January 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAL WADE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 DEFENDANT OF DUE PROCESS OF LAW AND A FAIR TRIAL.
POINT IV -- THE DEFENDANT'S CONSECUTIVE SENTENCES AGGREGATING 13 YEARS WITH 8 YEARS OF PAROLE INELIGIBILITY FOR POSSESSION OF A FIREARM BY A PREVIOUSLY CONVICTED PERSON AND FOR POSSESSION OF THE SAME FIREARM WITH INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER ARE MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH CODE OF CRIMINAL JUSTICE.
We conclude that defendant's arguments are without merit, and we affirm his convictions and sentence.
On July 21, 2004, at about 5 p.m. Detective Vaughn Patterson and Sergeant George Vazquez of the Paterson Police Department were riding in an unmarked police car in the area of 11th Avenue and East 22nd Street. Vazquez was driving, and Patterson was in the passenger seat. They were on their way to assist other officers involved in a narcotics investigation. Suddenly they saw two individuals, later identified as defendant and Lawrence Moody, running at full speed in their direction on 11th Avenue. Both men were wearing bandanas covering much of their faces and necks. Vazquez and Patterson saw a "silver object" in the left hand of the defendant and a small safe in his right hand. The officers followed the two men on to East 22nd Street where they crossed in front of the police vehicle. Both Patterson and Vazquez recognized the silver object in defendant's left hand as a handgun, and saw him hand it to Moody. As they ran, the two men continued to look back toward Patterson and Vazquez, which indicated to the officers that they recognized the car as a police vehicle.
Patterson called other police in the area for assistance to stop "possible robbery suspects." Vazquez drove the car up next to the defendant and Moody and saw Moody throw the handgun into some hedges at 523 East 22nd Street. The two men then separated and ran in different directions despite being told to stop. The officers got out of the car and pursued the men. Patterson chased the defendant while Vazquez chased Moody. Defendant turned into a driveway on 11th Avenue and tried to stash some items under a parked car. Patterson then caught up to the defendant and handcuffed him. Looking under the parked car, Patterson found the safe. The silver handgun was later found in the are where Moody threw it.
The safe contained $1,999, in denominations of 195 $1 bills, eighty-seven $5 bills, forty-nine $20 bills, three $50 bills, and a single $100 bill. The safe also contained numerous black rubber bands, two razor blades, two straight-edge razor blades, and a piece of paper with a toll-free number on it. The handgun was unloaded but later found to be operative. At police headquarters Patterson inquired whether there were any burglary or robbery reports that day and was told that there were none. Patterson was not surprised because the contents and number of small bills led him to believe that the safe had been stolen from a drug dealer.
The defense case consisted of the testimony of Moody, who had pled guilty to possessing a firearm for an unlawful purpose. He received an aggregate sentence of eight years with four years of parole ineligibility on that conviction and an unrelated offense of distribution of drugs within 1,000 feet of a school. During his testimony Moody also admitted to convictions of other crimes including about eight drug offenses.
Testifying as to the events of July 21, 2004, Moody said that he purchased the gun from someone on the street and that the defendant was not involved in the purchase. He said he and the defendant were wearing bandanas on their neck and head that day but denied that their faces were covered. He claimed the defendant never possessed the firearm and never passed it to him as the police witnesses had testified. He said that he saw the safe next to a garbage can at East 24th Street and denied that either he or defendant opened it. He added that defendant picked up the safe. They were walking away when they saw the unmarked police car and started running because he had the gun in his hand. When asked about his guilty plea in this case, Moody admitted telling the plea judge that defendant possessed the weapon and passed it to him just before they started running from the police. He explained in his testimony that he lied to take advantage of the generous plea offered by the State.
Following the jury verdict finding him guilty of possessing a firearm for an unlawful purpose and possession of a firearm without a permit to carry, the jury then considered the charge against defendant of possessing a weapon by a previously convicted person. Defense counsel stipulated that defendant had a prior conviction which made him ineligible to possess firearms. Following summation and charge, the jury retired and then convicted defendant.
In his argument respecting the "holdout juror," defendant notes that the jury deliberated for over two hours before indicating they had reached a verdict. When the foreman announced that the guilty verdict was unanimous, the court polled the jury. Juror number six said that she disagreed with the verdict. The judge then told the jury to return to the jury room and await further instructions. Defense counsel moved for a mistrial on grounds that the juror who disagreed with the verdict would be under "astronomical" pressure to vote for guilty. The judge denied the motion. He returned the jury to the courtroom and again instructed them that their verdict must be unanimous and told them to return to the jury room and continue their deliberations. Shortly thereafter, the unanimous guilty verdict was returned.
Defendant argues that the denial of his mistrial motion and the failure to voir dire juror number six to find out what she was thinking was an abuse of discretion by the trial judge amounting to reversible error. He relies upon State v. Vergilio, 261 N.J. Super. 648 (App. Div.), certif. denied, 133 N.J. 443 (1993), but the case is clearly distinguishable. There the issue was not a dissenting or a recalcitrant juror but a distraught juror who told the judge of significant unfair treatment by the other jurors. Here juror number six was not distraught, and she never indicated she was pressured to return a guilty verdict. The judge had the benefit of seeing the juror and hearing the tenor of her comments. We find that the judge exercised proper discretion in directing that the jury continue their deliberations. See State v. Lefkowitz, 335 N.J. Super. 352 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001); State v. Rodríguez, 254 N.J. Super. 339, 348 (App. Div. 1992). Defendant's next argument is that he was prejudiced by the statement of Detective Patterson that he believed the safe was stolen from a drug dealer. No objection was taken to the testimony. The failure to object obviously deprives the judge of an opportunity to give a curative instruction to ameliorate the effect of any improper comment. State v. R.B., 183 N.J. 308, 332-33 (2005); State v. Timmendequas, 161 N.J. 515, 575-76 (1999). Therefore, we must consider whether the alleged error had a real capacity to impair the defendant's right to a fair trial under the plain error standard. State v. Berardi, 369 N.J. Super. 445, 449 (App. Div. 2004), certif. granted, 183 N.J. 213, dismissed, 185 N.J. 250 (2005).
