On appeal from Superior Court of New Jersey, Law Division, Passaic County, 04-12-1781-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Collester and C.L. Miniman.
Tried to a jury, defendant was convicted of second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a), and third-degree possession of a firearm without a permit to carry it, contrary to N.J.S.A. 2C:39-5(b).
Following the verdict on these charges, defendant was tried and convicted by the same jury for possession of a firearm having previously been convicted of a crime, contrary to N.J.S.A. 2C:39-7. On October 21, 2005, he was sentenced by Judge Randolph M. Subryan, the trial judge, to an aggregate term of thirteen years with eight years of parole ineligibility. Defendant appeals his convictions and sentence setting forth the following arguments:
POINT I -- THE TRIAL JUDGE ERRED IN REFUSING TO ORDER A MISTRIAL IN THIS TRIAL OR IN FAILING TO VOIR DIRE THE HOLDOUT JUROR AFTER THIS JUROR INDICATED DURING THE POLLING OF THE JURY THAT SHE DID NOT AGREE WITH THE 11 OTHER JURORS' GUILTY VERDICT.
POINT II -- DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING DETECTIVE PATTERSON TO OFFER INADMISSIBLE, IRRELEVANT OPINION TESTIMONY. (Not Raised Below.)
A. PATTERSON'S OPINION TESTIMONY THAT THE SAFE HAD BEEN STOLEN FROM A DRUG DEALER WAS COMPLETELY IRRELEVANT AND HAD NO FOUNDATION IN EITHER THE EVIDENCE OR REALITY.
B. PATTERSON'S OPINION TESTIMONY THAT THE SAFE HAD BEEN STOLEN BY THE DEFENDANT FROM A DRUG DEALER WAS INADMISSIBLE AS IT EMBRACED AN OPINION ON THE ULTIMATE ISSUE OF GUILT OR INNOCENCE.
POINT III -- THE PROSECUTOR'S MISCONDUCT IN SUMMATION DURING THE TRIAL OF BOTH THE DEFENDANT'S CONVICTION FOR POSSESSION OF A FIREARM WITH THE PURPOSE TO USE IT UNLAWFULLY AGAINST ANOTHER AND IN DEFENDANT'S TRIAL FOR POSSESSION OF THE SAME FIREARM HAVING BEEN A PREVIOUSLY CONVICTED FELON, DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS.
V, VI AND XIV; N.J. CONST (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below.)
A. THE PROSECUTOR'S COMMENTS IN SUMMATION DURING THE TRIAL OF COUNTS ONE AND TWO (POSSESSION OF A FIREARM WITH THE PURPOSE TO USE IT UNLAWFULLY AGAINST ANOTHER AND POSSESSION OF A FIREARM WITHOUT THE REQUISITE PERMIT TO CARRY IT) DENIED THE DEFENDANT A FAIR TRIAL.
B. THE PROSECUTOR'S COMMENTS IN SUMMATION IN THE TRIAL OF THE DEFENDANT FOR COUNT THREE, POSSESSION OF A FIREARM BY A PREVIOUSLY CONVICTED FELON, DEPRIVED THE ...