On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-2202.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges LeWinn and J.N. Harris.
Defendant was indicted on the following charges: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of over one-half ounce but less than five ounces of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count five).
Defendant brought a motion to suppress the evidence, which was denied. He then entered into a negotiated plea agreement whereby he pled guilty to counts two, three and five, in exchange for a recommendation that he be sentenced to a five-year term of imprisonment with a three-year period of parole ineligibility. On April 14, 2008, defendant was sentenced in accordance with the plea agreement. He now appeals the denial of his motion to suppress.
The factual background pertinent to our decision is summarized from the testimony of Newark Police Officer Hal Simkins, the only witness to testify at the hearing on the motion to suppress.
On December 27, 2006, Simkins, a thirteen-year veteran of the police force, was patrolling an area known as Georgia King Village, along with officers employed by the University of Medicine and Dentistry of New Jersey (UMDNJ). The joint patrol had been ongoing and was "for the sake of both departments to try to combat the crime" in the area surrounding UMDNJ.
At approximately 10:00 a.m., Simkins was patrolling in a UMDNJ police car in full uniform, accompanied by Officer Guttierrez. While traveling westbound on 15th Avenue, the officers observed defendant walking eastbound. Both officers were familiar with defendant; Guttierrez had previously arrested defendant and Simkins had previously observed defendant "at another location[,]" when he "suspected [defendant was] engaging in narcotics transactions." Simkins had attempted to arrest defendant on that occasion; however, defendant "fled. He got away and that was that."
The area in which the officers observed defendant "had a roadblock... due to narcotic [sic] activity.... It's a high narcotic [sic] area and that's part of the New Community Housing." Both officers had previously made arrests "in that immediate area" for narcotics-related offenses.
When defendant observed the police vehicle, the officers "looked at him, made eye contact... and [defendant]... look[ed] back at [them] and started to pick up his pace, walking faster." Simkins stated that as defendant was walking, he looked back "several times... more than three while he was walking. He was looking back again and [Simkins was] looking back at him...."
At that point the officers "decide[d] to make a U-turn...." Because "[defendant] was looking back constantly... [and] started walking faster, [they] felt it to be a little suspicious, especially [because they] had an encounter with him before due to narcotics.... So at this time [they] felt him to be suspicious. [They] decided to stop him."
By the time the officers made a U-turn, defendant had walked "about [a] good fifty yards[,]" and "had a white bag in his hand." The officers knew that defendant did not "live in that area[,]" based on their "prior encounter" with him. They considered it ...