On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-00965.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges R. B. Coleman and Lyons.
Following the denial of his motion to suppress evidence, defendant Derrick D. Lawrence entered an open plea of guilty to count seven of Middlesex County Indictment No. 05-07-00965, resisting arrest, N.J.S.A. 2C:29-2(a)(3). The remaining eight counts of the indictment were dismissed. In light of the guilty plea, the court imposed a five-year prison term. This appeal ensued.
The facts and procedural history relevant to this appeal are as follows. On May 13, 2005, shortly after midnight, Edison Police Officer Jeff Tierney noticed that a car traveling northbound on Route One made an illegal U-turn onto Route One south. Tierney pursued and stopped the car driven by defendant about a mile and a half down the road. Tierney then alighted from his vehicle, noticed that defendant was accompanied by a female passenger, and approached the passenger side of defendant's car. The officer asked for defendant's driving credentials. Although defendant produced a valid registration and insurance card, he did not present his driver's license. Defendant stated that "[he] left [his] license in one of those machines and [he] was just trying to find the Turnpike." A background check of defendant revealed no outstanding warrants. Officer Scott Sofield then arrived at the scene. Because Tierney found defendant's response regarding his license to be odd, he ordered defendant out of the car.
When defendant exited, Officer Sofield observed a glass pipe in a paper towel on the floor board. After departing the vehicle, defendant placed his hands into the pockets of his sweatshirt, causing concern to Officer Tierney. The officer told defendant to remove his hands from his pocket. Defendant held his hands in plain sight for a few moments, but then placed them in his pockets again. The officer had to issue directives to defendant several times to keep his hands out of his pockets. During this interaction, Tierney observed that defendant's eyes seemed glazed, leading the officer to believe that defendant was under the influence of some illicit substance. The officer did not, however, smell any alcohol.
When defendant made yet another effort to place his hands in his pockets, Tierney and Sofield reached for defendant's hands. Defendant did not cooperate. Instead, he pushed the officers' arms and pushed Officer Sofield in the chest. Defendant's reactions caused Tierney to believe that defendant might be armed. The officers grabbed defendant, and all three men tumbled to the ground. At that point, the officers were able to handcuff defendant and place him under arrest.
After defendant was secured, Officer Sofield went back to defendant's vehicle to retrieve the pipe, which he believed contained residue of a controlled dangerous substance (CDS). Because defendant was apparently injured in the scuffle, he was transported via ambulance to the emergency room at Robert Wood Johnson Hospital. While the hospital staff was transferring defendant to a bed, a plastic baggie fell out of his sweatshirt. The baggie contained seven glass vials with purple tops. The police also recovered six wax folds, suspected by them to be heroin, and once defendant's shoes were removed, they found three more glass vials containing a substance they believed to be cocaine.
As a result of the altercation with the officers and the items found in possession of defendant, defendant was indicted. On July 7, 2005, a Middlesex County grand jury indicted defendant on nine counts, alleging third degree possession of a controlled dangerous substance (crack cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1) (count two); third degree possession with intent to distribute (cocaine), N.J.S.A. 2C:35-5(b)(3) (count three); third degree possession with intent to distribute (heroin), N.J.S.A. 2C:35-5(b)(3) (count four); fourth degree aggravated assault of Officer Jeff Tierney, N.J.S.A. 2C:12-1(b)(5) (count five); fourth degree aggravated assault of Officer Scott Sofield, N.J.S.A. 2C:12-1(b)(5) (count six); third degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count seven); fourth degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count eight); and third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count nine).
Defendant then filed a motion to suppress the evidence of drugs found in his possession. The hearing on the motion was heard on December 12, 2005 and February 6, 2006. At the end of the hearing, the court denied the defense motion to suppress, reasoning as follows:
So, we have a proper stop. That there is a right for the officers to ask someone to get out of the vehicle, where they don't have their driver's license. The activities of Mr. Lawrence, once he got out of the car, in terms of putting his hands in his pockets, and not responding to the police officers' directions [to] take his hands out of his pockets, give them the right to do a pat-down, to see if there are any weapons. And then, at this point, Mr. Lawrence resisted that.
And one thing led to the other, where there was this falling on the ground, a resisting. And the officers had a right, at this point, to arrest for resisting. He got to the hospital. He had been under arrest. There was a right to search incident to a valid arrest, in terms of what was in the hoody, what was in the socks. And, ...