STATE OF NEW JERSEY v. WILLIAM BRITT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0087-05T40087-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM BRITT,

Defendant-Appellant.

____________________________________

 

Submitted May 10, 2006 - Decided June 1, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 04-12-4612.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Sylvia Orenstein,

Assistant Deputy Public Defender, of

counsel and on the brief).

James P. Lynch, Acting Camden County

Prosecutor, attorney for respondent

(Robin A. Hamett, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant William Britt was tried before a jury and convicted of fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2, and the disorderly persons offense of possession of marijuana, in violation of N.J.S.A. 2C:35-10a, as a lesser included offense of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12). He was sentenced to a term of eighteen months, with nine months of parole ineligibility for resisting arrest, and to a concurrent term of six months for possession of marijuana. The court also imposed the mandatory fines and penalties.

We summarize the following facts from the evidence presented at trial. On October 12, 2004, Joseph Galiazzi, a lieutenant in the Camden Police Department, was assigned to investigate street level narcotic activities. That night, Galiazzi set up an undercover surveillance position in the area of 1 220 North 20th Street in the City of Camden. Sometime after 10:40 p.m., Galiazzi observed defendant (whom he described as a white male, wearing blue jeans, a black and white leather jacket and white sneakers), standing in the front yard of 1 225 North 20th Street, a vacant dwelling that shares a common sidewalk with the house next door. When he made these observations Galiazzi was approximately four car-lengths away from defendant. The area was illuminated by a street light and, from Galiazzi's perspective, defendant was standing at a higher elevation.

From his vantage point, Galiazzi observed a white woman approach defendant and engage in a conversation. Immediately thereafter, the woman gave defendant paper currency, and in response, defendant removed a clear plastic bag from his pocket. Defendant retrieved a small object from the bag and handed the object to the woman.

Based on his training and experience, Galiazzi concluded that he had witnessed a street-level illicit drug transaction. He called for back-up and directed them to the location where defendant was standing. Five police units responded to the call. According to the testimony of one of the responding officers, defendant was the only person standing at the specified location.

Upon seeing the responding officers, defendant immediately began to run. Although disputed by defendant, at least one of the officers testified that, although in civilian attire, the responding officers all wore their police badges outside their jackets, verbally identified themselves as police officers, and ordered defendant to stop. A foot-chase ensued. Defendant was eventually apprehended. Along the flight path taken by defendant, the police recovered two plastic bags containing a combined total of twenty-four smaller bags of marijuana.

Defendant testified in his own defense. He admitted being at the location described by Galiazzi, but as a buyer, not a seller. He also maintained that there were other prospective buyers and a drug dealer in the area. He purchased a quantity of marijuana from a Hispanic man, known to him from the area. Defendant denied being chased by the police. He began to run only when an unidentified man wearing a black mask pointed a gun at his face.

Against this backdrop, defendant now raises the following arguments on appeal:

POINT ONE

THE DEFENDANT'S CONVICTION FOR RESISTING ARREST BY FLIGHT MUST BE REVERSED BECAUSE IT STANDS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)

POINT TWO

THE SENTENCE IN THIS CASE, IMPOSED WITHOUT AN ADEQUATE STATEMENT OF REASONS, IS IN EXCESS OF THE PRESUMPTIVE TERM; THEREFORE, PURSUANT TO APPRENDI, BLAKELY AND NATALE THE MATTER MUST BE REMANDED FOR RESENTENCING. IN ADDITION, THE IMPOSITION OF A DISCRETIONARY PAROLE DISQUALIFIER WAS UNWARRANTED AND IT THEREFORE SHOULD BE VACATED.

We are satisfied that defendant's argument in Point I lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The evidence summarized herein amply supports the jury's verdict. On the question of the sentence, we are compelled to remand the matter for the trial court to apply the guidelines articulated by the Supreme Court in State v. Natale, 184 N.J. 458, 481-84 (2005), because the eighteen-month term imposed here exceeds the presumptive sentence applicable at the time. State v. Nesbitt, 185 N.J. 504, 519 (2006).

Defendant's conviction is affirmed. The matter is remanded for resentencing. We do not retain jurisdiction.

 

The white woman who allegedly purchased a quantity of illicit drugs from defendant was not apprehended.

We recognize the State's argument that because defendant did not move for new trial before the trial court, he is procedurally barred from arguing on appeal that the jury's verdict was against the weight of the evidence. R. 2:10-1. Because we are satisfied that defendant's argument in Point I of his brief lacks substantive merit, we need not reach this procedural issue.

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A-0087-05T4

June 1, 2006