On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 00-12-2077.
Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal addresses another issue arising from the Supreme Court's decision in State v. Ragland, 105 N.J. 189 (1986) concerning a prosecution of the criminal offense of possession of a weapon by a convicted felon pursuant to N.J.S.A. 2C:39-7. We hold that where a defendant is indicted and charged with both a charge of unlawful possession of a weapon pursuant to N.J.S.A. 2C:39-5b, and a charge of possession of a weapon by a convicted felon pursuant to N.J.S.A. 2C:39-7, and the issue of"possession" is contested, if the State elects to administratively dismiss the unlawful possession charge to proceed solely on the possession by a convicted felon charge, the issue of"possession" must be tried first, absent any knowledge by the trier of fact of the defendant's prior conviction. This ruling is consistent with the fundamental underpinning of the Court's decision in Ragland that proof that a defendant is a convicted felon"clearly tends to prejudice the jury in considering" the issue of whether the defendant"possessed" the weapon. Id. at 193.
Defendant Kevin E. Brown appeals from his conviction for possession of a weapon by a convicted felon and from the sentence imposed. Defendant was charged in Monmouth County Indictment Number 00-12-2077 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:39-7b (count two).
The charges against defendant arose from an incident that occurred on Fourth Avenue in Asbury Park on August 28, 2000, at approximately 10:20 p.m. Sergeant Terrance Fellenz of the Asbury Park Police Department was the patrol supervisor for the four-to midnight shift on that date. Fellenz responded in his patrol vehicle to assist an officer who had been dispatched to 304 Fourth Avenue. When he arrived at that location, Fellenz observed defendant, sitting astride a bicycle, speaking with two other men. Defendant matched the description of the person described by the dispatcher. Fellenz stopped, exited his vehicle, and approached the three men. After instructing defendant not to move away, defendant let the bicycle fall to the ground and started walking toward the entrance to the building at 304 Fourth Avenue.
As defendant walked toward the entrance, he reached under his sweatshirt, whereupon Fellenz drew his weapon and ordered defendant to put his hands up. As defendant reached two pillars that were located on either side of the entranceway, he extended his right arm away from his body, then turned around with his hands up. After defendant was secured, a search of his person disclosed no weapons. Two other officers who had arrived at the scene searched the area and found a 9-millimeter semi-automatic loaded handgun and holster in a grassy dirt area behind one of the pillars. Although Fellenz had not heard anything drop when defendant had extended his right arm, he believed defendant had possessed the weapon and discarded it prior to being searched. Some fingerprint impressions were on the handgun, but they lacked sufficient detail for comparison purposes. Defendant was charged with unlawful possession of the handgun and possession of a weapon by a convicted felon.
The matters came before the Law Division for trial on June 19, 2001. The State first advised the court it was aware that the charges in the indictment had to be severed for trial pursuant to Ragland, supra, 105 N.J. at 193-96, but stated that it intended to try the possession of a weapon by a convicted felon charge against defendant in count two first because it was the more serious of the charges. The State contended it had the sole discretion to determine the order in which the matters were to be tried. Defendant objected. The trial judge rejected the State's contention, stating, in pertinent part:
I don't think that's an appropriate statement... of the law. Firstly,... the second count involves possession of a weapon by a convicted felon. Defendant evidently has been convicted of aggravated manslaughter. Now, that has a lot of splash with the jury. And no matter how many times you tell the jury that they may not consider that in terms of prejudicing the defendant and it cannot be used as an inference of guilt just because he has a prior record, although it's an element of the offense, the jury has to know it, it would appear to me that that's basically an attempt to bootstrap a more favorable jury on the issue of possession, which is the real key to the case.
So in terms of fairness, I do think it's the court's business. And the second reason is, as the prosecutor alluded to, if the second count's tried first, it's an automatic that a brand new jury is going to have to be sequestered and impaneled to try the first count again.
That involves judicial economy. That is the court's business in terms of the appropriate usage of the court's time, judicial economy, and I think that is my case. So I'm going to order that the State proceed on count one.
Thereafter, a jury was selected and impaneled, but not sworn. During the jury selection process, the prospective jurors were informed that defendant was charged with the unlawful possession of a weapon. After the jurors were excused for the day, the judge advised counsel that the State had shifted its position, stating, as follows:
The ruling with respect to the order of trial of the counts of the Indictment has been placed on the record. The prosecutor, as the jury was coming in and at my request in chambers, has now indicated that they choose to dismiss the first count, leaving [us] to try only the second count, certain ...