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State v. Green

June 30, 1998


The opinion of the court was delivered by: Brochin, J.A.D.

Submitted May 13, 1998

[9]    Before Judges Baime and Brochin

On appeal from the Superior Court of New Jersey, Law Division, Essex County

Defendant Brian Green was convicted of possession of heroin (N.J.S.A. 2C:35-10a(1)); possession of heroin with the intent to distribute it (N.J.S.A. 2C:35-5b(3)); and possession of heroin within 1000 feet of school property (N.J.S.A. 2C:35-7). The three convictions were merged and he was sentenced to five years' imprisonment with three years' parole ineligibility.

Defendant has appealed. He argues that he was deprived of his constitutional right to effective assistance of counsel because his trial attorney did not move to suppress the heroin which was offered as evidence against him. Defendant also contends that he is entitled to a new trial because the prosecutor cross-examined him about whether he asked for an attorney when he was arrested and implicitly argued during her summation that the grand jury's indictment was a reason for returning a verdict of guilty. Alternatively, defendant asserts that his sentence is excessive.

Defendant was arrested during a police "sweep" in the area of West Kinney Street in Newark at approximately one o'clock in the afternoon of June 7, 1994. A marked patrol car had driven through the neighborhood five or ten minutes earlier and had reported a lot of "activity," presumably suspected narcotics sales. Similar sweeps were conducted approximately three times a week in neighborhoods reported to be "high crime area[s]."

"Minutes" ahead of the sweep, a marked police car drove through the neighborhood, announcing through a loudspeaker that "anyone loitering in the area must leave that area." (By "loitering," the police meant "milling around, standing around," and being unable to "justify why they're there.") Then twelve to fourteen police officers, not in uniform but wearing sweat shirts with police insignia on the front and back, arrived in the area simultaneously in five or six unmarked police cars. Their purpose was to "challenge all the people who are standing around to find out if they belong there or not" and to deter them from "loitering." It was not intended "to get any particular individual who was reported[ ] to be involved with crime; it was basically to clean out the block from people hanging around." The police would attempt to ascertain the identities of any such persons and determine whether there were any warrants outstanding for their arrest. Sometimes, persons living in the neighborhood where a sweep was conducted complained that they would get caught up in it if they happened to be walking to a nearby store.

Newark Detective Omar Abdul Akim, who participated in the sweep, was one of the police officers who testified for the State. When Detective Akim and the two other police officers who were working with him arrived at 342 West Kinney Street, fifteen or twenty persons other than policemen were in the area. Someone yelled, "Five-O" to warn that the police had arrived. The "sweep" force arrested two or three persons, and the rest ran or walked rapidly into a nearby building and disappeared.

Defendant attracted the attention of Officers Hubert Clark and Frank Bristol because he was one of many persons who tried to run away when the police were spotted. Detective Akim and Officers Clark and Bristol ran after him. Detective Akim did not notice defendant until the other policemen had begun chasing him, and then he joined the chase. The police do not appear to have known or recognized defendant until after he was arrested.

During direct examination of Detective Akim, the prosecutor asked him, "Did you identify yourselves as police officers." The detective answered, "Yes." The context of the question indicates Detective Akim meant that this "identification" occurred while the officers were chasing defendant and he was running away. The prosecutor inquired, "Did he continue to run?" The detective answered, "Yes."

While Detective Akim was running after defendant, the detective noticed that defendant was holding the waistband of his pants and Officer Clark saw defendant take something from his waistband and throw it away. Detective Akim retrieved a brown paper bag containing glassine envelopes with heroin in them. He identified the bag and its contents as having been discarded by defendant during the chase. Officers Clark and Bristol caught defendant and arrested him. He did not have any incriminating evidence still in his possession.

While cross-examining defendant, the prosecutor asked him the following questions and received the following replies:

Q. Did you ever ask for a lawyer when you ...

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