On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1262.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Graves.
A jury convicted defendant Ronald Newmones of third-degree possession of a controlled dangerous substance (CDS), namely heroin, and fourth-degree obstructing the administration of the law. He was sentenced to an extended eight-year prison term with four years of parole ineligibility. Defendant now asserts essentially two arguments on appeal: (1) that the trial judge's jury charge on flight was reversible error, and (2) that his sentence is excessive. For the reasons that follow, we affirm.
At approximately 6:30 p.m. on May 1, 2007, Atlantic City Police Officer Brian Shapiro was on patrol in a marked vehicle driving on Metropolitan Avenue in Atlantic City in a known high drug, high crime area. The officer observed defendant reaching his hand into a parked black Mercedes through the rear passenger window. When the officer was within five feet of the Mercedes, he exited his patrol vehicle to investigate. When defendant saw Officer Shapiro, he withdrew his hands from the Mercedes' window. The officer observed defendant holding paper currency and small light-colored objects which he believed to be heroin.
Officer Shapiro immediately ordered defendant to keep his hands where he could see them. Defendant did not comply, bringing his hands behind his back and looking around while backing away from the officer. The officer repeated his order for defendant to keep his hands in sight and was walking towards defendant when he heard voices and movement within the Mercedes. Believing a drug transaction was taking place, Officer Shapiro focused his attention on the two occupants of the Mercedes, Larry J. Snow and Timothy Bunch. Officer Shapiro opened the door of the Mercedes, and removed Snow from the vehicle.
As Officer Shapiro was walking Snow to the patrol vehicle, the officer saw defendant discard the two light-colored objects to the ground. Defendant then began to run from the scene. Officer Shapiro ordered him to stop running, but when defendant was not compliant, the officer began chasing him. After only a few feet, the officer was able to grab defendant by the back of his coat; defendant fell to the ground. A struggle ensued, and in spite of the officer's commands for defendant to give him his hands, defendant resisted by trying to push off the ground, and flailing his arms and legs. Officer Shapiro was, nevertheless, able to subdue defendant and place him into custody. The officer then recovered the objects that defendant had discarded. The objects later tested positive for heroin.
On May 30, 2007, an Atlantic County grand jury returned Indictment No. 07-05-1262 against Snow, Bunch and defendant. Defendant was charged with third-degree possession of CDS, heroin, in violation of N.J.S.A. 2C:35-10(a)(1) (count one); and fourth-degree obstructing the administration of the law in violation of N.J.S.A. 2C:29-1 (count two). A jury trial before Judge Albert J. Garofolo, Law Division, Criminal Part, Atlantic County, was held over the course of two days -- April 1, 2, 2008. The jury found defendant guilty on both charges.
The State then filed a motion for an extended term of imprisonment as a persistent offender under N.J.S.A. 2C:44-3(a). On June 13, 2008, the judge heard argument, and subsequently granted the motion for the extended term. Defendant was sentenced to an eight-year term of imprisonment with four years of parole ineligibility on count one, and a concurrent eighteen-month term of imprisonment on count two. Defendant filed his notice of appeal on August 6, 2008.
In his appellate brief, defendant raised the following arguments:
POINT I: THE DEFENDANT WAS FREE TO LEAVE THE SCENE. THEREFORE, THE COURT COMMITTED REVERSIBLE ERROR WHEN IT GAVE THE JURY A FLIGHT INSTRUCTION (NOT FULLY RAISED BELOW).
POINT II: THE COURT COMMITTED REVERSIBLE ERROR BY GIVING A FLIGHT CHARGE AS CONSCIOUSNESS OF GUILT OF POSSESSION ...