STATE OF NEW JERSEY v. JOSEPH P. MCCARRAHER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1998-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSEPH P. MCCARRAHER, JR.,
a/k/a JOSEPH MCCARRAHER, and
ADAM MCCARRAHER,

        Defendant-Appellant.


              Submitted May 2, 2018 – Decided June 12, 2018

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment Nos.
              12-10-0645 and 14-06-0490.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel V. Gautieri, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Jeffrey H. Sutherland, Cape May County
              Prosecutor, attorney for respondent (Gretchen
              A. Pickering, Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM
      After the denial of his motion to dismiss the remaining counts

of an indictment, defendant Joseph P. McCarraher, Jr., entered a

guilty     plea    to    third-degree       aggravated    assault,    
N.J.S.A.

2C:12-1(b)(5)(a).       In accordance with the plea agreement, on May

27,   2016,   defendant     was   sentenced      to   a   four-year   term    of

incarceration with one year of parole ineligibility.              An order of

restitution and appropriate fines and penalties were also imposed.

      The incident that led to the indictment occurred when at

approximately 11:46 p.m., Lower Township Police Officer Dallas

Bohn, Jr., who was familiar with defendant and his brother Adam,

encountered defendant walking in an area in which a series of

vehicles had been vandalized the night before.               Bohn identified

himself and asked defendant for his name.                 Defendant gave his

brother's name instead of his own and then ran away.

      Bohn knew defendant had an outstanding arrest warrant and

then chased him, all the while commanding defendant to stop

running.    Eventually, Bohn tackled defendant to the ground.               When

he did so, defendant punched him with closed fists and kicked at

him with his feet while attempting to reach into his pockets with

his right hand.         Bohn repeatedly ordered defendant to get back

down on the ground and told him that he was under arrest. Defendant

did not comply, and Bohn was forced to use pepper spray.                    When

backup   arrived    and   defendant     was   searched    after   arrest,    the

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officers found seven bags of heroin and $705 on his person.               The

events were described in testimony developed during the course of

defendant's successful motion to suppress evidence.

       Ultimately, the trial judge concluded that "[defendant] did

not have the right to strike the patrolman," that the "testimony

regarding the defendant's flight and assault is permitted at

trial," and that the relevant counts to the indictment would

therefore not be dismissed. They were neither manifestly deficient

nor palpably defective.

       Defendant now raises the following point:

              THE COURT ERRED IN DENYING McCARRAHER'S MOTION
              TO    DISMISS   THE    RESISTING-ARREST    AND
              AGGRAVATED-ASSAULT COUNTS BECAUSE THE OFFICER
              DID NOT ANNOUNCE AN INTENT TO ARREST
              McCARRAHER BEFORE TACKLING HIM TO THE GROUND,
              AND   BECAUSE   McCARRAHER'S    ACTIONS   WERE
              SPONTANEOUS AND PROPORTIONATE TO THE OFFICER'S
              ACTIONS.

       "An indictment is presumed valid and should only be dismissed

if it is 'manifestly deficient or palpably defective.'"           State v.

Feliciano, 
224 N.J. 351, 380 (2016) (quoting State v. Hogan, 
144 N.J.   216,    229   (1996)).   The   decision   whether   to   dismiss   an

indictment lies within the sound discretion of the trial court and

is reviewed only for a clear abuse of discretion.                 State v.

Saavedra, 
222 N.J. 39, 55 (2015); State v. Zembreski, 
445 N.J.

Super. 412, 424 (App. Div. 2016).


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     This indictment is valid.         That Bohn did not say that he

announced his intention to arrest defendant until after defendant

was hiding behind a tree did not make the indictment manifestly

deficient or palpably defective.        A suspect has no right to flee

from an investigatory stop or to resist even an unlawful arrest.

See State v. Williams, 
192 N.J. 1, 11-12 (2007); State v. Crawley,


187 N.J. 440, 451-52 (2006).   Whether or not the State could prove

the necessary sequence of events such as to meet the statutory

test either for resisting arrest or aggravated assault was a fact

issue to be decided during a trial and is not grounds for the

dismissal of an indictment.

     Defendant fled, despite being chased by an officer who was

continuously ordering him to stop.        He wrestled with an officer

who was trying to subdue him, and did so while the officer was

telling him he was under arrest.       Defendant tried to hide from the

officer, and punched and kicked him. The facts as developed during

the suppression hearing established that the indictment was not

manifestly deficient or palpably defective.         The argument that

failure to dismiss the indictment under these circumstances is

against public policy does not warrant discussion in a written

opinion.   R. 2:11-3(e)(2).

     Affirmed.



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