On appeal from the Superior Court of New Jersey, Law Division, Camden County, 05-10-4136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Tried to a jury, defendant was convicted of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count one) and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count two). He appeals from the convictions and from the aggregate custodial term of sixteen years with an eight-year period of parole ineligibility. We affirm the convictions and remand for resentencing in light of State v. Pierce, 188 N.J. 155 (2006), which was decided after defendant had been sentenced.
The State produced testimony from Camden Detective Victor Diaz. He explained that on June 17, 2005, he was involved in an undercover surveillance operation in an area which had been the subject of "numerous complaints, information in reference to narcotics activity and so forth." While on surveillance, he saw defendant produce a black handgun immediately after which defendant was arrested.
Part of defendant's trial strategy was to attack the State's proof that defendant had no license for the handgun. He did so in part by claiming that an affidavit submitted by the State reflected a wrong birth date for defendant. He asked the jury to conclude that the records were not those of defendant and that the State, therefore, had failed to demonstrate that he had no license. He prepared for this argument by cross-examining Diaz on the records used by Diaz in preparing the arrest report respecting the date of birth.
During the course of that examination, Diaz indicated that the data base which he used to prepare the arrest sheet "keeps track of" general information and "criminal history, and so forth." On redirect examination, the prosecutor elicited information that the database utilized is "FBI which would pop up his criminal history and all the stuff that we have from when he was a young person to an adult, so that's the type of database that we have at the central processing." Defendant interposed no objection to that testimony. Nevertheless, shortly thereafter, and without request, the judge told the jury that
[t]here has been some testimony that the police searched a database and there may have been a picture. I understand the pictures and this information come into the police hands from many different sources such as licensing, motor vehicle registration, alcoholic beverage commission, other casino regulated industries, and therefore the fact that such information is available to law enforcement does not mean that an individual has any type of criminal record.
That charge was in substantial compliance with Model Jury Charge (Criminal), Identity-Police Photos (Revised January 6, 1992). Defendant did not object to the charge or suggest any modification.
After the conviction, the judge imposed a discretionary extended-term sentence of sixteen years with an eight-year parole disqualifier on count two and a concurrent custodial term of five years with a two and one-half-year period of parole ineligibility on count one. Appropriate monetary fines and penalties were imposed. On appeal, defendant presents the following points for our consideration.
THE PROSECUTOR'S CONDUCT OF THE TRIAL WHICH SUGGESTED THAT DEFENDANT HAD A PRIOR CRIMINAL RECORD AND INHABITED A VIOLENT CRIME RIDDEN NEIGHBORHOOD, AND HIS COMMENTS IN OPENING THAT HIS ARREST OCCURRED IN A HIGH INTENSITY DRUG AREA CONSTITUTED ...