June 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHONDALE GRADY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-10-0977.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges Lefelt and Parrillo.
A Passaic County jury convicted defendant of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a); third-degree aggravated assault of a police officer, N.J.S.A. 2C:12-1b(5)(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and fourth-degree possession of a firearm with a defaced serial number, N.J.S.A. 2C:39-3d. After conviction, the trial judge granted the State's motion for an extended term and sentenced defendant to eight years imprisonment with four years of parole ineligibility. Defendant appeals arguing that the trial court erroneously admitted into evidence the handgun allegedly confiscated from his person, a photograph of the handgun and the bullets it contained, and a bullet nearly identical to those contained in the gun. Defendant also contends that his extended term sentence was unjust because it violated State v. Natale, 184 N.J. 458, 484 (2005), a Supreme Court cased decided after the criminal proceedings below, and because the court double counted as an aggravating factor the victim's status as a law enforcement official.*fn1 We affirm defendant's conviction, but remand for resentencing pursuant to Natale.
Because the issues raised by defendant relate to the evidence presented at trial and his sentence, we need not recount the facts in great detail. It is sufficient to note that defendant's arrest grew out of an undercover investigation conducted by Passaic County law enforcement officials in the City of Paterson. Although the operation had not targeted defendant, the participating officers were made aware of defendant's presence in the area of the investigation and that he had an outstanding warrant for his arrest.
Upon approaching defendant, one of the arresting officers yelled: "Police. Stop, Shondale." Defendant did not stop and instead, fled the scene. A pursuit ensued, during which defendant slammed a door into the pursuing officer's right foot and arm, kicked and pushed the same officer, and pointed a silver handgun directly at him. Finally, defendant was subdued and arrested. In due course, the State filed the charges which are the subject of this appeal against him.
On appeal, defendant first argues that the trial court erroneously admitted the handgun into evidence because the State failed to establish an uninterrupted chain of custody, especially because the State's witness failed to identify any distinguishing features of the weapon and because there were gaps in the chain of custody.
However, "the State is not obligated to negate every possibility of substitution or change in condition of the evidence." State v. Brunson, 132 N.J. 377, 393 (1993). Instead, evidence is admissible if the trial court "finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed. Id. at 393-94 (quoting State v. Brown, 99 N.J. Super. 22, 23 (App. Div.), certif. denied, 51 N.J. 468 (1968)). Any defect found in the chain of evidence "goes to the weight, not the admissibility of the evidence introduced." State v. Morton, 155 N.J. 383, 446 (1998) (quoting United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995)).
Considering this argument in light of the pertinent law and the record, we conclude that the handgun was properly admitted. The pursuing officer testified that he personally disarmed defendant and secured the handgun. That detective also verified that the gun identified and subsequently admitted into evidence at trial was the gun he had previously confiscated from defendant. The claimed gaps in the chain of custody, namely the testing of the gun by other law enforcement agencies, go only to the weight of the evidence, and in this instance do not preclude admissibility. Even if links in the chain of custody are technically broken, the evidence can still be admitted if the integrity of the evidence is demonstrated by other credible evidence, as it was here. See In re Lalama, 343 N.J. Super. 560, 567 (App. Div. 2001).
Defendant further argues that a Polaroid photograph of a plastic bag containing the handgun and bullets was inappropriately admitted as it was irrelevant, redundant, and not properly authenticated. In the alternative, defendant argues that even if relevant, the photograph should have been excluded as it caused undue prejudice by preventing defendant from presenting a "strong fabrication defense" and had little probative value.
The photograph was properly admitted as it provided some proof that the handgun was loaded when defendant was arrested. For the same reason, therefore, it was not cumulative. And based on the State's testimony that the bullets were "consumed during the test firing procedure in th[e] case and [were] no longer available," the photograph tended to establish the danger created by defendant's carrying the weapon as well as the seriousness of the threat made by pointing the gun at the officer.
Furthermore, the photograph was properly authenticated, as the pursuing officer identified the handgun in the photograph as the same one he took from defendant, establishing that "the photograph [wa]s an accurate reproduction of what it purports to represent." State v. Wilson, 135 N.J. 4, 15 (1994). The fact that this officer did not also take the photograph and was not present at the time the picture was taken does not negate the authentication. Id. at 14.
It should finally be noted that the State's object in presenting evidence in a criminal trial is to meet its burden of proof to establish the crimes charged against defendant beyond a reasonable doubt. Obviously, if the State carries this burden, some of defendant's defenses will be undercut. To suggest that this consequence should somehow render the State's evidence inadmissible is wholly frivolous.
Defendant next contends that the trial judge erred by admitting into evidence a bullet not found with the handgun. Defendant suggests that because of this fact, the bullet was not relevant, and its admission must have confused the jury and prejudiced defendant by implying that the gun was operable.
The bullet was properly admitted as relevant, demonstrative evidence. See State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). The bullet was supplied so the jury could visualize what it was they were seeing in the Polaroid photograph of the gun and bullets, which had been correctly admitted into evidence but was blurry and difficult to see. Because the actual bullets were consumed during test firing, only a "similar" bullet was available for the jury to view.
In conclusion, we find no merit in any of defendant's arguments regarding the admissibility of evidence. Admissibility of evidence questions are, after all, "committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." Brown, supra, 99 N.J. Super. at 27. No such mistake occurred here.
Finally, defendant claims the trial court erred in sentencing, as it double counted an aggravating factor, and that a Natale remand is otherwise appropriate. The State agrees that a Natale remand is required, so that defendant may be resentenced without consideration of any presumptive term. Natale, supra, 184 N.J. at 487-88.
Although defendant must be resentenced, we discuss the double-counting argument to assist the parties at resentencing. The fact that defendant assaulted a police officer, which is an element of two of the crimes charged against him, may not also be used as an aggravating factor. State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984), certif. denied, 102 N.J. 234 (1985). "Where an essential element of a crime is a specific fact, here the police status of the victim, that element may not be used as an aggravating factor to impose a custodial sentence that is longer than the presumptive term or to impose a period of parole ineligibility." Ibid.
Both the assault and resisting arrest charges were dependent upon the victim's status as a police officer. That fact could not then be used as an aggravating factor for the sentence imposed on either of those charges, especially because defendant was not convicted of possession of a weapon for an unlawful purpose. His only weapon convictions were for unlawful possession and possessing a handgun with a defaced serial number. Unlike the situation in State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987), cited by the State, the police officer here was not the victim of defendant's weapon possession charges and his law enforcement status could not therefore be properly considered as an aggravating factor in the sentencing of those charges.
In conclusion, for the reasons explained, we vacate the sentence and remand for resentencing pursuant to State v. Natale. We otherwise reject all of defendant's other arguments and affirm the conviction.
Affirmed in part, vacated in part, and remanded for resentencing.