Although there was no hearing on Patterson's qualifications to testify, his knowledge and experience in narcotics investigations was part of his direct testimony. He offered his opinion that the contents of the safe including numerous bills of small denominations and paraphernalia commonly used in drug distribution, together with the fact that there was no reported robbery, led him to assume the safe belonged to a drug dealer. His testimony was obviously intended to have the jury draw the inference that the defendant had participated in a robbery and used the handgun for that unlawful purpose. Moreover, this testimony was supported by the fact that the defendants were observed running with bandanas covering their faces and then fled when they became aware of the presence of police officers. We find that the testimony of Detective Patterson interpreting what he observed was both relevant and proper under the circumstances. State v. Brims, 168 N.J. 297, 304-05 (2001). It did not constitute error, much less plain error.
Defendant next argues that comments in each of the prosecutor's summations denied him a fair trial. Since there was no objection to any of the prosecutor's remarks, the indication is that the defense did not believe they were prejudicial. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). Defendant points to the following remarks in the first proceeding:
The law in this case, ladies and gentlemen, is that the defendant is charged in count one with possession of a handgun for an unlawful purpose. As I indicated before, I think the unlawful purpose in this case is abundantly clear from the evidence that has been so demonstrated to masked bandits running down the street, one armed, one with a safe under his hand, the defendant hands off the gun to his buddy, robbery, burglary. Interesting the (sic) note, no robbery or burglary was ever reported. Again, I submit to you that a drug dealer was robbing a drug dealer. (Emphasis supplied.)
Although the defendant claims that the prosecutor's comment was directed toward him, the record discloses that the focus of the prosecutor's comment related to Moody and his testimony that he was a six-time convicted felon with three drug convictions. The prosecutor was addressing the credibility of Moody as compared to Detective Patterson and Sergeant Vazquez. Furthermore, the term "drug dealer" as applied to Moody was introduced during the defense summation. Noting that our review is under the plain error standard, we find nothing so objectionable in the comments of the prosecutor to justify a reversal.
Next the defendant asserts that the comments of the prosecutor in his summation on the charge that defendant possessed a weapon while previously convicted improperly urged the jury to rely upon their prior verdict that defendant possessed the weapon rather than consider the evidence anew. Defendant cites to State v. Ragland, 105 N.J. 189, 195-96 (1986), holding that in a bifurcated trial, it is not enough to simply produce the prior conviction to satisfy one or more elements of the offense. Id. at 194. In response, the prosecutor points to State v. Brown, 180 N.J. 572 (2004), in which the court affirmed the defendant's conviction in a unitary trial on the charge of possession of a firearm by a convicted person after the jury was given limiting instructions after disclosure of the conviction of the predicate offense. In this case the jury was properly informed by the court not to consider the prior verdict, and we presume that the jury followed that instruction. State v. Manley, 54 N.J. 259, 270 (1969).
Defendant next argues that the consecutive sentences imposed on him were manifestly excessive. He was sentenced to a term of seven years with a statutorily mandated five-year period of parole ineligibility on the conviction of possession of a firearm by a previously convicted person and a consecutive six-year term with three years of parole ineligibility for the conviction for possession of a firearm for an unlawful purpose. Defendant argues that both convictions related to one criminal episode committed at one time and one place and that consecutive sentences should not be imposed where separate crimes grow out of the same series of events. See State v. Lester, 271 N.J. Super. 289, 293 (App. Div. 1994); State v. King, 215 N.J. Super. 504, 521-22 (App. Div. 1987). In response, the State argues that the two crimes committed by defendant survived merger and are separate and distinct offenses deserving separate punishment.
Both the State and the defense cite State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The case was subsequently amended by statute to remove the cap on the imposition of consecutive sentences, State v. Carey, 168 N.J. 413, 423 fn. 1 (2001). However, the sentencing guidelines in Yarbough were not affected, and Yarbough specifically holds that, "there can be no free crimes in a system for which the punishment shall fit the crime." Other guidelines include the following:
Some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) The crimes and their objectives were predominantly independent of each other;
(b) The crimes involved separate acts of violence or threats of violence;
(c) The crimes were committed at different times or different places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [Id. at 643-44.]
As noted by the sentencing judge, the offenses herein were separate and distinct. N.J.S.A. 2C:39-7 prohibits a class of persons with indictable convictions from possessing specified weapons and is based on the legislative judgment that such a person is more likely than another to commit a crime with a weapon. It is distinct from N.J.S.A. 2C:39-4(a), which prohibits the possession of a firearm with the purpose of using it unlawfully against another independently of whether there was a prior indictable conviction. In this case not only were the crimes distinct but they also involved separate acts committed at different times. Defendant possessed the handgun and later formulated the independent purpose of using it unlawfully in the commission of a robbery. There is no basis to restrict the sentencing judge to the imposition of concurrent sentences in these circumstances. To do so would be contrary to the Yarbough holding of "no free crimes."
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