STATE OF NEW JERSEY v. MICHAEL J. RAMSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1739-08T41739-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. RAMSEY,

Defendant-Appellant.

___________________________________________________________

 

Submitted January 27, 2010 - Decided

Before Judges Graves, Sabatino and J.N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-09-0730.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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 present in an effort to "secure the entire scene."

Defendant was searched incident to his arrest, and the police recovered items of personal property and $53.42 in cash. Defendant was not in possession of any paraphernalia typically used to ingest drugs, such as pipes, needles, or straws. A chemical analysis later determined the substance the police recovered was cocaine, and at trial the parties stipulated that the "cocaine that was discovered by police . . . on August 10, 2006" had a "total net weight of 3.88 grams."

Sergeant Roman, a narcotics expert, testified the weight of the cocaine recovered in the area where defendant threw an item onto the ground, and the manner in which the cocaine was packaged (in thirteen small plastic bags) were consistent with an intent to distribute "the baggies." He testified the street value of 3.88 grams of cocaine could range "anywhere from $325 to $650." Additionally, Sergeant Roman noted that a user of cocaine usually had "some sort of device to ingest the cocaine or even break the cocaine down."

After the State rested, defendant's attorney argued defendant was entitled to a judgment of acquittal pursuant to Rule 3:18-1. In denying defendant's motion, the court stated that "Officer Hernandez's testimony was unequivocal," and concluded there was sufficient evidence to warrant a conviction if the jury determined that Hernandez was a credible witness.

Defendant did not testify or present any witnesses. On appeal, he argues as follows:

POINT I

IT WAS ERROR TO DENY DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AT THE CONCLUSION OF THE STATE'S CASE.

THE STANDARD FOR THE MOTION.

THE EVIDENCE AT TRIAL.

THE LAW ON POSSESSION OF CDS.

THE LAW AS APPLIED TO THIS CASE.

POINT II

IT WAS ERROR TO ALLOW THE PROSECUTOR'S REFERENCE IN HER CLOSING AND REPETITIOUS TRIAL TESTIMONY ABOUT THE OFFICER DRAWING HIS GUN AND INSTRUCTING DEFENDANT TO GET ON THE GROUND [NOT RAISED BELOW].

THE STATE'S OPENING.

THE TESTIMONY OF OFFICER HERNANDEZ.

THE TESTIMONY OF OFFICER RAICS.

THE TESTIMONY OF OFFICER TUCHMATULIN.

POINT III

DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.

POINT IV

DEFENDANT'S SENTENCE WAS EXCESSIVE.

Based on our review of the record, the briefs, and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.

With regard to defendant's first point, a defendant is entitled to a judgment of acquittal if "[a]t the close of State's case . . . the evidence is insufficient to warrant a conviction." R. 3:18-1. When considering a motion for acquittal, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). In the present matter, the trial court found there was sufficient evidence to support defendant's conviction if the jury believed the State's witnesses and, in our view, the matter was correctly decided. See State v. Haines, 20 N.J. 438, 446 (1956) ("Credibility is truly an issue for the jury.").

Defendant also argues the prosecutor and the State's witnesses improperly commented on the fact he was apprehended at gunpoint. Defendant claims he was unfairly prejudiced because he was portrayed as a dangerous individual.

When a defendant claims a prosecutor made improper remarks, an appellate court must determine whether the conduct was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In assessing whether a defendant was deprived of the right to a fair trial, we must consider the following factors: whether defense counsel made a timely objection; whether the remark was withdrawn promptly; whether the trial judge ordered the remarks stricken; and whether the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987). Generally, if a defendant did not object to the remarks at trial, an appellate court will not consider them prejudicial, because a lack of objection deprives the trial court of an opportunity to remedy them and suggests defendant did not believe the remarks were prejudicial. State v. Papasavvas, 163 N.J. 565, 625-26 (2000).

In this case, the State and defense counsel stipulated that the prosecutor would not refer to the unrelated murder investigation in which defendant was a suspect, and the police officers would not explain why they approached defendant with their guns drawn. However, it was also agreed that the conduct of the police was "not going to be sanitized." Thus, neither the prosecutor nor the police officers violated the stipulation by referring, without elaboration, to the fact that the officers approached defendant with their guns drawn.

Moreover, defense counsel did not object to any of those references by the prosecutor or witnesses, suggesting that they were not unduly prejudicial at the time. Under these circumstances, we conclude the comments by the prosecutor and the testimony by the officers were not so prejudicial as to deny defendant a fair trial. R. 2:10-2.

In his third point, defendant claims the State failed to perform a constitutionally adequate investigation, which deprived him of his due process rights. A due process violation occurs where the State fails to provide upon request evidence "favorable to an accused" and "material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). "[T]o establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)).

Defendant contends the State's failure to conduct a fingerprint analysis of the film canisters containing cocaine constituted a Brady violation. However, because the police did not conduct a fingerprint analysis of the film canisters found at the scene, the evidence defendant argues was suppressed by the prosecution never existed. Therefore, defendant's Brady claim is without merit.

Lastly, defendant contends his sentence is excessive. At sentencing, the judge noted defendant was twenty years old and this matter was his first indictable offense. However, the court recounted defendant's extensive juvenile history, including adjudications of delinquency for robbery, aggravated assault, theft, loitering, harassment, criminal mischief, disturbing the peace, simple assault, underage possession or consumption of alcohol, and weapons offenses. Defendant also violated the terms of his probation "numerous times." Accordingly, defendant's sentence does not represent a miscarriage of justice or shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

 

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A-1739-08T4

June 29, 2010