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State v. Bigelow

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS BIGELOW, A/K/A ALI NOBLE WYSDOM, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-05-1037.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2010

Before Judges Sabatino and Newman.

Following a jury trial, defendant Thomas Bigelow was found guilty of third-degree possession of cocaine. The trial court sentenced defendant to two-years probation. He pled guilty on a separate indictment to resisting arrest and received a concurrent two-year probationary term. Defendant appeals. We affirm.

The relevant facts may be summarized as follows. Two Monmouth County sheriff's officers had an arrest warrant for defendant for failure to pay child support. They went to his residence. Defendant refused to answer the door. They knew he was inside the apartment. The officers forcibly entered the apartment and arrested him.

When defendant was booked at the police station, an aluminum foil packet fell to the floor when he emptied his pockets to produce his wallet. The officers inspected the aluminum foil packet and found crack-cocaine inside. On appeal, defendant raises the following issue for reconsideration:

POINT I

BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT POSSESSED CRACK-COCAINE, THE TRIAL COURT ERRED IN FAILING TO ACQUIT ON ITS OWN INITIATIVE.

Our review of a defendant's claim of insufficient evidence where the jury is the factfinder is to decide if the evidence is sufficient to warrant a conviction of the charge involved. State v. Reyes, 50 N.J. 454, 458 (1967). In doing so, we must review the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could not find defendant guilty of the charge beyond a reasonable doubt.

[Reyes, supra, 50 N.J. at 458-59; see State v. Perez, 177 N.J. 540, 549 (2003).]

Both sheriff's officers saw the aluminum foil packet fall out of defendant's pocket and onto the floor. This constituted direct evidence that defendant had actual possession of the crack-cocaine on his person. If the jury found this testimony credible, and they assuredly did by their verdict, it was more than sufficient to sustain the verdict.

Defendant, nonetheless, argues that he was patted down twice before he arrived at the police station--once inside his home and, again, as he was entering the squad car--and on both occasions the police found no drugs on him. Defendant contends that he would have had plenty of opportunity to dispose of the drugs before arriving at the police station, and that it makes no sense that he would hold on to the drugs and drop them in front of the officers in plain sight. While this is a line of argument to make before a jury, it could just as well be argued as an alternative explanation, that defendant was actually in possession of the drugs and had not had any easy means to dispose of the drugs outside of the view of the police before he was booked at the police station. Once there, defendant attempted to drop the drugs to the floor surreptitiously, perhaps hoping that no one would notice. Unfortunately for defendant, the aluminum foil packet was noticed when it fell to the police station floor.

Affirmed.

20100408

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