On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Following a jury trial, defendant Terrence Ramsey was convicted of third degree possession of a controlled dangerous substance (CDS) (heroin), contrary to N.J.S.A. 2C:35-10a(1) (count one); third degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 35-5b(3) (count two); third degree possession of CDS with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count three); third degree resisting arrest, contrary to N.J.S.A. 2C:29-2a (count four); and two counts of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(5)a (counts five and six). After merging counts one and two with count three, the trial judge sentenced defendant to an extended ten-year term of imprisonment with a five-year period of parole ineligibility. The judge also merged count four with count five and imposed concurrent five-year terms of imprisonment on counts five and six. The appropriate fines, fees, penalties, assessments and driver's license suspension were also imposed.
On appeal, defendant raises the following arguments:
POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE EXPERT TESTIMONY ELICITED FROM SERGEANT WILLIAM WOLFE WHO TESTIFIED TO THE ULTIMATE ISSUE OF THE DEFENDANT'S GUILT REGARDING THE CHARGES OF POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS AND POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS WITHIN A SCHOOL ZONE, THEREBY INTRUDING UPON THE JURY'S EXCLUSIVE PROVINCE TO DETERMINE GUILT OR INNOCENCE. (NOT RAISED BELOW).
POINT II: THE DEFENDANT IS ENTITLED TO A REMAND FOR A RESENTENCING PURSUANT TO EITHER STATE V. PIERCE OR STATE V. THOMAS.
In a pro se supplemental brief, defendant raises the following arguments:
POINT 1) THE TRIAL JUDGE HON. SHEILA A VENABLE DID NOT GIVE ANY CLARIFICATION TO THE JURY'S CONFUSION OF THEIR DENIED REQUEST TO REVIEW THE POLICE REPORT DISCOVERY.
POINT 2) DEFENDANT'S DENIAL OF A CALEND[A]R DELAY IN ORDER TO SECURE THE PRESENCE OF A WITNESS TESTIMONY.
POINT 3) DEFENSE COUNSEL WAS DENIED THE OPPORTUNITY OF CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS TO SUBPOENA WITNESS.
We affirm the conviction but reverse and remand for re-sentencing in accordance with this opinion.
At approximately 5:30 p.m. on August 16, 2004, Officer Carlos Lugo of the Jersey City Police Department (JCPD), and his partner, Sergeant Gillen, were in an unmarked patrol car checking the area of Communipaw Avenue and Jackson Street by a Kentucky Fried Chicken lot for narcotics activity. Prior ...