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State v. Terry

April 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY L. TERRY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1558-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2008

Before Judges Skillman and Collester.

Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance, namely cocaine, contrary to N.J.S.A. 2C:35-10a. Judge Deborah J. Venezia presided over defendant's trial and on May 18, 2007, sentenced him to a term of five years with a two and one-half year period of parole ineligibility. We affirm.

Shortly after midnight on August 2, 2006, New Brunswick police officers Christopher Bornheimer and Mark Cichowski were on patrol in their marked police car when they were advised of a disturbance in the area of Throop Avenue and Sandford Street.

They received a description of a black man wearing blue jeans, a white tank top and a shirt tied around his neck. Bornheimer and Cichowski drove down Powers Street where they saw a man fitting the description getting out of the back seat of a parked white car. Also in the car were the driver and a front-seat passenger. Bornheimer testified that the officers were about twenty yards away when the man, later identified as defendant, saw the police car and threw a plastic bag to the ground.

As Bornheimer and Cichowski approached, the defendant yelled, "What did this have to do with me, I didn't do anything." Cichowski spoke with the defendant. Bornheimer picked up the discarded plastic bag which contained eleven smaller baggies of a white powdery substance later identified as cocaine. Defendant was then placed under arrest.

Melanie Adams, defendant's girlfriend, testified on defendant's behalf that she was talking to defendant's brother in the backyard of his apartment house facing Powers Street when the police approached the defendant. She said that there were seven or eight people around the car and three or four people on the side of the street where she was standing. She said that when the police car pulled up, the officers got out of the car and arrested the defendant for no reason.

Following his conviction and sentence defendant appeals and sets forth the following arguments:

POINT I

THE PROSECUTOR'S QUESTIONING OF MELANIE ADAMS AND HIS COMMENTS IN SUMMATION CONCERNING WHY SHE DID NOT COME FORWARD EARLIER EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA; CONSEQUENTLY DEFENDANT'S CONVICTIONS MUST BE REVERSED. (Not Raised Below.)

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS.

U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ΒΆ10. ...


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