On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, 03-03-383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2007
Before Judges Collester and C.L. Miniman.
Defendant Andrew J. Lige was charged in a three-count indictment with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1), second-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(2), and fourth-degree tampering with physical evidence (cocaine) in violation of N.J.S.A. 2C:28-6(1). Defendant moved to suppress the cocaine evidence but the motion judge denied his motion on January 14, 2004. The motion judge set the matter down for trial on June 21, 2004. Defendant appeared that day for the pretrial proceedings.*fn1 However, he failed to return the following day for trial, and the court proceeded in absentia.
On June 24, 2004, the jury returned a unanimous verdict on the third-degree possession charge and the fourth-degree tampering charge, but was unable to reach a verdict on the second-degree intent-to-distribute charge. The trial judge declared a mistrial, scheduled retrial for September 14, 2004, and issued a bench warrant for defendant's arrest. The defendant was not arrested before April 14, 2004, and did not appear for trial. The second trial judge proceeded with the trial, again in absentia. This time the jury convicted defendant on all three counts.
When law enforcement authorities eventually arrested defendant on the bench warrant, defendant moved for a new trial on the ground that the trial in abstentia was unconstitutional. The State cross-moved for extended-term sentencing. The second trial judge denied defendant's motion and granted the State's motion on April 13, 2006. Defendant was immediately sentenced. The judge merged the conviction for third-degree possession with the conviction for second-degree possession with intent to distribute. He imposed a term of fourteen years with a seven-year parole disqualifier and related penalties and fees. On the fourth-degree tampering conviction, the judge imposed a term of eighteen months consecutive to the fourteen-year term. This appeal followed.
The operative facts may be summarized briefly. While Lakewood Officer Michael Zwick and Officer Thomas Langenberger were investigating an unrelated incident at the Blue Pines rooming house, Zwick saw Dennis Singleton, who was known to Zwick from prior investigations. Langenberger also recognized Singleton from a photograph Zwick previously showed him. After leaving the Blue Pines Zwick asked dispatch to check for warrants against Singleton. Dispatch advised that there was one outstanding warrant from East Windsor.
While waiting for the warrant information, the officers observed Singleton leave the Blue Pines in the company of defendant, who was not known by the officers. Singleton and defendant walked west on Third Street and then turned south on Route 9. Each officer got into his patrol car, with Langenberger following the two men and Zwick taking another route to approach the men from the opposite direction via First Street. Langenberger had the two men in sight when they turned east on First Street through a Sovereign Bank parking lot. Langenberger drove into the parking lot to the east of the two men and drove toward them. The two men turned in the opposite direction and crossed over to the south side of First Street. At this point Zwick drove up behind Langenberger and both officers parked their patrol cars. As the officers stepped out of their cars, defendant ran behind the bank building.
Langenberger, who had already radioed the Lakewood police dispatcher to advise of the pursuit in progress, now radioed that they had a "runner." Langenberger then ran after the man, who he initially assumed was Singleton because that was the person with the outstanding warrant. However, as he was running he saw Singleton standing still and he stopped and arrested him. Langenberger called out to Zwick that he had Singleton and Zwick confirmed the identification.
In the meantime, another Lakewood officer, Thomas D'Elia, responded to Langenberger's call and arrived in the vicinity of the pursuit. He observed Zwick and Langenberger get out of their vehicles and saw defendant run. D'Elia pursued defendant in his patrol car, believing that he was following Singleton. D'Elia pulled up beside defendant and ordered him to stop, but defendant ran toward Route 9. D'Elia chased on foot and defendant ran through the bank parking lot between the lines of cars waiting to reach the drive-up window. D'Elia apprehended defendant at the corner of Route 9 and North Lake Drive and awaited the arrival of Langenberger and another Lakewood officer. Langenberger advised the officers that Singleton had already been apprehended. He then advised defendant that he was under arrest for disorderly conduct and obstructing traffic and said that defendant would be transported to headquarters and issued a summons for those offenses.
Once defendant was secured, Langenberger and D'Elia retraced defendant's steps. In the bank parking lot they found what was later confirmed to be three rocks of crack cocaine. At this point, a bank customer, Arthur Rosky, approached the officers and advised them that he had seen defendant with a softball-size package in his hand containing a whitish or cream-colored substance. He also stated that he saw defendant breaking off pieces, "chipping it on the ground" or throwing it on Rosky's car as he ran. He also stated that he observed defendant run toward Route 9 with D'Elia in hot pursuit. The Lakewood officers examined the bank's parking lot and, in all, found over twenty ounces of crack cocaine.
Defendant raises the following issues on appeal:
POINT I - THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS, AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Partially raised below)
POINT II - THE TRIAL COURT'S TRUNCATED JURY INSTRUCTION ON IDENTIFICATION CONSTITUTED REVERSIBLE ERROR.
POINT III - THE TRIAL OF DEFENDANT IN ABSENTIA WITHOUT ACTUAL NOTICE VIOLATED HIS CONSTITUTIONAL RIGHTS PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND N.J. CONST. 1947., ART. I, ¶ ...