STATE OF NEW JERSEY v. LUQMAN N. ABDULLAH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5325-03T45325-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUQMAN N. ABDULLAH,

Defendant-Appellant.

____________________________________

 

Submitted October 26, 2005 - Decided January 10, 2006

Before Judges Grall and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-0499.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Luqman Abdullah, was convicted of eluding, N.J.S.A. 2C:29-2(a), and burglary, N.J.S.A. 2C:18-2. He was sentenced to three years probation on the eluding count and three years probation on the burglary count, to run concurrent with the eluding sentence. In addition, he was sentenced to serve sixty days in the Sheriff's Labor Assistance Program (SLAP) and fined $480.

The charges arose out of a police encounter with defendant on January 17, 2002, at around 2:39 a.m. At that time, plainclothes officers John Mair and Timothy Geddes were approaching the intersection of East Grand and Jake Streets in Elizabeth in an unmarked patrol car. The area was described as a high narcotics and crime area. As the officers approached the front of 922 East Grand, they saw defendant engaged in a hand-to-hand transaction with another individual. They pulled the car up to the defendant and the other individual. The defendant looked up, then turned and ran away. The other individual ran in another direction and the officers were unable to see him once he turned the corner.

Officer Mair exited the car and pursued defendant while Officer Geddes remained in the car. Officer Mair was approximately fifteen feet behind defendant when he identified himself as a police officer and ordered defendant to stop. Defendant continued to run and Officer Mair saw him drop a clear plastic bag just before hopping over a fence into an adjacent yard.

Officer Mair followed defendant over the fence, but defendant jumped over another fence into the rear yard of 915 Lafayette Street. Officer Mair did not follow him over the second fence because other police units had arrived.

Officers Magaher and Vrohidis responded to Officer Mair's call for assistance. They went to the rear yard where they found that the door, to what the officers learned was the basement of 915 Lafayette Street, had been broken open. Officer Vrohidis found defendant in the basement and placed him under arrest. Defendant was searched and the police recovered $502.24 in cash.

After the arrest, Officer Mair returned to the first fence and retrieved the plastic bag. It contained forty clear plastic vials with pink caps containing a substance that later tested positive for cocaine.

On April 5, 2002, defendant was indicted by a grand jury for third degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10(a)(1); third degree possession of CDS with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); second degree possession of CDS with the intent to distribute within 500 feet of a public park, in violation of N.J.S.A. 2C:35-7.1; fourth degree eluding/resisting arrest, in violation of N.J.S.A. 2C:29-2(a); and third degree burglary, in violation of N.J.S.A. 2C:18-2.

Defendant's motion to suppress was denied and the matter proceeded to trial. On January 14, 2003, a jury found defendant guilty of the eluding and burglary charges but it could not reach a verdict on the remaining charges. The trial judge declared a mistrial on the drug charges. On April 25, 2003, the drug charges were dismissed upon the State's motion.

On appeal, defendant contends:

POINT I

THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE INITIAL POLICE ENCOUNTER WITH THE DEFENDANT CONSTITUTED A DE FACTO ARREST NOT SUPPORTED BY PROBABLE CAUSE.

(A) THE MOTION COURT ERRED IN FINDING THAT THE INITIAL ENCOUNTER WITH THE DEFENDANT CONSTITUTED A LEGAL INVESTIGATORY STOP.

B) SINCE THE INITIAL ENCOUNTER WITH THE DEFENDANT WAS ILLEGAL, HIS SUBSEQUENT ARREST FOR BURGLARY AND RESISTING ARREST SHOULD HAVE BEEN SUPPRESSED AS BEING THE "FRUIT OF THE POISONOUS TREE".

POINT II

THE PROSECUTOR PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY IMPROPERLY OFFERING HER PERSONAL OPINIONS IN SUMMATION (NOT RAISED BELOW).

Our careful review of the record convinces us there is no basis for reversing the convictions, and only the following discussion is appropriate in a written opinion. R. 2:11-3(e)(2).

I.

In denying the motion to suppress, the motion judge acknowledged Officer Mair was unable to describe the object that was exchanged. However, he recognized the officer's experience in witnessing prior hand-to-hand transactions and the short distance from which the transaction was witnessed. The judge found that Officer Mair identified himself as he pursued the defendant and that he witnessed the bag leave defendant's hand and hit the ground.

