On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-11-1930.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Collester and Grall.
On November 16, 2004, a twenty-three count indictment was returned against defendant Thomas Robinson for a second-degree robbery, contrary to N.J.S.A. 2C:15-1; four counts of aggravated assault upon a law enforcement officer, contrary to N.J.S.A. 2C:12-1b(5)(a); four counts of second-degree aggravated assault by causing or attempting to cause serious bodily injury to another, contrary to N.J.S.A. 2C:12-1b(1); third-degree aggravated assault by causing or attempting to cause bodily injury to another with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2); four counts of third-degree aggravated assault by causing or attempting to cause significant bodily injury to another, contrary to N.J.S.A. 2C:12-1b(7); second-degree disarming of law enforcement officer, contrary to N.J.S.A. 2C:12-11a; two counts of third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a; three counts of possession of a weapon, namely mace, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and three counts of fourth-degree possession of a weapon, namely mace, under circumstances not manifestly appropriate for such lawful uses as it may have, contrary to N.J.S.A. 2C:39-5d.
Defendant made a motion to suppress evidence seized at the time of his arrest as well as incriminatory statements allegedly made by him subsequent to arrest. Following an evidentiary hearing, Judge Kevin G. Callahan denied defendant's motion. Thereafter, on April 18, 2005, defendant appeared before Judge John A. O'Shaughnessy, and pursuant to a negotiated plea agreement, entered a plea of guilty to second-degree robbery, three counts of third-degree aggravated assault, and second-degree disarming a police officer. Defendant was sentenced on June 17, 2005, to an aggregate term of eight years with an eighty-five percent parole disqualifier under the No Early Release Act (NERA).
Pursuant to Rule 3:5-7(d), defendant appeals the denial of his motion to suppress evidence. He argues the following:
POINT I - THE COURT BELOW ERRED IN FINDING THAT THE CONDUCT OF THE POLICE DID NOT VIOLATE DEFENDANT'S RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES. THE ARREST OF DEFENDANT, THE SEARCH OF GOODWIN'S HOUSE, AND DEFENDANT'S STATEMENTS WERE THE "FRUITS" OF AN ILLEGAL ARREST. THEREFORE, THE ORDER DENYING THE SUPPRESSION OF THE STATEMENTS MUST BE REVERSED. U.S. CONST., AMENDS. IV, XIV, N.J. CONST. ART. I, PAR. 7.
Sergeant Michael Kenny was the only witness at the suppression hearing. His factual narrative was as follows. On August 13, 2004, Sergeant Kenny and his partner, Officer Vincent Wolleon, were notified by police radio of a man screaming for help at a convenience store located at 2375 Kennedy Boulevard in Jersey City. As they were driving to the store, they received two further calls from the dispatcher indicating first that there was an armed robbery in progress and then that there had been a robbery at the store. When Kenny and Wolleon arrived, Officers Robateau and Traynor were already there. They had received a description given by the victim, Mohammed Hassanein, of a black male about forty years old wearing a black hooded sweatshirt and dark blue jeans. Mohammed said the man walked up to the cash register without saying a word, sprayed him in the face with mace, grabbed an unknown amount of money from the register and fled. Mohammed told them he could identify the robber because he had been in the store previously. While he did not know the robber's name, he knew that he was dating a woman named Bobo, who lived around the corner from the store at 192 Clinton Avenue.
Kenny and Wolleon took the victim to 192 Clinton Avenue, and after speaking to people sitting outside the building, they determined that Bobo lived in apartment 2G. Robateau and Traynor were detailed to the back of the building in case someone fled. Officers Kenny, Wolleon and the victim then went up to apartment 2G and knocked on the door. The woman known as Bobo, whose real name is Dorothy Goodwin, answered the door, and the defendant was standing behind her. Mohammed saw the defendant and immediately said, "that's the guy."
As Kenny and Wolleon attempted to take the defendant into custody, there was a struggle. Defendant grabbed Wolleon and threw him against the wall. As Kenny tried to radio for help, the defendant swatted the radio out of his hand, and the two men started wrestling with each other. Defendant tried to take Kenny's gun out of the holster as the struggle continued on into the kitchen where defendant grabbed a butcher knife from the sink. Wolleon banged defendant's arm against the counter, knocking the knife out of his hand. Defendant continued to resist, and Kenny was burned after being pushed into the lit gas stove.
Meanwhile, Officers Traynor and Robateau ran up the fire escape, entered the apartment and tried to subdue the defendant. The defendant grabbed a glass coffee pot and tried to strike Traynor in the head. He missed and wound up breaking the pot against an overhead cabinet. The defendant then tried to strike Officers Kenny and Robateau with the broken coffee pot. Finally, an additional police unit forced the apartment door open and were able to handcuff defendant.
Defendant was advised of his Miranda*fn1 rights and transported to police headquarters. When he arrived, he complained of dizziness, explaining that he had been drinking and smoking crack cocaine all day. Along with defendant, the officers involved in the incident went to Jersey City Medical Center for treatment of injuries sustained. Kenny suffered a strained tendon in his right hand, scratches on the side of his face and a burn mark on his elbow. Defendant injured his head when he banged it on the top of the stove. While they were in the waiting area of the emergency room, the defendant, who was in handcuffs and seated down the hall, started shaking his head and said, "I'm sorry. I didn't mean to do that. I didn't mean to hurt yous [sic]. I didn't mean to do it. I was smoking cocaine. My girlfriend made me do it. I don't know why I did that to Mohammed."
Subsequent to the defendant's arrest, the police recovered a leather case designed to hold mace as well as the broken coffee pot and butcher knife used as weapons by defendant. The argument presented by defendant at the motion to suppress was that these items as well as his post-arrest statements should be suppressed as the search did not fall within one of the ...