On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-2160.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
Defendant Grover Plummer was convicted by a jury of two counts of third-degree possession of controlled dangerous substances, N.J.S.A. 2C:35-10(a), and sentenced to an aggregate term of imprisonment of five years.*fn1 He appeals, and raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.
POINT II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AS A RESULT OF THE TRIAL COURT'S DECISION TO IMPOSE A DISCRETIONARY EXTENDED TERM.
POINT IV: THE TRIAL COURT COULD NOT PROPERLY HAVE IMPOSED A DISCRETIONARY EXTENDED TERM ON COUNT I AS WELL AS ON COUNT II. (NOT RAISED BELOW)
From our review of the record, we are satisfied that none of these points are meritorious, except for Point IV. We affirm the conviction and aggregate sentence, but remand for clarification of the judgment of conviction to eliminate one of the two extended terms.
On May 28, 2010, five Asbury Park police officers were engaged in a street crime operation when one received information suggesting that Plummer -- known locally as Gaggi -- was selling controlled dangerous substances along Springwood Avenue.*fn2 Sergeant Michael Barnes and Officer Lorenzo Petway drove an undercover vehicle to the vicinity of Springwood Avenue and began making observations of Plummer, who was on Ridge Avenue. Seeing nothing amiss, the police officers nevertheless decided to approach Plummer, who at that point was approximately 100 feet away. Plummer was walking towards the police officers, but when they were about twelve feet apart, Plummer looked up, turned, and jogged away in the opposite direction. The police officers followed, but almost immediately Plummer tripped at the curb and fell while the police were approximately four to six feet away. As he fell, Plummer let go of an object that he was holding in his right hand. As it hit the pavement, Sergeant Barnes saw that it was "an off white object." When he retrieved it, Sergeant Barnes observed, "it was inside of a clear plastic, similar to a plastic bag that -- torn off of it, like it was pinched off and twisted at the end. And then [Sergeant Barnes] looked at it, and through [his] training and experience [he] recognized it to be crack cocaine."
The remaining four police officers attempted to subdue and handcuff Plummer, who resisted their efforts to do so. Eventually, he was restrained and placed under arrest, and in the resultant search of his person, a bag containing nine bags of heroin was found clutched in Plummer's left hand, together with paraphernalia used to ingest crack cocaine.
Plummer claims that when he first encountered the police officers, he thought he was about to be robbed by "gang bangers and stuff around here."*fn3 ...