On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-09-0730.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Graves, Sabatino and J.N. Harris.
On September 13, 2007, a jury convicted defendant Michael J. Ramsey of third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1). At defendant's sentencing hearing on March 20, 2008, the court imposed a four-year prison term. Appropriate statutory penalties and assessments were also imposed. Defendant appeals, and we affirm.
Prior to trial, the prosecutor and defense counsel agreed the police were looking for defendant on the day he was arrested because "he had just been identified as a shooter in a homicide," and the prosecutor advised the court of the following stipulation:
The jury will not be told that the police were looking for Michael Ramsey for a murder. They will simply be told that Officer Hernandez (phonetic) went to the scene of 170 Phillips Road based on information received from police to look for Michael Ramsey. And they will also be told that that information had nothing to do with the case at bar.
. . . [W]hen the officer got out of the vehicle and called to Michael Ramsey he did so at gunpoint. Defense counsel and I have discussed the matter and the fact that the defendant was approached at gunpoint is not going to be sanitized.
The State's not going to bring out why he was approached at gunpoint. And will not unless for some reason the defense opens the door as to the reasons why the gun was drawn.
During the trial, the State presented testimony from three fact witnesses: Officers Sammy Hernandez, James Raics, and Jonathan Tuchmatulin of the Franklin Township Police Department.
In addition, the State presented expert opinion testimony from Sergeant Francisco Roman, Jr., of the Somerset County Prosecutor's Office.
The first witness, Officer Hernandez, testified that when he arrived at 170 Phillips Road on August 10, 2006, at approximately 9:15 p.m., he observed defendant in front of an apartment building talking on his cell phone. Upon exiting his patrol car, Hernandez drew his weapon, pointed it at defendant, and ordered him to "get on the ground." However, defendant continued walking and talking on his cell phone, which was in his right hand. As defendant was walking away, Hernandez observed him reach into his left pocket with his left hand and toss something onto the ground. Hernandez testified the area was well-lit and he was about ten feet away from defendant when the object was thrown, so he was able to see where it landed. In addition, Hernandez testified he "knew that [defendant] tossed an item . . . because my concentration was completely on his hands."
After defendant tossed the object "into the little patch of grass that was next to the building," defendant walked towards Hernandez and complied with the officer's direction to get on the ground. At that point, Officers Raics and Tuchmatulin arrived on the scene, and Hernandez walked to the area where he had seen defendant throw the object on the ground. Hernandez recovered two containers, which looked like film canisters filled with thirteen individual packets of what appeared to be cocaine.
Officers Raics and Tuchmatulin both testified they did not see defendant throw an object on the ground. According to Officer Raics, his attention was focused on other individuals who were ...