On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-08-2875.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Lihotz and Simonelli.
Defendant, Frederick Gordon, was indicted for third degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1) (count one); third degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third degree possession of heroin with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5 and 2C:35-7 (count three); and third degree resisting arrest, contrary to N.J.S.A. 2C:29-2 (count four). A jury convicted defendant on counts one, two and three. On count four, the jury convicted defendant of the lesser charge of resisting arrest, a disorderly persons offense. At sentencing, the trial judge merged counts one and two into count three, and sentenced defendant to an extended term of eight years with a four-year period of parole ineligibility. On count four, the trial judge sentenced defendant to time served. The judge also imposed the appropriate assessments, penalties and fees. On this appeal, defendant raises the following arguments:
THE JUDGE ERRED IN DENYING GORDON'S MOTION TO SUPPRESS EVIDENCE WHERE OFFICER GARCIA DID NOT HAVE REASONABLE SUSPICION TO STOP GORDON.
AN EXTENDED TERM SENTENCE OF EIGHT YEARS IN PRISON WITH A FOUR-YEAR PAROLE DISQUALIFIER WAS EXCESSIVE.
The following facts are derived from the record of the suppression hearing. On June 21, 2004, at 12:45 p.m., Officer Elias Garcia of the Newark Police Department's NEST Unit (the Department's narcotics unit), and his partner were patrolling in their marked patrol car in the area of St. James and Willoughby Streets, which is a known high narcotic area. The officers noticed defendant tucked in the alleyway of 52 St. James Street, and it seemed like he was hiding. Defendant was also looking into a brown bag, and appeared to be counting items in it. The officers became suspicious and decided to circle the block and return to the scene to further investigate and ask defendant why he was in the alleyway. When asked at the suppression hearing why the officers circled the block, Garcia responded,
Well, being that the area is what it is, it's a high narcotic area, we [were] trying to figure out why he [was] in the alleyway tucked in like hiding. We didn't know if he was going to break into a house - we [were] unaware of what he was going to do, what [were] his intentions.
When asked why he became suspicious, Garcia responded,
I mean, to [my] experience and knowledge, people do put CDS in brown bags, and they hide it in alleyways, and they count narcotics, away ...