On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges A. A. Rodríguez and Lyons.
Defendant Abdul Rashan Rodriguez appeals his conviction for third-degree distributing, dispensing or possessing a controlled dangerous substance with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. Defendant was sentenced to a five-year prison term with a three-year period of parole ineligibility and the requisite fines and penalties were imposed. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On March 11, 2006, Elizabeth Police Officers Flatley and Merten were assigned to conduct a surveillance operation at Third Street and Magnolia Avenue, due to numerous complaints of narcotics distribution in that area. The officers were in plain clothes and in an unmarked vehicle. The officers parked their vehicle on Third Street at the intersection of Bond Street facing south. From their location, the officers had a clear and unobstructed view of the intersection of Third Street and Magnolia Avenue.
At approximately 8:22 a.m., the officers observed a black male, later identified as defendant, wearing a black jacket, a grey hooded sweatshirt, blue jeans, and wearing headphones, approach the corner. Approximately five minutes later, a black female wearing a black jacket approached defendant. The officers observed the female hand defendant an unknown amount of United States currency. Defendant then pulled a small item out of his right front pants pocket and handed it to the female. The officers suspected at that time that a narcotics transaction had taken place and contacted other officers, providing them with the description of the suspects.
While the female started to walk on Magnolia Avenue towards Second Street, defendant continued to stand on the corner of Magnolia Avenue and Third Street. At that time, two other Elizabeth Police Officers, who had earlier received the communication from Officers Flatley and Merten that they had observed what they suspected to be a drug transaction, as well as a description of the suspects, pulled up to the corner where defendant was standing. Once defendant saw the officers, he immediately started to run on Third Street, toward Bond Street.
The officers gave chase on foot. Officers Flatley and Merten also arrived on the scene, exited their vehicle, and started to give chase. The officers yelled numerous times to defendant to stop. Defendant eventually ran into an alley and was attempting to climb over a fence when the officers grabbed his legs.
Defendant started to kick his feet at the officers and caused the wood fence he was attempting to climb over to collapse. The officers and defendant struggled. Defendant reached into his right front pants pocket and discarded a bundle of glassine envelopes on the ground. Once defendant was handcuffed, the officers retrieved the envelopes, which eventually proved to contain drugs.
Defendant was indicted and charged with third-degree possession of a controlled dangerous substance, pursuant to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance with intent to distribute, pursuant to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of a controlled dangerous substance with intent to distribute in or within 1000 feet of school property, pursuant to N.J.S.A. 2C:35-7 (count three); second-degree possession of a controlled dangerous substance with intent to distribute in or within 500 feet of a public park, pursuant to N.J.S.A. 2C:35-7.1 (count four); third-degree resisting arrest, pursuant to N.J.S.A. 2C:29-2(a) (count five); fourth-degree obstruction, pursuant to N.J.S.A. 2C:29-1(a) (count six); and fourth-degree aggravated assault, pursuant to N.J.S.A. 2C:12-1(b)(5) (counts seven, eight and nine).
Defendant filed a motion to suppress the evidence seized at the time of his arrest. The motion was heard and decided on December 8, 2006, by Judge William L'E. Wertheimer. Judge Wertheimer concluded that the officers had probable cause to stop defendant and ultimately arrest him and that the drugs seized were abandoned and, therefore, properly seized.
Accordingly, he denied defendant's motion to suppress. On February 22, 2007, defendant pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute within ...