On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0877.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Koblitz.
Defendant Raymond D. Ingram appeals from a July 13, 2010 judgment of conviction after being found guilty of two counts of second-degree certain persons not to possess a firearm. N.J.S.A. 2C:39-7(b). He was sentenced to concurrent discretionary extended fifteen-year terms, N.J.S.A. 2C:44-3(a), with six years of parole ineligibility pursuant to the Graves Act. N.J.S.A. 2C:43-6(c). Defendant claims that the improper admission of hearsay evidence, prosecutorial misconduct and a faulty jury instruction require a reversal. He also maintains that the sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Mercer County Indictment No. 08-10-0877 charged defendant and a co-defendant, Ismeal Abdullah, with second-degree possession of a Glock 23 .40 caliber handgun without a permit to carry, N.J.S.A. 2C:39-5(b) (count one), and third-degree possession of a Mossburg 500 shotgun without having obtained a firearms purchaser identification card, N.J.S.A. 2C:39-5(b) (count two). Defendant was charged alone in the final two counts of the indictment with possession of each of the guns by a person previously convicted of robbery. The possession of the guns was alleged to have occurred on August 19, 2008.
Co-defendant pled guilty to the first two counts and received concurrent sentences of five years with three years of parole ineligibility pursuant to the Graves Act.
The State dismissed the first two counts against defendant. Defendant stipulated that he had a predicate offense that would make him a certain person not permitted to possess firearms and that the items found in the car fit the legal definition of a firearm.
Prior to trial, the judge held a N.J.R.E. 104 hearing. Mercer County Sheriff's Officer Pablo Santiago testified that, at 9:00 p.m. on August 19, 2008, he was working with the Mercer County Violent Gangs Task Force when they received a tip that a black, four-door GMC Jimmy with a specified license plate occupied by two black males, possibly armed, was in the area of Stuyvesant Street. Santiago found the black GMC Jimmy parked on Stuyvesant Street with two African-American men inside. He parked across the street and observed the Jimmy for approximately twenty-five minutes and radioed in when it drove off. The judge precluded Santiago from mentioning gangs or the police task force during his testimony. Santiago did not testify before the jury regarding the tip.
Lieutenant Scott Schoellkopf testified at trial that he pulled over the Jimmy because he observed that the driver was not wearing a seatbelt. Schoellkopf was accompanied by five other officers when he approached the car. His flashlight illuminated the barrel of a shotgun and ammunition in the rear of the car. The driver was ordered out, and it was later determined that the Jimmy was registered to defendant's girlfriend. After obtaining a search warrant, the officers searched the car the next day and found both guns, ammunition, as well as a laundry bag and a black hooded sweatshirt.
Co-defendant Abdullah testified for the defense that he paid defendant to give him a ride. Abdullah claimed he brought with him the two guns and ammunition, placed in a laundry bag full of clothing, which he put in the back of the car.
During jury deliberations, the jury asked "why the Jimmy was under surveillance. What tipped the officers off to the car?" The judge and parties agreed that the information sought was not in evidence and should not be supplied to the jury.
On appeal defendant raises the following issues:
POINT I: OFFICER SANTIAGO'S TESTIMONY CONCERNING HIS SURVEILLANCE OF THE VEHICLE OCCUPIED BY DEFENDANT AND CO-DEFENDANT WAS INADMISSIBLE HEARSAY THAT LED THE JURY TO BELIEVE THE POLICE HAD SUPERIOR KNOWLEDGE OF DEFENDANT'S GUILT, AND THE FAILURE TO BAR SUCH TESTIMONY DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AGAINST HIM. (Partially raised below). POINT II: THE PROSECUTOR'S EGREGIOUS ...