On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 99-12-0691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Holston, Jr.
Defendant was charged in an eight-count indictment as follows*fn1 : (1) first-degree armed robbery, N.J.S.A. 2C:15-1a(2); (2) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (4) fourth-degree possession of a prohibited weapon (defaced handgun), N.J.S.A. 2C:39-3d; (5) third-degree receiving stolen property (a 1991 Mazda), N.J.S.A. 2C:20-7a; (6) third-degree theft by unlawful taking (a Chevy Camaro), N.J.S.A. 2C:20-3a; (7) fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1a; and (8) second-degree certain person not to have weapons, N.J.S.A. 2C:39-7b. Defendant was tried, along with his two co-defendants, Orlando Irizarry and Thomas Dawkins.*fn2
At the end of the State's case, the judge granted motions to enter judgments of acquittal on counts five and seven. On the remaining counts, the jury acquitted all defendants of the two remaining substantive charges, robbery (count one) and theft of the Chevy Camaro (count six). Defendant was found guilty of the possessory offenses (counts two, three, four and eight). He was sentenced on count two to an extended term as a persistent offender, see N.J.S.A. 2C:44-3a, of twenty years imprisonment with a ten-year parole disqualifier. He received concurrent sentences on the remaining counts as follows: on count three, four years with a two-year parole disqualifier; on count four, nine months; and on count eight, nine years with a four-and-one-half-year parole disqualifier.
On appeal, defendant argues:
THE TRIAL COURT'S INSTRUCTION ON POSSESSION, PERMITTING THE JURORS TO INFER THAT THE PASSENGERS OF THE TAXI JOINTLY POSSESSED THE GUN FOUND THEREIN, OMITTED ESSENTIAL PORTIONS OF THE MODEL CHARGE ON N.J.S.A. 2C:39-2, AND UNCONSTITUTIONALLY RELIEVED THE STATE OF ITS BURDEN OF PROVING GUILT OF THE FOUR WEAPONS OFFENSES BEYOND A REASONABLE DOUBT. CONSEQUENTLY, PRATT'S CONVICTIONS ON THE WEAPONS POSSESSION COUNTS MUST BE REVERSED. (Not Raised Below).
THE JURY CHARGE ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONSTRAINED THE JURORS TO CONSIDER ONLY THE UNLAWFUL PURPOSE OF POINTING THE FIREARM AT CALHOUN TO INTIMIDATE HIM, AN ELEMENT OF ROBBERY. SINCE MR. PRATT'S ACQUITTAL OF THE SUBSTANTIVE ROBBERY CHARGE ELIMINATED THE SOLE UNLAWFUL PURPOSE SET OUT IN THE JURY INSTRUCTION ON POSSESSION FOR AN UNLAWFUL PURPOSE, HIS CONVICTION ON THAT POSSESSION CHARGE MUST BE REVERSED.
We agree with Point II and reverse defendant's conviction for possession of a weapon for an unlawful purpose. We reject Point I and affirm defendant's convictions on counts three, four and eight, but remand for reconsideration of sentence on those counts.
On the evening of September 4, 1999, Timothy Calhoun called the Burlington City police and reported that he had been robbed at gunpoint by three men. Calhoun gave this version of the incident. He was walking alone in an area near his residence, when three men pulled up in a Mazda automobile and inquired of him regarding the availability of drugs in the area. One of the passengers, later identified as defendant, got out of the automobile and urinated in an alley. When defendant returned, he pointed a handgun at Calhoun and demanded that Calhoun give up his valuables. The other passenger got out of the vehicle, and the two assailants took from Calhoun his gold chain and medallion, cell phone and some cash. The three men attempted to leave the scene in the Mazda. However, when the car would not start, they left on foot.
When reporting the incident, Calhoun informed the police of the direction in which the three men had left and gave descriptions of the assailants. After a series of police broadcasts, about an hour later, three men matching the descriptions given by Calhoun were seen on foot along Route 130, about one-and-one-half miles from where the robbery allegedly occurred. There was also a report of an accident involving a Camaro automobile in that area. The unoccupied Camaro, which had been reported stolen, was found in that area, partly off the roadway with its headlights on.
By the time the police arrived, two of the men, defendant and Irizarry, had gotten into a taxicab. Dawkins was walking along Route 130 and was apprehended on foot. The taxicab was in a stationary position in a parking lot. Irizarry was seated behind the driver, and defendant was seated in the right rear passenger seat. The two men were attempting to negotiate a fare with the driver to take them to Trenton. The police first directed the driver to get out of the car, and then ordered defendant and Irizarry out at gunpoint and handcuffed them.
The police searched defendant and Irizarry. They found no gun, but their search of defendant yielded $56 in currency. The police recovered a loaded .380 handgun from the floor on the right side of the taxicab's rear passenger compartment. The gun was partially concealed under the front seat. The gun's serial number had been scratched off.
The taxicab driver testified that he drove the same cab every day. It was not his practice to check the cab after each shift for articles that passengers might have left behind. He typically picked up at least fifteen fares per shift, and that evening he had already picked up four or five fares before defendant and Irizarry entered his cab. No fingerprint evidence linked any of the three men to the handgun, the Mazda or the Camaro.
At the police station, a gold chain with a medallion was recovered when it was allegedly discarded by defendant, although it had not been found on his person when he was searched. The police gave the chain and medallion to Calhoun. However, in his trial testimony, Calhoun said the medallion given to him by the police differed from the one he had reported stolen. He had told the police the medallion contained a gold scorpion, yet he described the medallion returned to him as bearing the likenesses of Jesus and Mary. Calhoun's testimony included this exchange:
Q: You told the police you had a ...