On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 02-09-0107.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Lisa and Simonelli.
Following a jury trial, defendant was convicted of third degree eluding, contrary to N.J.S.A. 2C:29-2b (Count One); fourth degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(3) (Count Two); and fourth degree possession with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11) (Count Three). The court sentenced defendant to four years for eluding, merged the remaining counts and imposed a nine-month sentence to run concurrent to the eluding sentence. The court also ordered restitution of $1464.47 to the City of New Brunswick for the damage defendant caused to a police car during a chase.
The facts are straightforward. At about 1:45 a.m. on June 13, 2002, New Brunswick Police Sergeant Vincent Sabo and his partner, Officer James Bodadilla, were patrolling the streets in a marked patrol car when they observed a car pull away from the curb at a high rate of speed. Defendant was the driver and the car was registered to his parents.
Defendant was traveling in the same direction as Sabo, so the officer followed him to determine what he was going to do. Sabo was about 100 feet from defendant at the time. Defendant immediately began committing traffic violations by exceeding the speed limit and making a left turn onto Baldwin Street without signaling. Sabo followed defendant onto Baldwin Street, where defendant accelerated to about fifty miles per hour. Sabo fell behind another 300 feet. He did not activate his overhead lights or siren at this point because he wanted to get closer to defendant's car.
Defendant turned right onto Throop Avenue without signaling. He then turned left at Comstock Street, entered a parking lot, and turned off his headlights. At this point, Sabo was about 400 feet behind defendant. Sabo activated his overhead lights and siren. Defendant then drove out of the parking lot onto Hale Street, with Sabo in pursuit. Defendant again exceeded the speed limit, failed to signal turns, and ignored several stop signs. Sabo had radioed the details of the chase. He eventually lost sight of defendant, who had made two quick turns.
Patrolman James Hayes heard the radio transmission of the chase, and he and another patrol car joined it. The two patrol cars caught up to defendant. When defendant saw them, he stopped and suddenly began to turn sharply and drive in reverse. Defendant swerved and struck Hayes's patrol car. Continuing in reverse, defendant hit a fence and then struck the other patrol car. Defendant stopped at this point. Sabo and Bobadilla arrived at the scene after the collision. The passenger in defendant's car was removed without incident, but defendant refused to exit his car and had to be forcibly removed.
After defendant was placed into a patrol car, Sabo searched the interior of defendant's car for the registration and insurance cards. Once inside of defendant's car, Sabo noticed "a smell of raw marijuana." Hayes was at the rear of defendant's car, where the trunk lid was slightly ajar following the collision. Hayes also smelled raw marijuana, so he searched the trunk and found plastic bags containing more than three ounces of marijuana. The State's narcotics distribution expert testified at trial that, based on the packaging and weight of the marijuana found in defendant's car, it was possessed for distribution.
On this appeal, defendant raises the following issues:
POINT I THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR POSSESSION OF MARIJUANA AND POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE.
POINT II THE JUDGE'S DECISION TO ORDER DEFENDANT TO PAY RESTITUTION WAS MADE WITHOUT REFERENCE TO DEFENDANT'S ABILITY TO PAY AND THE MATTER MUST BE REMANDED.
The first issue is not properly before us because defendant never moved for a new trial due to insufficiency of evidence on the marijuana charge. R. 2:10-1. He also did not move for a judgment of acquittal on the marijuana charge at the close of the State's case; he ...