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State of New Jersey v. James Lowe

September 6, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES LOWE, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0311.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 6, 2011

Before Judges Cuff, Sapp-Peterson, and Simonelli.

A jury convicted defendant of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. In a subsequent proceeding conducted immediately afterwards, the jury also convicted defendant of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. We reverse.

Including jury selection, this was a short, two-day trial. Jersey City police officer Hennessey and his partner were dispatched to the corner of Myrtle and Bergen Avenues based upon a report that a suspect wanted in connection with a prior shooting might be at that location. The officers were given a description that the suspect was wearing a purple sweater. Upon their arrival at the location, they saw two men, one of whom met the description of the suspect, and another person later identified as defendant. The officers exited their vehicle and Officer Hennessey's partner walked over to the suspect while Officer Hennessey turned his attention to defendant, who immediately yelled, "oh, shit, narco" and then "took off running" past him. Believing that defendant was involved in narcotics, he started to chase defendant and, during the chase, observed that defendant kept reaching into his waistband, which raised the officer's awareness. He then observed "the handle or what appeared to be a handle of a gun." At this point, the officer was approximately ten feet away from defendant.

Officer Hennessey pursued defendant into an alley where defendant climbed over a fence, at which point defendant's baseball cap came off, and he then climbed a second fence. Officer Hennessey testified, "I see him -- he -- as he's going over the fence, he's just trying to get that gun, get rid of the gun. And then he gets into the yard, and he gets rid of the gun and climbs the fence back over." Other officers arrived in the area and a perimeter was formed. When defendant came back from the yard, he went down the basement stairs of one of the houses where Officer Hennessey and another officer found him hiding. With the assistance of a K-9 dog, Frodo, officers found a gun in the yard shortly thereafter. According to the testimony of Frodo's partner, K-9 Officer Louis Mecka, Frodo is a scent-trained dog with expertise in explosives such as "black powder, smokeless powder[,] which is your typical gunpowder[.]"

Under cross-examination, Officer Hennessey acknowledged that he did not actually see defendant discard the gun. He also acknowledged that his testimony that he kicked through the first fence in pursuit of defendant was inconsistent with his testimony at the suppression hearing, where he testified that he climbed over the first fence, but could not climb over the second fence because it was barbed wire.

In his testimony, defendant confirmed that when he saw the police, he uttered the expletive and said "narco." He explained that he immediately started to run because he had just purchased drugs and was on probation. He also acknowledged that he ran down an alley, but denied that he climbed over any fences. Rather, defendant testified that when he went down the alley, he reached the fence with the barbed wire on it and knew that he could not get over it. He then tried to leave the alley, but the officer already had his gun out and told him to get down, at which point he surrendered. He denied possessing any weapon that evening. Also, during direct examination, defendant disclosed his previous indictable convictions and the sentences imposed for each of the three convictions.

Under cross-examination, in addition to questioning defendant about the specific areas of his testimony where he disagreed with Officer Hennessey's testimony, the prosecutor questioned defendant about each of his prior convictions, specifically, the nature of each conviction and the sentences imposed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE COURT BELOW SHOULD HAVE GRANTED LOWE'S MOTION TO SUPPRESS BECAUSE HE WAS SEIZED BY THE POLICE BEFORE THE ...


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