SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6079-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LOUIS JONES,
Defendant-Appellant.
_______________________________________________
Argued November 8, 1995 - Decided February
16, 1996
Before Judges Pressler, Keefe and Wefing.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County.
Michael B. Jones, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender,
attorney).
Simon Louis Rosenbach, Assistant Prosecutor,
argued the cause for respondent (Robert W.
Gluck, Middlesex County Prosecutor,
attorney).
The opinion of the court was delivered by
KEEFE, J.A.D.
The principal issue to be decided on this appeal is whether defendant's state prosecution for third degree possession of cocaine and first degree possession of cocaine with intent to distribute should have been barred under N.J.S.A. 2C:1-11 because of his previous federal conviction in North Carolina for conspiracy to distribute cocaine, and for violating the Travel
Act. If defendant's New Jersey prosecution is not barred, we are
asked to decide whether the trial judge erred in denying
defendant's motion to suppress evidence and subsequently erred in
failing to instruct the jury in accord with State v. Hampton,
61 N.J. 250 (1972). We conclude herein that the state prosecution
was not barred and that probable cause existed to justify the
search in question. However, we hold that the judge's failure to
instruct the jury in accordance with State v. Hampton,
constituted plain error and requires a new trial. In light of
our remand for a new trial the other issues raised by defendant
have been rendered moot.
On April 7, 1989, defendant was stopped for speeding on the
New Jersey Turnpike. Defendant's vehicle bore North Carolina
license plates. As defendant was pulling over, the trooper
observed certain activity by defendant which led the trooper to
conclude that defendant was attempting to conceal something or
attempting to retrieve a weapon. Upon approaching the vehicle
the trooper noticed a black, Christian Brothers brandy canister
between defendant's legs and the driver's seat. Defendant was
unable to produce a driver's license but a registration was
eventually located. Because of the driver's prior movements in
the car, the trooper was concerned for his safety and ordered
defendant to exit the vehicle, whereupon he was patted down for
weapons. No weapons were discovered. However, the trooper
observed that defendant's eyes were bloodshot, he was nervous,
and his eyes were dilated.
Defendant told the trooper that he had driven either from
Jersey City or Newark prior to being stopped.See footnote 1 However, a
female passenger in the vehicle said they had been in New York
City and produced a New Jersey Turnpike toll ticket indicating
that the vehicle entered at Exit 18, the George Washington
Bridge.
In light of defendant's actions, his appearance, and the
brandy canister observed between his legs before he exited the
vehicle, the trooper inquired of defendant whether he had been
drinking. Defendant denied the existence and knowledge of the
canister, where it came from and its contents. After this
response, the trooper opened the canister and found three, clear
plastic bags which contained a white substance. The substance
later tested positive for cocaine and weighed ten ounces.
Defendant and his passenger were arrested, administered
their rights, and taken to the New Brunswick police station where
the vehicle was searched. The search revealed a white bag
containing narcotics paraphernalia, a sifter, a strainer, a
butane fuel lighter, a bowl used for smoking cocaine, and a
cutting agent.
At the police station after defendant had been given his
Miranda rights, defendant admitted that he knew of the cocaine in
the car, and that he was attempting to hide it when they were
being stopped by the trooper. He also admitted that the cocaine
had been placed in the metal brandy container. Further,
defendant stated that he and his passenger had gone to Brooklyn,
New York, for the purpose of picking up the narcotics and that
"he liked to smoke, the powder [cocaine]."
Defendant's motion to suppress the evidence seized through
the warrantless search of his vehicle was denied and the matter
proceeded to trial. At trial, an investigator from the Middlesex
County Prosecutor's office testified as an expert on the use,
packaging, manufacture, and distribution of narcotics. He
concluded that the drugs were to be ingested because of the
paraphernalia in the car, but, based on the amount of the cocaine
found, he opined that it was also to be transported and
redistributed. The investigator also opined that defendant and
his passenger were "mules," a slang expression for people who are
hired to transport drugs and are paid either in cash or in kind
when the product is delivered.
A jury found defendant guilty on both counts of the
indictment, third degree possession of cocaine (count one),
contrary to N.J.S.A. 2C:35-10(1), and first degree possession of
cocaine with intent to distribute (count two), contrary to
N.J.S.A. 2C:35-5a(1) and b(1). The State's motion for extended
term sentencing was granted. Defendant was then sentenced to a
five year prison term with a two and one-half year parole
disqualifier on count one. On count two, defendant received an
extended term of twenty-five years, other fines and penalties,
and a $150 SNSF fee which the State now concedes was
inappropriately levied against him.
