On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-12-1615.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Simonelli.
A grand jury indicted defendant Rashad Hayes for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count two). A week before the trial, the trial judge gave defendant a Hudson*fn1 warning, and advised him when the trial would begin. Defendant failed to appear for trial and was tried in absentia. Prior to the commencement of the trial, the State dismissed count one and proceeded to trial on count two. The jury found defendant guilty on count two. The trial judge sentenced defendant to a five-year term of imprisonment with a five-year period of parole ineligibility, and imposed the appropriate assessments and penalty. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I - THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS, FOR DEFENDANT WAS UNLAWFULLY DETAINED BY POLICE, AND HIS SUBSEQUENT ARREST ON THE OUTSTANDING WARRANT WAS AN INVALID RESULT OF THAT DETENTION.
POINT II - THE TRIAL COURT IMPROPERLY APPLIED THE PRINCIPLES OF STATE V. BROWN ONCE IT PERMITTED THE PROSECUTOR UNILATERALLY TO DISMISS COUNT ONE OF THE INDICTMENT, THE CHARGE OF UNLAWFUL POSSESSION OF A WEAPON. (Not raised below). POINT III - DEFENDANT'S ABSENCE FROM THE TRIAL WAS IMPROPERLY EMPHASIZED BY THE TRIAL COURT DURING ITS INITIAL CHARGE TO THE JURY AND WAS NOT REMEDIED BY SUBSEQUENT INSTRUCTION OR CHARGE.
We reject these contentions, and affirm.
Defendant contends in Point I that the trial judge should have granted his motion to suppress the handgun found in his back pocket after his arrest. He argues that his detention and arrest were unlawful because the police lacked reasonable suspicion that he was engaged in criminal activity. We disagree.
Lieutenant Robert Hess (Lt. Hess) of the Edgewater Park Police Department testified at the suppression hearing that at approximately 11:00 a.m. on June 25, 2007, he was dispatched to the Arbor Green Condominium Complex (the complex) after Police Officer Herkoperec advised that Ed Abriola, the complex's caretaker and maintenance man, called to report a "black male in the complex who was walking in circles and screaming into a cell phone." Abriola also reported that an employee of the complex had to leave the area because he was afraid.
Lt. Hess had known Abriola for twenty-five to thirty years. He testified that [Abriola] didn't call [the police] very often, only on certain cases that he couldn't handle himself. He was the type of guy who didn't back down from anybody and can handle himself. He has a lot of pride and he doesn't like to bother [the] police department with calls he thinks he can handle himself.
Lt. Hess responded to the complex approximately one minute after Abriola's call and Officer Herkoperec responded shortly thereafter. When Lt. Hess arrived at the complex he saw "a tall thin black male wearing a white shirt, blue pants, and he was yelling into a cell phone." The man, later identified ...