Before Judges Kestin, Fall and Weissbard. On appeal from Superior Court of New Jersey, Law Division, Essex County, 00-12-3502.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2002
Defendant, Reginald Moultrie, was charged with third degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); third degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35- 7.1 (count four); fourth degree aggravated assault against Officer D. Bartell, N.J.S.A. 2C:12-1b(5)(a) (count five); fourth degree aggravated assault against Officers Reginald Holloway and Vito D'Alessio, N.J.S.A. 2C:12-1b(5)(a) (count six); fourth degree criminal trespass, N.J.S.A. 2C:18-3 (count seven); third degree escape, N.J.S.A. 2C:29-5a (count eight); and third degree resisting arrest, N.J.S.A. 2C:29-2 (count nine). *fn1
At defendant's jury trial, the seventh count of the indictment, charging criminal trespass, was dismissed by the court. The jury acquitted him of all remaining charges except count eight, third degree escape. Upon his conviction, defendant was sentenced to a five-year prison term and appropriate penalties were also imposed.
Sometime during the late afternoon of June 14, 2000, defendant and his girlfriend, Kamila Davis, visited Ms. Davis's mother at her home in the housing projects on Grafton Avenue in Newark. That same day, in the same area, members of the Essex County Sheriff's Bureau of Narcotics and Drug Enforcement were acting undercover, in an unmarked gold minivan, for the purpose of apprehending drug dealers in the area.
Shortly after 7:45 p.m., Detective D'Alessio drove the unmarked minivan into the parking lot between 1905 and 1925 McCarter Highway. Upon seeing defendant standing on the corner, the officers pulled up to defendant, who approached the van and informed the undercover officers, "I got diesel." Detective Moreno recognized the term as the street name for heroin and replied with a number two hand signal. Defendant stepped closer to the van, reached into his pocket, and pulled out a bundle of glassine bags. Upon observing the heroin, the detectives showed their badges and said, "Police!" Simultaneously, the officers jumped from the van and pursued the fleeing defendant on foot.
Officer Holloway apprehended defendant from the first floor of 1925 Grafton Avenue. Miranda *fn2 warnings were administered and defendant was brought to the police vehicle to be monitored by Detective Bartell, while the rest of the area was searched. During the search, the officers recovered a bundle of seven glassine bags of heroin marked "G-Code" in green, which they alleged defendant discarded while running from them. Additionally, the officers found three more bundles of heroin with the same green markings on the first floor.
While the other officers searched the premises, defendant complained to Detective Bartell that his handcuffs were restricting his blood flow. Detective Bartell unlocked the police vehicle and approached the passenger side door, intending to alleviate defendant's discomfort. At this time defendant kicked the door and knocked the officer to the ground. Still handcuffed, defendant "bolted from the vehicle." Detective Bartell immediately radioed the other officers and informed them of the escape.
Defendant fled into 1905 McCarter Highway. The officers chased him up to a second floor apartment owned by Aurora Rodriguez. Ms. Rodriguez informed Detective Holloway, via an eye signal, that defendant was hiding in the kitchen. As Holloway pulled back the curtain which closed off an area in the kitchen, defendant, who had been hiding in the closed section, lunged at the officer, despite still being handcuffed. A struggle ensued, which ultimately resulted in Detectives D'Alessio and Holloway reapprehending defendant. At trial, defendant denied possessing, selling or discarding any drugs on June 14, 2000. He testified that upon leaving Davis's mother's home he spotted his friend, Ray Houston, with some people on the corner "hanging out." Upon joining the group, Houston informed defendant about a robbery which had recently occurred in the area, in which three armed men jumped from a gold car and robbed an individual known as Haus. Shortly after that conversation, defendant testified that the gold "van pulled up, [and] everything just start[ed] busting open, we all ran," believing that the people in the van were robbers. Defendant described his apprehension as follows:
[T]he police caught me on the right side and they was like "We are officers." They didn't say 5-0, but they said "We [are] police officers." And I said, "Oh, Officer, I don't have nothing." So they grabbed me, threw me on the ground, when they threw me on the ground, they put the handcuffs on me. They put the handcuffs on me, picked me up, unbuckled my pants, went in there, searched my pockets, everything, just searching.
After his arrest, defendant was placed in a police vehicle. In his testimony, defendant admitted to opening the door, jumping out of the police car, and running into Rodriguez's apartment. Defendant claimed he fled the second time because he was on probation and "already knew the consequence[s] if [he] ever [got] caught doing something [he] ain't got no business doing." Defendant denied any struggle with the officers, claiming he submitted to police custody inside the apartment and that the police struck him without cause both at the scene and at headquarters.
As support for his own testimony, defendant offered three witnesses: Raymond Houston, Aurora Rodriguez *fn3 , and Kamila Davis *fn4 . Houston, in addition to confirming defendant's testimony that he had told defendant the story about the alleged robbery, also verified that on June 14, 2000 an unfamiliar gold van pulled into the parking lot and several men sprang from it without warning and without defendant approaching the van. Furthermore, Houston testified he did not see defendant dispose of anything while running from the police.
Based on the forgoing testimony, defendant was acquitted of all counts of the indictment except count eight, ...