On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0912.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant Sadiq Thomas was convicted of third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1). The jury found defendant not guilty of third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3). As a result of the acquittal on the charge of possession with intent to distribute, two additional charges related to possession with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and possession with intent to distribute within 500 feet of public housing, a public park or a public building, N.J.S.A. 2C:35-7.1 were dismissed. The judge sentenced defendant on the possession offense to a prison term of four years together with appropriate penalties, fees and costs. Defendant's driver's license was also suspended for six months. Defendant appeals, and we affirm.
These are the facts adduced at trial. On the afternoon of October 7, 2005, Detective Joseph Frost, Officer Linda Cantalupo and Office Joseph Wallace of the Newark Police Department, Narcotics Enforcement Task Force, were in a marked police vehicle while on patrol in the area of Thomas and Brunswick Streets in Newark. At that time, Frost, who was driving the vehicle, observed defendant accepting paper currency and handing something to the driver of a black BMW.
From a distance of approximately twenty-nine feet, Frost observed what he characterized as a "hand-to-hand" transaction with currency and a small object.
Detective Frost did not know the defendant previously. He turned the corner quickly, but the BMW took off traveling south on Brunswick Street, and the defendant ran back towards Thomas Street. Frost did not pursue the BMW because the policy of the Newark Police Department is not to pursue a vehicle in the absence of a gun, a homicide or violent crime. He communicated his observations to Cantalupo and Wallace and told them to get out to pursue the fleeing suspect. Cantalupo jumped out but failed to open the rear door for Wallace who remained with Frost as he drove ahead of Cantalupo onto Murray Street. While staying in communication with Cantalupo through the police radio, Frost drove onto Broad Street, where he attempted to block off defendant and incurred a flat tire on the curb.
Officer Cantalupo saw defendant run through a gate and toss something to the ground, which turned out to be two glassine envelopes of heroin. The officer retrieved them while still observing where defendant was running. While in pursuit, Cantalupo's police radio fell out of its harness, and she had to slow down to retrieve it by pulling upon its cord which was attached to her shoulder mike. Defendant ran down Thomas Street, past a school (Our Lady of Liberty School) and out to Broad Street. Officer Cantalupo never lost sight of him.
Defendant ran into the middle of Broad Street, and after opening the door for Wallace, Frost ran and tackled the defendant placing him under arrest. Wallace then handcuffed defendant.
In a search incident to the arrest, Frost found in defendant's right pocket 13 glassine envelopes of heroin, stamped "killer" in red ink, along with $15.00 in cash. Also, defendant had dropped two more glassine envelopes of heroin, stamped "killer" in red ink, and they were recovered by Cantalupo.
Cantalupo took control of the evidence and field-tested the contents. The evidence was sent to the State Police laboratory, and the parties stipulated to the certification of analysis confirming that the suspect drug was heroin.