On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011 - Decided Before Judges Sabatino and Alvarez.
After defendant Troy Hill's motion to suppress was denied, he entered conditional guilty pleas to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and third-degree possession of cocaine in a school zone with intent to distribute, N.J.S.A. 2C:35-7. He appeals and we affirm, except the matter is remanded so that the two offenses can be appropriately merged.
The following are the facts developed by the State at the October 5, 2007, suppression hearing resulting in the order from which the appeal is taken. On January 4, 2007, at approximately 10:30 p.m., Asbury Park Patrolman Pierre Louis observed defendant drive through a stop sign. Louis promptly followed defendant and pulled him over in the lighted parking lot of a nearby restaurant. Louis requested defendant produce his credentials and explained that he would be issued a summons for running the stop sign. As Louis walked back to his vehicle, Patrolman Gabe Carrasquillo, the backup officer, arrived at the scene. Carrasquillo walked towards the driver's side of defendant's vehicle and stood about ten feet towards the rear away from the door. When defendant opened the door slightly, Carrasquillo told him to remain in his vehicle. At that point, defendant swung the door open and fled on foot. Carrasquillo yelled for defendant to stop, but he continued running. Louis looked up and saw defendant, with Carrasquillo in pursuit. He left his vehicle and chased after defendant, yelling for him to stop.
Carrasquillo testified the officers caught up with defendant some 100 feet away from the cars. In contrast, Louis stated that he and Carrasquillo were approximately twelve feet away from the vehicle when they caught up with him.
Carrasquillo grabbed defendant, who was swinging his arms. The officers took defendant down to the ground, scraping his head in the process. After defendant was handcuffed, a search revealed three sandwich bags containing both rock and powder cocaine inside a coat pocket, and $1474 in a pants pocket.
Lavell Thompson testified on behalf of defendant, and his version of the events of that night differed from that of the officers. He had been on duty as a security guard at the restaurant when defendant was stopped. Thompson said he saw defendant's car, followed by a patrol car, enter the parking lot. Because he was at some distance, he could not hear any conversation. Thompson "thought" he saw the first officer, Louis, in the presence of Carrasquillo, ask defendant to get out of his car. He recalled the officers directing defendant to place his hands on the car and face the vehicle. Thompson claimed he saw Louis checking defendant's clothes, while Carrasquillo was simultaneously looking in the trunk of defendant's car. Suddenly, he saw defendant running, the officers following behind. When Louis reached defendant, approximately thirty to forty-eight feet from the car, defendant "knocked" Louis "off him" onto the ground but was captured by Carrasquillo. Thompson acknowledged he was not sure about the sequence of events with regard to the search of the trunk, that it had been "a long time ago."
Defendant was the final witness. He grudgingly admitted that he might have run the stop sign by a few feet, but otherwise agreed he was stopped by Louis in the restaurant parking lot. Thereafter, his narrative of the incident varied from the officers and from Thompson.
Defendant testified that shortly after the stop Louis and Carrasquillo conferred while standing behind his vehicle and that Louis told him to turn off his engine as he had a warrant for his arrest. When defendant asked about the warrant, Louis told him to just "come on, get out of the car." He complied with the order, and Louis searched him while Carrasquillo searched the trunk of his car. Carrasquillo was able to gain access without using a key because the trunk lock mechanism was broken and the trunk was ajar. When Louis put his hands in his pockets, defendant ran. He also claimed that he was no more than approximately two feet from the car before the officers grabbed him, and that Louis punched him in the face while Carrasquillo kicked him in the head. He asserted he was so dazed that he may have even briefly lost consciousness while in the patrol car.
The motion judge found the officers' version of the sequence of events straightforward and more credible than defendant's. He acknowledged Thompson's story varied from the officers' but, as he put it, Thompson's testimony was "uncertain." The judge said defendant's own testimony simply made "no sense." He therefore concluded defendant was searched after the arrest, and furthermore, that the arrest occurred only after his attempted flight. Probable cause to arrest defendant arose when he fled while Louis was issuing the motor vehicle ticket; and the search was proper incidental to the arrest. See State v. O'Neal, 190 N.J. 601, 614-15 (2007). The court consequently denied defendant's motion to suppress the evidence.
On January 7, 2008, defendant entered a guilty plea to the charges. The plea agreement called for defendant to be sentenced to a six-year term, subject to three years of parole ineligibility. The State agreed not to request that defendant be sentenced as an extended-term offender.
Defendant's criminal history included a conditional discharge in 1985, a petty disorderly persons offense in 1987, a disorderly persons offense in 1989, third-degree drug distribution in 1988 and 1989, third-degree drug possession and assault on a law enforcement official in 1991, and third-degree drug possession in 1998. At sentencing, the court noted defendant's four indictable convictions and found the record supported aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk defendant would reoffend, and nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. Because of defendant's work history, he found mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), the likelihood he would succeed on probation, and ...