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State of New Jersey v. John W. Marshall

February 23, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN W. MARSHALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1047.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2011

Before Judges Yannotti and Espinosa.

After his motion to suppress was denied, defendant John Marshall pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute the same on or near school property, contrary to N.J.S.A. 2C:35-7. He was sentenced to five years of imprisonment with a parole ineligibility period of two and one-half years. Defendant appeals from the judgment of conviction entered on March 25, 2009. We affirm.

At about 7:25 p.m. on July 25, 2007, Detectives Michael Turner (Turner), Waldemar Garcia (Garcia), and Miguel Acosta (Acosta) were in the area of West End Avenue and West State Street in Trenton. The officers received information that a concerned citizen had observed a man operating a bicycle and selling drugs in the area of Hermitage Avenue and Boudinot Street. The person was described as a black male, approximately five feet, nine inches, wearing a green raincoat, a black shirt with a red collar, grey shorts, and a black baseball cap with "NY" on the front.

The officers went to the corner of Edgewood Avenue and West End Street, where they observed a black male, later identified as defendant. Defendant was riding a bicycle. He was wearing a green raincoat and fit the description provided by the concerned citizen. According to the detectives, defendant's bicycle was not equipped with an audible device or lamp.

Turner attempted to stop defendant to question him based on the information the concerned citizen had provided and his operation of a bicycle without an audible device or lamp. Acosta ordered defendant to stop but he continued to pedal away. Defendant yelled to the officers, "Why are you stopping me?" He continued to pedal down West End Avenue toward West State Street. Acosta followed defendant on foot and told him of the investigation and the bicycle violations. Defendant started pedaling faster.

Acosta ran after him and yelled at him to stop. Acosta told defendant that he was under arrest for obstructing the investigation. Defendant was still on his bicycle and turned right onto Montgomery Place. Acosta was running about ten feet behind defendant when he observed defendant reach into the right pocket of his coat and throw a white object to the ground. The object was identified as a matchbook.

Turner and Garcia continued to follow defendant in their police vehicle while Acosta followed defendant on foot. As he approached the intersection of Fisher Place and West State Street, Acosta saw defendant take another object from his right coat pocket and toss it to the street. Garcia retrieved the object and found a small package that contained suspected heroin. Turner apprehended defendant on West State Street. Defendant had $351 in his right pants pocket, and Garcia recovered twenty-six glassine packets, each containing suspected heroin. Summons were issued for violating N.J.S.A. 39:4-10 and N.J.S.A. 39:4-11.

Defendant was charged with fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(b)(3); possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7, N.J.S.A. 35-5(a)(1) and N.J.S.A. 35-5(b)(3); and possession of a CDS with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(3).

Thereafter, defendant filed a motion to suppress the evidence recovered in the incident. The court heard oral argument on the motion and, on March 18, 2008, placed its decision on the record.

The court found that the detectives were authorized to stop defendant because they had reasonable and articulable suspicion that he was driving his bicycle without an audible signal, in violation of N.J.S.A. 39:4-11. The court also found that, based on the information and description provided by the concerned citizen, and the fact that defendant took flight when he saw the police, the police had reasonable and articulable suspicion that defendant was violating the law. In addition, the court found that the police were authorized to stop defendant and properly seized the drugs after defendant had abandoned them.

Thereafter, defendant pled guilty to third-degree possession of CDS with intent to distribute the same on or near a school property, contrary to N.J.S.A. 2C:35-7. The court sentenced defendant to five years, with a two-and-one-half-year period of parole ineligibility. The court ordered the forfeiture of the $351 found at the time of the incident; the suspension of defendant's driving privileges for six months; ...


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