NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-10-0923.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Kenneth A. Burden, Deputy Attorney General, of counsel and on the brief).
Before Judges Koblitz and Accurso.
Following the denial of his motion to suppress evidence seized incident to his arrest, defendant Mark Edward Hicks pled guilty to third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1, and second-degree eluding, N.J.S.A. 2C:29-2b. Pursuant to a negotiated agreement, the State agreed to dismiss the remaining charges in the indictment and to recommend an aggregate sentence of seven years imprisonment with a three-year parole disqualifier in exchange for defendant's plea and his agreement to be sentenced in the extended range on the third-degree drug possession charge. He now appeals the denial of his motion to suppress. We affirm, essentially for the reasons expressed by Judge Fasciale in his written opinion of November 17, 2008 and State v. Williams, 192 N.J. 1, 4 (2007).
In the course of a wiretap investigation of Hakeem Roberson, the suspected leader of the Clinton Avenue Posse, a purported Plainfield street gang, the State Police intercepted a call on April 13, 2007 from an unidentified male. The caller, who claimed he was acting on behalf of a third party, wanted to meet Roberson at McDonald's for a "whole box of cheeseburgers" to "wipe up a snotty nose." Roberson quoted the caller a price of 275. In a second call, the caller said he had 250 but wanted to double his order and again referred to someone else's involvement in the transaction. The two agreed on a price of 480. In a third call, Roberson alerted the caller to police at McDonald's where the two planned to meet. The caller suggested they meet instead at a nearby Kentucky Fried Chicken (KFC). In a fourth call, Roberson confirmed KFC as the meeting place.
At the suppression hearing, the State Police detective who intercepted the calls testified that individuals engaged in narcotics transactions often refer to various foods as euphemisms for drugs and expressed his belief that the caller's reference to "a box of cheeseburgers" was just such a euphemism. The detective also testified that he was aware that "snotty nose" was a "brand" of heroin. The detective testified that, based on his training and experience, he concluded Roberson and the unidentified caller were setting up a drug transaction.
Shortly after the last call, a detective from the Plainfield Police Department, which was cooperating with State Police in the wiretap investigation, watched Roberson drive into the KFC parking lot and meet two men. One of the men got into the front seat of Roberson's car. After several minutes, the man got out of the car and left the parking lot driving a red Ford Expedition with a passenger.
The Plainfield Police sergeant in charge of the surveillance, who was en route to the scene, determined to stop the Expedition in connection with the drug transaction his detectives believed they had just witnessed. Because of the sergeant's awareness of the "violent tendencies of Roberson's associates in Plainfield, " and unsure of whether the men in the Expedition were armed, he called for assistance in stopping the vehicle. Although the sergeant initially experienced difficulties in obtaining assistance from State Police or local departments to stop the Expedition as it left Plainfield and proceeded through Piscataway, by the time it crossed into New Brunswick, State Police had arranged for members of that department to stop the Expedition.
The sergeant passed the Expedition on Livingston Avenue and parked further up the block as New Brunswick officers in two unmarked cars executed the stop. One of the cars, with lights and siren activated, pulled up alongside the Expedition and the other pulled in front of it to block the street. Livingston Avenue in the vicinity of the stop is a busy thoroughfare with offices, houses, a library and a public school located along its length. Large numbers of pedestrians frequent this area. Three officers got out of the cars and ran toward the Expedition. One approached the driver's side and ordered the occupants out of the vehicle.
As that officer grabbed the handle of the driver's door, the Expedition lurched forward and made a sharp right turn onto the sidewalk. The officer quickly let go of the handle to avoid being struck or dragged by the Expedition as it sped off down the sidewalk. The Expedition travelled one-half block on the sidewalk before it re-entered Livingston and made a quick left turn down a side street. As the Expedition made that turn, the Plainfield sergeant, who was still parked on Livingston, watched as several small white objects ...