On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0868-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 6, 2010
Before Judges Sapp-Peterson and Fasciale.
Defendant, Eric Gibbs, appeals from an August 29, 2008 judgment of conviction of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (Count One). He was acquitted of third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Two). Defendant contends that (1) his counsel was ineffective because he failed to file a motion to suppress; (2) the trial judge abused his discretion by admitting into evidence two prior convictions; (3) the verdict was against the weight of the evidence; (4) there was prosecutorial misconduct; and (5) the judge imposed an excessive sentence. We affirm.
On February 3, 2007, a security guard at a public housing facility notified police to remove defendant from the property because he had been disorderly. At approximately 6:00 p.m., Officer Jose Gonzalez (Officer Gonzalez) arrived and was directed to an apartment on the eighth floor. Officer Gonzalez went to that apartment and defendant's mother told him that she had an argument with defendant but that he was not there. Officer Gonzalez told the security guard to call 911 if defendant returned.
Later, the guard called 911 and Officer Gonzalez returned to the facility around 11:00 p.m. Officer Gonzalez planned to escort defendant from the premises. Officer Charles Heintz (Officer Heintz) met Officer Gonzalez, and a guard directed them to a different apartment on the tenth floor. Both officers were wearing police uniforms.
Defendant's uncle opened the door and admitted that defendant was present. The officers explained that they were there to remove defendant because of the previous complaint of disorderly conduct. The uncle invited them into his apartment and the officers shouted for defendant to meet them in the living room, but defendant did not respond. The officers walked into a hallway, saw defendant sitting on a bed, and again repeated their request that he join them in the living room. They told defendant that security wanted him off the premises because he was causing problems with other tenants.
Defendant stood up, went into the living room, picked up a coat, put it down, went back into the bedroom, picked up a belt and placed it around his waist over the sweat pants he was wearing. He walked around aimlessly looking for things, screamed and yelled. Rather than leave with the officers, defendant sat down on a couch and started to put on his shoes slowly. After Officer Gonzalez asked defendant for identification, defendant pulled a wallet from his jacket and threw it at him. A photo identification was in the wallet but it had no date of birth, social security number, or license number on it.
Defendant then stood up and walked straight toward Officer Gonzalez within inches of his face. Officer Gonzalez pushed him back to create space and defendant assumed a "boxer stance" with clenched fists. Officer Gonzalez grabbed defendant's arm, took him down to the ground and arrested him. Both officers placed defendant in handcuffs.
As the officers escorted defendant out of the building, defendant yelled and screamed in the hallways. Officer Gonzalez searched defendant incident to the arrest and found in his right pocket a glassine tube and a folded piece of paper that contained cocaine.
Before the trial began, the judge conducted a Sands*fn1 hearing and determined that defendant's 1997 convictions for second-degree robbery and fourth-degree aggravated assault were admissible to impeach him if he testified. Defendant testified at the jury trial that he was not trespassing when he was arrested and that the cocaine and glass pipe were not his.
On August 29, 2008, the judge sentenced defendant to four years in prison on Count One and imposed the ...