The judge articulated the standards to which officers are held when stopping a person and noted that the standards must be applied in the context of the totality of the circumstances. He found the following circumstances to be dispositive:

[T]he neighborhood, nature of the area, that being a high crime, high narcotics area, the hour of the day, the fact that it was, approximately, 2:30 in the morning, the fact that an exchange of the type that is consistent with a drug transaction had occurred.

Viewed in their totality, the judge found the circumstances gave rise to a reasonable and articulable basis to conduct an investigative stop. In addition, the judge concluded that when defendant fled, discarded the bag, and hid in the basement, probable cause existed to arrest defendant. Moreover, the judge also determined that once defendant discarded the bag, it became abandoned property. Therefore, defendant's right to privacy was not implicated when Officer Mair recovered the bag.

Defendant argues the motion judge did not properly distinguish an investigative stop from a de facto arrest. "[A]n investigative stop becomes a de facto arrest when 'the officers' conduct is more intrusive than necessary for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837, 106 S. Ct. 113, 88 L. Ed. 2d 92 (1985)). "Although there are no 'bright line' tests to guide us, courts have identified several factors to aid in the analysis." Id. at 478-79.

Time is an important factor in distinguishing between an investigative stop and a de facto arrest: There is "no rigid time limitation on Terry stops," United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed.2d 605[, 615] (1985), but a stop may be too long if it involves "delay unnecessary to the legitimate investigation of the law enforcement officers," id. at 687, 105 S. Ct. at 1576[, 84 L. Ed. 2d at 616]. Another factor is "the degree of fear and humiliation that the police conduct engenders." United States v. Lego, 855 F.2d 542, 544-45 (8th Cir. 1988) (citation omitted). The courts have also held that transporting a suspect to another location or isolating him from others can create an arrest. See [United States v.] Rose, 731 F.2d [1337,] 1342 [(8th Cir.), cert. denied, 469 U.S. 931, 105 S. Ct. 326, 83 L. Ed. 2d 263 (1984)]. Additional factors that may weigh in favor of an arrest are subjecting a suspect to unnecessary delays, handcuffing him, or confining him in a police car. See [United States v.] Willis, 967 F.2d [1220], 1224 [(8th Cir. 1992)].

[Id. at 479 (quoting United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994), cert. denied, 514 U.S. 1113, 115 S. Ct. 1970, 131 L. Ed. 2d 859 (1995) (brackets in original).]

Applying these factors to the present matter, the officers' encounter with defendant did not rise to the level of a de facto arrest. The simple act of pulling up in front of defendant offends no constitutional protections afforded to defendant under the Fourth Amendment. State v Maryland, 167 N.J. 471, 483 (2001). Defendant was not merely standing on a street corner at 2:30 a.m. He was observed standing in an area known for narcotics transactions and other criminal activity. The officers who witnessed defendant in the hand-to-hand exchange with the other individual were experienced narcotics officers whose experience aroused their suspicion that they may have witnessed a drug transaction. In addition, defendant ran when the police approached, and he continued to run after Mair identified himself as a police officer, thereby heightening the officer's suspicion. State v. Citarella, 154 N.J. 272, 280-81 (1998).

Considering the totality of the circumstances, including the time, location, and manner in which the exchange took place and the officers' experience with narcotics activities in the area, the investigative stop and subsequent pursuit were justified. Finally, once defendant discarded the clear plastic bag and continued to run, leaping over a fence into an adjacent yard, the officer's reasonable suspicion heightened to probable cause to believe that defendant was engaged in criminal activity. Ibid. Further, since the initial encounter with defendant was lawful, the "fruit of the poisonous tree doctrine" was not implicated by defendant's subsequent arrest for burglary and resisting arrest. See State v. Perry, 124 N.J. 128, 150 (1991).

Defendant next contends the prosecutor's closing statements relating to the credibility of the witnesses and the length of the trial were improper and prejudiced defendant to the point that a fair trial was not possible. He specifically points to the following comments:

I appreciate your attention during this case. It's dragged on four days now.

. . . .

[The witnesses] were honest, they were forthright, they were credible.

