On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-01-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Messano.
After a jury trial, defendant Tyheem Stewart was found guilty of third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b. He was sentenced to a period of imprisonment of five years. He now appeals and raises the following points for our consideration:
POINT I THE TRIAL COURT WAS IN ERROR FOR ALLOWING UNDULY PREJUDICIAL EVIDENCE OF ANOTHER PERSON'S INTENTION TO USE A SECOND WEAPON FOR AN UNLAWFUL PURPOSE WHERE DEFENDANT WAS CHARGED WITH A SIMPLE UNLAWFUL POSSESSION OF A WEAPON.
POINT II THE TRIAL COURT WAS IN ERROR FOR NOT GRANTING A JUDGMENT OF ACQUITTAL WHERE THERE WAS NO EVIDENCE OF A KNOWING, INTENTIONAL CONTROL OF THE WEAPON SUCH AS TO CONSTITUTE CRIMINAL POSSESSION.
POINT III THE TRIAL COURT WAS IN ERROR FOR APPEARING TO CONSIDER FACTS NOT DETERMINED BY A JURY IN IMPOSING SENTENCE.
We have carefully considered these contentions in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for re-sentencing in light of State v. Natale, 184 N.J. 458 (2005).
Defendant was indicted with four co-defendants, Khalil Abdul-Aziz, Ishmael Chance, Willie Williams, and Kevin Greene; all, except Greene, were charged in count one of the indictment with possession of a .380 Bryco automatic handgun. In counts two and three of the indictment, Greene alone was charged with the unlawful possession of a 9mm. Lorcin handgun, and possession of that handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a.
The State proceeded to trial against defendant and Chance. The first witness for the State was Detective Keith Rotsaert of the Paterson Police Department. He testified that on October 21, 2001, at approximately 11:00 p.m., he and his partner, Detective Scott Eason, were in full uniform in an unmarked police car when they observed a 1992 Saturn with New York registration run a stop sign. They activated their lights and siren and pulled the vehicle over.
As Rotsaert approached the driver's side of the vehicle, and Eason approached the passenger side, they observed defendant to be the driver of the car. Eason ordered the three rear-seat passengers to place their hands on the headrests in front of them; two did, but the third, later identified as Abdul-Aziz, first made a movement which caught the officers' attention. Rotsaert shined his flashlight on the floor area of the rear seat of the vehicle and saw a silver handgun, the .380 Bryco, on the floor at Abdul-Aziz's feet.
Rotsaert opened the driver's side rear door and ordered the nearest occupant, later identified as Greene, out of the car. He tried to handcuff him, but, when Greene resisted, he had to use mace to subdue him. When he frisked Greene, he found the 9mm. Lorcin handgun.
Eventually, all the vehicle's occupants were placed in custody and the weapons secured by the officers. Co-defendant Chance, the front-seat passenger, was found to be in possession of a pair of latex gloves. Greene's 9mm. Lorcin was loaded with a live round in the chamber and nine other rounds in the magazine clip. The .380 Bryco was loaded with four live rounds. A search of the trunk of the vehicle revealed black and ...