On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-06-0711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and C. L. Miniman.
Defendant Shawn Avery Hobson appeals from a final judgment of conviction for distributing, dispensing or possessing a controlled dangerous substance (CDS) on or within 1000 feet of school property, N.J.S.A. 2C:35-7, for which defendant was sentenced to a term of six years imprisonment with a three-year period of parole ineligibility. On this appeal, defendant's principal contention is that the Law Division erred in denying his motion to suppress evidence. We reject that contention and affirm the conviction.
Defendant failed to appear at his motion to suppress hearing and now argues the trial court erred by ruling on his motion in his absence. He also argues the police officers who arrested him lacked reasonable suspicion to justify their actions, and he was denied effective assistance of counsel. We perceive no merit in any of these arguments.
On June 29, 2000, a Union County Grand Jury returned a six-count indictment charging defendant with four counts of drug-related offenses, one count of aggravated assault and one count of resisting arrest. Eventually, the matter was scheduled for trial on April 30, 2001, and defendant was informed in writing that a hearing on his motion to suppress evidence would be conducted on April 27, 2001. Although defense counsel appeared in court on April 27, 2001, defendant did not appear. After satisfying himself that defendant was aware of the date for the motion to suppress, based on letters from the court and from defense counsel, as well as oral communications from counsel, Judge Ross R. Anzaldi decided to proceed with the motion.
The only witness to testify during the motion to suppress hearing was Officer Christopher Miele of the Elizabeth Police Department. Miele related that on the morning of January 15, 2000, at approximately 4:00 a.m., he and Officer David Conrad were in an unmarked police car in "an extremely high-narcotics area and a high trafficking area for drugs" when they were flagged down by a pedestrian. The pedestrian indicated there were two men selling narcotics in the hallway of Building 16 of Pioneer Homes. As the officers approached the building, they noticed a black male standing on the third-floor landing in front of a window. The officers also observed a woman entering Building 16, and they followed her through an unlocked door. The woman ascended to the third-story landing, while the officers stopped at the second-floor landing immediately below.
The officers heard the woman ask someone for "two bags," which they knew to be a common term for two bags of heroin. The officers did not see any drugs or money being exchanged at the time, but as they ascended the steps to the third floor, they observed defendant holding two bags of heroin. The officers identified themselves as such, and defendant ran through the open doorway of an apartment with the two officers in pursuit. Although they ordered defendant to stop, he continued into the kitchen of the apartment. Conrad grabbed defendant, who then spun around and punched Conrad in the shoulder and Miele in the chest in an attempt to break free. The officers forcibly wrestled defendant to the floor and handcuffed him. A search of defendant's right front pants pocket yielded fifty-four glass vials of suspected cocaine and thirty-nine glassine bags of heroin.
At the conclusion of Officer Miele's testimony and the declaration that the State had no further evidence to offer, defendant's counsel requested that the judge carry the matter until defendant was produced. The court granted that request and continued the motion to the assigned trial date, April 30, 2001, to give defendant an opportunity to be heard.
Defendant did not appear in court on April 30, and the defense offered no evidence in opposition to the State's proofs. On that day, Judge Anzaldi reviewed the officer's testimony and concluded the officers had a duty to investigate a citizen's complaint and "they heard what clearly sounded like a drug transaction in progress." Further, the court determined that probable cause existed when the officers observed defendant holding two glassine bags of heroin in his hand. The court also ruled that the police properly entered the apartment under exigent circumstances when defendant ran to avoid arrest and that defendant was properly searched incident to the arrest. Consequently, the motion to suppress evidence was denied.
On May 6, 2008, seven years after the suppression hearing and following his arrest in North Carolina, defendant was returned to New Jersey. He then pled guilty to the charge of possession of heroin with intent to distribute within 1000 feet of a school in violation of N.J.S.A. 2C:35-7, in exchange for which, the State agreed to recommend a sentence of seven years in prison with a three-year period of parole ineligibility and the dismissal of all other charges. Notwithstanding that recommendation, the sentencing judge, without objection from the State, sentenced defendant to a six-year term with a three-year parole disqualifier. This sentence was to be served concurrently with a North Carolina prison term defendant was already serving.
On appeal, defendant raises the following points:
POINT I: IT WAS ERROR TO RULE ON THE MOTION TO SUPPRESS IN THE ...