. . . .

Officer Geddes was forthright.

. . . .

Officer Vrohidis was forthright with you.

. . . .

"[N]ot every suspected deviation from perfection on the part of a prosecutor will justify a reversal of a conviction." State v. Bucanis, 26 N.J. 45, 56 (1958), cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). "[The] infraction must be clear and unmistakable and must substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." Ibid.

Because defendant did not raise this point below, our review must be governed by the plain error standard. R. 2:10-2. "[T]he question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971). "The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336.

Throughout his closing, defense counsel attacked the truthfulness, credibility, and veracity of the State's witnesses. In particular, he focused on the credibility of Officer Mair. Defendant relies on State v. Abdullah, 372 N.J. Super. 252, 267-70 (App. Div. 2004), aff'd in part, rev'd in part on other grounds, 184 N.J. 497 (2005), for the proposition that the prosecutor cannot insert her opinion as to the credibility of the witnesses. However, Abdullah also stands for the proposition that the prosecutor is permitted to respond to defense counsel's challenges to a witness' testimony. Id. at 270. See also, State v. Morais, 359 N.J. Super. 123, 131 (App. Div.) ("Prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence"), certif. denied, 177 N.J. 572 (2003).

Thus, since defense counsel clearly argued that Officer Mair's testimony was "inconsistent," "incredible," and "unbelievable," the prosecutor was permitted to respond to the argument by pointing out that the witnesses were credible. Ibid.

In doing so, the prosecutor's statements did not rise to the level of impropriety found in State v. Engel, 249 N.J. Super. 336 (App. Div. 1991), certif. denied, 130 N.J. 393 (1991), or State v. West, 145 N.J. Super. 226 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977). In Engel, supra, the court found improper the prosecutor's comments to the jury that the investigators were "good men who leave their family [and] work day and night" and would not "jeopardize their careers" over the defendants. 249 N.J. Super. at 379. Similarly, in West, supra, the court found improper the prosecutor's statements that a police officer would not lie because "there is a lot of harm that could come to him" and because "the police officer's career would be finished in a minute." 145 N.J. Super. at 234. Here, it is apparent the prosecutor's comments were aimed at refuting the defendant's contention that the officers were lying. We find these comments did not rise to the level of egregiousness sufficient to have denied defendant a fair trial or to have led the jury to a verdict it would not otherwise have reached. Macon, supra, 57 N.J. at 336.

Next, defendant objects to the prosecutor's comment that the trial "dragged on." He argues the prosecutor would not have made the comment to disparage the State, so it follows that the comment was made to disparage the defense. Defendant did not object to this comment or give the judge an opportunity to remedy its effect. State v. Timmendequas, 161 N.J. 515, 576 (1999); State v. Frost, 158 N.J. 76, 83 (1999). It is important that defense counsel make a timely objection to improper remarks by the prosecutor in order to give the judge an opportunity to rectify the situation or reduce the impact by taking corrective action. Bucanis, supra, 26 N.J. at 57; State v. Bogen, 13 N.J. 137, 141-42 (1953), cert. denied sub nom. Lieberman v. New Jersey, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953). "The failure to object [also] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84 (1999).

As the Court stated in State v. R.B., 183 N.J. 308 (2005):

Trials, particularly criminal trials, are not tidy things. The proper and rational standard is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. "A defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (1953).

[Id. at 333-34. (citation omitted).]

The State put forth testimony from the officers, the homeowner, an expert, and the laboratory technician. Additionally, various photographs of the area were entered into evidence. Defendant testified for himself and presented the jury with an alternative version of what transpired on the evening in question. The jury had an opportunity to see all witnesses and evaluate their credibility. While characterizing the trial as having "dragged on four days" was inappropriate, based upon the evidence presented, a reasonable jury could have concluded, beyond a reasonable doubt, that defendant committed burglary and resisting arrest. See State v. Josephs, 174 N.J. 44, 98 (2002). Thus, we find that the prosecutor's comment did not deprive defendant of a fair trial, or cause the jury to come to a conclusion that it would not have otherwise reached. Macon, supra, 57 N.J. at 336.

 
Affirmed.

(continued)

(continued)

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A-5325-03T4

January 10, 2006