May 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KHALIL PATRICK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-06-0653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 19, 2010
Before Judges Rodríguez and Reisner.
Defendant Khalil Patrick appeals from his May 30, 2006 conviction for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and obstructing the administration of law, N.J.S.A. 2C:29-1. He also appeals from the aggregate sentence of four years in prison.
Defendant presents the following points for our consideration:
POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE TWO FOLDS OF HEROIN RECOVERED AT THE SITE OF DEFENDANT'S ARREST.
POINT II: THE TRIAL COURT PERMITTED INADMISSIBLE DETAILS OF DEFENDANT'S PRIOR CONVICTIONS TO BE ADMITTED. (Not Raised Below)
POINT III: THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
POINT IV: DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We decline to address defendant's point IV without prejudice to his filing a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We conclude that the remaining contentions are without merit and affirm.
We begin by addressing the suppression issue. Defendant filed a motion to suppress which Judge Espinosa denied. Based on the hearing testimony, she found these facts: On March 16, 2005, Officer Flatley observed defendant, whom the police had previously arrested for drug offenses, walking in a neighborhood known for "a significant number of narcotics transactions." He saw defendant motion to a female companion to stop in front of a building on Elmwood Place. Flatley saw the woman take out some money, as defendant went around to the back of the building where the officer knew defendant did not reside.
Believing that defendant was selling drugs and was going to his stash to get the drugs to sell, Flatley and his partner Officer McDonough went around to the back of the building. When McDonough announced that he was a police officer, defendant took off running. The police apprehended defendant when he tripped over a tree; as defendant was trying to get up, they saw a plastic bag in his hands. While Flatley was attempting to handcuff defendant, he saw defendant take several glassine envelopes out of the bag and try to swallow them. The police retrieved the plastic bag, which contained two envelopes of heroin.*fn1
The judge concluded that Officer Flatley had "a particularized suspicion which was amply supported . . . by objective observations that Mr. Patrick was either in the process or about to engage in a drug transaction." Relying on State v. Davis, 104 N.J. 490 (1986), she concluded that, "at that point the officers clearly had an adequate basis for an investigative stop." Based on defendant's attempt to flee when the officers announced themselves, and their observation of the bag in his hands and his attempt to swallow the contents, the judge found the officers had probable cause to believe that defendant was "in the process of committing a narcotics offense" and was trying to destroy evidence.
We defer to the trial judge's factual findings, which are supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 474 (1999). We agree with the judge that, based on their observations, the police had adequate grounds to follow defendant behind the house and to attempt to question him. See Davis, supra, 104 N.J. at 504-05. When he fled, they had grounds to arrest him, which led directly to their discovery of the drugs in his possession. See State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006). Therefore, the trial judge correctly denied the motion to suppress.
We next address two issues that defendant raises for the first time on appeal. Defendant testified at trial. During that testimony, his attorney elicited his criminal record, including his past activity as a drug dealer. Defendant contends it was plain error to present this information to the jury. However, in his trial testimony defendant admitted on direct examination that he possessed the heroin. He denied that he intended to sell it, and he was acquitted of possession with intent to distribute. Defendant was convicted of the drug offense to which he admitted - possessing heroin for his own use. We also note that in the jury charge, the judge properly instructed the jury as to the limited use for which they could consider defendant's prior convictions. On this record, we do not find plain error arising from the evidence that defendant now claims was improperly admitted. See State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.*fn2
Defendant also raises for the first time on appeal a claim that the prosecutor improperly questioned him about several issues, including his past drug offenses and his prior imprisonment, and made improper comments in summation. These arguments do not warrant extended discussion, R. 2:11-3(e)(2), beyond noting that they do not establish plain error on this record. R. 2:10-2.
Defendant was sentenced to four years on the drug conviction and a concurrent twelve months for obstruction. We find no abuse of discretion or other error in the sentence, which was imposed consecutive to a four year sentence for a separate drug possession conviction and consecutive to an eighteen month sentence for a joyriding conviction. See State v. Roth, 95 N.J. 334, 364 (1984); State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). However, as we noted in the companion case of State v. Patrick, No. A-2448-07 (App. Div. May 4, 2010), our disposition of this appeal does not preclude defendant from filing a motion to be resentenced to a drug treatment program pursuant to Rule 3:21-10(b). The State agrees that defendant is entitled to the return of $353 seized from him at the time of his arrest. Defendant may file a motion for the return of those funds.