On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-05-0312.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012
Before Judges Alvarez, Nugent and Ostrer.
Tried by a jury, defendant Mayhew D. Watson, Jr. was convicted of fourth-degree obstruction, N.J.S.A. 2C:29-1 (count one), third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2), as a lesser-included offense of second-degree eluding, N.J.S.A. 2C:29-2(b) (count five). The jury acquitted defendant of two other counts, third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count three), and third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count four). A sixth count charging defendant with fourth-degree tampering, N.J.S.A. 2C:28-6(1), was dismissed on defendant's application at the close of the State's case. On January 18, 2011, he was sentenced to three years' imprisonment on count two, with concurrent 364-day terms of county jail on counts one and five. Defendant appeals. Save for the vacatur of the sentence on count one, which the State concedes merges with count two, we affirm the judgment of conviction.
The incident which resulted in the indictment began on March 26, 2009, at approximately 11:00 p.m., while Penns Grove Corporal Joseph Schultz was on duty in a marked patrol car. He observed defendant's vehicle swerve across the center line as it traveled west on Main Street. Corporal Schultz followed the vehicle and when it turned in an intersection, he noticed a nonfunctioning tail light. Shortly thereafter, the officer activated his overhead lights to signal defendant to pull over.
In response, defendant's vehicle came to a sudden stop in the middle of the roadway, proceeded forward briefly, and abruptly stopped a second time. Corporal Schultz said he found the manner of operation "odd[,]" it got his "attention[,]" and he became "alarm[ed.]" Because he considered the vehicle's "jerking motion" not "normal[,]" he radioed for backup.
While awaiting the arrival of Patrolman Joseph DiCarolis, Corporal Schultz approached the car. He recognized defendant, whom he knew from contacts in the "small community" of Penns Grove. Corporal Schultz asked defendant "what was going on, what he was doing." Defendant responded that everything was fine, but the officer nonetheless opened the driver's side door and asked him to step out of the car; the engine was still running. Corporal Schultz told defendant to place his hands on top of the car so he could pat him down. As the officer began to do so, defendant repeatedly dropped his right hand, causing Corporal Schultz to instruct defendant to wait at the rear of his vehicle. Meanwhile, the officer saw a spoon with a white substance on it on the vehicle's passenger floor. Corporal Schultz believed it to be drug paraphernalia used "for cooking cocaine." He saw defendant approaching him and ordered him to return to the rear of his vehicle. When Corporal Schultz reached for the spoon, defendant "continued to kind of come towards [him,]" causing him to direct Officer DiCarolis, who had arrived, to arrest defendant.
Defendant struggled as the officers tried to handcuff him, although Corporal Schultz was able to place the handcuffs on one wrist. After warning him, Officer DiCarolis sprayed defendant with mace, which according to Corporal Schultz "didn't even seem to [faze] him a bit." When the officers attempted to put defendant on the ground, defendant wriggled away and ran to the driver's seat of his vehicle. Officer DiCarolis followed, tugging at defendant's arm, and Corporal Schultz punched him, which "didn't [faze] [defendant]. It didn't seem to bother him at all." Officer DiCarolis then took his baton out and struck defendant on the wrist, with no visible effect. In fact, defendant yelled "is that all you got" in response and drove away. Meanwhile, the Penns Grove dispatcher notified the officers, who had returned to their vehicles to give chase, that three additional officers from Carneys Point had been requested to provide assistance.
Shortly after, defendant appeared at the police station and went inside. He was shirtless and had a handcuff dangling from his left arm. He asked the dispatcher, Regina Vazquez, "where the f--- [are] the officers at, tell them to come here, I'm going to f--- them up." Vazquez immediately radioed the officers to return to the station, located only two blocks from the location of the stop. When defendant saw the officers arrive, he walked towards Corporal Schultz's vehicle and continued to fight as the five officers struggled to subdue him. They were eventually able to do so in the entryway of the station, although he was maced a second time in the process.
On appeal, defendant raises the following issues:
POINT I: THE MOTION JUDGE ERRED BY FAILING TO GRANT DEFENDANT'S MOTION TO SUPPRESS AND/OR DISMISS.