August 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAHMED S. ANDREWS, A/K/A SAHMEID ANDRES, A/K/A WILLIAM ANDREWS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-996.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 that police officers may access the information in the system by using computers in their police vehicles.
Autumn Gerena, who is employed by the Public Defender as an investigator, testified that warrant 489316 had been issued on February 10, 2005. She stated that the "event history printout" concerning that warrant indicated that it had first been issued on September 25, 2003, but the warrant was recalled on October 23, 2003 and re-issued on May 18, 2004. According to Gerena, the Division of Motor Vehicles "closed out" the warrant on June 19, 2004. On cross-examination, Gerena stated that she did not know whether it was possible to re-issue the warrant after it had been "closed out."
Judge James C. Heimlich placed his decision on the record. He noted that, while defendant's investigator had recounted the history of the warrant in 2003 and 2004, the investigator "did no investigation for the time period for 2005." The judge stated that Busichio had testified that the warrant had been issued in February 10, 2005, and that information had been placed into the computer data base on February 15, 2005. The judge found Busichio's testimony to be credible and not inconsistent with Gerena's testimony because Gerena did not "run a history [on the warrant] in 2005."
Judge Heimlich made the following additional findings of fact:
. . . for two reasons, the officer had a right to arrest the defendant because there was an active warrant. The Court finds that to be credible.
The second reason is, if, in fact, the officers had a right to stop, based on the totality of the circumstances, had a reason to stop [defendant] to issue him a summons for gambling. [Defendant], at that point, had an obligation to stop to be given a summons. When he takes it upon himself to run, the officers had a right to chase him to arrest him, to issue him the summons. The fact that he discards the drugs, at that point, is an abandonment of the drugs, at that time. Had there been no articulable suspicion, had the facts been different, had they been that an informant said that a gentlemen in a white shirt was selling drugs with dreadlocks and they arrest that gentleman, as they did in this case, with white shirt and dreadlocks, and nothing more, no reference to the gambling, then the defense might have an argument that there [are] no specific facts relating to this defendant, other than someone yells, "[t]he police are coming." If someone yells, "[t]he police are coming," the defendants do not have to stay there just . . . because of the prior information, but when you add the totality of everything here, the officer's experience, the high crime area, the fact that someone says, "[t]he police are coming," they see two individuals placing plastic bags in their pants, and all the gentlemen are to be arrested for gambling, it's because of that they had a right to stop the defendant because of the gambling. Then when he runs away and discards the drugs[,] he's abandoning the drugs, at that point.
And the second reason is, when they see him as one of the gentlemen who was gambling, they see he has an active warrant, they have an obligation to arrest him on the warrant. When he runs away, because there is a warrant, and he discards the drugs . . . the drugs are, thereby, abandoned.
In this situation, if they did not have reasonable articulable suspicion or there was no warrant, and the police were chasing him improperly without articulable suspicion and he abandoned the drugs, it would not be [an abandonment].
At the trial, Officer DiOrio reiterated the testimony that he gave during the suppression hearing. DiOrio also testified that, during the chase, defendant entered one of the buildings in the Mravlag Manor housing complex. DiOrio said that Conrad had a master key that opened all of the hallway doors.
A resident on the second floor of the building informed the officers that defendant was in her apartment. DiOrio said that defendant appeared in the doorway to the apartment. When defendant saw DiOrio, he tried to run past the officer "to get back down out of the building." Conrad grabbed defendant and the officers "slammed him into the wall in the hallway." Defendant was struggling but the officers "managed to pry his arms back" and handcuff him. The officers searched defendant and found that he was in possession of $250 in United States currency.
Officer Conrad testified that on June 1, 2005, he was with his partner, Officer Colon. Conrad said that then they entered the Mravlag Manor housing complex, he heard someone yell "eighty-eight" which is "a common phrase that people use to alert, particularly, drug dealers that the police are in the area and that they are coming." Conrad saw a group of people rolling dice. One person approached Conrad and Colon. DiOrio and Mikros also were at the complex. Conrad said that he stopped Byron because he was "stuffing a plastic bag into his pants[.]" Conrad said that drugs are commonly packaged in plastic bags.
