On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012 -
Before Judges Sapp-Peterson and Ostrer.
After the court denied his suppression motion, defendant entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). He was sentenced in accordance with the plea agreement to a five-year term subject to a mandatory three-year period of parole ineligibility on the weapons charge, concurrent with an eighteen month sentence on the resisting arrest charge. Defendant now appeals from the denial of his suppression motion, and also argues his sentence was excessive. We affirm.
Defendant did not dispute the facts as presented in a September 17, 2008 police incident report included in the State's brief. We discern the following facts from that report.*fn1
Irvington Police Patrolman K.R. Boykins was dispatched to the area of Lenox and Madison Avenues in Irvington, along with his partner, after the report of a robbery "that had just taken place." According to a fair reading of the report, more than one suspect was sought for the robbery, although only one suspect was described. The report states:
On this date Unit 706 (Boykins & Haley) and Unit 704 (Sims & Ewell) were dispatched to the area of Lenox Ave & Madison Ave on a report of a robbery of a citizen that had just taken place. When this unit arrived on scene Unit 704 were interviewing the victims. The description obtained from the victim of the suspects was, a black male wearing a white shirt with blue jeans and something black (possibly a hat) on his head. This unit proceeded to search the perimeter while Unit 704 stayed with the victim. [(emphasis added).]
We note it is unclear whether there was one victim or more, since the report alternately refers to the robbery of a singular "citizen," multiple "victims," a singular "victim," and uses the plural pronoun "they" to refer to the victims.
After touring the immediate area of the robbery, the officers located a person who matched the description they received and who was walking with another individual. The two persons were defendant and a man later identified as Lance Yarbough. The report does not expressly state whether defendant or Yarbough was the one who matched the description. But, we infer that Yarbough was the man in the blue jeans, white t-shirt and head covering, because defendant was described as "Suspect #2." After police commanded them both to stop, Yarbough obeyed, and defendant did not. The report states:
This unit searched the length of Lenox Ave (northbound) while viewing the side streets. Then North on Carolina Ave, East on 18th Ave, South on Melrose Ave to Delmar Pl. West on Delmar Pl. to Orange Ave then North on Orange Ave. As we drove North on Orange Ave the undersigned noticed an individual fitting the description walking South on Orange Ave with another individual. As we drove pass [sic] the two they seemed to hide their face [sic] from us by looking down and away. Due to my experience and training on this job and there [sic] action made me suspicious of them.
After seeing this I instructed my partner, who was driving to make a u-turn and interview the two individuals. I exited the patrol car and walked behind the individuals as my partner drove ahead and stopped in front of same. As Officer Haley advised the two to stop, suspect #2 now known as Ishmael James, turned away and attempt[ed] to run in the opposite direction (North on Orange Ave). As he saw the undersigned approaching he opened the gate of 255 Orange Ave and ran through their yard eastbound. The other suspect, now known as Lance Yarbough made no attempt to flee and was detained by Officer Haley.
As he fled, defendant discarded a handgun in a yard near Bachman Place. Police recovered the handgun, as well as defendant's cellphone, backpack, and jacket, which he also discarded as he fled. Police arrested defendant shortly ...