On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-03-0480.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Koblitz.
Defendant Michael B. Franklin appeals from his convictions after a jury trial on Bergen County Indictment No. 07-03-0480, of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -b(3) (count one), third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2) (count four), a lesser-included offense of the original charge of third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29-2a(3)(a). Defendant was acquitted of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5) (count three). All acts giving rise to the charges in the indictment occurred on November 15, 2006. After a hearing conducted prior to the jury trial, the trial court denied defendant's motion to suppress the cocaine found in his car and on his person and granted his motion to exclude his prior convictions from use by the State on cross-examination due to remoteness. State v. Sands, 76 N.J. 127, 147 (1978).
Defendant was also charged in Saddle Brook Municipal Complaint No. W-06-3020257 with two disorderly persons offenses stemming from the same incident, being under the influence of a controlled dangerous substance, N.J.S.A. 2C:35-10b, and possession of drug paraphernalia, N.J.S.A. 2C:36-2. After the jury trial, the court conducted a bench trial on the charges in the municipal complaint, finding defendant not guilty of being under the influence of drugs, but guilty of possession of drug paraphernalia.
Defendant was sentenced as a persistent offender to an eight-year mandatory extended term with a four-year period of parole ineligibility on count one of the indictment. N.J.S.A. 2C:43-6f. Count two was merged into count one, and he received a consecutive eighteen-month term with a nine-month period of parole ineligibility on count four. The disorderly persons offense of possession of drug paraphernalia was merged into count one. Statutory fees and penalties were imposed on all counts, including those that were merged, and a six-month suspension of defendant's driver's license was imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions, but remand for a new sentencing hearing.
Defendant testified to the following facts. He worked at Ideal's Lounge, a diner in Newark. During the early morning of November 15, 2006, he drove to various homeless shelters to drop off leftover food from the diner. Defendant kept the passenger and driver side windows of the car rolled down because he knew that they were illegally tinted, and he did not want to be pulled over. As he was driving eastbound on Route 46 at approximately 4:00 a.m., he was stopped by Saddle Brook Police Officer Leigh Cadigan. Defendant produced the requested documentation and asked the officer why he had pulled him over.
The officer replied, "Don't ask f'in questions. I ask f'in questions." The officer later told defendant that he pulled him over because he was "swaying on the road" and then asked him to exit the vehicle and submit to a sobriety test.
Officer Cadigan offered a different version of the events that transpired after he stopped defendant's car. After he asked defendant for his license and registration, defendant began to act erratically, yelling and punching the steering wheel and center console of his car, and repeatedly moving his hands out of the officer's view, causing the officer to fear for his safety. Cadigan then asked defendant to exit the vehicle. Cadigan escorted defendant behind the vehicle, in the area of the back-up officer, Patrolman Jeffrey Panagia. At this time, defendant again became erratic and appeared to attempt to remove his clothes, then suddenly became calm. The officers suspected defendant was under the influence of narcotics.
Cadigan inspected defendant's vehicle by shining his flashlight into the open driver's side door and observing the inside of the car. The officer observed a "blue translucent ziploc bag," which appeared to contain crack cocaine, on the driver's side floor of the vehicle. He also observed another bag, which was partially inside a change drawer in the car, which appeared to contain several smaller bags similar to the one observed on the floor. Finally, the officer observed what appeared to be two crack pipes on the center console. He collected these pieces of evidence and put them in a cargo pocket in his uniform. After arresting defendant, Cadigan patted defendant down and discovered another clear Ziploc bag containing a golf-ball sized rock, which he suspected to be crack-cocaine.
Defendant testified that when the officers arrested him, they "crushed the handcuffs on [his] hand . . . so tight [that his] hands turned blue." He testified that he asked the officers to loosen the cuffs, but they ignored him. Officer Cadigan testified that he did not recall defendant asking for him to loosen his handcuffs, but he would not have loosened them anyway. Officer Panagia testified that he did not hear defendant complain that the handcuffs were too tight.
Officer Cadigan testified to the following facts occurring after defendant was put into handcuffs and patted down. Cadigan attempted to place defendant in the patrol vehicle. Defendant began to yell and push back. After defendant's torso and head were inside the vehicle, defendant began kicking Cadigan's hand against the vehicle door, causing a cut, which later became infected. Eventually the officers were able to get defendant into the vehicle using hand strikes to his legs.
Defendant testified to the following, somewhat different facts. After the officers got his torso into the car, defendant refused to allow them to put his legs into the car until they loosened the handcuffs. Cadigan hit him in the ankles with a "baton or antenna type thing." The officer was hitting his own hand against the door while hitting defendant. The officers were eventually able to get defendant into the vehicle by pulling him in from the driver's side.
Cadigan testified that after they arrived at the police station, defendant was placed in an ambulance, which transported him to a hospital for an examination of his legs. Defendant, however, testified that the officers left him in the back of the patrol vehicle for almost an hour before calling the ambulance. After defendant was placed in the ambulance, Cadigan turned all of the evidence recovered from defendant's person and car over to Detective John Fontana. An ambulance was then called for Cadigan, due to concern about his hand injury.
Detective Fontana testified that he was called into the police station at approximately 5:00 a.m. to assist by processing defendant. He stated that the evidence in this case, the bags with suspected narcotics and the drug paraphernalia, was left with the desk sergeant. Fontana said that he took the evidence, packaged it in larger evidence bags, labeled the bags, and then placed them into an evidence locker.
On November 17, 2006, two days after the arrest, Fontana transported the evidence to the State Police Laboratory where one of the specimens from one of the thirty-two bags and the rock found in defendant's pocket tested positive for cocaine. An expert in narcotics for the State testified that a person possessing the amount of cocaine found in defendant's car would possess it with the intent to distribute.
At the end of the State's case, defendant moved for a judgment of acquittal, arguing that his alleged actions in struggling against being placed into the patrol vehicle could not constitute resisting arrest as a matter of law because he was already arrested. The State argued that the arrest was not complete at that point, and the court agreed, denying defendant's motion.
Defendant raises the following issues on appeal,
THE PROSECUTOR'S QUESTIONS TO DETECTIVE FONTANA REGARDING DEFENDANT'S PROCESSING, FONTANA'S RESPONSES THERETO AND THE PROSECUTOR'S ACCOMPANYING REMARKS TO THE COURT IMPROPERLY IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT WHICH THE COURT ERRONEOUSLY FAILED TO DISPEL.
THE PROSECUTOR IMPARTED INFORMATION TO THE JURY ON DEFENDANT'S CROSS-EXAMINATION AND MADE REMARKS ON SUMMATION WHICH IMPERMISSIBLY SUGGESTED THAT DEFENDANT HAD PREVIOUSLY ILLEGALLY INGESTED DRUGS AND IMPUTED A GENERAL ...