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State v. Andrews

August 7, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-996.

Per curiam.


Submitted July 21, 2008

Before Judges Graves and Yannotti.

Tried to a jury, defendant Sahmed Andrews was found guilty of possession of cocaine and resisting arrest by flight. Defendant appeals, challenging his conviction and sentence. We affirm.


Defendant was charged under Union County Indictment No. 05-09-996 with possession of cocaine, N.J.S.A. 2C:35-10a(1) (count eight); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count nine); possession of cocaine with intent to distribute within 1000 feet of property used for school purposes, N.J.S.A. 2C:35-7 (count ten); possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count eleven); and resisting arrest by flight, N.J.S.A. 2C:29-2a (count twelve). Co-defendant Shamshadeen Byron*fn1 also was charged under the indictment with various narcotics offenses.

A. Suppression Hearing

Before trial, defendant moved to suppress the drugs that defendant had discarded when he was chased by the police. At the suppression hearing, Officer James DiOrio of the Elizabeth Police Department (EPD) testified. DiOrio said that, as of that time, he had been an officer of the EPD for more than fifteen years, and had been involved in three to four thousand narcotics investigations and arrests.

DiOrio stated that, on June 1, 2005, he and Officer Mikros were sent to the Mravlag Manor housing complex, in response to a call from a citizen who reported that a black male, with dreadlocks and a white T-shirt, was selling drugs. DiOrio described Mravlag Manor as "a high crime area notorious for drug dealing, violent crimes, shootings, [and] robberies." Officers David Conrad and Amilcar Colon also responded to the scene.

DiOrio stated that he and Mikros entered the courtyard of the complex from the Clarkson Avenue entrance. Conrad and Colon entered the courtyard from the opposite direction. DiOrio observed a group of males standing outside of one of the buildings. They appeared to be gambling. Someone called out, "[e]ighty-eight, eighty-eight." DiOrio explained that this "is a term used on the street to alert people committing crime that the police are approaching."

The men began to walk in different directions. Conrad and Colon arrested one of the individuals, who was in possession of drugs. DiOrio and Mikros also arrested Byron, after Mikros saw him "stuffing something into his pants, which turned out to be a bag of drugs[.]" The other five individuals continued to walk away. DiOrio called out, "[p]olice, stop." DiOrio ordered the individuals to place their hands against an adjacent fence.

Defendant was one of the five individuals ordered to stop. DiOrio said that defendant was known to him by name as a result of a previous arrest for a narcotics offense. The five individuals stopped. Mikros told Conrad to arrest defendant because he had an outstanding warrant. DiOrio said that, on the previous day, Mikros had checked defendant's "name in the computer" and learned that defendant "had an active warrant."

Conrad attempted to arrest defendant but defendant "took off running." Conrad grabbed defendant by his jacket but he shed the jacket and continued running. Conrad and DiOrio chased defendant. The officers called out to defendant to stop. They told defendant that he was under arrest, but he continued to run.

DiOrio said that, as defendant was running, one of his shoes came off but defendant continued to run. According to DiOrio, defendant "managed to reach into his right pants pocket and retrieve a bag[.]" Defendant threw the bag up into the air and it landed in a cement planter. DiOrio retrieved the bag and Conrad continued in pursuit of defendant. Defendant eventually was apprehended.

Brenda Busichio, the warrants clerk for the EPD, testified that she enters the warrants into the department's computer data base. Busichio stated that a warrant for defendant's arrest had been issued by the Elizabeth Municipal Court on February 10, 2005. Thereafter, the warrant was sent to Busichio's office and she entered the warrant into the computer data base on February 15, 2005. Busichio stated ...

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