On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-515.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2008
Before Judges Skillman and Yannotti.
Defendant Alex Robinson was charged under a Hudson County indictment with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (counts one and five); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (counts two and six); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and seven); possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (counts four and eight); resisting arrest, N.J.S.A. 2C:29-2a (count nine); escape, N.J.S.A. 2C:29-5a (count ten); terroristic threats, N.J.S.A. 2C:12-3b (counts eleven, twelve, thirteen and fourteen); disarming a law enforcement officer, N.J.S.A. 2C:12-11a (count fifteen); and aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (counts sixteen, seventeen and eighteen). At trial, the judge dismissed counts eleven through fourteen and count seventeen. Defendant was found not guilty on counts ten, fifteen and sixteen but found guilty on counts one through nine, and on count eighteen. Defendant appeals his convictions and the sentences imposed.
We briefly summarize the evidence presented at trial. On December 8, 2004, at about 3:30 p.m., Officer William Kallert and other officers of the Jersey City Police Department (JCPD) were conducting narcotics surveillance at an apartment building at 567 Montgomery Street in Jersey City. Kallert said that the building was part of Montgomery Housing Gardens, which consists of six buildings located at 561, 563, 565, 567, 569, and 571 Montgomery Street. Kallert described the buildings as "a housing complex." Kallert said that he had received complaints from building management about criminal activity in the building.
Kallert and Detective James Wilde were in a surveillance vehicle about forty yards from the building. Officers Walter Chowonic and Duran were in the area acting as "a perimeter unit." Kallert testified that after ten minutes of surveillance, he observed defendant and another individual, who he identified as a "Mr. Galloway," standing in front of the building.
According to Kallert, a female approached. She engaged defendant in a short conversation, after which defendant reached into his right jacket pocket and removed a plastic bag that contained several pink items. Defendant handed one of the pink items to the female and, in exchange, she gave defendant what appeared to be green currency. The female walked north to the building at 565 Montgomery and entered the front door. After five or ten minutes, Kallert called for Chowonic and Duran to "form a plan" to enter the building at 567 "to secure [defendant] for an investigation." Kallert stated that, based on his experience and training, he believed that he had observed a drug transaction between defendant and the female.
Kallert, Chowonic and Duran entered the rear of 567 Montgomery while Wilde walked toward the front of the building. As Kallert and the other officers were entering the building, Wilde radioed that Galloway was running into 567 Montgomery and defendant was running toward 569 Montgomery. Kallert and Chowonic went to 569 Montgomery. They ran up to the third floor and heard Wilde shout, "stop fighting, stop resisting."
Kallert and Chowonic went to the fourth floor. Kallert said that defendant had his right hand on Wilde's gun, and Wilde was fighting with defendant. Kallert and Chowonic tried to grab defendant's legs "to take him to the ground." Kallert said that he saw defendant's jacket on the ground. Defendant refused to put his hands behind his back so that he could be handcuffed. According to Kallert, defendant "reached up and grabbed . . . Wilde's testicles."
Kallert said that the officers were "finally able to get [defendant's] hands behind his back and handcuff him." According to Kallert, as he was being handcuffed, defendant repeatedly struck his head on the floor. Defendant was arrested. Wilde recovered CDS in the pocket of defendant's jacket. The parties stipulated that the substances tested positive for heroin and cocaine. The officers brought defendant down the stairs to the rear of the building. Defendant broke free and tried to run away. The officers again apprehended defendant and he was taken to a hospital.
Chowonic testified that on December 8, 2004, he was "working narcotics" at 567 Montgomery Street with Duran, Kallert and Wilde. Chowonic said that surveillance officers Kallert and Duran "formulated a plan" to stop and detain two persons. Chowonic, Duran and Kallert encountered Galloway, who was in possession of twenty-nine bags of suspected CDS. Kallert and Wilde chased defendant into 569 Montgomery Street. Chowonic heard Wilde on a radio transmission state that he was on the fourth floor. Chowonic heard yelling and screaming.
When Chowonic arrived on the fourth floor, he saw defendant trying to grab Wilde's gun. Wilde told defendant to stop resisting. Chowonic asserted that he and Kallert grabbed defendant and tried to get him to the ground so that they could ...