On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-12-2888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Rodriguez and Grall.
Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel v. Gautieri, Assistant Deputy Public Defender, of counsel and on then brief). Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant Prosecutor, of counsel and on the brief).
Defendant Frederick L. Parker appeals from a judgment of conviction. The judgment was entered on defendant's plea of guilty to five counts of an indictment alleging crimes committed on October 27, 2007: third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of prohibited hollow-point bullets, N.J.S.A. 2C:39-3f; fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7.
The judge merged defendant's convictions for unlawful possession of a handgun and possession of a defaced firearm. He sentenced defendant to a four-year term for unlawful possession of a handgun; a concurrent fifteen-month term for possession of hollow-point bullets; a consecutive fifteen-month term for obstructing the administration of law; and a third consecutive nine-year term for possession of a weapon by a convicted person.
On appeal, defendant argues that his arrest for obstruction was illegal, and the evidence seized incident to that arrest, which supports his conviction for weapons offenses, should have been suppressed. Additionally, he contends that the nine-year sentence for possession of a weapon by a convicted person is excessive and the consecutive sentences are not justified by the judge's findings. We conclude that the arrest was lawful but remand for reconsideration of the consecutive sentences.
In providing a factual basis for his guilty plea, defendant testified, "[an] officer tried to stop me and when he asked me to stop I didn't stop. I kept going." He admitted that he "took off when cops were trying to stop [him]" and cut into a parking lot because he did not want the officer to find the handgun he had in the waistband of his pants. That handgun had a defaced serial number and was loaded with a clip that held three hollow-point bullets. He further acknowledged that he had a prior conviction for possession of a controlled dangerous substance with intent to distribute, a conviction which prohibited him from possessing a handgun.
Defendant was arrested on October 27, 2007. He was then suspected of shooting someone earlier that month. On October 12, 2007, Detective Burrows of the Atlantic City Police Department responded to the scene of a shooting. The victim reported that he had been shot by a drug dealer and gave a description but not the name of the shooter. The victim told the officer he suspected that the drug dealer might have thought he was a "snitch" and did not want to cooperate if the shooting was "justified." Nonetheless, on October 24, 2007, the victim, who was still suffering from injuries caused by the shooting, decided to cooperate. He admitted he knew the drug dealer as "F.O." On October 26, the victim selected defendant's photograph from an array.
The victim signed a complaint and gave a statement. Using that information, Burrows prepared an arrest warrant, which was placed in a bin to be sent to court for processing, and a "wanted flyer," which would be circulated to the city's police officers at roll call. The flyer stated that defendant had shot one of his associates seven times and had access to firearms. The flyer also indicated that a warrant had been issued, but it was circulated before that was done.
On October 27, 2007, Officer Corcoran worked from 4:00 p.m. to midnight. He attended roll call and received a copy of the flyer that Burrows prepared. Corcoran knew defendant from his police work. At about 10:50 p.m., Corcoran was stopped at a traffic light and saw defendant riding a bicycle. Corcoran was in uniform and driving a marked police car. He hit his car's air horn twice, flicked on the overhead lights, called defendant by name and directed him to stop. The air horn does not sound like a siren; the sound is more like a car horn but amplified and "a lot louder." Corcoran got defendant's attention. Defendant looked at him, and they made eye contact.
Defendant did not stop. He stood up on the pedals and pedaled faster as if trying to get away. When defendant reached a parking lot, he pedaled through a pedestrian opening that was too small to permit Corcoran to continue the pursuit in his police car. Corcoran radioed for assistance, left the police car with the lights still activated and followed defendant on foot. As Corcoran chased defendant's moving bike, he broadcast defendant's description and path of travel to alert other officers in the area of his need for assistance.
When Officer Logan spotted Corcoran and defendant, he stopped his police car and got out with his police dog. At that point, defendant knelt on the ground and raised his arms. As Logan put defendant's arms behind his back to handcuff him, Corcoran saw the gun stuck in defendant's waist band. The handgun, ...