Subsequently, the trial court resentenced defendant and
imposed an eight and one-third year parole ineligibility period
on count two because the court had neglected to do so at the
first sentencing. The parole ineligibility was imposed because
the second count was a first degree crime with an extended term.
On December 26, 1989, six months after he was indicted in New Jersey, a federal grand jury in the Middle District of North Carolina indicted defendant and six others for conspiracy to distribute cocaine in violation of 21 U.S.C.A. §§846, 841(b)(1)(B) (count one), and for violating the Travel Act, 18 U.S.C.A. §1952 (count five). He was found guilty on those charges and was sentenced on September 18, 1991, two years before his trial on the state indictment. The sentence imposed was five years imprisonment with a five year supervised release condition to follow.
Defendant asserts that his New Jersey convictions for third degree possession of cocaine and first degree possession of cocaine with intent to distribute are barred by the provisions of N.J.S.A. 2C:1-11 because of his federal court convictions for conspiracy to distribute cocaine and violation of the Travel Act. N.J.S.A. 2C:1-11 provides in pertinent part:
when conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar
to a subsequent prosecution in this State
under the following circumstances:
a. The first prosecution resulted in an
acquittal or conviction, . . ., and the
subsequent conviction is based on the same
conduct, unless (1) the offense of which the
defendant was formerly convicted or acquitted
and the offense for which he is subsequently
prosecuted each requires proof of a fact not
required by the other and the law defining
each of such offenses is intended to prevent
a substantially different harm or evil or (2)
the offense for which the defendant is
subsequently prosecuted is intended to
prevent a substantially more serious harm or
evil than the offense of which he was
formerly convicted or acquitted or (3) the
second offense was not consummated when the
former trial began[.]
[N.J.S.A. 2C:1-11.]
New Jersey courts have strictly interpreted N.J.S.A. 2C:1-11, and
in almost all of the cases that have dealt with statutory double
jeopardy, the federal prosecution has not been a bar to a
subsequent state prosecution. Cannel, New Jersey Criminal Code
Annotated, comment 3 on N.J.S.A. 2C:1-11.
The initial inquiry to determine whether a bar exists is
whether the two prosecutions are based on the "same conduct."
State v. DiVentura,
187 N.J. Super. 165, 172-173 (App. Div.),
certif. denied,
93 N.J. 261 (1983). The definition of "same
conduct" has been strictly construed to mean "identical conduct."
Id. at 172. That is to say, "[o]verlapping conduct is not
identical." State v. Ashrue,
253 N.J. Super. 181, 184 (Law Div.
1991). For example, in State v. Buhl,
269 N.J. Super. 344, 367-370 (App. Div.), certif. denied,
135 N.J. 468 (1994), we held
that a state kidnapping charge was not barred by a federal
kidnapping charge for the same incident because the state statute
focuses on asportation or restraint of the victim which presents
an enhanced risk of harm, while the federal statute requires the
willful transport of a victim in interstate commerce, or across
state lines. Id. at 369. The Buhl court reasoned that because
the statute proscribed different conduct, the conduct which was
the subject of the separate prosecutions was not the same. Ibid.
We also held that not only did the two prosecutions involve
different conduct, but also that each statute "required proof of
a fact not required by the other and the law defining each of the
offenses was intended to prevent a substantially different harm
or evil." Id. at 369-371.
Likewise, in State v. DiVentura, this court held that
N.J.S.A. 2C:1-11 was not a bar to a subsequent state prosecution
for arson where the federal prosecution was for mail fraud to
obtain insurance proceeds by committing arson. State v.
DiVentura, supra, 187 N.J. Super. at 170. The state indictment
in that case charged "defendant with conspiracy to commit arson,
solicitation of arson and arson of his restaurant." Id. at 173.
While the court conceded that both indictments concerned the
arson of the restaurant in order to collect insurance proceeds,
it found that the federal indictment focused upon mail fraud
whereby defendant was mailing false claims to the insurance
company and receiving payment. Ibid. The court concluded that
the state prosecution manifestly fell within the first and second
exceptions to N.J.S.A. 2C:1-11 and that the conduct proscribed by
each indictment was not the same. Id. at 170-173.
