On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-04-0957.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
Defendant was indicted for possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(3); resisting arrest, in violation of N.J.S.A. 2C:29-2a; and obstruction of justice, in violation of N.J.S.A. 2C:29-1. Defendant filed a motion to suppress evidence, which was denied. Defendant was tried before a jury, which found him guilty of possession of cocaine and obstruction of justice. The jury failed to reach a verdict on the charge of possession of cocaine with the intent to distribute and acquitted defendant of resisting arrest. At sentencing, the State dismissed the possession with intent to distribute charge. The trial court sentenced defendant to a five-year term of imprisonment for possession of cocaine and a concurrent eighteen-month term for obstruction of justice.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE PHYSICAL EVIDENCE AND DISMISS THE INDICTMENT.
II. THE COURT SHOULD HAVE DISMISSED THE POSSESSION WITH INTENT TO DISTRIBUTE AND RESISTING ARREST COUNTS AT THE CLOSE OF THE STATE'S CASE AS THE SUBSEQUENT VERDICTS OF THE JURY ON THOSE COUNTS DEMONSTRATE THAT A COMPROMISE WAS REACHED WHERE OTHERWISE DEFENDANT MAY HAVE BEEN ACQUITTED OF OBSTRUCTION OF JUSTICE. ALTERNATIVELY, APPELLANT'S POST VERDICT MOTIONS SHOULD HAVE BEEN GRANTED AS TO THE CHARGE OF OBSTRUCTION OF JUSTICE.
III. THE SENTENCE IN THIS MATTER WAS EXCESSIVE AND APPELLANT SHOULD HAVE BEEN SENTENCED TO EITHER PROBATION WITH DRUG TREATMENT OR TO A PRISON TERM NO LONGER THAN A FLAT FOUR-YEAR TERM.
We reverse the order denying defendant's motion to suppress and his conviction for possession of cocaine, which was based solely on evidence obtained in an unlawful search of his person. We affirm defendant's conviction and sentence for obstruction of justice.
The following evidence was presented at the hearing on the motion to suppress. In the early afternoon of January 21, 2005, Detective Sergeant Hunt of the Neptune Township Police Department was participating with a Narcotics Strike Force in executing arrest warrants. While searching for one of the subjects of those arrest warrants, Hunt observed defendant, whom he had arrested on several prior occasions, walk from his house across the street to a parked car. After defendant got into the driver's seat of the car, Hunt made eye contact with him. Defendant then ducked between the two bucket seats of the car out of Hunt's sight. When Hunt made this observation, he was aware that defendant had an extensive criminal record and that his driver's license was suspended.
Hunt drove past the parked car, notified another officer that he had seen defendant hiding from him in a parked car, circled around at an intersection, and activated the flashing lights on his police car. Hunt stopped his car behind the parked car, got out and approached the driver's side of the parked car. Defendant sat back up in the driver's seat and rolled down the window. Hunt asked defendant why he had been hiding from him, and defendant replied that he had not been hiding. Defendant also said that he was not driving the car, and Hunt acknowledged he saw the car keys on the passenger seat when defendant spoke to him. At this point, defendant appeared "very nervous" to Hunt. Hunt asked defendant to produce driving credentials, which he did.
At this point, back-up officers appeared on the scene. Hunt then ordered defendant to get out of the car and to put his hands on the roof. After defendant complied with this direction, the officers began a pat down search of defendant for weapons. Defendant pulled away and resisted the pat down. The officers then handcuffed ...