On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-07-1072A (VOP), 07-01-00052 and 07-01-00056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011 Before Judges Payne and Koblitz.
After an unsuccessful motion to suppress evidence, defendant Terrence Scott pled guilty pursuant to a plea agreement on January 14, 2008, to counts three, seven and elevenof Indictment No. 07-01-00056 charging, respectively, two counts of possession of controlled dangerous substances (CDS), cocaine and heroin, with intent to distribute within 1000 feet of school property in the third degree, N.J.S.A. 2C:35-7, and one count of unlawful possession of a handgun in the third degree, N.J.S.A. 2C:39-5(b). The State agreed to recommend that defendant receive extended terms of nine years in prison with a four-andone-half-year period of parole ineligibility on counts three and seven, and five years in prison on count eleven.*fn1 These sentences were to run concurrently to each other and to any resulting violation of probation. That same day, defendant pled guilty to a single violation of certain persons not to have weapons in the second degree, count one of Indictment No. 07-01-00052, N.J.S.A. 2C:39-7(b)(1). In exchange, the State agreed to recommend that defendant be sentenced to five years in prison, the sentence to run consecutive to the sentence on Indictment No. 07-01-00056.
On May 2, 2008, the court sentenced defendant on Indictment No. 07-01-00052 to eight years in prison with a four-year period of parole ineligibility on counts three and seven and five years in prison on count eleven. The sentences ran concurrently with each other and with the violation of probation. Thus, he received a sentence less than the maximum under the plea agreement on these charges. On Indictment No. 07-01-00056, the trial court sentenced defendant to five years in prison with a five-year period of parole ineligibility to run consecutively to the other sentences for an aggregate term of thirteen years with nine years of parole ineligibility. Defendant argues that his motion to suppress the evidence should have been granted and that his sentence is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At the suppression hearing, Detective Gunther Graham of the Elizabeth Police Department testified to the following facts. At around noon on October 21, 2006, he and Detective Darren Williamson were on foot patrol in uniform at Mravlag Manor, a public housing project in Elizabeth that is known as a high-crime and high-drug area.
As the officers entered the Manor, they received a verbal tip from a known confidential informant (informant). The police had previously received information from this informant more than 100 times, and on each occasion the tip had led to an arrest or recovery of narcotics. The informant was seated on a bench, and as the detectives passed, the informant whispered to Graham that a black man with dreadlocks, wearing a brown "hoodie," was holding a "package" in the nearby courtyard. Graham knew from experience that a "package" meant CDS.
The detectives entered the courtyard and, among several people there, saw defendant wearing a brown hooded sweatshirt, with his back turned towards the detectives as they approached.
Graham noticed a bulge about the size of a softball in defendant's sweatshirt and presumed it was the "package" mentioned by the informant. Graham asked defendant if he lived in the complex. Defendant said that he did not, but that he was visiting a friend. After Graham asked defendant for identification, defendant reached into his pocket as if to retrieve it, but fled instead.
Graham was able to grab defendant by his sweatshirt, although a woman standing near defendant pushed her baby carriage holding an infant into Graham to assist defendant in his flight. Graham tackled defendant, and Graham and Williamson then wrestled with defendant on the ground. The detectives repeatedly told defendant to stop resisting, and Graham emptied two containers of pepper spray on defendant in an effort to control him. During the melee, Williamson saw a gun in defendant's hand and shouted, "he's got a gun, gun, partner, gun." Following this cry, Graham used his baton to hit defendant's elbow so that defendant dropped the loaded handgun.
The detectives recovered a bundle wrapped with a handkerchief and stocking material from defendant's pocket. The bundle contained heroin and crack cocaine.
Defendant testified at the suppression hearing that, contrary to Graham's testimony, when asked for identification, defendant gave Graham the only ID he had, his county jail identification bracelet. Defendant testified that it was only after Graham pulled the package containing CDS from defendant's pocket that defendant attempted to flee. The trial court accepted the detective's version of the facts in rendering its decision.
On appeal, defendant argues, POINT I
AS THE DETECIVE LACKED PROBABLE CAUSE FOR WHAT WAS AN ARREST, NOT AN INVESTIGATIVE STOP, THE SEIZURE OF BOTH THE GUN AND THE DRUGS WAS IN VIOLATION OF DEFENDANT'S ...