On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-1489.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Collester and C.S. Fisher.
On December 16, 2004, defendant Jermar Pledger was indicted on the following charges: third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3), (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5(a)(1), (count three); third-degree resisting arrest by using or threatening to use force against law enforcement officers, contrary to N.J.S.A. 2C:29-2(a), (count four); fourth-degree resisting arrest by purposely preventing law enforcement officers from effecting an arrest, contrary to N.J.S.A. 2C:29-2(a), (count five); and fourth-degree obstructing the administration of the law, contrary to N.J.S.A. 2C:29-1, (count six).
Tried to a jury, defendant was acquitted on counts one, two, three, and five. The jury found defendant guilty of count four, resisting arrest, and count six, obstructing the administration of the law. On December 10, 2005, Judge John S. Triarsi sentenced defendant to a three-year period of probation conditioned upon serving 364 days in the Union County Jail. Defendant was also assessed the $100 VCCB penalty, a $150 SNSF penalty, and a $30 LEO penalty. Defendant appeals his conviction setting forth the following arguments for our consideration:
POINT I -- DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE PROSECUTION ELICITED FROM DEFENDANT THAT HE HAD A PRIOR CONVICTION FOR ELUDING THE POLICE. (Not Raised Below.)
POINT II -- DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, IN THAT COUNSEL "OPENED THE DOOR" TO THE PROSECUTION'S ELICITING THAT DEFENDANT HAD BEEN CONVICTED OF A SIMILAR CRIME TO THOSE FOR WHICH HE WAS BEING TRIED. (Not Raised Below.)
The relevant facts at trial were as follows. On September 17, 2004, Detective Lawrence W. Smith of the Elizabeth Police Department and Officer Daniel Merten went to the area of Lafayette and Catherine Streets in Elizabeth after receiving information from an informant that narcotics were being sold. The officers arrived at approximately 6 p.m. to conduct surveillance from an unmarked car parked 100 feet away from the corner of Lafayette and Catherine where a group of men were congregated.
After about ten minutes, the officers saw defendant walk across the street to a point within forty or fifty feet from where the officers were parked. The officers observed what they believed to be a drug transaction with a woman who had arrived at the scene. Smith radioed for backup officers to pick up the defendant while he and Merten got out of the undercover car to approach the woman. When the unmarked car arrived, the defendant fled, and Smith and Merten decided to pursue him on foot. Smith yelled, "Police," and ordered defendant to stop. The chase continued for a few blocks until defendant was tackled by one of the officers. Defendant struggled with police until he was subdued, handcuffed, and taken into custody.
Defendant testified on his own behalf at his trial that he did "tussle" with the police during his arrest. He also stated that he did not hear the police announce themselves and that he ran because he was scared when the police pulled up on the wrong side of the street. During the course of his direct examination the following dialogue took place:
Q: Jermar, have you ever been in trouble with the law before?
A: It was eluding charge.
Q: And when did you get -- pick up -- when were you charged with ...