NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-04-0903 and 10-02-0343.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
Before Judges Reisner and Hayden.
Following the denial of his motion to suppress evidence, defendant Lamar Gresham pled guilty, in Indictment No. 09-04-0903 (Indictment I), to third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5a(1), and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant also pled guilty on another indictment, No. 10-02-0343 (Indictment II), to first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1). Defendant reserved the right to appeal the denial of his suppression motion. The trial judge sentenced defendant to eight years imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, for his attempted murder conviction, and concurrent sentences of six years imprisonment with three years of parole ineligibility on the weapons conviction and four years on the possession with intent to distribute. The judge awarded defendant 974 days of jail credit to be applied only to the conviction from Indictment I.
On appeal, defendant argues that:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION TO SUPPRESS UNDER THE CONTROLLING CASE OF STATE V. BOLTE.
POINT II: DEFENDANT SHOULD BE GIVEN 974 DAYS OF JAIL CREDIT ON INDICTMENT NO. 10-02-0343 PURSUANT TO STATE V. HERNANDEZ.
Having considered defendant's arguments in light of the applicable legal principles, we affirm defendant's conviction substantially for the reasons set forth by the trial judge in his comprehensive and cogent opinion, and find that the judge properly denied defendant's motion to suppress. However, we remand to the trial judge for calculation of the correct number of jail credits to be credited to the Indictment II conviction, which the State concedes the judge improperly credited solely to the Indictment I conviction.
We discern the following facts from the record of the motion to suppress the drugs and weapon. On January 8, 2009, Detective Michael Ruzzo of the Atlantic City Police Department observed what he believed, based upon his extensive experience as a police officer, to be a hand-to-hand drug transaction in progress in front of a multi-story apartment building in a high drug crime area. Detective Ruzzo walked around the apartment building to the back entrance of its breezeway, and Detective Paul Petinga of the Atlantic City Police Department, who was in plain clothes and wore a visible police badge, approached defendant from the front entrance. When defendant saw Petinga he "took off running." Petinga pursued defendant on foot, yelling "police, stop, " but defendant ran through the courtyard and up the stairs to the second floor of the apartment complex. Petinga observed defendant run into an apartment door with his shoulder, turn the door knob, and shut the door.
A few minutes later, defendant opened the door, looked out, and then closed the door a couple of times before he stepped out into the hallway. Petinga, who had been waiting on the third-floor landing out of view, ran toward defendant and ordered him to stop, but defendant ran back into the apartment. Petinga pursued defendant and observed him throw a black object into an open closet located right behind the apartment door. Defendant continued running into a bedroom and jumped, face down, onto the bed, where, after a brief struggle, he was apprehended. The officers found a handgun on the bed, a ...