J. Super. 609 (App. Div. 1999), and State v. Cargill, 312 N.J. Super. 13 (App. Div. 1998). Id. at 137-38. Our Supreme Court then "agree[d] with the Appellate Division and ratif[ied] the United States Supreme Cour......
  • State v. Cargill
    • United States
    • New Jersey Supreme Court
    • September 11, 1998
    ...A. Cargill NOS. C-70 SEPT.TERM 1998, 46,169 Supreme Court of New Jersey September 11, 1998 Lower Court Citation or Number: 312 N.J.Super. 13, 711 A.2d 318 Disposition: ...

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