Colon stayed with Byron and Conrad went over to the other persons in the group, who were standing with DiOrio and Mikros. Conrad observed defendant, who he recognized. Defendant was wearing a red sweatshirt. Conrad said that he attempted to arrest defendant, but before Conrad could react, defendant "immediately turned and began to run." Defendant ran through the basketball court in the housing complex.
According to Conrad, one of defendant's sneakers "came flying off." Defendant continued to run, and Conrad and DiOrio chased him. As defendant reached the end of the basketball court, he discarded a bag into the air. DiOrio retrieved the bag, which contained a substance later determined to be cocaine.
Conrad lost sight of defendant but the officers suspected that defendant had gone into one of the buildings in the complex. The officers entered the building and checked the hallways. Conrad observed a tenant speaking to DiOrio outside of an apartment on the second floor.
Defendant exited the apartment and tried to flee the building. Conrad grabbed defendant and tried to hold onto him. According to Conrad, defendant was struggling but the officers were able to handcuff him and place him under arrest. Defendant was searched and was found in possession of currency.
Lashana Andrews, defendant's first cousin, testified on his behalf. Ms. Andrews stated that on June 1, 2005, defendant came to her house in the morning and she gave defendant money to give to her grandmother. Ms. Andrews explained that her grandmother needed the money to purchase a bedroom set.
Defendant also testified. He said that on June 1, 2005, he was at the Mravlag Manor housing complex. He stated that some men were playing dice but he was not involved in the game. Defendant said that the officers grabbed Byron and arrested him. The officers told the other persons to stop. Mikros informed Conrad that defendant had an outstanding warrant but defendant told the officers that he had taken "care of the warrant . . . long ago." One of the officers said, "[l]ock him up. He['s] got a warrant." Defendant said that he ran.
Defendant conceded that he had just purchased drugs. He asserted that he had been using illegal narcotics since the end of 2004. Defendant stated that, at the time of his arrest, he was spending about $100 a day on narcotics. Defendant had previously been convicted and he did not want to go back to jail. Defendant admitted that he had been in possession of thirty-two vials of crack cocaine when the police chased him. However, he insisted that the drugs were for his own use, and that he did not possess the cocaine with the intent to distribute it.
Defendant was found guilty on count eight charging possession of cocaine, and count twelve, charging resisting arrest. He was found not guilty on the remaining counts. On May 12, 2006, defendant was sentenced to a four-year term of incarceration on the drug conviction, and a consecutive one-year term on the conviction for resisting arrest. Defendant filed a notice of appeal on August 16, 2006.*fn2
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS THE DRUGS WHERER THERE WAS EVIDENCE THAT [DEFENDANT] INVOLUNTARY ABANDONED THE DRUGS DURING THE COURSE OF AN ILLEGAL ARREST.
THE TRIAL JUDGE ERRED IN IMPOSING CONSECUTIVE SENTENCES WHERE THE CRIMES WERE PART OF A SINGLE PERIOD OF ABERRANT BEHAVIOR.
We turn first to defendant's contention that the judge erred by denying his motion to suppress the drugs that he discarded when he ran and was being chased by the police. Defendant contends that the trial judge erroneously found that the officers had a right to arrest defendant because there was an active warrant at the time. Defendant maintains that Gerena's testimony provided "strong evidence" that the 2005 warrant had been issued in error. We disagree and affirm the denial of defendant's motion to suppress substantially for the reasons stated by Judge Heimlich in his decision on the record. We add the following brief comments.