Defendant argues here that N.J.S.A. 2C:35-5a formed a part
of the conduct for which he was prosecuted in the federal court
under the Travel Act count and the conspiracy count.
Specifically, defendant asserts that the New Jersey possession
was alleged in the federal Travel Act indictment, and that proof
of possession of cocaine on the New Jersey Turnpike was a
necessary element of the federal case. Secondly, defendant
maintains that the same proofs form the basis of defendant's
overt acts in the federal conspiracy charge.
We deal first with the Travel Act under which defendant was
convicted in federal court. It provides in relevant part:
(a) Whoever travels in interstate or foreign
commerce or uses the mail or any facility in
interstate or foreign commerce, with intent
to . . . (3) otherwise promote, manage,
establish, carry on, or facilitate the
promotion, management, establishment, or
carrying on, of any unlawful activity . . .
[
18 U.S.C.A.
§1952(a)(3).]
The Travel Act count of the indictment read as follows:
On or about April 6, 1989, Louis Jones did
travel in interstate commerce from Winston
Salem in the State and Middle District of
North Carolina to New York City in the State
of New York, with the intent to promote,
manage, establish carry on or facilitate the
promotion, management, establishment or
carrying on of an unlawful activity, said
unlawful activity being a business enterprise
involving controlled substance in violation
of the laws of the United States, Title 21,
United States Code Sections 846 and
841(a)(1), and thereafter did perform and
attempt to perform acts to promote, manage,
establish, carry on or facilitate the
promotion, management, establishment or
carrying on of said unlawful activity in
violation of Title 18, United States Code
Section 1952(a)(3).
The heart of the federal prosecution is the traveling in
interstate commerce to promote the goals of an illegal activity,
the drug conspiracy. United States v. Fetlow,
21 F.3d 243, 247
(8th Cir.), cert. denied, _____ U.S. _____,
115 S. Ct. 456,
130 L. Ed. 365 (1994). The aim of the Travel Act is to prevent
criminal activity from being conducted between the states.
United States v. Johnson,
961 F.2d 1488, 1491 (10th Cir. 1992).
A defendant cannot violate the statute without travelling in
interstate commerce. Ibid. Thus, travel is an essential element
of the offense and is not merely jurisdictional. Travel however,
is not an element of the State offenses of possession or
possession with intent to distribute, nor is possession an
element of a Travel Act prosecution.
The elements of proof required for the Travel Act
prosecution are significantly different from the proofs required
for the state prosecution. The federal trial judge instructed
the jury as to the four essential elements required to prove a
violation of the Travel Act as follows:
First, that the defendant traveled from one
state to another; second, that the defendant
did such travel with the specific intent to
promote, manage, establish or carry on the
activity described in the indictment; three
that the activity described in the indictment
was illegal under the laws of the United
States; and four, after the interstate
travel, the defendant knowingly and
deliberately did act or attempted to do an
act in order to promote manage, establish or
carry on the activity described in the
indictment.
In contrast, the focus of N.J.S.A. 2C:35-5a is entirely
different. The conduct to be proved is possession of drugs with
the intent to distribute them. See State v. Florez,
134 N.J. 570
(1994) (quantity of drugs is a material element). To prove the
federal offense, possession of the drugs was not required since
defendant violated the Travel Act once he entered New York to
carry out the unlawful activity and then took steps to do so.
See United States v. Loucas,
629 F.2d 989, 991 (4th Cir. 1980),
cert. denied,
450 U.S. 1030,
101 S. Ct. 1738,
68 L. Ed.2d 224
(1981) (state substantive offense is not a prerequisite to a
Travel Act conviction); United States v. Pomponio,
511 F.2d 953,
957 (4th Cir.), cert. denied,
423 U.S. 874,
96 S. Ct. 142,
46 L.
Ed.2d 105 (1975) ("The `unlawful activity' specified in the
[Travel] Act may be [an offense] under state or federal law and
reference to such law is necessary only to identify the type of
`unlawful' activity in which the defendants intended to engage.
Proof that the unlawful objective was accomplished or that the
referenced law has actually been violated is not a necessary
element of the offense defined in Section 1952.").
