On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-03-0197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2009
Before Judges R. B. Coleman, Sabatino and Simonelli.
A grand jury indicted defendant for first-degree possession of a controlled dangerous substance (CDS), heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1.
Following the denial of defendant's motion to suppress, he was tried by a jury and convicted on counts one through four and on the lesser offense on count five of disorderly persons obstructing the administration of law. At sentencing, the trial judge granted the State's motion for a mandatory extended-term sentence and imposed a fifteen-year term of imprisonment with a five-year period of parole ineligibility on count one and a concurrent five-year term of imprisonment with a three-year period of parole ineligibility on count two. The judge merged counts four and five into count three and imposed a concurrent five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. The judge also imposed the appropriate penalties and assessment and suspended defendant's driver's license for two years.
On appeal, defendant raises the following contentions:
The trial court erred in denying defendant's motion to suppress.
A. Under at least our state constitution, defendant was "seized" once Officers Regan and Reiner began pursuing and approaching him on foot from two different directions and Reiner appeared in defendant's path.
B. Since defendant was "seized" before he tossed the narcotics on the ground, the police actions in pursuing defendant before this time had to be justified by reasonable suspicion of criminal activity. They were not.
C. "Abandonment" cannot support admission of the discarded narcotics because defendant discarded them in response to the unlawful police pursuit.
D. Reversal and suppression furthers the protections afforded under our ...