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State v. Kelly

November 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HAKIM KELLY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, I-05-09-02312.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2008

Before Judges Stern and Payne.

Defendant, Hakim Kelly, was found guilty by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5b(2); third-degree possession of cocaine with the intent to distribute it within 1,000 feet of school property, N.J.S.A. 2C:35-7, second-degree possession of cocaine with the intent to distribute it within 500 feet of public housing, N.J.S.A. 2C:35-7.1, and third-degree resisting arrest, N.J.S.A. 2C:29-2. He was sentenced to an extended term of imprisonment, pursuant to N.J.S.A. 2C:43-6f and 2C:43-7, of ten years with five years of parole ineligibility. He has appealed from his conviction, raising as his sole argument that the trial judge erred in declining to grant his motion to suppress evidence.

The record of the suppression hearing discloses the following: At approximately 3:45 p.m.*fn1 on April 2, 2005, the Irvington police were dispatched to 763 Chancellor Avenue, Irvington, following a report of shots fired. Sergeant Kenneth Hogan, driving a marked police vehicle, was the first to respond to the area, followed in a separate police car by Officer Brian Rice. The area in question adjoins the Garden State Parkway, and the address lies southeast of the Parkway, between it and Cornell Street. Rutgers Street and then Union Avenue lie immediately southeast of Cornell Street. Both bisect Chancellor Avenue.*fn2

According to the testimony of Sergeant Hogan, a later police transmission directed him to the intersection of Rutgers Street and Chancellor Avenue. Hogan described the area as one in which he had made at least one hundred drug arrests, as well as arrests for gun possession and other offenses. As Hogan approached, he saw defendant walking east on Chancellor, sixty to seventy feet from the corner of Rutgers. Defendant was described as looking back over his shoulder at Hogan and being "kind of crouched over, kind of holding his waist area." Hogan testified that his "first thought was that he had been shot." Hogan drove in defendant's direction.

When the police car came close to defendant, he looked back again and started running, while still crouched. Hogan testified: I still believe[d], at this point, he could have been shot, and then my very next thought was he's-he's carrying a weapon." Hogan followed defendant as he continued running along Chancellor Avenue. During this time, Hogan repeatedly ordered defendant to stop. Defendant, instead, proceeded to cross Chancellor and then to run down Union Avenue along a construction fence erected beside a vacant lot. At this point, Hogan tried to intercept defendant by jumping the curb with his car. However, defendant, who had reached the end of the fence, turned into the vacant lot while still fumbling around his waistband. According to Hogan, he was "beginning to believe that [defendant] ha[d] a handgun of some type, or some type of weapon in his waistband."

Hogan left his vehicle and gave chase, catching up to defendant at a fence at the rear of the property. However, defendant escaped by kicking Hogan, and vaulted the fence onto a metal shed, upon which he got "stuck." While Hogan was attempting to get over the fence and defendant was trying to extricate himself from the shed, Hogan observed defendant's "drugs flying though the air, as well as money."

Eventually, defendant was able to proceed, but after vaulting one or two more fences and running down a driveway to Rutgers Street, he was tackled by additional officers who had been summoned to the area and, after being subdued with pepper spray, he was arrested and taken to the hospital. A search conducted at the scene or at the hospital disclosed significant additional amounts of drugs and cash. No gun was found. However, a subsequent search of the area around the shed by Officer Rice and another revealed sixty-five dollars in cash and twenty-seven small packets of cocaine.

Officer Rice, who also testified at the suppression hearing, stated that he arrived as defendant was running down Chancellor Avenue, and he observed him turning onto Union Avenue, and then into the vacant lot and onto the shed, where he fell through the roof. Rice, like Hogan, stated that defendant appeared to be "holding himself" in the stomach or waist area as he ran. Rice also confirmed that defendant discarded money in the vicinity of the shed. Although Rice eventually retrieved both money and drugs from the area, he did not observe defendant to be carrying drugs or money during the pursuit.

A friend of defendant, Edith Quainoo, testified on his behalf that she had observed a number of men, chased by the police, running from behind the houses on the other side of Rutgers Street. At the same time, she observed defendant walking down Rutgers from Chancellor. According to Quainoo, the police without provocation, tackled defendant and threw him to the ground.

At the conclusion of the hearing, defense counsel, relying principally on State v. Tucker, 136 N.J. 158 (1994), a case holding that flight alone could not justify police pursuit, argued that the police lacked a legal basis to pursue defendant, and thus the money and drugs discarded by him during the pursuit and those found on him following arrest must be suppressed. However, the trial judge, distinguishing Tucker, denied defendant's motion to suppress the drugs and money seized from him, finding defendant's conduct, following a report of a possible shooting, raised a reasonable suspicion that defendant was either the victim or carrying a gun, thereby justifying the police's actions.

In Tucker, the Supreme Court held as a matter of state constitutional law that a conviction for drug possession could not be based upon evidence of drugs discarded during the police's pursuit of a young man who had been observed sitting on a curb and who fled after seeing the approach of a marked police car. When reaching this conclusion, the Court reaffirmed the principle that "a police officer has not only the right but also the obligation to question suspicious people on the street when it would be'poor police work' not to investigate ...


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