The New Jersey possession was merely part of the evidence,
of the intent element of the Travel Act violation. Thus,
defendant could have been prosecuted under the Travel Act without
evidence of the New Jersey stop. Simply stated, the federal and
state prosecutions do not require proof of identical conduct.
Defendant did not have to possess the cocaine and intend to
distribute it in order to violate the Travel Act, but proof of
travel was required. On the other hand, the possession of the
cocaine was the sine qua non of the state offenses while proof of
travel was irrelevant to the prosecution.
This case is similar to State v. Cooper,
211 N.J. Super. 1
(App. Div. 1986), where a federal RICO charge had included the
state robbery as a predicate act. In that case, the federal
prosecution was not a bar to the state robbery prosecution
because proof of the particular robbery was not needed to prove
the federal case. Id. at 17. Here the Travel Act prosecution
required proof of the greater scheme and not necessarily proof of
possession in New Jersey. Thus, the state prosecution was not
barred by reason of the federal prosecution for violation of the
Travel Act.
We now address the conspiracy count and conclude that the
federal conspiracy charge does not trigger N.J.S.A. 2C:1-11 to
bar the prosecution of N.J.S.A. 2C:35-5a. State v. Sessoms,
187 N.J. Super. 625 (Law Div. 1982) (N.J.S.A. 2C:1-11 did not bar the
state prosecution on the substantive, underlying offense of the
conspiracy (theft) because those offenses are separate and
distinct offenses. However, the statute did bar prosecution on
the state conspiracy charge after defendant pled guilty to a
federal charge of conspiracy.) An examination of the respective
statutes underscores our conclusion.
The elements required to be proved, i.e., the conduct that
comprises the offenses, are not identical. N.J.S.A. 2C:1-11(a)(1). In a prosecution under the federal conspiracy statute,
the government must prove that two or more persons agreed to
distribute illegal drugs, that the defendant was a member and
knew of the conspiracy, and each intended to be a part of the
conspiracy. United States v. Stone,
960 F.2d 426, 430 (5th Cir.
1992). A person can be convicted of conspiracy even if he or she
never personally intended to distribute the illegal drugs, United
States v. Young,
954 F.2d 614, 618 (10th Cir. 1992), and even if
the government fails to prove that the substances were in fact
illicit drugs. United States v. Sweeney,
688 F.2d 1131, 1145
(7th Cir. 1982). Further, an overt act does not have to be
proved for a federal conspiracy conviction. United States v.
Sassi,
966 F.2d 283, 284 (7th Cir.), cert. denied, ____ U.S.
_____,
113 S. Ct. 509,
121 L. Ed.2d 444 (1992); United States v.
Bey,
736 F.2d 891, 893-95 (3rd Cir. 1984). Our examination of
the federal trial judge's instruction to the jury in this case
reveals that he did not instruct the jury that proof of an overt
act was necessary to convict defendant on the conspiracy count.
On the other hand, a defendant violates N.J.S.A. 2C:35-5
when he or she actually or constructively possesses the illegal
drug. While a person can be convicted of the federal conspiracy
statute without ever touching or having control of the drug, a
defendant charged under N.J.S.A. 2C:35-5a cannot be convicted
unless he or she actually or constructively possessed the drug in
order to distribute it. State v. Florez, supra, 134 N.J. at 570.
Defendant argues that N.J.S.A. 2C:1-11a should bar his state
prosecution because the Travel Act prosecution was based almost
entirely on the evidence of the New Jersey possession. The
argument centers on whether a substantive state prosecution can
be barred if the facts necessary to establish it had been used to
convict a defendant at the former, federal prosecution. The case
law has not considered whether a bar will exist in this
situation, that is, where the state offense and the federal
offense require proof of different elements, but the state
offense was used as part of the proof of the prior federal
prosecution.
However, the essential test is whether the criminal conduct
necessary to satisfy both statutes is identical, not whether
defendant's actual conduct in committing the crimes was
identical. See Buhl, supra, 269 N.J. Super. at 367-370 (federal
kidnapping prosecution did not bar state kidnapping prosecution,
although physical act of kidnapping was the same, because the
underlying elements to be proved were not identical). More
importantly, the New Jersey conduct did not constitute the only
evidence of the Travel Act violation. Defendant committed the
crime once he travelled to New York from North Carolina in order
to purchase the cocaine and, in fact, purchased it there. To bar
a subsequent state prosecution because of a federal prosecutor's
discretion in electing to present certain evidence to satisfy a
particular component of the federal crime, would frustrate the
overall purpose of New Jersey criminal law which is to prevent
and punish crimes that occur in New Jersey. Thus, we reject
defendant's argument on this issue as well.
