On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-05-0980.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 26, 2011
Before Judges Cuff and Fasciale.
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1). The central issue in this appeal is whether the judge erred by denying defendant's motion to suppress cocaine discovered during a protective search after an investigatory stop. We affirm.
At approximately 2:47 a.m., two officers listened in their patrol car to a radio transmission that four African-American males wearing dark clothing fled from the scene of a nearby accident. They observed defendant two to three blocks from the accident scene and he fit the description of the fleeing suspects. They noticed that defendant walked quickly, moved his hands in and out of his pockets repeatedly, and increased his speed when he spotted the officers. While sitting in the patrol car, the officers ordered defendant to stop, but he ignored them. They exited the car, ordered him again to stop, and he complied. At this point, they observed that defendant acted nervously and was out of breath.
The officers then received a radio transmission that a gun was found at the scene of the crash. Concerned for their safety, one officer patted down defendant to check for weapons. He detected a bulge in defendant's right jacket pocket, reached into the pocket believing that the bulge was a weapon, and retrieved thirty-four clear vials with black caps that contained cocaine.
Defendant moved to suppress the cocaine and argued that the investigatory stop was unjustified because the officers had no reasonable articulable suspicion to believe that he was armed and dangerous. One officer testified at the hearing and the judge found his testimony to be credible. The judge concluded that the officers had reasonable suspicion to justify the stop and denied the motion.
After a six-day trial, a jury found defendant guilty of third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1). They found defendant not guilty of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1), and not guilty of third-degree possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7. The judge imposed a four-year term of imprisonment. He also imposed a concurrent four-year term of imprisonment for a violation of probation.
On appeal, defendant raises the following points:
THE LOWER COURT ERRED IN DENYING MR. BRADLEY'S MOTION TO SUPPRESS THE THIRTY-FOUR VIALS OF COCAINE SEIZED FROM HIS JACKET POCKET.
A. THE LOWER COURT ERRED IN RULING THAT THE INVESTIGATORY STOP OF MR. ...