On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Weissbard, Gilroy and Baxter.
Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35- 5(b)(3) (count two); third-degree possession of CDS with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine); second-degree possession of a weapon while committing a narcotics offense, N.J.S.A. 2C:39-4.1 (count ten); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count eleven); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7 (count twelve). The jury acquitted defendant on counts four, five and six, which charged fourth-degree aggravated assault by pointing a firearm, and two counts of third-degree assault on a police officer.
At sentencing, the judge granted the State's motion to sentence defendant to a mandatory extended term as a prior Graves Act offender pursuant to N.J.S.A. 2C:43-6(c), and as a prior drug distribution offender pursuant to N.J.S.A. 2C:43-6(f). After merging counts one and two with count three, the court sentenced defendant as follows: on count three, to a ten-year term of imprisonment, with a five-year parole ineligibility term; on count seven, to a five-year term of imprisonment, to run concurrent with the sentence on count three; on count eight, to a twenty-year term of imprisonment, of which half was ordered to be served without parole eligibility, concurrent to the sentence imposed on count three; on count nine, to a five-year term of imprisonment, concurrent with count eight; on count ten, to a ten-year term of imprisonment, with a five-year parole ineligibility term, concurrent to the sentence on counts eight and nine, but consecutive to the sentence on count three; on count eleven, to eighteen months imprisonment, concurrent to the sentence on counts eight, nine and ten, but consecutive to the sentence on count three; and on count twelve to a ten-year term of imprisonment, consecutive to the sentence on the other counts, but concurrent to a parole violation sentence defendant was serving at the time of sentencing. The aggregate sentence imposed totaled forty years imprisonment, with a fifteen-year parole ineligibility term.
On appeal, defendant presents the following claims:
I. THE PROSECUTOR'S QUESTIONS INFORMED THE JURY THAT DEFENDANT MADE NO STATEMENT PRIOR TO TRIAL, THEREBY DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.)
II. MICHAEL BROWN'S TESTIMONY THAT HE BELIEVED THAT DEFENDANT RAN FROM THE POLICE BECAUSE HE WAS ON PAROLE, CONSTITUTED HIGHLY PREJUDICIAL IMPERMISSIBLE OTHER CRIME EVIDENCE WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
III. THE JURY INSTRUCTIONS, WHICH FAILED TO DEFINE AN ELEMENT OF RESISTING ARREST AND POSSESSION OF A DEFACED FIREARM AND EXPLAINED A DEFENSE NOT RAISED BY DEFENDANT, DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)
A. The Trial Court Failed to Define the Element of Physical Force or Violence in its Instruction on Resisting Arrest.
B. The Trial Court Omitted the Element of Knowledge of Defacement in its Instruction on Possession of a Defaced Firearm.
C. The Court Erred in Giving the Jury a Charge on Identification Where Identity Was Not An Issue.
IV. WHEN THE PROSECUTOR VOUCHED FOR HIS WITNESSES, EXPRESSED HIS PERSONAL BELIEF IN DEFENDANT'S GUILT, MISSTATED THE FACTS AND LAW, AND MOCKED DEFENSE COUNSEL, HE DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Raised in Part Below)
A. The Prosecutor Vouched for the Credibility of His Witnesses and Misstated the Law.
B. The Prosecutor Shifted the Burden of Proof.
C. The Prosecutor Misquoted the Facts.
D. The Prosecutor Disparaged Defense Counsel.
V. DEFENDANT'S SENTENCES, ALL MAXIMUM, MOST WITH MAXIMUM PAROLE INELIGIBILITY, ARE EXCESSIVE AND MUST BE REDUCED; THE INORDINATELY CONSECUTIVE NATURE OF THE AGGREGATE SENTENCE OFFENDS STATE V. YARBOUGH; AND EACH SENTENCE MUST BE REMANDED PURSUANT TO STATE V. NATALE AND/OR STATE V. THOMAS.
A. The Number and Length of the Consecutive Sentences Violates State v. Yarbough.
B. The Sentences Must Be Remanded pursuant to State v. Natale and State v. Thomas.
C. The Court Apparently Imposed Maximum Terms Because There Were No Mitigating Factors and the Court's Sentence was Affected by the Proliferation of Drug Dealers who Threaten Law Enforcement Officials with Firearms.
With the exception of the claims defendant asserts in Points V-A and V-B, his contentions lack merit. We affirm defendant's conviction, but remand for resentencing.
On October 6, 2002, at approximately 1:00 a.m., Sergeant Stanley Rodriguez and Officer Felix Arroyo of the Paterson Police Department were on routine patrol on River Street driving in an unmarked police vehicle. A red bubble light on the dashboard was the only feature that could possibly identify it as a police vehicle. While driving, Rodriguez observed what he believed to be a narcotics transaction. He observed an unidentified male hand paper that Rodriguez believed was paper currency to another man, whom Rodriguez identified at trial as defendant. Rodriguez then saw defendant hand the man a small object.
After observing that exchange, Rodriguez and Arroyo stopped their vehicle and exited. Rodriguez, dressed in plain clothes but wearing a police badge around his neck, ordered both men to stop. Neither obeyed. Defendant dropped a small plastic bag on the ground, and began walking down River Street toward Fifth Avenue; the other man began walking up Sixth Avenue. Rodriguez retrieved the plastic bag and found inside it what he believed was crack cocaine. After Rodriguez advised Arroyo that he had recovered drugs, Arroyo immediately ordered defendant to stop. Defendant fled.
During the ensuing foot chase, Rodriguez saw defendant reach into his waistband and pull out a handgun. Rodriguez drew his service revolver, and while pointing it at defendant, he repeatedly told defendant to drop his weapon. Rodriguez was able to apprehend defendant and tackle him to the ground. Rodriguez testified that defendant struggled to avoid arrest by flailing his arms and legs.
During that struggle, defendant's gun slid under a white van parked near by. Arroyo located and retrieved the gun, which was a .380 caliber semi-automatic weapon with one round in the chamber. The serial number had been scratched off the weapon.
The State produced evidence demonstrating that at the time of arrest, defendant was within 1000 feet of a school.
Defendant testified on his own behalf and denied all of the allegations against him, including having a gun or narcotics in his possession, threatening police officers with a gun, engaging in a hand-to-hand drug sale, and struggling with Rodriguez at the time of arrest. Defendant admitted that he fled upon seeing the police vehicle, but explained he did so only because he feared he would be arrested for warrants for unpaid parking tickets. Defendant testified that he was not tackled by police, but instead tripped onto the ground.
During his testimony, defendant acknowledged that he had been convicted of a first-degree crime in 1995, for which he was sentenced to a fifteen-year term of imprisonment, with five years before parole eligibility. He also acknowledged that in 1995, he was also convicted of a third-degree crime for which ...