On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-02-00282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Coburn.
Following a trial before Judge Frederick P. DeVesa and a jury, on charges set forth in Middlesex County Indictment No. 07-02-00282, defendant Calvin Riggins was found guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count one); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six). The jury returned a verdict of not guilty of fourth-degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two) and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(d) (count seven). Judge DeVesa found defendant eligible for an extended-term sentence as a persistent offender, pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a) and sentenced defendant to a seven-year extended term of imprisonment with three years of parole ineligibility on count one, a concurrent one-year term of imprisonment on count six, and a consecutive five-year term of imprisonment with twoand-a-half years parole ineligibility on count four.
On this appeal, defendant argues the trial court erred in denying his motion to suppress evidence, his motion for acquittal and erred in imposing a consecutive sentence. Defendant also argues the verdict was against the weight of the evidence presented and that the extended term sentence was excessive, illegal and unconstitutional. We find no reversible error and affirm the judgment of conviction.
The record discloses the following facts. On November 7, 2006, at approximately 4:50 a.m., Officer Jason Muller of the Borough of Jamesburg Police Department was dispatched to investigate a report of a suspicious male trespassing in the backyard of a residence at 68 West Railroad Avenue. Muller spoke to the caller in person and learned that the trespasser was a black male. From his marked police vehicle, Muller saw a black male on the front porch of 199 Gatzmer Avenue, the property whose backyard abuts 68 West Railroad Avenue. As Muller slowed his vehicle to obtain a better view, he saw that the man on the porch was "trying to stand between the storm door and the regular house door," without attempting to enter the house.
Muller found the man's behavior suspicious and called for backup. As he exited his vehicle to investigate, Muller walked towards the porch and, from the sidewalk, asked the man what he was doing. When the man turned around to face the street, Muller recognized him as defendant, whom Muller had known for ten years. Muller believed that defendant did not live at 199 Gatzmer Avenue, so he asked him to come down from the porch and explain what he was doing there. Muller knew the house to be that of T.N., but he did not know whether any tenants lived there as well.
Defendant came down from the porch and indicated he was visiting a friend, but when asked, could not supply his friend's name. Muller testified that he directed defendant to turn around and place his hands behind his head. Defendant complied at first, but when Muller placed his hand on defendant's waist, defendant took his hands off his head and turned toward Muller. When Muller ordered defendant to turn around a second time, defendant started running. Muller chased defendant and yelled at him to stop running. While Muller trailed behind defendant about five to ten yards, Jamesburg Chief of Police Martin Horvath, who had arrived on the scene just as defendant began to run, followed closely behind defendant.
As Muller ran through the backyard of 199 Gatzmer Avenue, he tripped over an obstruction and fell to the ground. He got up and, hearing a commotion nearby, he found Chief Horvath struggling to handcuff defendant. According to Muller, Horvath was on top of defendant trying to place handcuffs on him, while defendant was "struggling, kicking and . . . trying to swing his arms." Muller joined Horvath in attempting to place handcuffs on defendant. He noted that defendant had one fist clenched, as if holding something; with the other hand, defendant repeatedly attempted to reach for his own waist. By the time Muller had placed handcuffs on defendant, he testified he had been kicked by defendant several times in the legs. Once defendant was securely restrained, Muller found a folding knife in defendant's "front pocket" and a bag of white powder, later identified as cocaine, in defendant's pants pocket.
Muller testified that during the encounter he strained two fingers on his left hand, an injury that kept him out of work for about two weeks. Muller believed that he sustained the injury while trying to handcuff defendant because the injured fingers were the same he "wrapped around the cuff." Muller admits, however, it was possible he hurt his fingers when he fell during the chase.
Horvath, a sergeant at the time of defendant's arrest, testified that shortly after he arrived on the scene and exited his vehicle, defendant began to flee. Horvath ran past Muller as Muller fell, and Horvath eventually caught defendant when he attempted to cut through a row of hedges but was blocked by a stack of pallets on the other side. Defendant immediately began to struggle when Horvath grabbed him. Horvath observed defendant clutching something in his hand while attempting to avoid being handcuffed. Defendant also tried to bite Horvath's hands and, when Muller arrived, defendant was "bucking and thrashing around on the ground and kicking[.]" Horvath did not see defendant's feet make contact with Muller.
After defendant was subdued and placed in a secure area, Horvath returned to the area of the struggle to search for the item that he believed had been in defendant's hand. There he found "a large plastic bag that had been torn open and some loose tissue and . . . remnants of [a] white powdery substance . . . scattered around on the ground[.]" Horvath gathered as much as the white powdery substance as he could and marked it for testing. The substance later tested positive for cocaine.
During trial, the defense presented the testimony of J.W. J.W. explained that he rented the downstairs apartment of 199 Gatzmer Avenue, a two-family house, from T.N. The front door entrance led to J.W.'s apartment. J.W. testified he invited defendant to stay over at his apartment the night before defendant's arrest; he left the front door open for defendant because defendant had been drinking, and J.W. did not want him to drive.
Defendant also elected to testify in his own defense. He explained that he had been invited to stay at J.W.'s house because he was having family problems and had been drinking. He was drinking at Sloppy's Bar (where T.N. worked as a bartender) until about midnight, and he spent the next four hours at his cousin's house. Then, he decided to go to J.W.'s house "to get maybe an hour or two of sleep[.]" He arrived at the Gatzmer Avenue address at about 4:40 a.m. and was smoking a cigarette before heading inside. Defendant testified that as he was walking into the house, Muller's police light "restricted [his] movement." Muller told him "in an amplified voice" to step off the porch, calling him "homeboy," and referring to him as a boy. He testified the officer asked him what he was doing in this neighborhood, and said "[t]his ain't the hood, boy."
According to defendant, Muller patted him down, during which he hit defendant in the back of the head with either his fist or his flashlight. That caused defendant to fear for his safety, so he ran. Defendant claims that he was "attacked." He denied using any force against the officers. Defendant stated that if he flailed, it was because the police officers put him in a position in which he was unable to breathe. Defendant also denied having any drugs in his possession at the time of his arrest. He admits having a pocket knife on him, but explained that it was for his work as a painter. On cross-examination, defendant admitted he was on probation at the time of his arrest.
In spite of the testimony offered by the defense, the jury found defendant guilty of count one, third-degree aggravated assault for "knowingly or recklessly causing bodily injury to [Officer] Jason Muller"; count four, third-degree possession of a controlled dangerous substance; and count six, fourth-degree obstruction of the administration of law by "purposely attempting to prevent a public servant from lawfully performing an official function by means of flight or physical interference." Defendant filed a motion for a new trial, but that motion was denied. On appeal, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
POINT II: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
POINT III: THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE EVIDENCE AND THE CONVICTIONS ...