On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Payne and Reisner.
Defendant, Khalil Q. Bass, appeals his conviction for third-degree burglary, N.J.S.A. 2C:18-2, fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. The first two convictions arose from a partial jury verdict. The jury was unable to reach a verdict on charges of third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f, fourth-degree unlawful possession of a large-capacity ammunition magazine, N.J.S.A. 3C:39-3j, and second-degree burglary, N.J.S.A. 2C:18-2b. After the jury verdict was returned and a retrial was scheduled on the remaining unresolved charges, defendant pled guilty to the charge of possession of a weapon by a convicted felon.
Defendant also appeals as excessive his seven-year sentence with a five-year parole disqualifier imposed pursuant to N.J.S.A. 2C:39-7b.
On appeal, defendant raises the following issues for our consideration.
THE COURT COMMITTED REVERSIBLE ERROR AND DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT'S DENIAL OF THE MOTION TO SUPPRESS.
A. The Denial of the Motion to Suppress Evidence Based on the Theory of Exigent Circumstances Was in Error.
B. The Denial of the Motion to Suppress Evidence Based on the Theory of Inevitable Discovery Was in Error.
MR. BASS WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR SUPPRESSION HEARING WHERE THE COURT'S HOSTILE COMMENTS REFLECTED EXTREME BIAS TOWARD HIM AND HIS COMMUNITY. (PARTIALLY RAISED BELOW.)
THE DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BECAUSE THE JUDGE ERRED IN DENYING THE MOTION FOR ACQUITTAL. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS NOT LICENSED OR PRIVILEGED TO ENTER THE PREMISES IN QUESTION.
THE SENTENCE WAS EXCESSIVE.
At a suppression hearing conducted in the matter, the State first offered the testimony of Atlantic City Police Sergeant Andrew Leonard. Sgt. Leonard testified that, during the afternoon of April 2, 2007, he was informed that defendant, whom he confirmed had an outstanding active arrest warrant against him as the result of a parole violation, was standing outside a certain residence in Atlantic City. The Sergeant arranged to meet at Sandcastle Stadium with three other officers to formulate a plan as to how defendant could be approached and apprehended. At the time, Sgt. Leonard knew defendant had been arrested several times while in possession of firearms and that he had run from the police on several occasions. He knew, as well, that defendant had been arrested for drug offenses, and he believed defendant had been arrested in the past for aggravated assault.
The four officers formulated a plan whereby Sgt. Leonard and another police officer would approach the residence in separate cars from the front, and Officer John Devlin and a K-9 officer would approach it in their cars from its rear on a parallel street. As the Sergeant and his fellow officer pulled in front of the address in their marked police cars, the Sergeant saw defendant standing outside with four other individuals. When the two officers got out of their police cars, defendant started slowly walking toward the residence. At the time, defendant was wearing a heavy jacket, and he appeared to be clutching an object underneath it. Sgt. Leonard ordered defendant to stop and advised him that he was under arrest. However, defendant ignored the command and ran inside the residence. Sgt. Leonard knew at the time that the residence was not defendant's.
Although the Sergeant attempted to follow defendant into the residence, he could not open the door. The Sergeant then knocked on the door very hard a couple of times, to no avail.
Seconds later, the officers at the rear of the building advised that defendant had attempted to exit from the back of the residence but, when he saw the officers, he retreated into the house. According to Officer Devlin, who also testified at the hearing, defendant was clutching something with both hands beneath an oversized shirt as he attempted to leave the building. When asked what he thought the object was, Devlin responded: "I couldn't see anything but it was something that he didn't want me to see and in the back of my mind I was always thinking I'm thinking about a weapon." He continued: "He was just covering it up and when he saw me he made sure to turn his back and, you know, just certain furtive movements he was making with it made me believe that it was a weapon." Although Devlin informed defendant that he was under arrest, and he ordered defendant to stop and show his hands, he did not do so. Shortly after defendant returned to the house, Devlin heard a commotion occurring in a second-floor space that he later learned was a bathroom. To him, it "basically sounded like porcelain, porcelain being moved around." According to Devlin, he thought that maybe defendant was going to throw the top of a toilet bowl out the open window at the police, and therefore they should be careful.
By looking through a window in the front door, Sgt. Leonard had seen defendant running up the stairs to the second floor. A very short time later, defendant opened the door and surrendered. A pat-down search conducted at the time revealed nothing. Defendant was then handcuffed and secured by Sgt. Leonard in the back of his police car. At the time, the ...