In light of our conclusion that the federal conviction was
not based upon the same conduct as the subsequent conviction in
state court, and that each conviction required proof of a fact
not required by the other, we need not consider defendant's
contention that the Travel Act, the conspiracy charge, and
N.J.S.A. 2C:35-5 seek to prevent similar harms of similar
gravity.
Defendant raises as plain error the trial judge's failure to charge the jury concerning its duty to determine the credibility of defendant's out-of-court admission.
As will be recalled from the statement of facts, defendant's oral statement was incriminatory. In a pretrial motion, the trial judge determined that defendant's statement was admissible as not being in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
In State v. Hampton, 61 N.J. 250 (1972), our Supreme Court held that once the trial judge makes a determination that the statement is admissible,
then, without being advised of the court's decision, the jury shall be instructed that they should decide whether in view of all the same circumstances the defendant's confession is true. If they find that it is not true, then they must treat it as inadmissible and
disregard it for purposes of discharging
their function as factfinders on the ultimate
issue of guilt or innocence.
[Id. at 272 (emphasis added).]
The Hampton rule was codified as a part of our evidence rules,
first in Evid. R. 8(3), and now in N.J.R.E. 104(c) the rule
applicable at the time of trial. In pertinent part, the rule
states that "[i]f the judge admits the statement the jury shall
not be informed of the finding that the statement is admissible
but shall be instructed to disregard the statement if it finds
that it is not credible." N.J.R.E. 104(c) (emphasis added).
In State v. Boyle,
198 N.J. Super. 64 (App. Div. 1984), this
court held that "[t]he mandate in Hampton and the directive in
the Rules of Evidence are designed to `insure to a defendant an
unfettered factual consideration by the jury of the credibility'
of all or part of his confession. Id. at 74 (quoting State v.
Bowman,
165 N.J. Super. 531, 537 (App. Div. 1979)). Further, the
Bowman court held that a defendant has "a federal constitutional
right to raise the issue of voluntariness before the trial judge
and upon an adverse ruling to place in issue the credibility of
his statement[,]" and that the denial of that right was
reversible error. Ibid. The decision in Boyle was raised in the
context of the trial judge's refusal to charge Hampton in the
face of a defendant's request.
However, the treatment of the issue in the context of a
defendant's failure to request the instruction, as in this case,
has received somewhat uneven treatment. In State v. Nutter,
258 N.J. Super. 41 (App. Div. 1992), this court found reversible
error where the trial court, in the absence of a request,
"mistakenly failed to instruct the jury on its duty to determine
if defendant's statement to the police was credible." Id. at 59-60. In considering the charge as a whole, the court concluded
that nothing could be found to ameliorate the error. Id. at 60.
A contrary result was reached by another part of this court
in State v. Setzer,
268 N.J. Super. 553 (App. Div.), certif.
denied,
135 N.J. 468 (1993). In that case, defense counsel did
not request a Hampton charge, and it was not given. On appeal,
the court held that the failure to give the charge was not plain
error because the trial court had "clearly and repeatedly
instructed the jury that it was to consider the credibility of
all of the testimony which included the testimony as to
defendant's statement." Id. at 563-65. The opinion did not
attempt to distinguish Nutter.
Later, in State v. Laboy,
270 N.J. Super. 296 (App. Div.
1994), another part of this court, having reversed the conviction
before it on other grounds, rejected in dictum the notion that
the failure to charge Hampton is per se plain error. Id. at 310-311. Nevertheless, Laboy expressly noted that while neither the
failure to charge Hampton, nor the failure to charge State v.
Kociolek,
23 N.J. 400, 421-22 (1957),See footnote 2 taken alone, constituted
plain error, such failure in the aggregate might combine to do
so. State v. Laboy, supra, 270 N.J. Super. at 310-311. Cf.
State v. Jordan, ____ N.J. Super. ____ (App. Div. 1995) (where a
majority of this part, rejecting the consequence of the aggregate
failure, held that a Hampton charge was not required where
defendant gave two conflicting statements and it was obvious the
jury had to resolve which one was true.)
