On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-09-0874.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Lyons.
After a five-day jury trial, defendant Henry Duncan was convicted of the unlawful possession of a handgun, a third-degree crime under N.J.S.A. 2C:39-5b, and a second-degree "certain persons" weapons offense, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:39-7. The trial judge imposed an extended prison term of thirteen years on the certain-persons offense, and a concurrent five-year term on the unlawful possession offense.
Defendant appeals his convictions and his sentence. We affirm the convictions, although we preserve defendant's claim of ineffective assistance of counsel for a future application for post conviction relief (PCR). However, we remand for resentencing pursuant to recent case law.
According to the State's proofs, the underlying facts involved defendant's constructive possession of a handgun located beneath the porch floorboards of a house. At about 1:15 a.m. on June 2, 2003, two Paterson patrolmen, Officers Tabor and Pacelli, who were performing a drug surveillance, climbed up on the roof of an abandoned garage. They spotted defendant and a female, co-defendant Nakima Laboo, conversing in front of a nearby house. Laboo then walked onto the porch of the house and removed several floorboards. She placed the floorboards on a railing that surrounded the porch. Laboo then laid down for several seconds on the porch where she had removed the boards. She then got up and walked back to defendant in front of the house.
Defendant and Laboo spoke to one another again briefly. They then walked back to the porch together. While Laboo remained standing, defendant bent down and began peering in the area where Laboo had removed the floorboards. Neither of them rang the doorbell or knocked on the front door.
Having noted this suspicious behavior from their perch above the garage, the officers radioed a backup police unit. Two more patrolmen, Findlay and Mayasoto, who were in a patrol car two blocks away, promptly responded. As they approached, defendant was on all fours over the hole in the porch. According to Officer Findlay, he could see the soles of defendant's feet and his legs were flat on the floor.
When he sensed the patrolmen coming towards him, defendant abruptly stood up. Officers Findlay and Mayasoto reached the porch, and proceeded to pat down and frisk defendant and Laboo. Although the police found nothing illegal on defendant's person, they did recover twenty-five baggies of marijuana from Laboo's pants pocket.
Meanwhile, Officers Tabor and Pacelli arrived on the porch. Officer Tabor shined his flashlight in the hole left by the missing floorboards. The light illuminated a black pistol, which Officer Tabor described as "sitting right on the dirt." The officers seized the gun. It was later confirmed by the State Police to be a loaded, semi-automatic Bersa Firestorm handgun.
The prosecution presented at trial the testimony of Officers Tabor and Findlay, plus the testimony of a narcotics expert and a ballistics expert. The defense called no witnesses, but did move into evidence various photographs of the surveillance area.
The State's theory was that defendant and Laboo were both in constructive possession of the handgun, even though it was not seen physically on their persons. As part of the jury instructions, the judge issued the model charge on constructive possession, with a slight modification that had been proposed by defendant's counsel. With respect to the "certain persons" count, defendant stipulated that he had previously been convicted of a crime that made him legally ineligible to possess a handgun.
After deliberating for about five hours, the jury convicted defendant of the two weapons offenses noted above. The jury likewise convicted Laboo of illegal constructive possession of the gun, as well as possessing a controlled dangerous ...