On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-06-0499 and 06-08-0785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2009
Before Judges Baxter and Alvarez.
Defendant Yakim Abdul Ali appeals from his February 23, 2007 convictions on two indictments, one which resulted from a jury trial, Indictment No. 06-06-0499, and the other, Indictment No. 06-08-0785, from a negotiated plea of guilty. At trial, defendant was convicted of second-degree eluding police, N.J.S.A. 2C:29-2b (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).*fn1 On Indictment No. 06-08-0785, defendant pled guilty to one count of third-degree theft by deception, N.J.S.A. 2C:20-4, for presenting a forged check to a bank for payment, knowing that the circumstances did not entitle him to the proceeds. On Indictment No. 06-06-0499, the judge sentenced defendant on count one to a sixteen-year term of imprisonment, subject to a six-year parole ineligibility term. The judge imposed a four-year concurrent term on count two, and merged count five with count one. On Indictment No. 06-08-0785, the judge imposed a three-year term of imprisonment, to be served concurrently with the sentence imposed on the other indictment.
On the conviction resulting from the jury trial, we reject defendant's claim that the judge erred by denying his motion to suppress, permitting the State to impeach his credibility with prior convictions, denying his motion for a judgment of acquittal on count five, and imposing an excessive sentence. We also reject his contention that trial counsel's failure to move for a new trial constituted ineffective assistance. On Indictment No. 06-08-0785, we reject defendant's claim, never asserted in the Law Division, that he should have been permitted to withdraw his guilty plea as it was not supported by an adequate factual basis. We affirm.
A. Indictment No. 06-06-0499
These are the most relevant facts adduced at the hearing on defendant's motion to suppress and at trial on Indictment No. 06-06-0499. On the morning of January 23, 2006, the owner of a black 1997 Honda Accord discovered that her car had been stolen from the driveway of her home in Glen Ridge. She immediately notified police.
Slightly less than a month later, on the night of February 21, 2006, officers Christopher McMahon and Brian McDonough of the Elizabeth Police Department were on routine patrol in uniform and in a marked patrol vehicle. While stopped in traffic on Catherine Street at its intersection with East Grand Street, they observed an oncoming vehicle make a left turn from Catherine Street onto East Grand Street without signaling. Pulling behind the vehicle, they activated their lights and sirens.
According to McMahon's testimony at the suppression hearing, the vehicle came to a stop. The officers checked the Honda's license plate and discovered that it did not match the vehicle to which it was affixed. During this time, defendant, the driver of the vehicle, was sitting in the car with his hands raised over his head.
As Officer McMahon exited the patrol vehicle after checking the license plate, defendant suddenly sped off, heading east on East Grand Street. McMahon jumped into the patrol vehicle, and the officers began to pursue the fleeing Honda. Once the chase resumed, the officers immediately reactivated the siren; the overhead lights had never been turned off.
During the chase, defendant ignored two red lights and one stop sign, traveling at a speed of seventy miles per hour in a twenty-five mile per hour zone and constantly passing other vehicles on the road. A second patrol vehicle joined the chase. The Honda finally came to a stop on a loading ramp on Trumbull Street. The officers pulled to the left of the Honda and observed defendant exit the vehicle and throw a dark-colored object to the ground. Defendant then ran along the fence of the loading ramp, laid on the railing and rolled over it, falling approximately twenty-five feet to the ground below. The officers ran down the loading ramp to where defendant was bloodied and lying face down. They arrested him, and secured him in handcuffs. Officer McMahon searched the area where defendant had tossed the dark-colored object, and found a handgun and its magazine, which contained seven live rounds.
A check of the vehicle identification number of the black Honda driven by defendant revealed it was the vehicle that had been reported stolen from the driveway in Glen Ridge on January 23, 2006. The license plates attached to the vehicle on the night of defendant's arrest had been reported stolen earlier that same day.
After crediting the testimony offered by McMahon and McDonough at the hearing on defendant's motion to suppress, Judge Heimlich denied the motion. The judge reasoned that defendant's left-hand turn, made without signaling, authorized both the stop and the ensuing pursuit of defendant. Next, the judge concluded that defendant forfeited any expectation of privacy in the gun when he abandoned it by throwing it to the ground after the lawful stop.
Before the trial began, the judge conducted a Sands hearing*fn2 to determine whether, if defendant elected to testify, the State should be permitted to impeach his credibility by confronting him with any of the six convictions he incurred between 1992 and 1997.*fn3 Those convictions were: two separate 1992 convictions for third-degree unlawful possession of a weapon; a 1993 conviction for third-degree distribution of a controlled dangerous substance (CDS); a 1996 conviction for unlawful possession of a weapon; a 1996 conviction for third-degree receiving stolen property; and a 1997 New York conviction for which defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility. Defendant was not released from his New York conviction until 2003.
Judge Heimlich observed that all six crimes, with the exception of the charge of receiving stolen property, had resulted in prison terms, with defendant not released on parole from the last of the six until 2003. As a result, he concluded that the earlier of the six crimes were not as remote as would otherwise be the case because defendant was imprisoned almost continuously from 1992 through 2003. He held that, once sanitized pursuant to State v. Brunson,*fn4 the probative value of the six prior convictions for impeachment purposes was not outweighed by the resulting prejudice.
After the State rested its case, defendant moved, pursuant to Rule 3:18-1, for a judgment of acquittal on count five, the resisting arrest count, arguing that because "police did not inform [him] that he was under arrest prior to him falling off the loading ramp," the State had not established that defendant knew he was under arrest at the time he ostensibly resisted such arrest by flight. Judge Heimlich denied defendant's motion, reasoning that "with two police cars with sirens blaring, and [overhead] lights on," and defendant driving at an excessive rate of speed for ...