On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2743.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges A. A. Rodríguez and Collester.
Following the denial of his motion to suppress evidence, defendant Jashion Murray entered a negotiated plea of guilty to third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. In exchange, the State agreed to recommend that "any custodial sentence not exceed . . . three years flat" and to move for dismissal of the remaining charges. The judge imposed concurrent terms aggregating a three-year term to run concurrently with a violation of parole sentence that defendant was serving.
Prior to trial, defendant moved to suppress evidence seized as a result of a warrantless search and seizure conducted contemporaneously with his arrest. The motion judge conducted an evidentiary hearing.
The State presented the following proofs at the suppression hearing. On September 11, 2005, at approximately 8:10 p.m., Orange Police Detective-Sergeant Harry Santiago and his partner, Detective Dunn, were on patrol in the area of Hillyer and William Avenues. The officers were investigating a report of a "gunshot call" from the previous night. They returned to the area to determine whether there were any witnesses or persons with information about the shooting.
At the intersection, Santiago "observed an individual making a transaction" from approximately eight to ten yards away. Santiago saw defendant placing an object in the hands of an unidentified individual. Santiago recognized defendant as an individual who had been arrested several times by fellow detectives in the narcotics unit. Santiago concluded, "[b]ased on [his] experience and training, it looked to be a narcotics transaction." He believed this exchange was a drug transaction because this particular area of the city is known to be a prime location for narcotics trafficking. When asked about the exact nature of the object being transferred, Santiago testified that he could not "determine exactly what it was," but that it was "very small" and that defendant was holding it by pinching his thumb and first two fingers together. He had a clear view of the event because defendant was standing under a streetlight.
Santiago exited the unmarked vehicle and identified himself as a police officer. Santiago "called [defendant] by his first name" and told him, "stop, police."
According to Santiago, defendant appeared to be "overly nervous" and "rapidly started walking" away from the officers. Santiago and Dunn repeated their order for defendant to stop. Defendant asked them why should he stop. Santiago continued to approach defendant, who took off running. A foot chase ensued through a wooded lot. While running, defendant discarded several objects from his jacket pocket. After being wrestled to the ground, defendant discarded another object, which landed near the front tire of a parked vehicle.
Additional officers arrived at the scene. Santiago located the objects thrown by defendant while running: a deck of cards; a cell phone; and a watch. The other officers determined that the object near the front tire of the vehicle contained "80 folds of heroin." At this point, defendant was arrested. A search of his person revealed $588.
The motion judge denied defendant's motion. Thereafter, defendant entered his plea pursuant to the agreement with the State.
Defendant appeals pursuant to R. 3:9-3(f), contending:
BECAUSE THE DETECTIVE'S TESTIMONY WAS NOT CREDIBLE, THE COURT ERRED IN RELYING ON THAT TESTIMONY FOR DETERMINING THAT THE STOP AND ...