On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-01-0039.
Before Judges Stern, A. A. Rodríguez and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 3, 2000
The question of first impression posed by this appeal is whether the trial-bifurcation requirements outlined in State v. Ragland, 105 N.J. 189, 193-96 (1986) of an indictment charging a defendant simultaneously with unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7, still apply when the defendant has, during his jury trial on the unlawful weapon possession charge, elected to testify and has been questioned concerning his prior criminal record. Here, after defendant testified, the trial judge elected to "reconstitute the case" and submit both the unlawful possession of a weapon and the possession of a weapon by a convicted felon charges simultaneously to the jury.
The sole purpose of the admission of defendant's prior criminal record was on the issue of his credibility. N.J.R.E. 609. "Recognizing that a jury might use a prior conviction as evidence of a defendant's criminal disposition and not as evidence probative of a defendant's credibility, . . . trial courts must explain carefully to juries the limited purpose for which the prior- conviction evidence may be used." State v. Brunson, 132 N.J. 377, 390 (1993).
We conclude that submission of both charges simultaneously to the jury, after defendant had testified and been examined concerning his prior criminal convictions, improperly expanded the purpose for admission of defendant's prior criminal record from that of "credibility," to consideration as "substantive proof" of an element of a criminal offense, and constitutes plain error. See R. 2:10-2. Accordingly, we reverse and remand for new, bifurcated trials.
Defendant, Michael Wray, was indicted and charged with third- degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39- 5b (count one), and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7 (count two).
The charges against defendant arose from the November 10, 1997 motor vehicle stop of defendant by Passaic County Sheriff's Officer Rafael Galan, based on an expired inspection sticker. A computer check of the license plate did not match the description of the vehicle stopped and defendant was unable to produce any ownership documentation for the vehicle, stating the vehicle belonged to a friend. Additionally, Officer Galan effected an arrest of defendant after determining there was an outstanding traffic-fines arrest warrant for defendant. Galan testified that after the arrest defendant advised him there was a loaded handgun in the trunk belonging to a friend named "General." A search of the trunk revealed a .25 caliber handgun.
Prior to defendant testifying, the trial judge confirmed defendant's understanding that "if he does choose to testify the State can use those prior convictions to impeach his credibility[.]" Defendant testified he was in the business of simonizing and detailing cars in Orange "on Presidential Boulevard out of a garage." Defendant stated that on November 10, 1997 a person named "General" dropped-off the vehicle in question to the garage for detailing, telling defendant "to deliver the car to  North First Street" when completed. Defendant testified that after completing the job, he was on his way to deliver the vehicle to General when he was stopped by Officer Galan.
When asked by Galan for the vehicle's registration, defendant stated he was unable to find any ownership papers for the vehicle in the glove compartment.
Defendant denied telling Galan there was a weapon in the trunk. Defendant also stated his later attempts to locate "General" were unsuccessful. On the issue of credibility, defendant was questioned concerning his criminal record, admitting he was previously convicted of third-degree theft; two separate convictions of third-degree burglary; two separate convictions of third-degree possession of a controlled dangerous substance with intent to distribute in a school zone; fourth-degree criminal trespass; and fourth-degree receipt of stolen property.
The counts and charges in the indictment were initially bifurcated for separate trials before the same jury, as required by Ragland, supra, 105 N.J. at 193-96.
After both parties rested, the trial judge, sua sponte, determined to simultaneously submit to the jury the charges against defendant contained in both counts stating, in pertinent part:
With respect to the 2C charges, I'm going to reconstitute the case, so to speak. The trial was originally bifurcated because of the concern with respect to the defendant's right against self-incrimination and his prior conviction, especially for burglary.
But what has happened, Mr. Wray has elected to take the stand and that is now in the case. I believe that the better procedure at this juncture would be to reconstitute the case as opposed to keeping it on a bifurcated basis because I think the only effect could possibly be to confuse or mislead the jury and what I'm going to do here is I will tell the jury that there are two counts for them to consider and I did not mention that second count for legal ...