"'Once a warrant is issued, or probable cause comes into existence, it becomes an officer's duty to arrest the suspect.'" State v. Jones, 143 N.J. 4, 14 (1995) (quoting Smith v. Gonzales, 670 F.2d 522, 527 (5th Cir. 1982), cert. denied, 459 U.S. 1005, 103 S.Ct. 361, 74 L.Ed. 2d 397 (1982)). A warrant issued in accordance with Rule 3:3-1 is presumed to be valid and the burden is on the defendant to prove otherwise. State v. Valencia, 93 N.J. 126, 133 (1983).
Here, the State established that a warrant had been issued for defendant's arrest by the Elizabeth Municipal Court on February 10, 2005. Brenda Busichio, the warrants clerk for the EPD, testified that she entered the warrant into the computer data base on February 15, 2005. The warrant was served upon defendant on June 1, 2005, when he was arrested. Autumn Gerena, defendant's investigator, testified that the warrant had been "closed out" by the Division of Motor Vehicles in June 2004. However, as Judge Heimlich pointed out in his decision on the record, Gerena never checked the history of the warrant for 2005.
The judge accordingly found that, at the time defendant was taken into custody, there was a valid warrant for his arrest and the police acted properly in enforcing it. We must defer to the findings of the trial judge when, as in this case, the findings are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).
We add that defendant's reliance upon State v. Moore, 260 N.J. Super. 12 (App. Div. 1992), is misplaced. In that case, the defendant had been arrested based on a bench warrant issued for failure to appear in municipal court. Id. at 13. However, after the defendant was arrested, the police learned that defendant had posted bail on the bench warrant and had been released from jail prior to his arrest. Id. at 13-14. We held that, although the officer made the arrest in good faith reliance upon the records that were available to him, the evidence seized during the course of the illegal arrest had to be suppressed. Id. at 14.
The Moore decision does not apply to this matter because in Moore, the State conceded that the arrest warrant was invalid and, as a consequence, the arrest was unlawful. Id. at 16. In this case, the State established that an arrest warrant had been issued by the municipal court and the warrant was active at the time of defendant's arrest. As stated previously, defendant failed to establish that the warrant was invalid.
Furthermore, wholly aside from the outstanding warrant, the police had reasonable and articulable suspicion that defendant was engaged in gambling, or buying or selling drugs, which warranted an investigative stop. State v. Nishina, 175 N.J. 502, 510-11 (2003). Here, the police observed a group of men who they believed were gambling. Defendant was one of the men in that group. Moreover, the police had information that a black male, with dreadlocks, and wearing a white T-shirt, had been selling drugs in Mrvalag Manor. Byron fit the description. The police arrested Byron and another person on narcotics charges.
Suffice it to say, the police had reasonable grounds to stop defendant and investigate the matter. Moreover, defendant had a duty to obey the officers' command that he stop, rather than flee the scene. State v. Crawley, 187 N.J. 440, 451-52 (2006). When defendant fled, the officers had probable cause to arrest defendant for obstruction, and the evidence obtained during the chase was admissible at trial. See State v. Williams, 192 N.J. 1, 13 (2007) (citing State v. Eckel, 185 N.J. 523, 528-37 (2006)).
We therefore conclude that the trial judge correctly denied defendant's motion to suppress the drugs that defendant discarded when he was chased by the police.
Defendant next argues that the judge erred by requiring that his sentence for resisting arrest be served consecutively to the sentence imposed for possession of cocaine. Again, we disagree.
Here, Judge Heimlich found that defendant's possession of the thirty-two vials of cocaine for his own use and his flight from the police were separate offenses. The judge found that the two crimes and their objectives were predominantly independent of each other. The judge noted that defendant had been possessing drugs. He also fled from the police and entered an apartment in the housing complex to avoid arrest. The judge noted that the offenses were committed at different times.
In our view, the judge's findings are amply supported by the record and reflect an appropriate application of the criteria for imposing consecutive sentences set forth in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).*fn3 Indeed, as Judge Heimlich noted at sentencing, one of the criteria under Yarbough is that "there can be no free crimes in a system for which the punishment shall fit the crime[.]" Id. at 643.
Therefore, we conclude that defendant's sentence is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).