While the failure to give a Hampton charge in a case where a
defendant adopts as true the statement given to the police, may
not raise a Hampton issue at all, that is not what occurred in
this case. The accuracy of the trooper's recollection of
defendant's statement and defendant's condition at the time he
made the statement were placed in issue by defense counsel's
cross examination and summation. Inasmuch as the jury asked the
court to have the "interview" between defendant and the trooper
read back to them, we can reasonably infer that the jury thought
the content of defendant's statement was important in determining
his guilt or innocence.
It is well established that an erroneous charge in a
criminal case is a poor candidate for rehabilitation by way of
the harmless error rule. See e.g., State v. Wilson,
128 N.J. 233, 241 (1992); State v. Vick,
117 N.J. 288, 289 (1989); State
v. G.S.,
278 N.J. Super. 151, 166 (App. Div.), certif. denied,
142 N.J. 517 (1995). Inasmuch as the Hampton rule as codified in
our Rules of Evidence is framed in mandatory terms, we hold that
the failure to charge Hampton is not one of those trial errors
that can be justified in terms of harmless error where a
defendant has not adopted as true statements attributable to him
while in police custody.
Defendant maintains that the trial judge erred when he concluded that the State trooper had probable cause to search the vehicle. Defendant raised the identical motion during his federal trial and the motion was denied. The State moved to collaterally estop defendant from raising the same motion in this state court proceeding. The trial judge refused to apply collateral estoppel and made an independent analysis of the record before him. He was correct in doing so. The New Jersey Supreme Court has interpreted the New Jersey Constitution to provide greater protection than the federal constitution in such circumstances. State v. Pierce, 136 N.J. 184 (1994); State v. Hempele, 120 N.J. 182 (1990).
A warrantless search of an automobile is justified "where police have probable cause to believe that the vehicle contains contraband or evidence of criminal activity," State v. Martin, 87 N.J. 561, 567 (1981), "or in connection with the search for weapons on an objectively-reasonable belief that an occupant of the vehicle is dangerous and may gain access to weapons." State v. Pierce, supra, 136 N.J. at 205. The trial judge concluded that the trooper had probable cause under the first justification but not the second.
The surrounding circumstances sufficiently created probable
cause that criminal activity had occurred or was occurring. The
trooper had more than furtive gestures upon which to form
probable cause. See State v. Lund,
119 N.J. 35, 47 (1990).
Along with the furtive gestures, the trooper observed the
canister at defendant's feet which corroborated his suspicion
that defendant had attempted to conceal or retrieve a weapon but
had been unable to do so. Further, after defendant exited the
vehicle, the trooper noticed that his eyes were bloodshot, his
pupils were abnormal, he avoided eye contact, was nervous, and,
more importantly, denied knowledge of the existence of the
canister that was located at his feet. See State v. Young,
87 N.J. 132, 144 (1981) ("defendant's disavowal of ownership or
knowledge of the suitcase increased the trooper's suspicions").
Based on those observations and detecting no odor of alcohol, the
trooper testified that he reasonably believed that defendant was
under the influence of a narcotic. Furthermore, he determined
from the Turnpike ticket, and the passenger's statement, that
defendant had lied when he said that he had traveled from Jersey
City.
The totality of the circumstances were suitable factors
allowing the trooper to reasonably believe that a weapon or
contraband was in the vehicle. See State v. Lund, supra, 119
N.J. at 48. Specifically, given the totality of the
circumstances, and given the fact that the location of the
canister matched defendant's furtive gestures, the trooper had
probable cause to suspect that the canister contained the
contraband. Therefore, we agree with the trial judge that the
opening of the canister was a valid search.
In view of our conclusion under Point II above, defendant's
conviction is reversed and the matter is remanded for a new trial
in accord with this opinion.
Footnote: 1At trial the trooper testified that defendant said he had come from Jersey City. However, the police report and grand jury testimony revealed that defendant stated he was coming from Newark. Footnote: 2Defendant does not contend in this case that the failure to charge State v. Kociolek, supra, rises to the level of plain error. See State v. Travers, 70 N.J. Super. 32, 38 (App. Div. 1961), and State v. Campisi, 47 N.J. Super. 455, 460 (App. Div. 1957) (both cases holding that failure to give a Kociolek
instruction was harmless error).