On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-09-1590.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted September 22, 2008
Before Judges Carchman, Sabatino and Simonelli.
On June 24, 2003, defendant Komar Washington pled guilty under Accusation No. 811-03 to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). The sentencing judge imposed a three-year probationary term with credit for time served.
On February 17, 2004, defendant pled guilty under Accusation No. 179-04 to third-degree possession of CDS, contrary to N.J.S.A. 2C:35-10a(1). The sentencing judge imposed a three-year probationary term with credit for time served.
During his probationary period, on June 25, 2004, defendant was arrested for various drug-related offenses and resisting arrest. On September 25, 2004, a grand jury indicted defendant for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third- degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of CDS with intent to distribute within 500 feet of public housing facilities, parks or buildings, N.J.S.A. 2C:35-7.1a (count four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).
A jury convicted defendant of possession of CDS (count one) and resisting arrest (count five). Judge Theemling sentenced defendant to a five-year term of imprisonment on count one, and to a concurrent eighteen-month term of imprisonment on count five. For defendant's violation of probation, the judge imposed a concurrent five-year term of imprisonment on each of the Accusations, concurrent to each other.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER REFERENCING A PREVIOUS MOTION TO SUPPRESS HEARING.
POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING COUNT [FIVE] FOR RESISTING ARREST.
POINT IV: THE TRIAL COURT FAILED TO ADEQUATELY RESPOND TO A SPECIFIC JURY QUESTION DURING DELIBERATIONS.
POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject these contentions and affirm.
The following facts are summarized from the record. The Jersey City Police Department had received numerous complaints about drug activity at the A. Harry Moore Housing Complex on Duncan Avenue, also known as the Duncan Housing Complex (the complex). At approximately 4:50 p.m. on July 25, 2004, Detective Christopher Robateau of the Jersey City Police Department conducted undercover surveillance of the complex.*fn1 He was assisted by perimeter units, which included Officers Carlos Lugo, Michael Burgis, Anthony Goodman, Timothy O'Brien and Gill Vega.
Robateau observed an individual, later identified as defendant, standing in the eastern driveway of the complex adjacent to Duncan Avenue. The officer observed an unidentified male approach defendant. After the two men spoke briefly, defendant reached into his right front pants pocket, removed one or more objects, and handed the objects to the unidentified male in exchange for paper currency. The unidentified male then left the area. Based upon his observation, Robateau believed that a drug transaction had just transpired.
Robateau contacted the perimeter units and gave them defendant's description and location. Lugo then entered the complex and drove past defendant, who was standing by Building 1. Burgis and Goodman also entered the complex. They stopped their vehicle and exited, with their badges exposed. Defendant began running when he saw the officers approaching. Robateau then broadcast defendant's description and advised the dispatcher that officers were in a foot pursuit.
Burgis and Goodman chased defendant, yelling "stop, police." They chased defendant through the courtyard into Building 1, out the back door, down the stairs, then through another part of the courtyard past Building 7. At that point, Lugo joined the chase and yelled to defendant to "stop, police." Defendant continued running through the courtyard toward the rear stairwell of Building 6, with Lugo in pursuit. Before running up the stairs, defendant reached into his front pocket and discarded some objects. Lugo immediately retrieved the objects, which were later determined to be four vials and five jugs of cocaine and crack cocaine.
O'Brien then arrived at the scene, saw defendant enter Building 6, and continued the chase. He and Gill conducted a floor-by-floor search of the building and apprehended defendant on the eighth floor. O'Brien radioed to Robateau in order to confirm defendant's identity. Robateau later positively identified defendant.
Prior to trial, defendant filed a motion to suppress evidence seized during his flight from the police, which Judge Vazquez denied. At trial, Robateau, Lugo, Goodman and O'Brien testified for the State. The State's forensic expert, Linda Hogger, from the Hudson County Prosecutor's Office, and Sergeant Wally Wolfe of the Jersey City Police Department, also testified. Hogger opined that the four vials defendant dropped contained cocaine, that the five jugs contained crack cocaine, and that defendant possessed this amount of drugs for resale. Defendant presented no evidence or testimony at the suppression hearing or at trial.
Defendant first challenges Judge Vazquez's denial of his motion to suppress. He argues that the police lacked authority to stop him, and therefore, his discarding the CDS was not abandonment but rather the result of an improper attempted detention.
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We "'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side[.]" Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court's findings if they are so clearly mistaken and "so plainly unwarranted that the interests ...