Before Judges D'Annunzio, Cuff and Collester
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 1999
On appeal from the Superior Court of New Jersey, Law Division, Cape May County.
Defendant appeals from a Law Division judgment, entered after a trial de novo on the record, convicting him of the disorderly persons offenses of "wandering" with the purpose of unlawfully obtaining or distributing a controlled dangerous substance, in violation of N.J.S.A. 2C:33-2.1, and resisting arrest, in violation of N.J.S.A. 2C:29-2a. The court sentenced defendant to a fine of $250 for resisting arrest and a fine of $200 on the wandering charge.
On appeal, defendant contends that the evidence was insufficient to prove the violations beyond a reasonable doubt and that he received inadequate representation "at all levels of his prosecution." We conclude that the evidence was sufficient to support the resisting arrest conviction, but that it was not sufficient to establish a violation of the wandering statute. Defendant's contention that he was ineffectively represented is without merit. R. 2:11-3(e)(2).
The only witness to testify in the Municipal Court was the arresting officer, Elias Aboud. Officer Aboud was a thirteen- year veteran of the City of Wildwood Police Department. On August 26, 1996, at around 6:00 p.m., he was on West Wildwood Avenue when he observed defendant "on a bicycle and he was talking to another subject on a bicycle who is a known drug dealer." Officer Aboud observed defendant and his companion make "some type of hand to hand exchange." Based on his training and experience, Officer Aboud concluded that he had witnessed a drug transaction. After the hand to hand exchange, defendant and the alleged drug dealer left the scene, going in separate directions. Aboud called for a back-up officer to stop the dealer, and Aboud stopped defendant.
As he approached defendant, Aboud observed that defendant had a blue plastic baggie in his hand which he placed in his mouth, chewed and swallowed. Aboud testified that he "could see the white residue in his mouth because he was biting the baggie, trying to chew the bag to swallow the CDS." Aboud stated that he grabbed defendant about the neck in an attempt to prevent him from swallowing the evidence. Defendant became belligerent and Aboud informed him that he was under arrest. As Aboud prepared to place handcuffs on defendant, defendant began to swing his arms and refused to allow Aboud to handcuff him. Aboud and defendant went to the ground where he continued to swing his arms and tried to kick Aboud. Aboud subdued defendant with the assistance of a back-up officer.
Defendant offered no testimony or other evidence. The applicable statute provides:
2C:33-2.1 Loitering for purpose of illegally using, possessing or selling controlled substance
a. As used in this section:
"Public place" means any place to which the public has access, including but not limited to a public street, road, thoroughfare, sidewalk, bridge, alley, plaza, park, recreation or shopping area, public transportation facility, vehicle used for public transportation, parking lot, public library or any other public building, structure or area.
b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.
c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog ...