On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-01-0371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Lihotz.
Defendant Thomas Jones, charged with the third-degree offenses of possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); possession with intent to distribute a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count two); resisting arrest, N.J.S.A. 2C:29-2(a) (count three); and eluding arrest, N.J.S.A. 2C:29-2(b) (count four); appeals from a jury verdict finding him guilty on counts one and four and the resultant sentence imposed. On appeal, defendant presents these issues for our consideration:
THE PROSECUTOR'S MISCONDUCT DURING OPENING STATEMENT AND SUMMATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. VI, XIV; N.J. CONST., ART. I, ¶¶ 1, 9, AND 10 (Not Raised Below).
THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT IS MANIFESTLY EXCESSIVE.
The evidence disclosed at trial reveals defendant was signaled to pull over for a traffic stop when Officer Greg Miller noted he was driving while not wearing a seatbelt. Miller pulled his police vehicle behind defendant, blew his air horn and turned on the overhead lights. When the lights were switched on, the Mobile Vision in-dash video camera was activated. Defendant did not stop his vehicle. The police continued to follow defendant who was alleged to "roll through" a stop sign, turn without benefit of turn signals, and accelerate his speed rather than stop. As defendant continued to drive, the officers saw him throw objects from his car window toward an open trashcan. Thereafter, defendant pulled to a stop. Miller's partner, Officer John Cline, retrieved the discarded objects, later identified as seven bags containing crack cocaine. Defendant was arrested. In a search incident to arrest, the officers recovered $700 from defendant's pocket.
At trial, in addition to the police officers' testimony, the State introduced the video of the encounter as recorded by the Mobile-Vision system. The parties stipulated the gross weight of the cocaine found near the trash can totaled 6.5 grams. Defendant testified in his own behalf. He stated he wore a seatbelt at all times, explaining "it's part of the door." He admitted he did not immediately pull over when signaled by the police officers because of a concern resulting from a prior stop when he was assaulted by apprehending officers. Defendant was looking for a busy area with "people around" to pull over. Defendant denied having drugs in his possession or throwing anything from his car window.
The jury rendered its verdict. Judge Natal denied defendant's motion for a new trial, granted the State's motion for a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3(a), and sentenced defendant to a five-year term with a two and one-half year period of parole ineligibility on count one, to be served concurrently with an eight-year extended term with a four-year period of parole ineligibility on count four. Counts two and four were dismissed. All applicable penalties and assessments were imposed along with a one-year suspension of defendant's driver's privileges. By our order, defendant's appeal was deemed timely filed.
Defendant's challenge centers on comments made by the prosecutor in his opening statement and summation, alleged to have improperly bolstered the credibility of Officers Miller and Cline. Specifically, defendant cites two instances of alleged prosecutorial misconduct ...