On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-10-1245.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted:*fn1 February 20, 2003
Following a jury trial, defendant was convicted of fourth degree possession of a controlled dangerous substance (CDS) (marijuana) contrary to N.J.S.A. 2C:35-5a (count one); third degree possession with intent to distribute CDS within 1000 feet of a school zone contrary to N.J.S.A. 2C:35-7 (count two); and fourth degree resisting arrest contrary to N.J.S.A. 2C:29-2a (count three). At sentencing the trial judge merged count one into count two and sentenced defendant to five years with a three-year period of parole ineligibility and a concurrent eighteen-month term on count three. A $100 VCCB assessment, a $30 LEOTEF penalty, a $50 lab fee, a $150 SNSF assessment, a $1000 DEDR penalty and a six month driver's license suspension were also imposed.
On May 6, 2000 at about 5:30 p.m., plain-clothed Officer Kelusak was patrolling Lakewood in an unmarked police car with Officer Bauman. At the corner of Fourth and Monmouth Streets, Officer Kelusak observed defendant driving a white Chevy Cavalier. Realizing that defendant's license was suspended, Officer Kelusak requested Officer Goertz, who was in a marked patrol car, to stop defendant.
Officer Goertz activated his lights and defendant turned into a parking lot. When Officer Goertz pulled into the parking lot, defendant had left his car and was walking toward a building on the side of the parking lot. Defendant complied with Officer Goertz's request to return to the car. Defendant asked why he had been stopped; Officer Goertz told him he had been asked by other officers to stop him.
Officers Kelusak and Bauman circled the block and pulled into the parking lot. Officer Kelusak exited the car and told defendant to place his hands on the car. Defendant fled through the parking lot and jumped a fence.
Officers Kelusak and Goertz pursued defendant. As they ran, Officer Kelusak saw defendant reach into his pants. Kelusak yelled to Officer Goertz that defendant was reaching into his pants. Soon thereafter, defendant was tackled by Officers Kelusak and Goertz. When defendant tried to get up, he was tackled again.
After handcuffing defendant, Officers Kelusak and Goertz attempted to pick him up, but he remained limp, so they laid him on the ground. Officer Kelusak searched defendant's pockets and found $75, which he put back in defendant's pocket. Searching further, Officer Kelusak found a bag containing sixteen smaller bags of marijuana in the elastic ankleband of defendant's sweatpants. Defendant was removed to the Lakewood Police station, where an additional $270 was found in defendant's sock. The $75 first found in defendant's pocket was never recovered.
The parking lot in which defendant was apprehended was located between Lexington and Monmouth Avenues. The places where defendant was initially detained and where he was subdued were within 1000 feet of the Lakewood Community Center. The center is a stucco building with several rooms in which various community activities are conducted. The Lakewood Board of Education has operated an afterschool homework club at the center since approximately 1991. The club operates between 3 p.m. and 5 p.m. on school days. Approximately 100 children walk or travel by school bus from schools throughout the township to attend the club after each school day. The governing body of the township adopted an ordinance which designates the center as a school facility.
On appeal, defendant raises the following points:
THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE NEWLY DISCOVERED EVIDENCE THAT THE ARRESTING OFFICER AND STATE'S KEY WITNESS HAD BEEN INDICTED FOR OFFICIAL MISCONDUCT, ASSAULT AND FALSE SWEARING, DENIED DEFENDANT DUE PROCESS OF LAW AND HIS RIGHT TO ...