On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Skillman.
Defendant Torrence Thompson was tried before a jury and found guilty of second-degree unlawful possession by certain persons not authorized to have a firearm, in violation of N.J.S.A. 2C:39-7(b)(1). Defendant appeals from the judgment of conviction entered on October 23, 2009. For the reasons that follow, we affirm.
I. On July 30, 2008, defendant was charged in Atlantic County Indictment No. 08-07-1819, with second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (count one); second-degree certain persons not authorized to have a firearm, in violation of N.J.S.A. 2C:39-7(b)(1) (count two); third-degree hindering apprehension, in violation of N.J.S.A. 2C:29-3(b)(1) (count three); and fourth-degree obstructing the administration of the law, in violation of N.J.S.A. 2C:29-1 (count four). Prior to trial, the State agreed to dismiss counts one, three and four. Defendant was thereafter tried before a jury on the remaining charge.
At the trial, Officer George Adams (Adams) of the Atlantic City Police Department testified that at approximately 2:23 a.m. on June 12, 2008, he was dispatched to investigate suspected criminal activity in the City. Adams observed defendant walking on Grant Avenue. Adams said that when defendant saw the lights on his police vehicle, he "froze for a minute and grabbed his waistband and ran." Adams called out to defendant and told him to stop. Defendant continued running, and Adams followed him in his patrol car down Grant Avenue into a driveway on North Ohio Avenue.
Adams testified that he saw defendant "thr[o]w the gun and jump the fence" which was about twelve feet in height. Adams sent a radio transmission indicating that defendant "took off" and he provided defendant's physical description. Adams retrieved the gun, which he said was a .357 Magnum caliber Smith & Wesson revolver. Defendant was not apprehended. Defendant left the State the following day and went to Texas.
Adams further testified that he had known defendant for six years through his step-father, Dwayne Martin, Sr. (Dwayne Sr.). According to Adams, Dwayne Sr. is a friend of his former brother-in-law, Harold Coursey (Coursey). From time to time, Adams visited the firehouse where Coursey worked and, over the years, came to know defendant. Adams identified the handgun that he recovered from the driveway on North Ohio Avenue.
Lieutenant James Storey (Storey) of the New Jersey State Police Ballistics Unit was qualified as an expert in the operation of firearms. He testified that on June 20, 2008, he examined the handgun that Adams had recovered. Storey stated that the gun he tested had the same make, model and serial number as indicated on the evidence receipt received by the laboratory.
Storey further testified that the gun had been disassembled into three pieces: the firearm, the mainspring and the monogrip. Storey explained that the mainspring provides the force for the gun's hammer. He noted that the gun could have been disassembled for any number of reasons. Storey reassembled the handgun, loaded it with two rounds and discharged them both. Storey testified that the gun functioned properly.
Defendant's mother, Yvonne Martin (Yvonne), Dwayne Sr. and Dwayne Martin, Jr. (Dwayne Jr.) testified as defendant's alibi witnesses. The family had moved out of their house on June 4, 2008, after a series of shootings. On June 12, 2008, they were living with defendant in a hotel room.
Yvonne testified that defendant never left the hotel room at night. Dwayne Sr. stated that defendant was in the hotel room "every night." Dwayne Jr. testified that defendant never left the room at night. Dwayne Sr. also testified that he met Coursey at the firehouse on occasion with his son Dwayne Jr. but not with defendant. He did not recall seeing Adams at the firehouse.
Defendant testified on his own behalf. He stated that he does not "carry weapons[,]" "never had [a] gun," had never seen Adams, and was not in Atlantic City at the time Adams claimed to have seen him. He stated that he had never been introduced to Adams.
In addition, defendant said that he went to Texas on June 13, 2008, because his family had been "in fear of [his] life." He was "scared" because on March 11, 2008, he had been shot. Defendant stated that a gun was fired at his mother's truck, and his family's house "got shot up bad."
Defendant further testified that he had no knowledge of the charges pending against him until he was in Texas. His mother contacted him and told him that she had received a letter from his probation officer, which stated that he had violated the conditions of probation because he had a new charge. Defendant asserted he could not have jumped the fence to run away from the police on June 12, 1008, because of the injuries he had sustained when he was shot.
The parties stipulated that on July 23, 2007, defendant pled guilty to possession of a controlled dangerous substance (CDS) with intent to distribute. The parties also stipulated that on October 5, 2007, the court sentenced defendant to three years of probation, conditioned on his service of 364 days in the county jail.
As we noted previously, the jury found defendant guilty of second-degree certain persons not to possess a firearm, contrary to N.J.S.A. 2C:34-7(b)(1). The court later sentenced defendant to seven years of incarceration, with a five-year period of parole ineligibility. This appeal followed. Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN FAILING TO SET ASIDE THE VERDICT OF THE JURY AS AGAINST THE WEIGHT OF THE EVIDENCE, VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. ...