On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, 02-10-1207.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2008
Before Judges Collester and C.L. Miniman.
Defendant Kevin D. Goode appeals from a judgment of conviction on multiple drug charges, raises a constitutional challenge to the Drug Offender Restraining Order Act (DORA), N.J.S.A. 2C:35-5.7, having pled guilty to two contempt charges of violating the restraining order, and appeals the extended- term sentence imposed on the conviction of possession of cocaine with intent to distribute. We affirm the convictions but remand for resentencing.
On June 7, 2000, at 3:25 a.m., Plainfield police officers were patrolling a public-housing apartment complex, Elmwood Gardens, which was notorious for drug activity. Officer Edward Hafeken and his partner, Officer Michael Black, drove past the front entrance of 540 West Second Street several times, each time seeing a black male duck to the side of the window in the door. Hafeken became suspicious and parked his patrol car in the back of the apartment complex. The officers walked to the front door and observed three people on the other side of the window passing something to each other. Believing this to be a drug transaction, the officers started to open the door with a key provided by the Housing Authority. Defendant looked up and Hafeken recognized him through the window, since he had known him for years. Defendant and another black male ran up the stairs. They shouted "come on" to a black female who had accompanied them and she followed.
The officers ran after the suspects, telling them to stop, but did not identify themselves as police. The suspects ran across the second floor landing. The officers saw them enter an apartment and Hafeken unsuccessfully tried to prevent defendant from closing the door. Black then kicked in the door and both officers entered. They observed defendant, the other male and the female running toward the back of the apartment. Another female stood at the front of the apartment shouting that nobody had entered. Hafeken followed defendant down the hall and into the bedroom on the right side. The two other suspects went into the bedroom on the left.
Inside the bedroom Hafeken saw defendant standing by an open casement window with his right hand clenched in a fist. Defendant punched his fist through the window screen, hit the glass and dropped a plastic bag to the courtyard below. Hafeken tackled defendant before he was able to escape from the room and handcuffed him. He then radioed for backup. Once downstairs in the courtyard, Hafeken found the plastic bag containing what was later determined to be fifty baggies of crack cocaine. The police searched defendant and found keys to both the apartment complex and the apartment where he was arrested.
After defendant's arrest, the bail judge on June 8, 2000, issued a DORA restraining order preventing defendant from returning to the 500 block of West Second Street or any area within a 200-foot radius around the Elmwood Garden apartment complex. Defendant signed the order, acknowledging that he had received it, and was released on bail.
On October 5, 2000, the grand jury issued an indictment charging defendant with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) (count one), third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two), second-degree possession of cocaine within 500 feet of a public housing facility in violation of N.J.S.A. 2C:35-7.1 (count three) and fourth-degree obstructing the administration of law in violation of N.J.S.A. 2C:29-1 (count four). On December 11, 2000, defendant pled not guilty to the indictment. Later, defendant moved to suppress the physical evidence of cocaine possession. The motion judge held an evidentiary hearing on May 15, 2001, and denied defendant's motion the same day.
On September 13, 2001, defendant was apprehended when he violated the restraining order by returning to Elmwood Gardens. On December 7, 2001, another indictment issued charging defendant with fourth-degree criminal contempt for violating the DORA restraining order in violation of N.J.S.A. 2C:29-9(a). Defendant pled not guilty on February 4, 2002.
On June 13, 2002, defendant again returned to the site of his initial arrest and was again apprehended. On October 3, 2002, the grand jury issued another criminal indictment against defendant charging him again with fourth-degree criminal contempt for violating the DORA restraining order in violation of N.J.S.A. 2C:29-9(a).
In the meantime defendant absented himself from the jurisdiction and was tried in absentia from June 18 to 20, 2002, on the charges stemming from the cocaine possession. The jury returned a guilty verdict on all counts.
Defendant was finally apprehended in North Carolina in June 2004. He negotiated an agreement with the State and pled guilty to both contempt charges on January 19, 2005. Defendant appeared before the sentencing judge on January 28, 2005, for sentencing on the drug and contempt convictions. The State applied for and was granted a mandatory extended term on count two, possession with intent to distribute, pursuant to N.J.S.A. 2C:43-6(f). The judge merged counts one and two, the third-degree possession charges, with count three, the second-degree conviction for possession with intent to distribute within 500 feet of a public housing project. The judge sentenced defendant to nine years in state prison on count three. Because the parole disqualifier on the extended term survived the merger, the judge imposed a four-year period of parole ineligibility. The judge also issued a fifteen-month concurrent sentence on count four, obstruction of the administration of law in attempting to discard the cocaine. With respect to the pleas to the two charges of violating ...