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State v. Ramsey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRENCE RAMSEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1851.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

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 to this time, the JCPD had received complaints of drug activity in that area.

While driving through the area, Lugo observed defendant and another male walking through an open lot conversing. He also observed defendant remove a glassine bag from an object in his right hand and give it to the other man in exchange for paper money. Believing he was observing a narcotics transaction, Lugo exited his vehicle and walked toward the two men. While walking, Lugo observed two glassine bundles in defendant's hand, and he observed defendant place the money in his sock. When defendant saw Lugo, he tossed the bundles to the ground and ran. Defendant was apprehended five blocks from the area where he had tossed the bundles. A search of that area revealed the bundles, which contained ten glassine bags of heroin.

At trial, the State produced Sergeant William Wolfe as an expert in narcotic trafficking, who opined that defendant possessed the narcotics for distribution purposes. Defendant contends that the trial judge should not have permitted Wolfe to offer this opinion. Because defense counsel did not object to Wolfe's testimony, and, in fact, stipulated to his qualification as an expert, we review defendant's contention under the plain error rule. R. 2:10-2. Under this rule, we will not reverse unless the error is "clearly capable of producing an unjust result[.]" Ibid. Not any possibility of an unjust result will suffice. Stated in terms of its effect in a jury trial, the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 333 (1971).

Wolfe was qualified to provide expert testimony in narcotics trafficking. He is a twenty-five-year veteran of the JCPD, and had special training in the field of narcotic trafficking. He had been involved in thousands of narcotic investigations, made over five thousand narcotics related arrests, and dealt with hundreds of individuals who were engaged in narcotic trafficking and from whom he received information concerning narcotics packaging. He also had been qualified over fifty times as an expert in the field of narcotic trafficking, including packaging, pricing and patterns of distribution. Thus, his testimony was admissible to prove that defendant possessed the narcotics for distribution. N.J.R.E. 704; State v. Odom, 116 N.J. 65 78-79 (1989); State v. Montesano, 298 N.J. Super. 597, 619 (App. Div.), certif. denied, 150 N.J. 27 (1997). Also, the trial judge properly instructed the jury regarding Wolfe's testimony and explained that they were not bound by his testimony. Odom, supra, 116 N.J. at 82. There was no error, let alone plain error, here.

We now address defendant's sentence. There is no dispute that defendant qualified for and had to be sentenced to a mandatory extended term on Count Three. Defendant's criminal history includes a conviction for sexual assault, a conviction in New York for criminal possession of a narcotic drug, and two convictions for possession of CDS with intent to distribute within 1000 feet of a school zone. The State requested an extended ten-year term with a five-year parole disqualifier, and defense counsel requested an extended eight-year term with a four-year parole disqualifier. The trial judge reviewed defendant's prior criminal history and imposed the sentence the State requested. However, it is unclear from the record the basis upon which the judge imposed an extended term. Thus, this matter must be remanded for reconsideration of defendant's sentence in accordance with State v. Thomas, 188 N.J. 137 (2006).

The remaining contentions in defendant's supplemental brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

The trial judge did not err in refusing the jury's request to see a police report, which was not in evidence and constituted inadmissible hearsay, Rule 1:8-8(a) and N.J.R.E. 803(c)(6), and properly instructed on this issue. Also, upon the judge's inquiry prior to the close of defendant's case, defense counsel indicated she spoke to Sergeant Gillan and would not call him as a witness.

Defendant's conviction is affirmed. We reverse and remand for further proceedings consistent with this opinion.

20080714

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